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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".
UNITED STATES of America, Plaintiff-Appellant, v. David B. MITCHELL, et al., Defendants-Appellees.
No. 84-8484.
United States Court of Appeals, Eleventh Circuit.
Sept. 3, 1985.
Rehearing and Rehearing En Banc Denied Oct. 11, 1985.
James M. Deichert, Sp. Atty., Atlanta, Ga., Glenn L. Cook, Trial Atty., U.S. Dept, of Justice, Crim. Div. Washington, D.C., for plaintiff-appellant.
P. Bruce Kirwan, Atlanta, Ga., for Todd.
Bruce Maloy, Atlanta, Ga., for J. Blake.
Bruce Morris, Atlanta, Ga., for L. Logan.
John 0. Ellis, Jr., Federal Defender Program, Atlanta, Ga., for Mitchell.
Before TJOFLAT and VANCE, Circuit Judges, and ATKINS , District Judge.
Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation.
VANCE, Circuit Judge:
This appeal comes to us following the district court’s dismissal of a federal grand jury indictment. In October 1982 seven men were indicted on numerous counts of conspiracy, possession of and distribution of large quantities of marijuana. The indictment was sealed until February 1984, when five of the seven were taken into custody. The district court granted the defendants’ motion to dismiss because it found that the defendants were prejudiced by the government’s undue delay in unsealing the indictment. Although we affirm the district court’s finding that the government did not make a good faith effort to locate and apprehend all seven suspects, we nevertheless vacate its judgment and remand the case to the district court to determine whether any of the defendants can demonstrate the actual prejudice required to justify dismissal.
On October 19, 1982, a federal grand jury in the Northern District of Georgia returned an indictment against David Brydie Mitchell, Larry McKinley, Jeff Blake, Robert Lowery Logan, Henry “Gene” Scarboro Todd, William Sharp, and Phillip Anthony. They were charged with two counts of conspiracy to possess with intent to distribute marijuana and five counts of possession with intent to distribute marijuana. James Deichert, an attorney from the Organized Crime Strike Force who headed the case for the Justice Department, appeared before a federal magistrate and requested that the indictment be sealed until at least one of the defendants was taken into custody. Deichert testified that the transactions charged in the indictment involved millions of dollars and that the defendants, particularly Mitchell, had access to large sums of money both in the United States and abroad. According to Deichert, the defendants, particularly Mitchell, Sharp and McKinley, had indicated a propensity to flee if they learned of the pending indictment. He said the government needed time to locate all seven defendants so that it could arrest them in one fell swoop and avoid having some of the individuals escape the jurisdiction. The magistrate ordered the indictment sealed at the conclusion of the ex parte hearing.
The government obtained a superseding indictment on January 17, 1983. It was also sealed. The superseding indictment realleged the first seven marijuana counts and added two counts against Mitchell for making and subscribing false tax returns for the years 1977 and 1978.
Mitchell learned of the indictment and surrendered to authorities in Atlanta on February 6, 1984. Four other defendants also surrendered or were arrested that day. McKinley and Sharp remained fugitives as of the date of oral argument.
The defendants moved to dismiss the indictment as a violation of their sixth amendment rights to a speedy trial pursuant to Fed.R.Crim.P. 48(b). Essentially, they claimed that the indictment was sealed for an excessive period because the government agents did not make a diligent, good faith effort to locate and apprehend the seven indicted men. They further pointed out that the statute of limitations had run on the seven marijuana counts while the indictment was sealed. They were thus deprived of the benefit of the statute of limitations by the secret indictment.
A federal magistrate conducted an evidentiary hearing on the motion to dismiss and recommended against dismissal. The district judge held further hearings and dismissed the first seven counts of the indictment. On appeal the government argues that the district court erred in ruling, first, that it did not make a good faith effort to locate the defendants; and second, that defendants were prejudiced as a matter of law because the indictment remained sealed beyond the limitations period.
The district court analyzed the sixth amendment claim using the framework of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as outlined in United States v. Dennard, 722 F.2d 1510 (11th Cir.1984):
[T]he Supreme Court identified four facts that “courts should assess in determining whether a particular defendant has been denied his right” to a speedy trial: the length of the delay, the reason for the delay, defendant’s assertion of the right, and prejudice to the defendant. [Barker, 407 U.S. at 530, 92 S.Ct. at 2192.] The Court cautioned, however, against an overly rigid analysis:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.
Dennard, 722 F.2d at 1512 (quoting Barker, 407 U.S. at 533, 92 S.Ct. at 2193). Considering the first factor, the court found the delay of sixteen months from the original indictment and thirteen months from the superseding indictment sufficiently lengthy to warrant consideration of the other three Barker factors.
The court weighed the second factor heavily against the government. Although it recognized that sealing the indictment might have been necessary to avoid alerting fugitive defendants, the court found that “the record clearly shows that the government did very little to find the defendants after each of the indictments was filed.”
The court found that defendants were not impaired in asserting their right to a speedy trial. They did not assert the right until their arrest because they did not know of the impending charges. The court considered their posture to be similar to that of the codefendant in Dennard, who was unaware of the indictment until her arrest, and found that under the rule of Dennard this factor would not inure to defendants’ benefit. See 722 F.2d at 1513.
The trial court correctly concluded that because only two of the first three Barker factors weighed heavily against the government, the defendants were required to show actual prejudice. See, e.g., Dennard, 722 F.2d at 1513-14; United States v. Avalos, 541 F.2d 1100, 1116-17 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). The defendants claimed prejudice because they were forced to face charges outside the statute of limitations. The government countered contending that the delay in unsealing the indictment was reasonable because of legitimate fears that the defendants would flee; therefore, the government argued the delay beyond the statute of limitations period was also reasonable. The court found that the lengthy delay was not reasonable because the government failed to make any meaningful effort to find the defendants. This unreasonable delay allowed the statute of. limitations to run, which the court found to be prejudicial as a matter of law. Because it found the government’s improper conduct prejudiced the defendants, the court dismissed the seven marijuana counts.
The government initially contests the trial court’s determination that the agents did not seriously attempt to find the defendants. We need not extend our narrative by a review of all of the evidence. Suffice it to say that the government detailed every step taken to locate the defendants, and the defense presented evidence that indicated the government knew or could easily have discovered the whereabouts of all seven men while the indictment was sealed. The district court's finding of fact cannot be disturbed unless clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541-542, 92 L.Ed. 746 (1948). Our review of the record convinces us that although the government agents did make some attempt to find the defendants, they certainly did not allow the search to interfere with their other activities. The trial court’s finding is supported by the evidence and is affirmed.
The government’s second contention, that the defendants must show actual prejudice due to the delay, requires more scrutiny. As the district court noted, the settled rule in this circuit is that unless the first three Barker factors all weigh heavily against the government, the defendants must demonstrate actual prejudice. See, e.g., Dennard, 722 F.2d at 1513-14; Hill v. Wainwright, 617 F.2d 375, 379 n. 4 (5th Cir.1980); Avalos, 541 F.2d at 1116-17. None of the cases in this circuit, however, have concerned indictments sealed beyond the running of the limitations period. The district court believed that permitting the government to keep otherwise stale charges alive when its own negligence was the main obstacle to the defendants’ arrests was sufficiently prejudicial to warrant dismissal.
The running of the statute of limitations adds another factor to the speedy trial calculus. In the five-year statute of limitations, Congress has codified the policy that a person need not remain indefinitely in jeopardy for allegedly illegal acts. See 18 U.S.C. § 3282. This limit protects potential defendants from the hardships inherent in defending against stale charges, and provides an incentive for the government to process cases with dispatch. Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 859-60, 25 L.Ed.2d 156 (1970). The legitimate need of the government to protect its investigations by sealing indictments, however, must also be recognized. The sealing of an indictment allows the government to complete an investigation properly, and can toll the statute of limitations when the investigation must extend beyond the statutory period. See, e.g., United States v. Michael, 180 F.2d 55, 56-57 (3d Cir.1949), cert. denied, 339 U.S. 978, 70 S.Ct. 1023, 94 L.Ed. 1383 (1950).
The most careful treatment of the problem of an indictment sealed past the limitations period is found in United States v. Muse, 633 F.2d 1041 (2d Cir.1980) (en banc), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981). In Muse, an indictment was filed and sealed five months before the end of the limitations period and remained sealed for nearly sixteen months. Although the government had located defendant Muse at the time of indictment, it had not found the other three indicted defendants and feared that they would flee if Muse was arrested. The en banc court refused to dismiss the indictment against Muse, despite the fact that the government knew where he was from the day the indictment was entered. The court recognized that the protection of defendants by the statute of limitations must be balanced against the legitimate need of the government to safeguard its investigations. The second circuit struck that balance by requiring the defendant to show actual prejudice resulting from holding the sealed indictment beyond the limitations period. Id. at 1043-44.
The district court’s decision gives undue attention to the interests of defendants and virtually ignores the competing interests of the government. We see no reason to depart in this case from the sixth amendment analysis enunciated in Barker and Dennard. The court did not find that all three factors weighed heavily against the government; therefore, the defendants must show actual prejudice in order to have the indictment dismissed. That the indictment was sealed beyond the limitations period may figure into the prejudice decision, but that fact alone does not dictate a finding of prejudice.
Because we hold that the court improperly dismissed the indictment without finding actual prejudice, we vacate its judgment and remand for further findings on that issue. No specific evidence of prejudice appears in the record, but it is not clear that the district court allowed the parties to present evidence on any issue other than the government’s specific efforts to locate the defendants. In fact, at one point the court seemed to indicate that producing evidence on prejudice was unnecessary. We cannot resolve the issue until it has been fully considered by the court below. We therefore vacate the judgment of dismissal and remand for further proceedings consistent with this opinion.
VACATED and REMANDED.
. Fed.R.Crim.P. 48(b) reads:
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
. Counts One and Two were based on activity during October and November 1977. Counts Three through Seven alleged criminal activity between June and September 1978. 18 U.S.C. § 3282 sets the statute of limitations at five years from the date of the offense.
Count Eight charged Mitchell with making a false 1977 tax return on May 27, 1980. Count Nine alleged that Mitchell filed a false 1978 tax return on June 22, 1979. Under 26 U.S.C. § 6531, the statute of limitations is six years. The period begins on the date the taxes were due or the date the return was filed, whichever is later. United States v. Habig, 390 U.S. 222, 224-27, 88 S.Ct. 926, 927-29, 19 L.Ed.2d 1055 (1968).
. The court refused to dismiss Counts Eight and Nine against Mitchell because the indictment was unsealed within the applicable statute of limitations. The court therefore did not presume prejudice as it had with the first seven counts. The court also stated that Mitchell "[had] brought forward no evidence to indicate that he [had] been prejudiced by the government’s delay in arresting him on the tax counts."
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
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220
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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.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC.
No. 99-1823.
Argued October 10, 2001
Decided January 15, 2002
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 298.
Paul D. Clement argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting Solicitor General Underwood, Acting Assistant Attorney General Yeomans, James A. Feldman, Gwendolyn Young Reams, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory.
David L. Gordon argued the cause for respondent. With him on the brief were D Gregory Valenza, Stephen F. Fisher, and Thomas C. Goldstein
Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Alana M. Barragan-Scott, Deputy Solicitor, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Betty D. Montgomery of Ohio, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Mark Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Herbert D. Soil of the Northern Mariana Islands; for the Maryland Commission on Human Relations et al. by Lee D. Hoshall and Elizabeth Colette; for AARP by Thomas W. Osborne, Laurie A. McCann, and Melvin Radowitz; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Lawyers’ Committee for Civil Rights Under Law et al. by Paul W. Mollica, John Payton, Norman Redlich, Barbara R. Amwine, Thomas J. Henderson, Karen K. Narasaki, Vincent A. Eng, Judith L. Lichtman, Martha F. Davis, Yolanda S. Wu, Marcia D. Greenberger, and Judith Appelbaum; for the National Employment Lawyers Association et al. by Michael Rubin, Scott A. Kronland, Cliff Palefsky, Steven R. Shapiro, Lenora M. Lapidus, F. Paul Bland, Jr., Arthur H. Bryant, and Paula A Brantner; and for the National Whistleblower Center by Stephen M. Kohn, Michael D. John, and David K. Colapinto.
Briefs of amici curiae urging affirmance were filed for Associated Industries of Massachusetts et al. by Michael E. Malamut; for the Council for Employment Law Equity by Walter Dellinger, Samuel Estreicher, and Mark A. de Bernardo; and for the Equal Employment Advisory Council by Ann Elizabeth Reesman and Rae T. Vann.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether an agreement between an employer and an employee to arbitrate employment-related disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. V).
I
In his application for employment with respondent, Eric Baker agreed that “any dispute or claim” concerning his employment would be “settled by binding arbitration.” As a condition of employment, all prospective Waffle House employees are required to sign an application containing a similar mandatory arbitration agreement. See App. 56. Baker began working as a grill operator at one of respondent’s restaurants on August 10,1994. Sixteen days later he suffered a seizure at work and soon thereafter was discharged. Id., at 43-44. Baker did not initiate arbitration proceedings, nor has he in the seven years since his termination, but he did file a timely charge of discrimination with the EEOC alleging that his discharge violated the ADA.
After an investigation and an unsuccessful attempt to conciliate, the EEOC filed an enforcement action against respondent in the Federal District Court for the District of South Carolina, pursuant to § 107(a) of the ADA, 42 U. S. C. § 12117(a) (1994 ed.), and §102 of the Civil Rights Act of 1991, as added, 105 Stat. 1072, 42 U. S. C. § 1981a (1994 ed.). Baker is not a party to the case. The EEOC’s complaint alleged that respondent engaged in employment practices that violated the ADA, including its discharge of Baker “because of his disability,” and that its violation was intentional, and “done with malice or with reckless indifference to [his] federally protected rights.” The complaint requested the court to grant injunctive relief to “eradicate the effects of [respondent’s] past and present unlawful employment practices/' to order specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages, and to award punitive damages for malicious and reckless conduct. App. 38-40.
Respondent filed a petition under the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., to stay the EEOC’s suit and compel arbitration, or to dismiss the action. Based on a factual determination that Baker’s actual employment contract had not included the arbitration provision, the District Court denied the motion. The Court of Appeals granted an interlocutory appeal and held that a valid, enforceable arbitration agreement between Baker and respondent did exist. 193 F. 3d 805, 808 (CA4 1999). The court then proceeded to consider “what effect, if any, the binding arbitration agreement between Baker and Waffle House has on the EEOC, which filed this action in its own name both in the public interest and on behalf of Baker.” Id., at 809. After reviewing the relevant statutes and the language of the contract, the court concluded that the agreement did not foreclose the enforcement action because the EEOC was not a party to the contract, and it has independent statutory authority to bring suit in any federal district court where venue is proper. Id., at 809-812. Nevertheless, the court held that the EEOC was precluded from seeking victim-specific relief in court because the policy goals expressed in the FAA required giving some effect to Baker’s arbitration agreement. The majority explained:
“When the EEOC seeks ‘make-whole’ relief for a charging party, the federal policy favoring enforcement of private arbitration agreements outweighs the EEOC’s right to proceed in federal court because in that circumstance, the EEOC’s public interest is minimal, as the EEOC seeks primarily to vindicate private, rather than public, interests. On the other hand, when the EEOC is pursuing large-scale injunctive relief, the balance tips in favor of EEOC enforcement efforts in federal court because the public interest dominates the EEOC’s action.” Id., at 812.
Therefore, according to the Court of Appeals, when an employee has signed a mandatory arbitration agreement, the EEOC’s remedies in an enforcement action are limited to injunctive relief.
Several Courts of Appeals have considered this issue and reached conflicting conclusions. Compare EEOC v. Frank’s Nursery & Crafts, Inc., 177 F. 3d 448 (CA6 1999) (employee’s agreement to arbitrate does not affect the EEOC’s independent statutory authority to pursue an enforcement action for injunctive relief, backpay, and damages in federal court), with EEOC v. Kidder, Peabody & Co., 156 F. 3d 298 (CA2 1998) (allowing the EEOC to pursue injunctive relief in federal court, but precluding monetary relief); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nixon, 210 F. 3d 814 (CA8), cert. denied, 531 U. S. 958 (2000) (same). We granted the EEOC’s petition for certiorari to resolve this conflict, 532 U. S. 941 (2001), and now reverse.
II
Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when it is enforcing the ADA’s prohibitions against employment discrimination on the basis of disability. 42 U. S. C. § 12117(a) (1994 ed.). Accordingly, the provisions of Title VII defining the EEOC’s authority provide the starting point for our analysis.
When Title VII was enacted in 1964, it authorized private actions by individual employees and public actions by the Attorney General in cases involving a “pattern or practice” of discrimination. 42 U. S. C. § 2000e-6(a) (1994 ed.). The EEOC, however, merely had the authority to investigate and, if possible, to conciliate charges of discrimination. See General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 325 (1980). In 1972, Congress amended Title VII to authorize the EEOC to bring its own enforcement actions; indeed, we have observed that the 1972 amendments created a system in which the EEOC was intended “to bear the primary burden of litigation,” id., at 326. Those amendments authorize the courts to enjoin employers from engaging in unlawful employment practices, and to order appropriate affirmative action, which may include reinstatement, with or without backpay. Moreover, the amendments specify the judicial districts in which such actions may be brought. They do not mention arbitration proceedings.
In 1991, Congress again amended Title VII to allow the recovery of compensatory and punitive damages by a “complaining party.” 42 U. S. C. § 1981a(a)(l) (1994 ed.). The term includes both private plaintiffs and the EEOC, § 1981a(d)(l)(A), and the amendments apply to ADA claims as well, §§ 1981a(a)(2), (d)(1)(B). As a complaining party, the EEOC may bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent.
Prior to the 1991 amendments, we recognized the difference between the EEOC’s enforcement role and an individual employee’s private cause of action in Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977), and General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 (1980). Occidental presented the question whether EEOC enforcement actions are subject to the same statutes of limitations that govern individuals’ claims. After engaging in an unsuccessful conciliation process, the EEOC filed suit in Federal District Court, on behalf of a female employee, alleging sex discrimination. The court granted the defendant’s motion for summary judgment on the ground that the EEOC’s claim was time barred; the EEOC filed suit after California’s 1-year statute of limitations had run. We reversed because “under the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties,” 432 U. S., at 368. To hold otherwise would have undermined the agency’s independent statutory responsibility to investigate and conciliate claims by subjecting the EEOC to inconsistent limitations periods.
In General Telephone, the EEOC sought to bring a discrimination claim on behalf of all female employees at General Telephone’s facilities in four States, without being certified as the class representative under Federal Rule of Civil Procedure 23. 446 U. S., at 321-322. Relying on the plain language of Title VII and the legislative intent behind the 1972 amendments, we held that the EEOC was not required to comply with Rule 23 because it “need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals.” Id., at 324. In light of the provisions granting the EEOC exclusive jurisdiction over the claim for 180 days after the employee files a charge, we concluded that “the EEOC is not merely a proxy for the victims of discrimination and that [its] enforcement suits should not be considered representative actions subject to Rule 23.” Id., at 326.
Against the backdrop of our decisions in Occidental and General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages. There is no language in the statutes or in either of these cases suggesting that the existence of an arbitration agreement between private parties materially changes the EEOC’s statutory function or the remedies that are otherwise available.
III
The FAA was enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. It has not been amended since the enactment of Title VII in 1964. As we have explained, its “purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 24 (1991). The FAA broadly provides that a written provision in “a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract... shall be valid, irrevocable, and enforceable, save upon such grounds as'exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. Employment contracts, except for those covering workers engaged in transportation, are covered by the FAA. Circuit City Stores, Inc. v. Adams, 532 U. S. 105 (2001).
The FAA provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, and for orders compelling arbitration when one party has failed or refused to comply with an arbitration agreement. See 9 U. S. C. §§3 and 4. We have read these provisions to “manifest a ‘liberal federal policy favoring arbitration agreements.’ ” Gilmer, 500 U. S., at 25 (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983)). Absent some ambiguity in the agreement, however, it is the language of the contract that defines the scope of disputes subject to arbitration. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 57 (1995) (“[T]he FAA’s proarbitration policy does not operate without regard to the wishes of the contracting parties”). For nothing in the statute authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty’s choice of a judicial forum.
>
The Court of Appeals based its decision on its evaluation of the “competing policies” implemented by the ADA and the FAA, rather than on any language in the text of either the statutes or the arbitration agreement between Baker and respondent. 193 F. 3d, at 812. It recognized that the EEOC never agreed to arbitrate its statutory claim, id., at 811 (“We must also recognize that in this case the EEOC is not a party to any arbitration agreement”), and that the EEOC has “independent statutory authority” to vindicate the public interest, but opined that permitting the EEOC to prosecute Baker’s claim in court “would significantly trample” the strong federal policy favoring arbitration because Baker had agreed to submit his claim to arbitration. Id., at 812. To effectuate this policy, the court distinguished between injunctive and victim-specific relief, and held that the EEOC is barred from obtaining the latter because any public interest served when the EEOC pursues “make whole” relief is outweighed by the policy goals favoring arbitration. Only when the EEOC seeks broad injunctive relief, in the Court of Appeals’ view, does the public interest overcome the goals underpinning the FAA.
If it were true that the EEOC could prosecute its claim only with Baker’s consent, or if its prayer for relief could be dictated by Baker, the court’s analysis might be persuasive. But once a charge is filed, the exact opposite is true under the statute — the EEOC is in command of the process. The EEOC has exclusive jurisdiction over the claim for 180 days. During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim. If, however, the EEOC files suit on its own, the employee has no independent cause of action, although the employee may intervene in the EEOC’s suit. 42 U. S. C. § 2000e-5(f)(l) (1994 ed.). In fact, the EEOC takes the position that it may pursue a claim on the employee’s behalf even after the employee has disavowed any desire to seek relief. Brief for Petitioner 20. The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum.
Respondent and the dissent contend that Title VII supports the Court of Appeals’ bar against victim-specific relief, because the statute limits the EEOC’s recovery to “appropriate” relief as determined by a court. See Brief for Respondent 19, and n. 8; post, at 301-303 (THOMAS, J., dissenting). They rely on § 706(g)(1), which provides that, after a finding of liability, “the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or
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_adminrev
|
O
|
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".
A. B. WILLIAMS, Appellant, v. CITY OF WICHITA, KANSAS, a municipal corporation; and Robert V. Smrha, as Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture, Appellees.
No. 6258.
United States Court of Appeals Tenth Circuit.
May 23, 1960.
Kenneth G. Speir, Newton, Kan. (Vernon A. Stroberg, Herbert H. Size-more and Richard F. Hrdlicka, Newton, Kan., on the brief), for appellant.
Richard E. Pringle, Asst. Atty. Gen., State of Kansas, and Warden L. Noe, Sp. Asst. Atty. Gen., State of Kansas (John Anderson, Jr., Atty. Gen., State of Kansas, on the brief), for appellee R.
V. Smrha, Chief Engineer of Division of Water Resources, Kansas State Board of Agriculture.
Robert B. Morton, Wichita, Kan. (Fred W. Aley, Wichita, Kan., on the brief), for appellee City of Wichita, Kan.
Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
BREITENSTEIN, Circuit Judge.
This case is here for the second time. The first appeal involved action by the trial court in sustaining motions to dismiss the complaint. This court, on January 26, 1956, remanded the case with directions that “action upon such motions be held in suspense for a reasonable time to await determination in the state courts of important questions of state law involved herein.”
On October 1, 1959, the trial court again examined the matter and held that: (1) more than a reasonable time had elapsed since the filing of the mandate; (2) the issues involved an interpretation of Kansas law which should be made by Kansas courts; and, (3) the plaintiff [appellant] had instituted suit in a Kansas court of appropriate jurisdiction to establish his water use rights which are the principal issue in this controversy. The court then dismissed the action without prejudice.
Appellant-plaintiff Williams seeks a declaratory judgment that two water use permits issued by the Chief Engineer of the Division of Water Resources of the Kansas State Board of Agriculture to the City of Wichita are void and for an injunction restraining action under such permits. The gravamen of the complaint is that Williams owns land overlying certain water beds from which Wichita, under the permits in question, withdraws and will continue to withdraw water to an extent that the value of his land will be diminished. The basic issue is whether Williams has a property right in such water of which he has been deprived by the withdrawals under the permits.
There is no diversity of citizenship. Jurisdiction depends on 28 U.S.C. § 1331, which requires a substantial federal question.
The complaint does not attack the constitutionality of the Kansas statute under which the permits were issued and does not allege that the issuance of the permits was in violation of that statute. The claim is that Williams has been unconstitutionally deprived of a property right. The determination of such claim involves the question as to whether, under Kansas law, a landowner has a property right in water which underlies the surface of his land.
Prior to the enactment of the Kansas Water Appropriation Act of 1945, Kansas recognized the doctrine of riparian rights. This was changed by the 1945 law. A state may modify or reject the riparian doctrine and adopt the appropriation system but in so doing it must recognize valid and existing vested rights. The Kansas statute, as amended, provides that permits are subject to valid existing vested rights which are protected either by actions for damages or for injunction.
We do not know, and are not advised, if in Kansas rights to underground waters are absolute on the theory that the owner of the land owns that below and above the surface, if they are correlative and subject to the rule of reasonable use, or if they are dependent upon appropriation and application to beneficial use. Such rights may or may not differ if they involve the waters of definite underground streams, percolating waters, or artesian waters. Rights to the use of underground waters depend upon state law and vary greatly. They should be determined by local law.
For the federal courts to step in and determine these important questions in advance of authoritative action by Kansas would be unwise because of the possibility of provoking unseemly conflict between the two sovereignties. The determination of the constitutional questions asserted here is not necessary unless Williams has a property right in the underground water. This should be determined by the state processes without any impairment by federal action. These reasons are sufficient under Martin, Successor to Lawler, etc. v. Creasy, 360 U.S. 219, 224, 79 S.Ct. 1034, 3 L.Ed.2d 1186, and cases there cited, to support the lower court in abstaining from exercising jurisdiction in this declaratory judgment suit between citizens of the same state.
The trial court followed the mandate of this court and waited for over three and one-half years for the parties to have a determination of the basic issues in the state courts which were and still are open to them. Further patience is not required. The judgment of dismissal without prejudice is affirmed.
. Porter v. Bennison, 10 Cir., 180 F.2d 523, 525. See also Gully, State Tax Collector, etc., v. First National Bank in Meridian, 299 U.S. 109, 117, 57 S.Ct. 96, 81 L.Ed. 70, and Smith v. Kansas City Title & Trust Company, et al., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577. The reliance on the Declaratory Judgments Act, 28 U.S.C. § 2201, does not change this situation as that act applies only to cases within the jurisdiction of a federal court.
. The constitutionality of the statute was upheld by a federal three-judge district court in Baumann v. Smrha, D.C., 145 F.Supp. 617, affirmed 352 U.S. 803, 77 S.Ct. 96, 1 L.Ed.2d 73.
. Kan.G.S.1949, Ch. 82a, Art. 7.
. E.g. State ex rel. Peterson v. Kansas State Board of Agriculture, 158 Kan. 603, 149 P.2d 604, 608.
. See State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P.2d 440.
. United States v. Rio Grande Dam & Irrigation Company, 174 U.S. 690, 702-704, 19 S.Ct. 770, 43 L.Ed. 1136; Baumann v. Smrha, supra, 145 F.Supp. at pages 624-625, and cases cited in footnotes 2 and 3.
. See Kan.G.S.1957 Supp., Ch. 82a, Art. 7. Pertinent provisions are §§ 82a-712 to 82a-716, as amended.
. Section 82a-716, as amended, reads in part: “If any appropriation, or the construction and operation of authorized diversion works results in an injury to any common-law claimant, such person shall be entitled to due compensation in a suitable action at law against the appropriator for damages proved for any property taken.”
. See Hutchins, Selected Problems in the Law of Water Rights in the West, Misc. Pub. No. 418, United States Dept, of Agriculture, Chap. 4. A summary of state law governing ownership and use of underground waters appears at pp. 147-151. At p. 155, the statement is made that: “The principles governing ownership and use of percolating ground [underground] waters have been developed mainly by the courts.”
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_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.
STOFFIELD v. COMMISSIONER OF INTERNAL REVENUE.
No. 10749.
United States Court of Appeals Seventh Circuit.
April 22, 1953.
Charles L. Mullen, Milwaukee, Wis., for petitioner.
H. Brian Holland, Asst. Atty. Gen., Dudley J. Godfrey, Jr., and Ellis N. Slack, Sp. Assts. to the Atty. Gen., Washington, D. C., for respondent.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
The Commissioner of Internal Revenue assessed against petitioner taxpayer deficiencies and penalties in the sum of $82,-352.85, in income taxes for .the years 1942 to 1947 inclusive, because of unreported income for those years. Upon appeal, the Tax Court entered a judgment approving the assessment, which petitioner now seeks to set aside. The decisive question before us is whether the taxpayer and his wife were partners or engaged in a joint venture during the years mentioned.
The taxpayer, an uneducated man of Polish extraction, resides in Milwaukee. In 1931, when he was married, his wife Julia turned over to him $2000 which she had saved from earnings, arid $1000 she had received as a wedding present, — $3000 in all. From that time <?n, they jointly engaged in the dyeing árid cléaning business, living in rooms above ; their business establishment. Julia worked regularly in the shop, waiting on the customers, spotting and packing garments and performing other duties in connection with the business. She received no wages, and the taxpayer claimed no deductions for any compensation paid her. She used some $10 a week, with which to buy groceries and meats for the two of them. She testified that when she turned the $3000 over to her husband, he and she “went into partnership”; that she considered or thought they “were in partnership”. She, too, was apparently an unworldly person, with little education, who left entirely to her husband all bookkeeping, such as it was, and deposit of money. However, the bank account was joint and she drew checks upon it to pay business expenses. She apparently never knew what the profits were or what the total expenditures,, including income taxes. Joint tax returns-for some of the years were signed by both- and certain others, though joint in form, were filed by the husband without her signature.- She testified that she did not read therii. She insisted that title to both the real estate and the personal property, including equipment, be taken and kept in their joint names, and when they sold a business and purchased another; she joined with her husband as grantor in the deed for the real estate and" as assign- or in the bill of sale for the personal property. Title to the property which they bought was taken by both as “joint tenants.” In order to comply with the Bulk Sales law, both joined in 1947 in an affidavit that there were no creditors holding claims'; on account of merchandise, equipment or other property in the business. The sales contract then executed provided for payment of the purchase price of $35,000 to both jointly. Both certified to the correctness of the inventory of the goods sold. Both joined in a release of a covenant reserved in their joint names. Both signed a . depositor’s card for the joint bank account and- an agreement with the bank that theirs were the. only authorized signatures. Numerous checks on the account signed “Sunshine Cleaners” -(the trade name) by the wife, were placed in evidence. The only capital furnished by the husband, at the time they were married and the wife advanced $3000, was $1000. At various stages they owned jointly three different establishments, conducting th,e business of each in the same manner. The foregoing constitutes the only evidence in the record bearing upon the question of partnership or joint venture.
In this state of the evidence, the Tax Court, one judge sitting, found that the husband was the sole proprietor of the business; that the wife never had any understanding with her husband, “written, oral or implied that she was a partner with him”, though she “worked in the business * * * without receiving wages, salary or a part of the profits.” Admittedly she had no knowledge, until he told her in 1948, of her husband's surreptitious-removal of company cash to his safety de-, posit box.
We have recounted the facts in some detail, for the crucial question is whether, in view of the admitted facts, the Tax Court was justified in drawing an inference that husband and wife were not “partners” or engaged in a “joint venture, or other unincorporated organization, through or by means of which any business * * * or venture is caried on” 26 U.S. C.1946 Ed. § 3797. Under this statute, husbands and wives are properly engaged in a joint venture in business, if the wife in good faith invests capital, contributes to the conduct of the business and performs services in helping operate it. Com’r v. Culbertson, 337 U.S. 733, 744, 745, 69 S.Ct. 1210, 93 L.Ed. 1659. The pertinent consequences of the statute and the Supreme Court’s interpretation thereof in the Culbertson case and others are adequately expounded in this court’s decisions in Wellington v. Commissioner, 7 Cir., 196 F.2d 421, and in Greenberger v. Commissioner, 7 Cir., 177 F.2d 990, 992 and 993, which eliminate any necessity of repetition here. See also Stanchfield v. Commissioner, 8 Cir., 191 F.2d 826, 829; Jones v. Baker, 10 Cir., 189 F.2d 842, 844; Wenig v. Commissioner, 85 U.S.App.D.C. 216, 177 F.2d 62, 63. Indeed all the necessary factors mentioned need not concur. Thus, in Weizer v. Commissioner, 6 Cir., 165 F.2d 772, at page 775 the court said: “We are of the opinion that in the present case Florence Weizer complied with all of these requirements, although compliance with only one of them is required, and that the Tax Court was in error in not recognizing the validity of the family partnership under the rule so announced.” The court continued: “It is well settled in partnership law that the agreement essential to a valid contract may be either expressed in words or implied from conduct. * * * and we give very little effect to the fact strongly relied upon by the Tax Court that there was no express agreement between these parties either written or oral prior to 1942., The Commissioner has successfully contended in many family partnership cases that the formal execution of articles of partnership does not create a partnership for income tax purposes. It is equally true that the failure to execute such articles is not controlling. The nature of the business, its origin, its growth, the work of the parties in their respective fields and their mutual understanding that it was ‘our business’ easily explain the absence of any formal articles of partnership.”
With all due respect to the Tax Court, it seems clear to us that the facts as we have related them, undisputed as they are, support only the finding that the parties here were for the years in question engaged in a joint enterprise which they understood to be a partnership, in which each was financially interested and contributed substantially to the capital assets, to which each devoted all his time, which each was constantly engaged in promoting, in which each could receive and pay out money for business expenses, and the profits from which could belong only to the joint ven-turers, — the partners. Such are the only reasonable inferences; consequently the finding to the contrary was clearly erroneous.
The judgment is set aside and the cause remanded for further proceedings in accord with this opinion.
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_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.
FRONTIER AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Braniff Airways, Inc. and United Air Lines, Inc., Intervenors. CITY AND COUNTY OF DENVER, COLORADO, et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Braniff Airways, Inc., and United Air Lines, Inc., Intervenors.
Nos. 8052, 8072.
United States Court of Appeals Tenth Circuit.
Aug. 12, 1965.
James L. Highsaw, Jr., Washington, D. C. (Richard A. Fitzgerald and Harry A. Bowen, Washington, D. C., of counsel, were with him on the brief), for petitioner Frontier Airlines, Inc.
Tedford Dees, Asst. City Atty. (Max P. Zall, City Atty., was with him on the brief), for petitioners City and County of Denver, Colo., and Denver Chamber of Commerce.
O. D. Ozment, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Lionel Kestenbaum, John H. Wanner, Joseph B. Goldman and Robert L. Toomey, Washington, D. C., were with him on the brief), for respondent Civil Aeronautics Board.
John T. Rigby, Washington, D. C. (B. Howell Hill and Arnold, Fortas & Porter, Washington, D. C., were with him on the brief), for intervenor Braniff Airways, Inc.
Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, 111., and Akolt, Shepherd & Dick, Denver, Colo., filed brief for intervenor United Air Lines, Inc.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
Frontier Airlines and the City and County of Denver, Colorado, by separate petitions now consolidated for hearing, seek review of and relief from orders of the Civil Aeronautics Board issued in a pending proceeding designated as the Pacific Northwest-Southwest Service Investigation, C.A.B. Docket 15459. The proceeding, initiated by the Board on August 13, 1964, pursuant to sections 204(a) and 401(g) of the Federal Aviation Act of 1958, was intended to probe the necessity and desirability of providing carrier authorization for long-haul, single carrier service between the Pacific Northwest (Washington, Oregon, Idaho, Wyoming, Utah and Northwest Colorado), and the Southwest (Southeast Colorado, New Mexico, Kansas, Oklahoma, Texas, Louisiana, and the cities of Kansas City and St. Louis, Missouri). Principal service cities within the area were designated by group number which placed.. Seattle and Portland in Group I; Salt Lake City and Denver, Group II; Kansas City and St. Louis, Group III; and Fort Worth, Dallas, Houston, San Antonio, and New Orleans, Group IV. The original Board order included the following restrictions as to the scope of the inquiry to be made as set forth in paragraph 3 of the order:
“3. That any awards made as a result of this proceeding shall be subject to the following restrictions:
(a) No flights may originate or terminate in Denver or Salt Lake City;
(b) At least one city in at least two Groups of cities * * * must be served on all flights except that there shall be no new single-carrier service between cities in Group III and cities in Group IV * *
Following issuance of its August 13 order the Board gave consideration to numerous petitions filed by interested airlines and cities seeking clarification, expansion or restriction of the order. Most such petitions were denied but paragraph 3 (a) was modified by allowing consideration of short-haul, inter-city service between Denver-St. Louis, and 3(b) was changed to provide that there should be no operation of aircraft between cities in Groups III and IV. However the substance of paragraph 3(a), that no flights may originate or terminate in Denver or Salt Lake City, remains a basic restriction in the scope of the Board’s investigation. The effect of this restriction is to refuse consideration of any application or the need for turnaround service by single carrier for flights originating or terminating in Salt Lake City or Denver and serving the Northwest cities of Group I, or the Southwest cities of Group IV, or between the cities of St. Louis/Denver and the city of Salt Lake. The continuance of this restriction, admittedly made by the Board without evi-dentiary hearing, constitutes the premise of both petitioners’ complaint.
Frontier is presently certificated to operate commercial aircraft over a route system extending across a vast geographic area from Montana and North Dakota east to Kansas City, south to Arizona and west to Utah. Prior to the Board’s August 13 order Frontier had filed two applications for authorization to provide extended or new service. On October 3, 1962, Frontier had sought a certificate to serve St. Louis and Seattle (a) via Kansas City, Omaha, Lincoln, Denver, Salt Lake City, Spokane, and Portland, and (b) via Columbia and St. Joseph, Missouri; Omaha and Lincoln, Nebraska; Rapid City, South Dakota; Billings and Great Falls, Montana; and Spokane, Washington. The other application (Docket No. 15304) filed on June 4, 1964, requested a certificate to provide air service over a route between Seattle, Washington; and Miami, Florida; via Portland, Oregon; Salt Lake City, Denver, Dallas/Ft. Worth and Houston, Texas; New Orleans, Tampa/St.Petersburg and Orlando, Florida. Although these applications pertained in part to the Northwest-Southwest Investigation area they also extended beyond such area and subsequently, on September 2, 1964, Frontier filed a third application covering the Board’s exact proposed routes. The refusal of the Board to consolidate into its present hearing Frontier’s two earlier existent applications, or the substance of them to the extent turnaround service is not to be considered for the cities of Salt Lake and Denver, is the specific complaint made by Frontier in the case at bar.
The specific complaint of the City and County of Denver is substantially the same. Denver has pending a petition to investigate the need for:
“1. First direct single-carrier trunkline authority between Denver, Colorado and St. Louis, Missouri and Tucson, Arizona.
2. Unrestricted direct single-carrier competitive trunkline authority between Denver, Colorado and Albuquerque, New Mexico, Dallas, Houston, and San Antonio, Texas, Kansas City, Missouri, Phoenix, Arizona, Portland, Oregon, Seattle, Washington, and Tulsa, Oklahoma.”
The Board’s restriction 3(a) has also refused present consideration of Denver’s petition to the extent that turnaround service is requested except as to the Denver-St. Louis route.
The Board’s present refusal to hear matters pertaining to turnaround service at the cities of Salt Lake and Denver is attacked by petitioners in varied ways, but each argument is somewhat dependent upon whether the principle of due process set forth in Ashbacker Radio Corp. v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108, is applicable. This principle, termed “a practical conclusion of sound common sense,” Delta Air Lines, Inc. v. Civil Aeronautics Board, 107 U.S.App. D.C. 174, 275 F.2d 632, 637, cert. denied, Trans World Airlines v. Delta Air Lines, Inc., 362 U.S. 969, 80 S.Ct. 953, 4 L.Ed. 2d 900, requires administrative boards to consolidate for hearing all applications that are competing and mutually exclusive in nature. In other words, due process is refused an applicant through indirection when a competing application is heard and granted upon mutually exclusive subject matter, for the substance of the applications (need for service) is determined and satisfied by the application first heard. The granting of the first award effectively denies, without a hearing, all competing applications. In the case at bar, claim is made that should the Board, for example, grant certification for a Dallas/Denver/Seattle (and reverse) single carrier flight, such grant would, as a matter of economic fact, deny Frontier’s present application for turnaround service between such cities and Denver’s application for consideration of increased service between such cities. And it is apparent that, at least to some degree, the establishment of long-haul, through service would affect the need for turnaround service at the centrally located cities of Salt Lake and Denver and the proposed terminal cities. We thus consider the case to be within the shadow of the Ashbacker doctrine and petitioners’ related arguments that the Board has prejudged the need for local service originating or terminating at Salt Lake and Denver, that the Board has denied “speedy” consideration of Frontier’s and Denver’s specific applications, and that the restrictive order of the Board is arbitrary.
The common sense and legal compulsion of the Ashbacker principle is based upon the existence of a mutual exclusivity between applications that is legally and factually irrefutable by the very nature of the proceeding. Thus when two or more airlines seek certification for service between cities A and B, and the Board hears one such application separately, the other applications are doomed upon grant to the applicant heard. The result is inherent in the procedure. Here, exclusivity is but now potential, a possibility that the Board has presently recognized in its order in general aspects and must recognize in its final order if exclusivity becomes a specific reality. And in terming the issue of exclusivity to be but potential at the outset of the Board investigation we are not unmindful of the statistical support that petitioners present which may indicate that certain areas cannot support three carrier services, or that certain areas will not be adequately served by long-haul service. These matters are incidents to the general investigation and are primarily, or at least preliminarily, for the consideration of the Board. Indeed, when presented merely as statistics the inference to be drawn therefrom is not dictated. Frontier may be granted long-haul certification in its pending application, and if so, its remaining applications would be complementary; or, if its own long-haul service satisfied the total service needed between given cities, it is obvious that Frontier would not be prejudiced.
Although the Board is bound by Ashbacker that principle is not boundless in its implications. The Board has a basic right to limit the scope of its inquiries. Eastern Air Lines v. Civil Aeronautics Board, 85 U.S.App.D.C. 412, 178 F.2d 726; Eastern Air Lines v. Civil Aeronautics Board, D.C.Cir., 243 F.2d 607. And practicality dictates that the existence of overlapping applications does not require the expansion of specific inquiry into a generalized study of air needs by area or types of service. The pertinency of pending applications is a fact that must be noted by the Board in order to avoid the denial of an Ashbacker right; but such pendency does not dictate consolidation. So, too, it is for Board decision to determine the order of its docket in view of public need. Western Air Lines v. Civil Aeronautics Board, 9 Cir., 184 F.2d 545, 549. Although petitioners’ earlier applications must probably now await the Board’s more general inquiry, we cannot say that this discretionary act so abuses a private right as to be unlawful. The statutory requirement, 49 U.S.C. § 1371(c), that applications be processed “as speedily as possible” does not require that hearings be granted in the order of filing, and it is seldom indeed that a court should interfere with a matter of discretion so peculiarly with the expertise of a specialized administrative body.
Frontier also asserts that the restrictions imposed in 3(a) unfairly discriminate against it in its long-haul application because it establishes a procedural framework that protects the intervenors United Air Lines and Braniff Airways. United has for many' years been certificated for Denver/Salt Lake/Portland/ Seattle; Braniff for Denver/Texas cities. These intervenors could thus propose, in support of their own long-haul applications schedules correlated with their existent right to operate turnaround seirv-ice at the named cities. To allow these airlines to approach the long-haul inquiry with short-haul authority but to refuse consideration by consolidation of Frontier’s application for turnaround service amounts to discrimination, so says Frontier. But to extend such argument to ultimate conclusion would require the Board to equalize as far as possible all inherent advantage between applicants before a general investigation could go forward. The complexity of such procedure would destroy its worth and result in a hopeless administrative jumble. We find no merit to the contention of petitioner.
Finally, Frontier claims that the Board’s restriction is arbitrary and “without any basis in rhyme or reason.” And indeed we feel that Frontier’s factual presentation of traffic data and other supporting argument indicates strongly that the Board might very properly have removed the restriction. It does not follow that the Board acted arbitrarily in refusing to do so. The prime purpose of the Northwest-Southwest Service Investigation is directed to long-haul, direct carrier service; it is for the Board to determine the discretionary point at which remoteness of inquiry will be detrimental to public service.
We have considered other arguments advanced by petitioners, but conclude that none convinces us that the subject order of the Board presently results in the setting of legal consequences in derogation of petitioners’ rights. It follows that the order of the Board is not a final order as defined in Cities Service Gas Co. v. Federal Power Commission, 10 Cir., 255 F.2d 860, 863, cert. denied, 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73; Phillips Petroleum Co. v. Federal Power Commission, 10 Cir., 227 F.2d 470, 475, cert. denied, Michigan Wisconsin Pipe Line Co. v. Phillips Petroleum Co., 350 U.S. 1005, 76 S.Ct. 649, 100 L.Ed. 868; City of Houston v. Civil Aeronautics Board, 115 U.S.App.D.C. 94, 317 F.2d 158; Delta Air Lines v. Civil Aeronautics Board, 97 U.S.App.D.C. 46, 228 F.2d 17, 20; but that it is interlocutory in form and fact and thus not subject to review. See Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 330 U.S. 103, 112-113, 68 S.Ct. 431, 92 L.Ed. 568; Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 285 F.2d 737; United Air Lines, Inc. v. Civil Aeronautics Board, D.C. Cir., 228 F.2d 13; Seaboard & Western Airlines v. Civil Aeronautics Board, 86 U.S.App.D.C. 9, 181 F.2d 777, 779.
The petitions to review are dismissed.
. In allowing this extension to the scope of the investigation the Board noted that one of the facets of its original order was to consider the elimination of existent interchange service. Denver and St. Louis are served only by a Continental-Braniff interchange, the latter term meaning a single aircraft operated by two or more carriers over connecting routes. The situation did not exist elsewhere in the area. Group II cities (Salt Lake and Denver) are served to the northwest by a single carrier (intervenor United) and to the south by a single carrier (intervenor Braniff).
. “Of course, each party to this proceeding will have the opportunity to establish on the record mutual exclusivity with respect to any application not included for consideration in this case.”
. This is true particularly as it pertains to petitioner Denver. We do not consider it necessary to here decide whether a civic body can make any claim under Ashbacker. But certain it is that Denver has no legal interest in which airline services its needs. However, we consider petitioners’ claims that the need for turnaround service at Denver has been prejudged by the Board order to, in effect, raise a comparable question of due process not necessarily dependent upon mutual exclusivity, but substantially the same in basic theory.
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:
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sc_lcdisposition
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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 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.
UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 751 v. BROWN GROUP, INC., dba BROWN SHOE CO.
No. 95-340.
Argued February 20, 1996
Decided May 13, 1996
Souter, J., delivered the opinion for a unanimous Court.
Laurence Gold argued the cause for petitioner. With him on the briefs were George Murphy, Renee L. Bowser, Marsha S. Berzon, and Jonathan P. Hiatt.
Alan Jenkins argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Deputy Solicitor General Kneedler, Thomas S. Williamson, Jr., Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn.
Thomas C. Walsh argued the cause for respondent. With him on the brief were Michael G. Biggers, James N. Foster, Jr., Michelle M. Cain, and Robert D. Pickle.
Kary L. Moss filed a brief for the American Federation of Government Employees et al. as amici curiae urging reversal.
Justice Souter
delivered the opinion of the Court.
The Worker Adjustment and Retraining Notification Act (WARN Act or Act), 102 Stat. 890, 29 U. S. C. §2101 et seq., obligates certain employers to give workers or their union 60 days’ notice before a plant closing or mass layoff. If an employer fails to give the notice, the employees may sue for backpay for each day of the violation, and, in the alternative, the union is ostensibly authorized to sue on their behalf. See North Star Steel Co. v. Thomas, 515 U. S. 29 (1995); Part II, infra.
Permitting a union to sue under the Act on behalf of its employee-members raises a question of standing. In Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 (1977), we described a three-prong test for an association’s standing to sue based on injury to one of its members. The third element, at issue here, would bar such a suit when “the claim asserted [or] the relief requested requires the participation of individual members in the lawsuit.” Id., at 343. Relying on Warth v. Seldin, 422 U. S. 490 (1975), Hunt held that “individual participation” is not normally necessary when an association seeks prospective or injunctive relief for its members, but indicated that such participation would be required in an action for damages to an association’s members, thus suggesting that an association’s action for damages running solely to its members would be barred for want of the association’s standing to sue. See Hunt, supra, at 343.
The questions presented here are whether, in enacting the WARN Act, Congress intended to abrogate this otherwise applicable standing limitation so as to permit the union to sue for damages running to its workers, and, if it did, whether it had the constitutional authority to do so. We answer yes to each question.
t — I
On January 17, 1992, respondent Brown Shoe Company wrote to a representative of the United Food and Commercial Workers International Union, stating that Brown Shoe would shut down its Dixon, Missouri, plant and permanently lay off 277 employees beginning on March 20, 1992. App. 62-63. The complaint filed by petitioner United Food and Commercial Workers Union Local 751 charged that Brown Shoe’s representations were false insofar as they are relevant here, and that in fact, even before sending the letter, Brown Shoe had begun the layoffs, which continued through February and into March. App. 8-9. The union accordingly claimed a violation of the WARN Act and sought the statutory remedy of 60-days’ backpay for each of its affected members.
The District Court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), saying that “when an organization seeks to recover monetary relief on behalf of its members, courts have found that such claims necessarily require participation of individual members in the suit.” 820 F. Supp. 1192, 1193-1194 (ED Mo. 1993). The Court of Appeals for the Eighth Circuit affirmed, concluding that “[e]ach union member who wishes to recover WARN Act damages from Brown Shoe must participate in the suit so that his or her right to damages can be determined and the quantum of damages can be calculated by the court on the basis of particularized proof. Therefore, the union cannot meet the third part of the Hunt test and is precluded from asserting associational standing.” 50 F. 3d 1426, 1432 (1995). We granted certiorari, 516 U. S. 930 (1995), and now reverse.
II
At the outset, Brown Shoe argues that the WARN Act grants a union no authority to sue for damages on behalf of its members. Because the question on which we granted certiorari (whether Congress has the constitutional authority to alter the third prong of the associational standing enquiry) assumes that the WARN Act does grant the union such authority, Brown Shoe urges us to declare the writ of certiorari improvidently granted. In North Star Steel, however, we noted, contrary to Brown Shoe’s position, that “[t]he class of plaintiffs” who may sue for backpay under the WARN Act “includes aggrieved employees (or their unions, as representatives).” 515 U. S., at 31, and on further consideration we have no doubt that we were reading the statute correctly.
The key requirement of the Act is found in § 2102, which prohibits an employer from ordering “a plant closing or mass layoff until the end of a 60-day period” running from the date of the employer’s written notice of the closing or layoff “(1) to each representative of the affected employees as of the time of the notice or, if there is no such representative at that time, to each affected employee,” and “(2) to the State dislocated worker unit... and the chief elected official of the unit of local government within which such closing or layoff is to occur.” 29 U. S. C. § 2102(a). Congress defined the “representative” to which § 2102(a)(1) refers as the employees’ union, “an exclusive representative of employees within the meaning of section 9(a) or 8(f) of the National Labor Relations Act (29 U. S. C. 159(a), 158(f)) or section 2 of the Railway Labor Act (45 U. S. C. 152).” 102 Stat. 890, 29 U. S. C. § 2101(a)(4).
Enforcement of the § 2102 notice requirement is addressed in § 2104(a), the following provisions of which answer Brown Shoe’s argument. Section 2104(a)(1) makes a violating employer liable to “each aggrieved employee” for backpay and benefits for each day of the violation. Section 2104(a)(5) provides that “[a] person seeking to enforce such liability, including a representative of employees ... aggrieved under paragraph (1) . . . , may sue either for such person or for other persons similarly situated, or both, [in an appropriate district court].”
Since the union is the “representative of employees . . . aggrieved,” it is a person who may sue on behalf of the “persons similarly situated” in order to “enforce such liability.” “[S]uch liability” must refer to liability under §2104, since its remedies are exclusive. See 29 U. S. C. § 2104(b). Because the section makes no provision for liability to the union itself, any “such liability” sought by the union must (so far as concerns us here) be liability to its employee-members, so long as they can be understood to be “persons similarly situated” for the purposes of the Act. We believe they may be so understood, since each is aggrieved by the employer’s failure to give timely notice.
Brown Shoe’s alternative construction is unconvincing. It contends that a previous bill would have imposed civil liability on employers who failed to notify the union of a plant closing or mass layoff, and would have permitted the union to sue to recover a penalty where an employer failed to provide the required notice. See S. 538, 100th Cong., 1st Sess. (1987). In the ultimately enacted version of the legislation, Congress eliminated this provision, with the result that the WARN Act no longer speaks to the “rights and welfare of unions,” Brief for Respondent 12. Brown Shoe’s argument is that the class of persons “similarly situated” is the class entitled to sue for damages, so that the elimination of the union’s entitlement to a civil penalty requires the conclusion that the union is no longer “similarly situated” to “employees . . . aggrieved under paragraph (1),” and thus not permitted to sue under the Act.
The flaw in this argument is that it would force us to conclude that the provision for suits by unions is attributable only to congressional inadvertence, whereas inadvertence is not the only possible, or even plausible, explanation for the authorization. For one, the statutory reference to persons “similarly situated” can very readily be understood to mean the class of persons to whom notice is owed but not given. In this respect, the union and its members are certainly persons “similarly situated.” Brown Shoe’s argument also fails to explain why Congress would necessarily have intended to eliminate the union’s power to sue on behalf of members (as Brown Shoe assumes the union could have done prior to the amendment) just because the union was no longer entitled to a penalty in its own right. The argument for Brown Shoe’s preferred construction simply rests on one speculative possibility in opposing a straightforward reading of the provision that a union may bring suit on behalf of its members, who are “employees ... aggrieved under paragraph (1).” Speculation loses, for the more natural reading of the statute’s text, which would give effect to all of its provisions, always prevails over a mere suggestion to disregard or ignore duly enacted law as legislative oversight.
HH HH HH
This brings us to the primary question m the case: whether the union has standing to bring this action on behalf of its members. Article III of the Constitution limits the federal judicial power to “Cases” or “Controversies,” thereby entailing as an “irreducible minimum” that there be (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. See, e. g., Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 663 (1993); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). Supplementing these constitutional requirements, the prudential doctrine of standing has come to encompass “several judicially self-imposed limits on the exercise of federal jurisdiction.” See Allen v. Wright, 468 U. S. 737, 751 (1984); see also Flast v. Cohen, 392 U. S. 83, 97 (1968). The question here is whether a bar to the union’s suit found in the test for so-called associational standing is constitutional and absolute, or prudential and malleable by Congress.
A
The notion that an organization might have standing to assert its members’ injury has roots in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459 (1958), where the Court noted that for the purpose of determining the scope of the National Association for the Advancement of Colored People’s (NAACP’s) rights as a litigant, the association “and its members are in every practical sense identical.” The Court accordingly permitted the NAACP to rely on violations of its members’ First Amendment associational rights in suing to bar the State of Alabama from compelling disclosure of the association’s membership lists. See also Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 128, 183-187 (1951) (Jackson, J., concurring); Barrows v. Jackson, 346 U. S. 249, 255-259 (1953); NAACP v. Button, 371 U. S. 415, 428 (1963); National Motor Freight Traffic Assn., Inc. v. United States, 372 U. S. 246, 247 (1963); Sierra Club v. Morton, 405 U. S. 727, 739 (1972).
The modern doctrine of associational standing, under which an organization may sue to redress its members’ injuries, even without a showing of injury to the association itself, emerges from a trilogy of cases. We first squarely recognized an organization’s standing to bring such a suit in Warth v. Seldin, 422 U. S. 490 (1975).
“The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . [S]o long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.” Id., at 511.
Worth’s requirements for associational standing were elaborated in Hunt. There we held that the Washington State Apple Advertising Commission, a state agency whose statutory charge was to promote the State’s apple industry, had standing to bring a dormant Commerce Clause challenge to a North Carolina statute forbidding the display of Washington State apple grades on apple containers. Relying on Warth, the Hunt Court stated a three-prong associational standing test:
“[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” 432 U. S., at 343.
Finally, in Automobile Workers v. Brock, 477 U. S. 274 (1986), we held that a union had standing to challenge an agency’s construction of a statute providing benefits to workers who lost their jobs because of competition from imports. The union there did not allege any injury to itself, nor was it argued that the members’ associational rights were affected. Reaffirming and applying the three-part test emerging from Warth and Hunt, we held that the union had standing to bring the suit. 477 U. S., at 281-288. See also Pennell v. San Jose, 485 U. S. 1, 7, and n. 3 (1988).
B
The Court of Appeals here concluded that the union’s members would have had standing to sue on their own (the first prong), and recognized that the interests the union sought to protect were germane to its purpose (the second prong). But it denied the union’s claim of standing because it found that the relief sought by the union, damages on behalf of its members, would require the participation of individual members in the lawsuit. 50 F. 3d, at 1431. It relied on the statement in Warth that “[i]f in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.” 422 U. S., at 515. These and later precedents have been understood to preclude associational standing when an organization seeks damages on behalf of its members. See, e. g., Telecommunications Research & Action Center v. Allnet Communication Services, Inc., 806 F. 2d 1093, 1094-1095 (CADC 1986) (“[L]ower federal courts have consistently rejected association assertions of standing to seek monetary, as distinguished from injunctive or declaratory, relief on behalf of the organization’s members”) (collecting cases).
One court has suggested that this bar is of constitutional magnitude, see National Assn. of Realtors v. National Real Estate Assn., Inc., 894 F. 2d 937, 941 (CA7 1990) (“[Associations have been held to have standing under Article III of the Constitution to seek injunctive relief — but never damages”). The Court of Appeals here apparently agreed with that suggestion, and so dismissed for lack of union standing despite the WARN Act’s provision permitting the union to sue. We therefore take up the question whether the third prong of the associational standing enquiry is of constitutional character.
C
Although Warth noted that the test’s first requirement, that at least one of the organization’s members would have standing to sue on his own, is grounded on Article III as an element of “the constitutional requirement of a case or controversy,” Warth, supra, at 511, our cases have not otherwise clearly disentangled the constitutional from the prudential strands of the associational standing test. Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S., at 471 (“[I]t has not always been clear in the opinions of this Court whether particular features of the ‘standing’ requirement have been required by Art. Ill ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution”); June, The Structure of Standing Requirements for Citizen Suits and the Scope of Congressional Power, 24 Envtl. L. 761, 793 (1994) (noting uncertainty “whether requirements such as [associational] standing are constitutional or prudential in nature”). Resort to general principles, however, leads us to say that the associational standing test’s third prong is a prudential one.
There are two ways in which Hunt addresses the Article III requirements of injury in fact, causal connection to the defendant’s conduct, and redressability. First and most obviously, it guarantees the satisfaction of these elements by requiring an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association. As Hunt’s most direct address to Article III standing, this first prong can only be seen as itself an Article III necessity for an association’s representative suit. Cf. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40 (1976) (the association “can establish standing only as representatives of those of their members who have been injured in fact, and thus could have brought suit in their own right”). Hunt’s second prong is, at the least, complementary to the first, for its demand that an association plaintiff be organized for a purpose germane to the subject of its member’s claim raises an assurance that the association’s litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant’s natural adversary. But once an association has satisfied Hunt’s first and second prongs assuring adversarial vigor in pursuing a claim for which member Article III standing exists, it is difficult to see a constitutional necessity for anything more. See generally Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992). To see Hunt’s third prong as resting on less than constitutional necessity is not, of course, to rob it of its value. It may well promote adversarial intensity. It may guard against the hazard of litigating a case to the damages stage only to find the plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity. And it may hedge against any risk that the damages recovered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed. But these considerations are generally on point whenever one plaintiff sues for another’s injury. And although we noted in Flast that “a litigant will ordinarily not be permitted to assert the rights of absent third parties,” 392 U. S., at 99, n. 20; see also Valley Forge, supra, at 474, we recognized in Allen v. Wright, 468 U. S., at 751, that “the general prohibition on a litigant’s raising another person’s legal rights” is a “judicially self-imposed limi[t] on the exercise of federal jurisdiction,” not a constitutional mandate. Indeed, the entire doctrine of “representational standing,” of which the notion of “associational standing” is only one strand, rests on the premise that in certain circumstances, particular relationships (recognized either by common-law tradition or by statute) are sufficient to rebut the background presumption (in the statutory context, about Congress’s intent) that litigants may not assert the rights of absent third parties. Hence the third prong of the associational standing test is best seen as focusing on these matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution.
Circumstantial evidence of the prudential nature of this requirement is seen in the wide variety of other contexts in which a statute, federal rule, or accepted common-law practice permits one person to sue on behalf of another, even where damages are sought. “ [Representative damages litigation is common — from class actions under Fed. R. Civ. R 23(b)(3) to suits by trustees representing hundreds of creditors in bankruptcy to parens patriae actions by state governments to litigation by and against executors of decedents’ estates.” In re Oil Spill by the Amoco Cadiz off the Coast of France on Mar. 16, 1978, 954 F. 2d 1279, 1319 (CA7 1992) (per curiam). In addition, § 706(f)(1) of Title VII of the Civil Rights Act of 1964,42 U. S. C. § 2000e — 5(f)(1), expressly authorizes the Equal Employment Opportunity Commission to sue for backpay on behalf of employees who are victims of employment discrimination, General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 (1980), and the Fair Labor Standards Act of 1938, 29 U. S. C. § 201 et seq., contains a comparable provision permitting the Secretary of Labor to sue for the recovery of unpaid minimum wages and overtime compensation, 29 U. S. C. § 216(c). If these provisions for representative actions were generally resulting in nonad-versarial actions that failed to resolve the claims of the individuals ultimately interested, their disservice to the core Article III requirements would be no secret. There is no reason to expect that union actions under the WARN Act portend any greater Article III incursions.
D
Because Congress authorized the union to sue for its members’ damages, and because the only impediment to that suit is a general limitation, judicially fashioned and prudentially imposed, there is no question that Congress may abrogate the impediment. As we noted in Warth, prudential limitations are rules of “judicial self-governance” that “Congress may remove ... by statute.” 422 U. S., at 509. It has done so without doubt in this instance.
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Because the District Court dismissed the complaint, for the purposes of deciding this appeal we assume the truth of this allegation. Nor do we reach the merits of, or any other issue about, the union’s further complaint that Brown Shoe’s letter was defective because it was sent to an individual who worked for the International. The complaint alleges that United Food Local 751, not the International or its employee, is the exclusive representative of the affected employees and is thus statutorily entitled to notice of the closing and mass layoff.
The District Court had also denied the union’s motion to amend its complaint to add employees as plaintiffs. App. to Pet. for Cert. 18a-19a. The Court of Appeals held that the District Court’s decision in this respect did not represent an abuse of its discretion. 50 F. 3d, at 1432. The correctness of this determination is outside the scope of the questions presented here. See Pet. for Cert. i.
102 Stat. 893, as set forth in 29 U. S. C. § 2104(a)(1):
“Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for—
“(A) back pay for each day of violation at a rate of compensation not less than the higher of—
“(i) the average regular rate received by such employee during the last 3 years of the employee’s employment; or
“(ii) the final regular rate received by such employee; and
“(B) benefits under an employee benefit plan . . ., including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred.
“Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer.”
The union also argues that it has standing because it suffered direct injury. The Court of Appeals held that the union lacked standing to assert its direct injury because neither backpay to the employees nor its “catch-all prayer for relief” would redress the union’s injury. 50 F. 3d 1426, 1431, n. 7 (CA8 1995). The union argues here that its injury would be redressed because an award of damages to the employees would deter future violations and would facilitate the union’s role in assisting its members. In light of our resolution of the associational standing question, we do not have occasion today to address this issue.
United Food argues that “given the simplified nature of the monetary relief here provided,” Brief for Petitioner 44, n. 17, the third prong of the Hunt test is satisfied despite its claim for damages. In light of our conclusion that in the WARN Act Congress has abrogated the third prong of the associational standing test, we need not decide here whether, absent congressional action, the third prong would bar a “simplified” claim for damages.
Because the union is statutorily entitled to receive notice under the WARN Act, and because of the paramount role, under federal labor law, that unions play in protecting the interests of their members, it is clear that this test is satisfied here. We therefore need not decide whether this prong is prudential in the sense that Congress may definitively declare that a particular relation is sufficient.
The germaneness of a suit to an association’s purpose may, of course, satisfy a standing requirement without necessarily rendering the association’s representation adequate to justify giving the association’s suit pre-clusive effect as against an individual ostensibly represented. See generally Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985); Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 395-399 (1996) (Ginsburg, J., concurring in part and dissenting in part). See also Automobile Workers v. Brock, 477 U. S. 274, 289 (1986) (“[A]n association might prove an inadequate representative of its members’ legal interests for a number of reasons”); Note, Associational Standing and Due Process: The Need for an Adequate Representation Scrutiny, 61 B. U. L. Rev. 174 (1981). In this case, of course, no one disputes the adequacy of the union, selected by the employees following procedures governed by a detailed body of federal law and serving as the duly authorized collective-bargaining representative of the employees, as an associational representative. See generally NLRB v. Gissel Packing Co., 395 U. S. 575 (1969).
See, e. g., Whitmore v. Arkansas, 495 U. S. 149 (1990) (recognizing a next-friend’s standing).
See, e. g., Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., and the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq.
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_appel1_7_5
|
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 appellant. 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).
UNITED STATES of America, Plaintiff-Appellee, v. Kay CORREA-NEGRON, Defendant-Appellant.
No. 71-2588.
United States Court of Appeals, Ninth Circuit.
June 15, 1972.
Rehearing Denied July 24, 1972.
Martha Goldin (argued), Alan Saltz-man, Hollywood, Cal., for defendant-appellant.
Shelby R. Gott, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before MERRILL and GOODWIN, Circuit Judges, and WHELAN, District Judge.
The Honorable Francis C. Whelan, United States District Judge for the Central District of California, sitting by designation.
PER CURIAM:
Appellant’s contention that the trial court should have dismissed the action because the government placed material witnesses out of the reach of appellant’s subpoena power is not supported by the record. First, appellant did not move the trial court for an order dismissing the indictment herein. Second, there is no showing whatsoever that the government ever found any of the other aliens who accompanied Mr. and Mrs. Juarez across the international boundary line.
Appellant’s contention that the judgment must be vacated and the cause remanded in order to afford appellant a competency hearing is likewise without merit. There is nothing in the record to suggest that appellant was mentally incompetent. Nor did the trial court abuse its discretion in the sentencing of appellant.
Appellant’s contention that there was no evidence of conspiracy is frivolous. The evidence of the prosecution established a conspiracy between defendant, one Huero, and others. The overt acts charged in the indictment were committed in the United States; and the conspiracy charged had for its object crime in the United States although carried on partly in and partly out of the United States. Thus, the conspiracy was within the jurisdiction of the United States. Ford v. United States, 273 U.S. 593, 624, 47 S.Ct. 531, 71 L.Ed. 793.
The contention of appellant that there is insufficient evidence to convict appellant of encouraging and inducing the illegal entry of aliens is likewise frivolous. The evidence establishes that the defendant met with Mr. and Mrs. Juarez in Mexico, told them he would get them into the United States, and introduced them to Huero, telling them in effect that Huero would provide the method for their illegal entry. This Huero did. Also defendant told the Juarez’s that he would meet them in San Diego to assist them in travel to Los Angeles. The fact that these acts and conversations took place in Mexico does not make the defendant any less guilty. Claramont v. United States, 26 F.2d 797 (5th Cir.)
The contention that there is insufficient evidence to support appellant’s conviction of harboring aliens is likewise frivolous. The defendant met the Juarez’s again at a San Diego hotel where the Juarez’s had been taken by Huero’s helper. From San Diego the aliens traveled north in an automobile supplied by defendant; he told them to wait until instructed by him that it was safe to proceed through the area on the highway where searches of automobiles for aliens are intermittently maintained. Such evidence is clearly sufficient to support the verdict of guilt.
The judgment is affirmed.
Question: This question concerns the first listed appellant. 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:
|
songer_r_bus
|
3
|
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.
LOCKMAN FOUNDATION, Plaintiff-Appellant, v. EVANGELICAL ALLIANCE MISSION; Evangelical Alliance Mission of Japan; Kenneth G. McVety, Defendants-Appellees.
No. 89-56230.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 1991.
Decided April 18, 1991.
Charles S. Treat, Latham & Watkins, Los Angeles, Cal., John F. Flannery, Fitch, Even, Tabin & Flannery, Chicago, Ill., Richard A. Clark, Parker, Milliken, Clark, O’Hara & Samuelian, Los Angeles, Cal., for plaintiff-appellant.
Edmond M. Connor, Dean J. Zipser, Paula Perez-Pena and David A. Delman, Morrison & Foerster, Irvine, Cal., for defendants-appellees.
Before GOODWIN, BOOCHEVER and RYMER, Circuit Judges.
RYMER, Circuit Judge:
This case involves a dispute over the translation of a version of the Bible into several Asian languages, particularly Japanese. The Lockman Foundation (“Lock-man”) sued The Evangelical Alliance Mission (“TEAM”), TEAM’S alleged alter ego in Japan, called TEAM/Domei, and McVety, a TEAM/Domei representative in Japan, in federal district court in California, alleging various copyright and noncopy-right counts, including a RICO violation, arising under United States, Japanese and California law. The district court dismissed the case on the ground of forum non conveniens. Lockman challenges the dismissal of its noncopyright claims and contends the district court erred in not allowing it to amend its complaint to drop the copyright counts. Because the district court did not abuse its discretion in concluding that Japan is the more convenient forum for these claims and because granting leave to amend would have been futile, we affirm.
I
Lockman owned an English translation of the Bible and sought to have its version translated further into several Asian languages. It established a relationship with TEAM to organize and accomplish the translating effort. Lockman and TEAM maintained a relationship for over 30 years, which led to the publishing of a new Japanese version of the Bible (“Shinkaiyaku Seisho”) distributed almost exclusively in Japan. The Lockman and TEAM cooperation also led to ongoing projects to produce more translations into several other Asian languages. The relationship eventually soured and Lockman brought this suit, alleging various claims for copyright infringement, unfair competition, and tort, contract and RICO violations.
TEAM/Domei brought its own suit in Japan seeking a declaratory judgment that it owns the Japanese copyright to the Shin-kaiyaku Seisho. Loekman has appeared in that Japanese action.
II
The district court had jurisdiction over this suit under 28 U.S.C. § 1331 (federal question), § 1332(a) (diversity) & § 1338 (copyright). This court has jurisdiction under 28 U.S.C. § 1291.
We review the district court's dismissal for abuse of discretion. “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055, 1064 (1947)); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1448-49 (9th Cir.1990). This standard presents Loekman with an uphill battle.
A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. Contact Lumber, 918 F.2d at 1449. This showing must overcome the “great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.” Contact Lumber, 918 F.2d at 1449 (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985)).
Loekman stresses that plaintiffs presumptively may choose their forums. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062 (“unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed”). The deference due to plaintiffs, however, is far from absolute. We have recognized that “[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983); Contact Lumber, 918 F.2d at 1449. In practice, “the cases demonstrate that defendants frequently rise to the challenge” of showing an alternative forum is the more convenient one. Contact Lumber, 918 F.2d at 1449. “A citizen’s forum choice should not be given dispositive weight_ [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Piper Aircraft, 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23, 70 L.Ed.2d at 436 n. 23.
A. Adequate Alternative Forum
“At the outset of any forum non conve-niens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process’ in the other jurisdiction.” Id. at 254 n. 22, 102 S.Ct. at 265 n. 22, 70 L.Ed.2d at 435 n. 22 (citing Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061). Because the record shows that TEAM has agreed to submit to Japanese jurisdiction, .and because TEAM/Domei and McVety reside in Japan, the threshold test is satisfied.
The initial requirement may not be satisfied, however, in “rare circumstances ... where the remedy offered by the other forum is clearly unsatisfactory.” Id.; see also Cheng, 708 F.2d at 1411 (“[T]he burden of proving an alternative forum is the defendant’s and ... the remedy must be clear before the case will be dismissed.”). Dismissal is not appropriate “where the alternative forum does not permit litigation of the subject matter of the dispute,” such that “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254 & n. 22, 102 S.Ct. at 265 & n. 22, 70 L.Ed.2d at 435 & n. 22. Lockman’s allegations as to why Japan would be an inadequate forum fail to show that a Japanese remedy would be “clearly inadequate.”
Lockman takes issue with several aspects of Japanese court procedure, none of which suggest that courts in that country are an inadequate forum. First, Lockman claims that there is no pretrial discovery in Japan. TEAM’S experts, however, said Japanese discovery procedures, though not identical to those in the United States, would be adequate. The district court considered both sets of opinions and found that those of TEAM’S experts were more persuasive. The district court did not abuse its discretion in finding that TEAM’S assertion that Japan was an adequate forum was supported by sufficient evidence. See Cheng, 708 F.2d at 1410-11 (no error where district court found one set of experts more persuasive).
Second, Lockman objects to the lack of jury trials in Japan. This fact does not render Japanese courts an inadequate forum. See In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 199, 202 (2d Cir.), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987); Danser v. Firestone Tire and Rubber Co., 86 F.R.D. 120, 122 (S.D.N.Y.1980).
Third, Lockman claims that Japanese appellate courts exercise de novo review of facts as well as law. Even assuming such a difference in standards of review would harm Lockman, this difference does not render Japan an inadequate forum. See Piper Aircraft, 454 U.S. at 250, 102 S.Ct. at 263, 70 L.Ed.2d at 432 (unfavorable change in law should not be given substantial weight).
Fourth, Lockman contends that the statute of limitations would bar “many” of its claims. TEAM has satisfied this objection by waiving any statute of limitations defenses to Lockman’s claims that would not have been otherwise available to TEAM the day Lockman filed this suit in California.
Lockman also complains of possible changes in substantive law. If forced to pursue its action in Japan, Lockman contends, it would be unable to litigate its RICO and Lanham Act claims and would lose the opportunity to recover treble damages and attorney’s fees. TEAM’S experts disagree, claiming that Japanese courts will apply the substantive law of the United States to Lockman’s counterclaims against TEAM in TEAM'S Japanese copyright action. There was evidence on both sides of this question and, again, Lockman fails to show how the district court’s crediting TEAM’S experts over its own amounted to an abuse of discretion.
Even if the RICO and Lanham Act claims were unavailable in Japan, that would not furnish a sufficient reason to preclude dismissal. The “possibility of an unfavorable change in the law” is not to be given conclusive or substantial weight in a forum non conveniens inquiry. Piper Aircraft, 454 U.S. at 249-51, 102 S.Ct. at 262-64, 70 L.Ed.2d at 431-33; see also Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822, 829 (2d Cir.1990) (“ ‘the prospect of a lesser recovery does not justify refusing to dismiss on the ground of forum non conve-niens’ ”) (quoting Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980)). Other courts of appeals have held, and we agree, that the inability to assert a RICO claim in a foreign forum does not preclude a forum non conveniens dismissal. See Kempe v. Ocean Drilling & Exploration Co., 876 F.2d 1138, 1143-44 (5th Cir.), cert. denied, - U.S. -, 110 S.Ct. 279, 107 L.Ed.2d 259 (1989); Transunion Corp. v. Pepsico, Inc., 811 F.2d 127, 129 (2d Cir.1987) (per curiam); cf. TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1353 n. 1 (9th Cir.1990) (leaving open question of whether federal policy requires that RICO claims be brought in federal court). Similarly, the presence of a Lanham Act claim does not preclude forum non conveniens dismissal. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 431 (9th Cir.1977) (dictum) (district court on remand could decide Nevada “is not a convenient forum in which to litigate part or all of the possible actions,” which included Lanham Act claims (emphasis added)). Even if a Japanese court were to reject these claims, Lockman has not shown that possible recovery on the other tort and contract claims would be “so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254, 102 S.Ct. at 265, 70 L.Ed.2d at 435.
The district court did not clearly err in its consideration and weighing of the evidence to determine that Japan provides an adequate alternative forum.
B. Balance of Private and Public Interest Factors
Given the existence of an adequate alternative forum, a district court must consider the balance of private and public interest factors to determine whether to dismiss on grounds of forum non conveniens. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63; Contact Lumber, 918 F.2d at 1449, 1453. Lockman, by conceding the dismissal of its copyright claims, attempts to recharacterize the case and thus invites this court to recalculate the balance. This attempt fails, though, because even the noncopyright claims are related to the copyright ones.
1. Private interest factors
“Private interest factors include: ease of access to sources of proof; compulsory process to obtain the attendance of hostile witnesses, and the cost of transporting friendly witnesses; and other problems that interfere with an expeditious trial.” Contact Lumber, 918 F.2d at 1451 (citing Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062); see also Nebenzahl v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir.1983).
a. Sources of proof
Conceding the district court’s dismissal of its copyright claims, Lockman contends that the sources of proof for its remaining claims, which arise under tort, contract and federal statutes, are in English and in the United States. Lockman argues that relevant agreements were made in English in California and that TEAM, through McVety, made its allegedly fraudulent representations to Lockman in meetings in California during various visits over the course of many years.
Lockman’s argument about sources of proof falls short because it relates only to how Lockman intends to present its case and ignores how TEAM intends to defend itself. The district court appropriately considered, in its balancing, TEAM’S defense as well as Lockman’s case in chief; in doing that, the Japanese copyright claim cannot be ignored. The court then correctly concluded that the balance tips strongly in favor of Japan as the more convenient forum.
If Lockman’s noncopyright claims went forward, one of TEAM’S defenses would be that it owned the Japanese copyright to the Shinkaiyaku Seisho. TEAM has demonstrated that the copyright issue is integral to Lockman’s remaining claims. First, Lockman predicates its specific performance claim on TEAM’S refusal to acknowledge Lockman as copyright owner of the translations; if TEAM turns out to be the rightful owner of the copyright, then it need not specifically turn over copyrights. Similarly, TEAM need not account for funds due as royalties for works on which Lockman owns a copyright if, in fact, TEAM owns the relevant copyrights. Regarding the conversion claim, there is neither a conversion of a copyright nor funds due from one if TEAM is the copyright holder. The copyright claims are related to the others and the sources of proof on TEAM’S anticipated Japanese copyright defense are overwhelmingly in Japan.
The breach of fiduciary relationship and fraud claims involve the alleged misuse of funds in Japan, particularly misappropriation to purchase Japanese real estate. For those claims, the district court concluded, a Japanese trial court might need to hear from “scores” of Japanese “bankers, accountants and church officials.” In addition, “[w]hen fraud charges are made, it is desirable that the factfinder have the benefit of demeanor testimony of witnesses.... ” Fustok v. Banque Populaire Suisse, 546 F.Supp. 506, 511 (S.D.N.Y.1982). In this case, the alleged defrauders are in Japan.
TEAM contends the Lanham Act claim involves activities in Japan because all formal distribution channels for the works were in Asia. Lockman maintains that its Lanham Act claim pertains to distribution of the Shinkaiyaku Seisho in the United States, however limited such distribution was. Once again, Lockman fails to demonstrate why the district court’s conclusion was so clearly incorrect as to amount to an abuse of discretion.
b. Availability of witnesses
All or nearly all of the witnesses relating to TEAM’S claim of copyright are in Japan, several of whom are apparently elderly and infirm and who would have a difficult time traveling to the United States. More importantly, TEAM cannot force them to testify in the United States. On the other side of the coin, Lockman cannot compel its witnesses to appear in Japan. There will be unavoidable inconvenience regardless of the eventual forum. The inconvenience to Lockman, however, is mitigated because Lockman is already participating in TEAM/Domei’s Japanese copyright action.
c. Policy favoring an expeditious trial
This factor weighs in favor of a Japanese forum, because trying all claims in one case there would prevent fragmented litigation. Because Lockman does not challenge the dismissal of its copyright claims, it must pursue them in Japan, if at all. Were the district court to keep the noncopyright claims, there would be lawsuits on both sides of the Pacific arising out of related matters. The district court credited the expert testimony TEAM presented that Lockman could litigate its actions in Japan by counterclaiming against TEAM/Domei in the copyright suit and joining TEAM and McVety as defendants. Given the district court’s dismissal of the copyright claims, Japan remains the only forum in which the entire case may be tried. Cf. Contact Lumber, 918 F.2d at 1452-53 (Philippines being only forum with jurisdiction over all related cases counseled in favor of forum non conveniens dismissal).
2. Public interest factors
“Public interest' factors encompass court congestion, the local interest in resolving the controversy, and the preference for having a forum apply a law with which it is familiar.” Id. at 1452; see also Nebenzahl v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir.1983).
The district court considered public interest factors and concluded that the nature of the relationship of the parties showed that the controversy had a large connection to Japan and little connection to California because all claims were related to the translation and distribution of Bibles in Japan. Both Japan and California have interests in this dispute, California because of its interest in seeing its citizens compensated for torts committed against them, and Japan because of its interest in matters relating to Japanese copyrights. It is unclear what law Japan would apply to Lock-man’s tort claims. The balance of public interest factors might tip somewhat in favor of California, given that United States courts are more competent to decide questions of United States federal law, such as the RICO and Lanham Act claims. Nevertheless, the record shows that the district court considered public interest factors and because there is no reason for this court to form “a definite and firm conviction that the [district court] committed a clear error of judgment in the conclusion it reached,” Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976) (citations omitted), its decision should remain undisturbed. There was no abuse of discretion in this case.
C. Choice of Law
Lockman claims that the district court erred in dismissing its tort and contract claims because California law applies to them and in dismissing its federal statutory claims because they arise under federal law. It relies on Zipfel v. Halliburton Co., 832 F.2d 1477, 1486 (9th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921, amended, 861 F.2d 565 (1988), to support its contention that the forum non conveniens doctrine is inapplicable where local law applies. That reliance is misplaced.
Zipfel involved a claim under the Jones Act, which applies to injuries to seamen. Where the Jones Act applies, forum non conveniens dismissal is precluded. Id. Thus, the district court in Zipfel had to make a choice of law determination initially: did the Jones Act apply? If it did, then the inquiry would have ended as to those plaintiffs to whom it applied. Likewise, in Contact Lumber, we examined COGSA, another maritime statute, to determine whether, if applicable, that law would dictate retention of the case by an American court. 918 F.2d at 1450-51. We concluded that “even assuming the applicability of U.S. law, appellants have no entitlement to have their case heard in a U.S. court,” id. at 1451, and that, therefore, “choice of law is not a dispositive consideration in [that] dispute.” Id. at 1453 (emphasis added). These cases considered whether any particular choice of law determination mandated a certain forum, thus ending the forum non conveniens dispute. See id. at 1449 (“If appellant, however, can demonstrate that choice of law requires retaining the case, the motion to dismiss will be denied.” (emphasis added) (citing Zipfel, 832 F.2d at 1486)). In this case, there is no arguably applicable law that would end the forum non conveniens inquiry, so no potentially dispositive choice of law determination need have been made.
Ill
On September 11, 1989, after the district court had orally ruled dismissing Lock-man’s action on forum non conveniens grounds, Lockman moved to amend its complaint, seeking to drop the copyright counts. The district court entered its order dismissing Lockman’s complaint on September 29. On October 2, Lockman filed a notice of cancellation of its hearing on its motion for leave to amend. The district court took that matter under submission without oral argument and denied leave to amend on October 16.
“This court reviews a district court’s denial of a motion for leave to amend under an abuse of discretion standard.” Contact Lumber, 918 F.2d at 1454 (citing Klamath-Lake Pharmaceutical Ass’n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983)).
A. Sufficiency of Lockman’s Notice of Appeal
TEAM contends that Lockman failed to appeal the denial of its motion for leave to amend because its notice of appeal failed to specify that particular order. See Fed.R.App.P. 3(c) (“The notice of appeal ... shall designate the judgment, order or part thereof appealed from”). Because Lockman’s notice of appeal designates only the September 29 order of dismissal, TEAM argues, it has failed to appeal the decision denying leave to amend.
The amendment issue is properly before this court. We liberally construe Rule 3(c). See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1422-23 (9th Cir.1989) (citing numerous Ninth Circuit cases), cert. denied, - U.S. -, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). “[A] mistake in designating the judgment appealed from should not bar appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). Where the appellee has argued the merits fully in its brief, it has not been prejudiced by the appellant’s failure to designate specifically an order which is subject to appeal. United States v. Walker, 601 F.2d 1051, 1058 (9th Cir.1979). TEAM fully briefed the merits of the leave to amend issue in its brief on appeal. It has not been prejudiced, so we consider the leave to amend issue.
B. Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” The district court may decline to grant such leave, though, where there is “any apparent or declared reason” for doing so, including undue delay, undue prejudice to the opposing party or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226 (1962) (emphasis added). Even though the district court did not give reasons for its denial, it is apparent from the record that granting leave to amend in this case would have been futile because the nonco-pyright claims are intertwined with TEAM’S Japanese copyright defense. The late request for leave to amend here appears “to be nothing more than a desperate effort at persuading the [district] court to retain jurisdiction,” such as the one we rejected in Contact Lumber, 918 F.2d at 1454. The district court did not abuse its discretion in denying leave to amend after it had made its dismissal ruling from the bench.
IV
Japan is an adequate alternative forum and the district court did not abuse its discretion in weighing the relevant factors before deciding that Japan is the more convenient forum. Lockman’s belated attempt to sever its copyright claims in order to save its California suit fails, because even the noncopyright claims are related to copyright issues, for which the balance of conveniences strongly favors resolution of the dispute in Japan. The district court did not abuse its discretion in denying Lock-man leave to amend because an amendment would have been futile. For these reasons, the decisions of the district court are
AFFIRMED.
. TEAM was the only defendant properly served and is therefore the only defendant that has appeared in this action.
. Lockman alleged 11 counts, which are:
(1) copyright infringement under United States law, based on its ownership of English translations of the Bible;
(2) copyright infringement under Japanese law, based on a claimed ownership of the copyright to the new Shinkaiyaku Seisho;
(3) specific performance of agreements through which TEAM would transfer copyrights to Loekman;
(4) accounting for royalties and payments due from sales of Bibles to which Loekman owned a copyright;
(5) false designation of origin relating to the United States copyright claim, alleging TEAM improperly used Lockman’s name on Bibles it sold after licensing agreements terminated;
(6) unfair competition under the Lanham Act, alleging TEAM improperly traded on Lockman’s name by distributing Bibles in the United States;
(7) conversion, of money, copyrights and translation works in progress;
(8) breach of fiduciary duty, specifically mismanagement of funds to be used for translations, including an allegation that TEAM used translation funds to purchase real estate in Japan;
(9) conspiracy to defraud Loekman of money and copyrights;
(10) fraud, by misappropriating funds earmarked for translations, by misrepresenting that translations were being diligently made and by converting copyrights belonging to Loekman; and
(11) RICO claims.
. Federal courts have consistently found that Japan provides an adequate alternative forum to litigation in the United States. See, e.g., Philippine Packing Corp. v. Maritime Co. of Philippines, 519 F.2d 811, 812 (9th Cir.1975) (per curiam); Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrows, 493 F.Supp. 626, 630 (S.D.N.Y.1980); Del Monte Corp. v. Everett Steamship Corp., 402 F.Supp. 237, 244 (N.D.Cal.1973). We have found no reported cases holding Japan to be an ¿«adequate forum.
. The matters are related because of TEAM'S anticipated copyright defense. Furthermore, Lockman itself has alleged, in this case, that the claims are related. Lockman asserted before the district court, in its amended complaint, that the common law claims were pendant to the copyright claims "because these claims and the federal law claims arise out of a common nucleus of operative facts." On appeal, though, Lock-man urges us to divorce the copyright claims from the others, contending that they are ««related. This we cannot do.
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_trialpro
|
A
|
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 court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. 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".
SOUTHERN TRANSP. CO. v. ASHFORD.
No. 6071.
Circuit Court of Appeals, Fifth Circuit.
April 1, 1931.
D. A. Frank, of Dallas, Tex., John B. Files, of Shreveport, La., and W. P. Bondies, of Dallas, Tex. (D. A. Frank, of Dallas, Tex., and John B. Files, of Shreveport, La., on the brief), for appellant.
Geo. T. McSween, of Shreveport, La., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
SIBLEY, Circuit Judge.
The Southern Transportation Company appeals from a judgment for $4,000' obtained by Elmore Ashford, for personal injuries sustained by him in a collision of the automobile in which he was riding as a guest, with a truck of appellant.
Glover, a witness for appellee, was confronted with an affidavit which he admitted signing, and which was somewhat at variance with his testimony. He was allowed to testify in explanation that he had, at the request of an agent of appellant, signed it, but did not swear to it, in order to get the truck driver out of jail, and under promise that the paper should not come up in court. The objection was that the witness was estopped by his affidavit. A party to a civil suit may sometimes be estopped from changing his claims or his contentions because of his pleadings, his solemn admissions, a previous judgment, or statements or conduct by which others have been misled. But a witness as such, if allowed to testify at all, is never cut off from, but is always under the duty of, telling the full truth as he really knows it.- A previous contrary statement whether under oath or not is no estoppel, but is admissible in impeachment of the present testimony of the witness. He may state the circumstances under which it was made, or may explain what he meant by it, or may deny that it was made at all. The very purpose of the rule requiring the impeaching writing to be called to the attention of-the witness before it can be introduced as an impeachment is to give the opportunity to deny or explain it, or exculpate himself if he can. The Charles Morgan, 115 U. S. 77, 5 S.Ct. 1172, 29 L. Ed. 316. The jury are then to determine under all the circumstances the real force of the impeachment, and the credit to be given the present testimony of the witness.
The numerous assignments of error touching instructions to the jury given or refused cannot be considered because the record fails to show that any exception was taken to them at the time. A main function of an exception is to call the attention of the court pointedly to the error which it is thought has been committed, that he may have opportunity to reconsider it and correct it, and avoid miscarriage of justice or a new trial. United States v. U. S. Fidelity Co., 236 U. S. 512, 529, 35 S. Ct. 298, 59 L. Ed. 696. Exception timely taken to a. charge or refusal to charge is indispensable to a review on appeal. Lindsay v. Burgess, 156 U. S. 208, 15 S. Ct. 208, 39 L. Ed. 399. State statutes and practices to the contrary make no difference. St. Clair v. United States, 154 U. S. 134, 14 S. Ct. 1002, 38 L. Ed. 936.
The complaint that the verdict was excessive was for the trial court alone on motion for a new trial. Refusal of the new trial is not ground for reversal on appeal. Lincoln v. Power, 151 U. S. 436, 14 S. Ct. 387, 38 L. Ed. 224; Waters-Pierce Co. v. Deselms, 212 U. S. 160, 29 S. Ct. 270, 53 L. Ed. 453.
Affirmed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_7_5
|
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 first listed appellant. 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).
Herbert J. SPIER, Plaintiff-Appellant, v. The HOME INSURANCE COMPANY, Defendant-Appellee.
No. 16792.
United States Court of Appeals Seventh Circuit.
Dec. 16, 1968.
John H. O’Hara, Indianapolis, Ind., for plaintiff-appellant; O’Hara & Kohlmeyer, Indianapolis, Ind., of counsel.
Hugh E. Reynolds, Jr., Indianapolis, Ind., for defendant-appellee; Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., of counsel.
Before DUFFY, Senior Circuit Judge, and HASTINGS and FAIRCHILD, Circuit Judges.
DUFFY, Senior Circuit Judge.
This is an appeal from a judgment on a directed verdict for the defendant. The complaint was in two paragraphs. The first alleged a breach of contract and the second charged an unlawful interference by the defendant with the business relationship between plaintiff and one Ernest Wheaton. Compensatory damages were sought in both counts, while punitive damages were also demanded in the second count.
Plaintiff is and was at all pertinent times, an independent insurance agent representing the defendant as well as other insurance companies. He had a longtime acquaintance with Ernest Wheaton and he began to write insurance for him in 1948 when Wheaton organized his own moving company.
The asserted basis for plaintiff’s suit is the claim that defendant Insurance Company induced Wheaton to transfer his insurance policies in The Home Insurance Company from plaintiff’s agency to Richard Maxwell. Plaintiff says this was accomplished first, by terminating the agency agreement between The Home Insurance Company and plaintiff, and secondly, by advising Wheaton of the termination.
Plaintiff concedes that the actions of defendant and Wheaton, taken at face value, lay well within their respective rights. Plaintiff further admits that only if it can be shown that the transfer of the business from plaintiff was induced by the defendant, can the plaintiff’s case be established. Plaintiff sought to malee such proof largely by circumstantial evidence.
Plaintiff claims that the Court erred in not permitting plaintiff to ascertain by interrogatories and by the motion to produce and by subpoena to Richard Maxwell, the premium volume of other agents of defendant within the State of Indiana, and, in particular, the premium volume of Richard Maxwell. Error is also claimed because of the trial court granting a motion for a directed verdict at the close of plaintiff’s evidence.
In the 1930’s, Ernest Wheaton, then an employee of Mayflower Van Lines, met Robert Maxwell who represented defendant The Home Insurance Company. Maxwell explained to Wheaton the various coverages offered by Home.
In 1945, Wheaton arranged for Maxwell to place broad transit and cargo coverage with Home for the new Clipper Van Lines, later known as Wheaton Van Lines. Wheaton asked if his friend Spier (the plaintiff) could be the agent. The first policies thereafter were issued by a Home subsidiary through the plaintiff. Later, plaintiff obtained a Home insurance agency contract, and policies were thereafter issued by The Home Insurance Company. Robert Maxwell became a vice president of The Home Insurance Company.
Wheaton took an active interest in his insurance program. About once a year, he went to New York to discuss rates, types of coverage and other insurance matters with Robert Maxwell. Any changes were made in New York and thereafter Spier signed them as agent.
In 1961, plaintiff Spier signed a contract with Home to write at least $200,-000 annual premium volume for the Home Group. Spier also received a contract to represent Home Indemnity Company. The first year, however, Spier wrote less than $100,000 premiums of which about 80%' were from Wheaton policies. Spier was advised by defendant that unless he did better, his Home contract would be terminated.
On April 5, 1963, Spier signed a contract which terminated his agency and which placed him on a “Limited Agency Agreement” which was for a term of five years. Defendant claims this contract was for the sole purpose of servicing policies issued prior to the Agency Agreement. The contract gave Spier an opportunity to rewrite the Home policies at their normal termination date in a different company.
The Termination Agreement provided: “(6) This agreement supersedes all previous agreements, whether oral or written, between the Company and the Agent and may be terminated by either party at any time upon written notice to the other.”
Spier did not tell Wheaton that his agency had been terminated by Home. When questioned, he admitted he believed Wheaton would remain with the Home Company and would find another agent.
Spier had Wheaton’s workmen’s compensation, public liability and property damage coverage with Continental Casualty, and his personal policies with Northern of New York.
In mid-1963, Northern cancelled Whea-ton’s policies. Spier replaced them in Federal and tendered them to Wheaton. Wheaton refused, insisting they be placed with The Home Insurance Company. Spier was unable to do so because his agency had been terminated. Without Wheaton’s knowledge, Spier brokered the policies, placing his agency stamp over the stamps of two agents who had actually written them, and delivered them to Wheaton. Apparently, Wheaton did not realize that these policies had been brokered.
The second count of plaintiff’s complaint is in tort. He alleges that the termination of his agency constituted a tortious interference with his business relation with Wheaton. We do not think that this is the law of Indiana. Wheaton was entitled to take the action he did; it was not a breach of contract. Therefore, Home cannot be held liable for inducing a breach of contract. See Guethler v. Altman, 26 Ind.App. 587, 60 N.E. 355; Wade v. Culp, 107 Ind.App. 503, 23 N.E.2d 615; Wahlgren v. Bausch & Lomb Optical Company, 7 Cir., 68 F.2d 660 (1934). Indiana has permitted recovery in instances where the interference damaged relations with persons with whom plaintiff had no contract. But it is critical that there the defendant acted illegally in achieving his end.- Fort Wayne Cleaners and Dyers Association et al. v. Price et al., 127 Ind.App. 13, 137 N.E.2d 738. Here, the defendant was entitled to terminate Spier’s agency without cause. That Home’s object may have been to benefit another does not make the action tortious. See Jackson v. Morgan, 49 Ind.App. 376, 94 N.E. 1021. We therefore hold that defendant’s action did not constitute a wrongful interference with a business relation under Indiana law and that it was appropriate to direct a verdict on this count.
The first count of the complaint alleges that defendant’s action constituted a violation of the American Agency System, which was impliedly a part of the contract. Basically, the System provides, inter alia, that the insurance company will not use information about policy ex-pirations to induce an insured to change agents. The “expirations” belong to the agent.
Spier was placed on a limited agency basis as a consequence of his failure to meet the premium level previously agreed to. When Wheaton learned of the new arrangement thirteen months later, he decided that he did not wish to do business with Spier any longer. He resented the fact that plaintiff had brokered two of his policies and had plaintiff’s name placed over the names of the agents who had actually handled the matter. Whea-ton testified “He did not tell me that he was writing these policies through another agent and I did not want to do business through two agents, so I concluded, myself, at my own office in Indianapolis that this was enough for me; I would cancel the remaining business which Spier agency had for our company.”
Wheaton further testified that no one from the Home had at any time solicited his business or encouraged him to change agents. Plaintiff points out that Wheaton was informed that Spier’s agency had been terminated. However, the System does not prohibit an insurance company from giving such information. In Woodruff v. Auto Owners Insurance Co., 300 Mich. 54, 1 N.W.2d 450, the Michigan Supreme Court said: “Defendant not only had a right to advise these policyholders of the termination of the Woodruff Agency, but it was its legal duty to do so or in the alternative be bound by any action of Mr. Woodruff within the scope of his former agency; and this after his agency had been terminated.” This duty was not changed by the System, which applied in that case.
For over twenty years plaintiff enjoyed substantial commissions as the agent for The Home Insurance Company, which came about because of plaintiffs friendship with Wheaton. During this period, plaintiff was aware of the close business relationship between- Robert Maxwell and Ernest Wheaton. For a number of years of this period, Richard Maxwell was a Home agent. There is no indication that Robert Maxwell, at any time, made an effort to have his old friend Wheaton transfer any of his business to his brother Richard.
Against this evidence, we have only the contention that the premium level requirement was set with an eye toward terminating Spier’s agency for the purpose of inducing Wheaton to change agents. Given this posture of the evidence, it was undoubtedly correct to direct a verdict for the defendant on the first count also.
Plaintiff’s most substantial contention is that it was error to refuse to permit him to ascertain by interrogatories and by motion to produce and by subpoena to Richard Maxwell, the premium volume of other agents of the defendant in the State of Indiana, and in particular, the premium volume of Richard Maxwell. Through this procedure, he hoped to give some life to his position that the requirement that he write $200,000 worth of business was designed to eliminate him as an agent, and that this ultimately resulted in an inducement to Wheaton to change agents.
He hoped to show that no other agent produced $200,000 volume and, more particularly, that Richard Maxwell did not. From this he presumably wished the jury and the court to infer that the stated reason for terminating his agency was specious. And, if the stated reason was specious, then the actual reason may have been the hope that Wheaton would take his business to Richard Maxwell. Plaintiff apparently contends that this hope or expectation constituted the inducement required to violate the System.
The defendant, on the other hand, argued strenuously that the premium level achieved by each agent was affected by a wide variety of factors, and that it was impossible to draw any inferences by comparing volumes. The requirement for any agent was individually negotiated, and any comparisons would require an elaborate analysis of each agent’s situation. Further, the information sought involved defendant’s business relations with persons not involved in this litigation, and they had an interest in not revealing this information. Lastly, the defendants, by affidavit, pointed out that 60% or more of Spier’s volume was generated by the Wheaton account, and they implied that the requirement that he produce more business was well justified.
It is well settled that discovery rules are to be liberally construed, and that protection of information about business relations should not be permitted to thwart that objective. But the District Court has substantial discretion in such matters. In Sue v. Chicago Transit Authority, 7 Cir., 279 F.2d 416, at 419, we said: “Whether such a subpoena should be enforced is in the first instance a question for the trial court. Its determination will not be disturbed on appeal unless it clearly appears arbitrary and finds no support in the record?’ In the same case at page 418, we said with reference to interrogatories: “It was well within the discretion of the court to refuse to require the defendant to answer the interrogatories in question.”
A valid cause of action or claim must be based upon something more than conjecture. We cannot say that the trial court abused its discretion in declining to permit the plaintiff to inquire into these matters. Tiedman v. American Pigment Corporation, 4 Cir., 253 F.2d 803 (1958). The Court’s action was not error.
The judgment of the District Court is Affirmed.
Question: This question concerns the first listed appellant. 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:
|
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".
STATE OF OREGON, By and Through its STATE HIGHWAY COMMISSION, composed of Glenn L. Jackson, Kenneth N. Fridley and David B. Simpson, Appellant, v. TUG GO GETTER et al., including Olson Towboat Co., a California corporation, Appellee.
No. 22233.
United States Court of Appeals Ninth Circuit.
July 16, 1968.
Robert Y. Thornton, Atty. Gen. of Oregon, George E. Rohde, Chief Counsel, Oregon State Highway Commission, Salem, Ore., William F. White (argued) of White, Sutherland & Gilvertson, Portland, Ore., for appellant.
Walter H. Evans, Jr. (argued), Portland, Ore., Samuel L. Holmes of Angeli, Adams & Holmes, San Francisco, Cal., for appellee.
Before HAMLIN, MERRILL and ELY, Circuit Judges.
HAMLIN, Circuit Judge.
State of Oregon, appellant herein, filed a libel in the District Court for the District of Oregon against tug GO GETTER, her engines, apparel and equipment, Sause Bros. Ocean Towing Co., an Oregon corporation, Oliver J. Olson & Co., a California corporation, and Olson Towboat Co., a California corporation, seeking damages as a result of a collision in the Coquille River of the barge J. WHITNEY (being towed by the tug GO GETTER) with appellant’s bridge. The libel generally alleged that at the time of the collision the tug GO GETTER was owned by Sause Bros. Ocean Towing Co. and that the barge J. WHITNEY was owned by Oliver J. Olson & Co., a California corporation, and that an employee of Olson Towboat Co., appellee herein, was on board the tug GO GETTER and was either in sole control, or joint control with the master of the tug GO GETTER, of that tug. The libel further alleged that Oliver J. Olson & Co., a corporation, and appellee were California corporations and that appellee was the alter ego of Oliver J. Olson & Co.
Appellant, by filing an affidavit that Olson Towboat, appellee herein, could not be found within the district, then caused the district court clerk to issue a writ of foreign attachment. Pursuant to this writ a United States Marshal seized ap-pellee’s tug VIRGINIA PHILLIPS at Bandon, Oregon. Appellee moved to dissolve the writ. The district court considered affidavits filed by appellee, counter-affidavits by appellant, and reply affidavits, and granted the motion. Appellant filed a timely appeal to this court which has jurisdiction under 28 U.S.C. § 1291. We affirm.
As stated in Seawind Compania S.A. v. Crescent Line Inc., 320 F.2d 580, at 582 (2d Cir. 1963):
“ * * * on motions to vacate foreign attachments, the essential issue before the district court is whether respondent could have been found within the district. We must affirm Judge Bonsai’s determination that respondent-appellee could have been so found unless he applied an erroneous legal standard or his determination of subsidiary facts was clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); cf. Rule 52(a), Fed.R.Civ.P.
“The Admiralty Rules do not define the expression ‘found within the district.’ In the cases construing Rule 2, however, the requirement is said to present ‘a two-pronged inquiry: first whether [the respondent] can be found within the district in terms of jurisdiction, and second, if so, whether it can be found for service of process.’ United States v. Cia Naviera Continental S.A., 178 F.Supp. 561, 563 (S.D.N.Y.1959); see American Potato Corp. v. Boca Grande S.S. Co., 233 F. 542 (E.D.Pa.1916); Insurance Co. of North America v. Canadian American Navigation Co. (The Melmay), 1933 A.M.C. 1057.”
The affidavits filed by appellee were sufficient to support a finding that appellee could be found within the district for purposes of jurisdiction. In the affidavits it was stated that the appellee was in the business of operating oceangoing tugs; that its principal customer was Oliver J. Olson & Co., but that it has and will tow for other persons or corporations; that it has for more than five years been doing business in Coos County, Oregon; that it employs Thomas Miller as its managing agent in the state of Oregon; that it maintains its Oregon office in Coos Bay in the Oliver J. Olson & Co. offices; that it maintains an account with the State Compensation Department of the State of Oregon; that it files information returns with the Tax Commission of the State of Oregon. The affidavits further alleged that Thomas Miller as the managing agent for appellee transacts business in the Coos Bay area for appellee, such as ordering fuel, repairs, replacements for its tugs and crews, taking applications for employment, and dispatching its tugs; and that Thomas Miller resides in the area near Coos Bay, has resided there for more than fifteen years, and is well known in the area as the managing agent for appel-lee.
As to whether appellee could have been found within the district for process purposes, the question before the court was as stated in United States et al. v. Cia. Naviera Continental S.A., 178 F.Supp. 561 at 565, “The precise question is whether ‘an officer, a managing or general agent’ or other responsible representative of respondent could have been found in the district by the Marshal with reasonable diligence for service of process on respondent.” (Emphasis added.)
The affidavits before the district court show, inter alia, the following facts: (1) On October 10, 1966, counsel for appellant wrote a letter addressed to Oliver J. Olson & Co. at 506 North Broadway, Coos Bay, Oregon, and Sause Bros. Ocean Towing Co. at Coos Bay, Oregon, advising of the happening of the accident with the bridge on October 4, in which it was generally stated that the appellant expected to hold them responsible for the damages, requesting that the matter be referred to their insurance carrier. (2) On October 12, in response to that letter, an attorney for appellee, one Mr. Holmes, telephoned counsel for appellant. Mr. Holmes told appellant’s counsel that Oliver J. Olson & Co. and appellee were separate corporations, that Captain May had been the master of the tug JEAN NELSON owned by appellee, but that Captain May’s employment ended when the tug and barge were brought into Bandon Harbor. Mr. Holmes further advised as to who was operating the tug GO GETTER and that he, Mr. Holmes, would provide additional information as to each company. Counsel for appellant, however, made no inquiry during this telephone conversation as to whether either company was doing business in Oregon or whether either company had an agent or employee upon whom process could be served in the state of Oregon. Mr. Holmes in no way refused to give any such information. (3) On October 12, the same day as the telephone conversation, Mr. Holmes wrote a letter to counsel for appellant giving him a full explanation of the facts as far as he had ascertained them at that time. The letter ended with the following statement: “If there is further information which we can provide please let us know.” (4) The libel was filed on October 13, and there was filed on that day an affidavit by one of appellant’s attorneys that Oliver J. Olson & Co. and appellee “cannot be found within the District of Oregon.” Apparently at that time counsel for appellant had not made a diligent search, because the marshal served process on Tom Miller as the agent for Oliver J. Olson & Co. on October 14, at 5:15 p. m. However, on October 14 at 2:45 p. m. the marshal attached the tug VIRGINIA PHILLIPS apparently upon directions so to do by counsel for appellant.
Having in mind the above facts, together with the allegation in the libel that appellee was the alter ego of Oliver J. Olson & Co., we hold that there was ample support in the affidavits considered by the district court to support a finding of lack of reasonable diligence on the part of the appellant, a finding which is implicit in the order of the district court dissolving the writ of foreign attachment.
Judgment 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_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. 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. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
LUCAS et al. v. RHODES, GOVERNOR OF OHIO, et al.
No. 568.
Decided December 4, 1967.
Jack G. Day, Russell T. Adrine, Richard Gurm and Kenneth G. Weinberg for appellants.
William B. Saxbe, Attorney General of Ohio, and J. Philip Redick, Assistant Attorney General, for appellees.
Per Curiam.
The judgment is reversed and the cause is remanded to the United States District Court for the Northern District of Ohio. Wesberry v. Sanders, 376 U. S. 1 (1964).
Mr. Justice Marshall took no part in the consideration or decision of this case.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond2_1_3
|
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 concerns the second 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.
TRUSTEES SYSTEM CO. OF PENNSYLVANIA v. PAYNE et al., and four other cases.
Nos. 5077-5081.
Circuit Court of Appeals, Third Circuit.
May 1, 1933.
Charles A. Wolfe and Montgomery & McCracken, all of Philadelphia, Pa., for appellants.
Grover C. Ladner, Harry Felix, and Roy Livingstone, all of Philadelphia, Pa., for ap-pellees.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
WOOLLEY, Circuit Judge.
These appeals are from like decrees of the District Court appointing receivers for the five defendant corporations in very exceptional circumstances. The questions involved are jurisdictional. As questions of jurisdiction are to be determined from the allegations of the bills, not from the facts as they may turn out, Mosher v. City of Phoenix, 287 U. S. 29, 30, 53 S. Ct. 67, 77 L. Ed. 148, and rest accordingly on whether the allegations set forth a substantial claim in equity, Levering & Garrigues Co. v. Morrin, 289' U. S.-, 53 S. Ct. 549, 77 L. Ed.-, we shall decide the ease on the bills (all being substantially the same) and on a stipulation by counsel rather than on the evidence. These show that many closely linked corporations were engaged in different ways in a single comprehensive business of lending to homeowners small sums of money, not in excess of $300 to each borrower, and selling to them, or any one else, securities of certain of the corporations.
This business was conducted on a huge scale in eight states through the media of thirty corporations organized in groups of which the Pennsylvania group, the only one with which we are concerned, is an example.
The Trustees System Service Corporation, organized under the laws of Virginia with its main offices at Chicago, was the center of the system and in this litigation is referred to as the parent corporation. It owned all the capital stock (except qualifying shares) of the Trustees System Company of Pennsylvania which for convenience we shall call Trustees of Pennsylvania. This corporation owned in turn all the stock of the Trustees System Company of Reading and the Trustees System Company of Philadelphia, called, respectively, Trustees of Reading and Trustees of Philadelphia. Trustees of Reading owned all the stock of Truseo Company of Reading, and Trustees of Philadelphia owned all the stock of Truseo Company of Philadelphia, herein referred to, respectively, as Truseo of Reading and Truseo of Philadelphia. The five subsidiaries axe, it is averred, corporations of Pennsylvania. Their capital, paid in or earned, is not stated.
The corporate structure of the system however did not end here. Two more corporations were tied up with those we have named. These were the Industrial Loan and Guaranty Company and the Trustees System Extension Corporation, regarded and referred to as affiliates. Their capital structure is not given nor is it important. Enough is stated to show that the Industrial owned in some instances practically all and in others a majority of the several classes of common stock of the parent corporation, and Extension owned certain of its preferred stock. Of the balance much was owned by the public. There is nothing to show who owned the stock of Industrial and Extension.
The six system corporations were organized and they function in this fashion: P. J. Gibbons, the president, and J. G. Bom, the secretary-treasurer of the parent corporation, were the president and secretary-treasurer of each of the subsidiary corporations. They also constituted a majority of the board of directors of the parent corporation and, similarly, a majority of the boards of directors of the five subsidiary corporations. Thus all corporate powers were reposed in these two men.
Por convenience in illustrating what 'the systems did in their different spheres of operation, we shall run down the line of descent from the parent corporation at Chicago to its Philadelphia offsprings, the Reading line, and the lines elsewhere, being the same except in name and place.
The system made its profits from interest on money loaned and from the sale of stock of the parent corporation and of “gold notes” of that corporation — unsecured promissory notes payable in gold — and gold notes of Trustees Systems in various cities, in this case Trustees of Philadelphia, guaranteed by the parent corporation. (Outstanding guaranteed gold notes of all subsidiaries amount to $5,217,704.) Money acquired from the public flawed through the system in this way: The Truseos were supplied by the parent corporation in Chicago with money with which to make loans to the public. The Truseo of Philadelphia, for instance, on receiving such a loan immediately became a debtor of the parent corporation for the amount advanced. This money was deposited to the credit of Truseo in one bank and was drawn upon for local use. Money received from the public in payment of interest, repayment of loans and purchase of gold notes was placed in another bank not subject to withdrawal locally but to be withdrawn only by the two officers of the parent corporation in Chicago, who, as we have shown, were likewise officers of Truseo of Philadelphia and of the other subsidiaries. In this way money flowed from all the far-flung Truseo Companies to a central reservoir at Chicago, that of the parent corporation. But all of it did not stop there, for the reservoir had two outlets. Through them much money flowed to the Industrial and Extension corporations, promotion affiliates, in payment of promotion costs and commissions, amounting in the ease of the Extension for the years 1930, 1931 and ten months of 1932 to $5,120,000, and thence on to their stockholders whoever they were.
It should be kept in mind that profits could be earned by one corporation or another only from the use of the parent corporation’s money or from the purchase of the corporations’ securities by the public, loaned, sold and collected by the Trustees of Pennsylvania, Trustees of Philadelphia and Trus-eo of Philadelphia, whieh occupied the same office, had the same controlling officers and were served by the same employees, and that the money so received by one Or another of these corporations could be drawn out and sent west by the two officers common to all of them. The precise position of the Trustees of Pennsylvania and Trustees of Philadelphia as money earners in the system is, except as to the sale of notes, a little vague. But it is very clear that by reason of the identity of officers and of a majority of the directors in all the corporations, those officers could at will, according to the money needs of the parent corporation or for any other reason, keep one, or another, or all of the underlying corporations solvent or insolvent.
On October 28,1932, the District Court of the United States for the Northern District of Illinois appointed receivers for the parent corporation at Chicago. Thereupon the whole thing collapsed. Immediately there sprang up a Protective Committee composed of citizens of New York who, on an averment that they were stockholders and note holders of the parent corporation under a deposit agreement whereby all the right, title and interest of original stockholders and note holders (in excess of $3000) were transferred to them and that “by reason of said agreement” they became creditors and stockholders, respectively, of the five defendant corporations, filed six bills in the District Court of the United States for the Eastern District of Pennsylvania for receivers of the six corporations, one ancillary to the Chicago receivership, the others nominally primary, “in order to preserve the status of the creditors in the State of Pennsylvania with respect to the above corporation (s) in view of the attitude (ability) of the receivers of the parent corporation” to drain the money from the Pennsylvania subsidiaries to the central receivership at Chicago. Regarding the decree for receivers of the parent corporation in Illinois as evidence of a proper case for the appointment of receivers in Pennsylvania, 23 R. C. L. § 157; Bluefields S. S. Co. v. Steele (C. C. A.) 184 F. 584, the court appointed ancillary receivers for the parent corporation and “permanent” receivers for each of the subsidiary corporations. The receivers were the same in each case. The main receivers for the parent corporation did not resist nor have they appealed from the appointment of ancillary receivers but the five defendant subsidiary corporations, evidently acting in concert with authorities in Chicago, have appealed from the decrees of the court below on a variety of grounds in which they are wholly right or wholly wrong according to what the bills disclose to be the real situation in equity.
Reduced to simplest terms, appellant-defendants in these five eases contend that the decrees appointing receivers and making them permanent should be vacated and the bills dismissed for want of equity, because
(1) The plaintiffs have no equitable interest in the defendants either as creditors or stockholders.
(2) The bills do not pray for any equitable relief.
(3) The bills show on their face that the defendant corporations are solvent.
(4) The Trustees System Company of Pennsylvania is a foreign corporation with no fixed assets in this jurisdiction.
(5) The bills were not verified by oath of plaintiffs or some one having knowledge of the facts.
All of these contentions are based squarely on the proposition that the primary receivers were appointed for five separate and .distinct corporations, all of which were solvent, on the motion of persons who were neither stockholders nor creditors. If these five subsidiaries were so independent of the parent corporation and of one another that the stockholders and note holders of the parent corporation had no interest in them, it follows that the plaintiffs have no equitable right and the court could afford no equitable relief in respect to them and; in consequence, the defendant corporations must prevail absolutely. If, on the contrary, these five separately created corporations have failed to keep apart and maintain independence, it may be that their ease will fail and the decrees be sustained.
These are the central questions about which the whole case revolves. On their answers, one way or another, the law will fall into its proper place and the decision will plainly follow.
In approaching these questions we are confronted by certain fixed principles of equity which cannot be overlooked and therefore should be met frontally. This we shall do.
Assuming for the moment that the plaintiffs are creditors and stockholders of the defendant corporations, we first inquire whether as such they have any equitable rights to be relieved; and assuming, as we must oil the averments of the bills, that the defendant corporations are solvent, we next inquire what relief a court of equity can afford the plaintiffs?
On these assumptions the plaintiffs technically are stockholders and unsecured simple contract creditors of solvent corporations which, before resorting to legal remedies, they sought to put into receivership. From this plain statement of the case we have assumed and (a part) which the defendants have asserted, the inhibitions of the law stand out boldly. A stockholder of a solvent corporation has, save in exceptional circumstances, no right to ask for, and a court of equity has no power to order, the appointment of receivers. Nor has a court of equity power to appoint receivers for a corporation, solvent or insolvent, on a bill filed by unsecured simple contract creditors unless the corporation waives the question of jurisdiction and consents to a decree. Flershem et al. v. National Radiator Corporation et al. (C. C. A.) 64 F.(2d) 847; In re Metropolitan Railway Receivership, 208 U. S. 90, 109, 110, 28 S. Ct. 219, 52 L. Ed. 403. This is for the reason that “an unsecured simple contract creditor has, in the absence of statute, no substantive right, legal or equitable, in or to the property of his corporate debtor.” His only substantive right is to have his debt paid in due course. “His adjective right is, ordinarily, at law. He has no right whatsoever in equity until he has exhausted his legal remedy.” Having exhausted his legal remedy, and the debt or a portion of it remains unpaid, he may resort to equity by a creditor’s bill. Hollins v. Brierfield C. & I. Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113; Pusey & Jones Company v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763; Michigan v. Michigan Trust Company, 286 U. S. 334, 52 S. Ct. 512, 76 L. Ed. 1136; Shapiro v. Wilgus, 287 U. S. 348, 53 S. Ct. 142, 77 L. Ed. 355; Flershem et al. v. National Radiator Corporation (C. C. A.) 64 F.(2d) 847. And so, if these five defendant corporations were separate and distinct entities, independent of the parent corporation and of one another, the decrees appointing the receivers cannot be sustained and that is the end of the case.
But the court will not accept the independence of these several corporations from the mere fact that they were separately created. It is bound to regard the uses to which they were put in the huge financial scheme, examine the part they were made to play by powers equally controlling upon all of them and determine whether the things they did were done-separately for themselves or jointly for others. The court must, as it may, determine whether the five corporations were separate entities or were mere departments or agencies of the parent corporation. It must look and see whether in fact all these corporations were one, and whether there was that identity which lifts them out of the law of separate entities. We surmise that it was to avoid this very thing that the highly complex corporate structure of the scheme and the capital structure of the corporate units were created.- The corporate and capital structure of the Pennsylvania group fairly bristles with legal obstacles to invasion by creditors or disturbance by stockholders. If the structure as originally conceived is left undisturbed, the receivers for the parent corporation can do very much as the parent corporation itself did before the receivership, that is, drain off assets from the subsidiaries and dispose of them without ancillary receiverships to guard local .assets and watch over local creditors, thus leaving the local corporations financially dry and compelling their creditors to betake themselves to Chicago.
It is recognized in principle that the fiction of corporate entity may be disregarded where one corporation is so organized and controlled and its affairs are so conducted that it is, in fact, a mere instrumentality or adjunct of another corporation. Chicago, Milwaukee & St. Paul Ry. Co. v. Minneapolis Civic & Commerce Association, 247 U. S. 490, 38 S. Ct. 553, 62 L. Ed. 1229; In re Rieger et al. (D. C.) 157 F. 609; Brown v. Pennsylvania Canal Company (C. C. A.) 235 F. 669; Brown v. Pennsylvania R. Co. (C. C. A.) 250 F. 513; Industrial Research Corporation v. General Motors Corporation (D. C.) 29 F. (2d) 623, 625; Central Republic Bank & Trust Company v. Caldwell (C. C. A.) 58 F. (2d) 721. Through long practice courts have not hesitated to disregard the doetrine of corporate entities when the facts justify it. Although we know of no instance in which it has been done in matters of receivership, we cannot see why the same power does not exist in a court or why the law does not impose upon a court the same duty in a receivership matter when, as here, the facts are substantial enough to justify, indeed to compel, a finding that the five corporations were so identified with the parent corporation as to be a part of it. Being of opinion that the law makes no exception of receiverships, we tear asunder the legal maze of corporate fiction in which they have enveloped themselves and, observing that the six corporations were not merely related by stock ownership but, like wheels in a machine, were so closely meshed that all functioned together, we find from the bills that in legal effect they were one, a finding in consonance with the casual statement of the attorney for the parent corporation at the'hearing that “the whole thing from Alabama to Pennsylvania is really one company.”
That finding changes the whole point of the several contentions which the appellant-defendants have made in respect to themselves as separate entities and, renders inapplicable the authorities cited to sustain them. We shall, nevertheless, very briefly dispose of their contentions as they bear on a situation of the unitary character we have found this one to be.
As to the appellants’ first contention that “The plaintiffs (constituting a Protective Committee) have no equitable interest in the defendants either as creditors or stockholders,” 53 C. J. 27, § 12; Pusey & Jones Company v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763, it should be observed that the plaintiffs averred in the bills jhat they were‘holders of stock and notes'of the parent corporation in sums above the jurisdictional amount by reason of assignments by holders thereof under a deposit agreement of all their right, title and interest therein. Assuming, as we must, the truth of this averment, that made the plaintiffs at least unsecured simple contract creditors of the parent corporation, with a right to sue or proceed thereon. Bullard v. City of Cisco, Tex. (C. C. A.) 62 F.(2d) 313, 315. On this showing ancillary receivers for that eorporation.were appointed without opposition. The plaintiffs further averred that by reason of that ownership they were creditors of the five defendant corporations. The validity of that averment turns on the question we have decided whether the Pennsylvania group of corporations had maintained or lost their separate entities. Having found that they had not maintained them, the plaintiffs’ character of creditors of the parent corporation extends to the corporate departments or agencies which it embraced. Although holders of gold notes of one of the Pennsylvania subsidiaries, guaranteed by the parent corporation, have intervened, either seasonably or belatedly, we shall, in adhering to the bills, hold the plaintiffs to their own showing. This compels a finding that they had equitable rights sufficient to move for an ancillary receivership for the parent corporation, which is not questioned, and, in view of the identity of the several corporations, they had equitable rights sufficient to move for and obtain receivers for the five defendant subsidiary corporations which, though termed primary receivers, are in principle, because of unity, ancillary receivers. Gatch, Tennant & Co. v. M. & O. Ry. Co. (D. C.) 59 F.(2d) 217.
The appellants’ next contention — that “the bills do not pray for any equitable relief” — we regard as insubstantial. The bills expressly pray for receivers for the five defendant corporations in order that the entire matter may be co-ordinated with the ancillary receivership and the plaintiffs’ rights in respect to the defendant corporations be adjudicated, that is, the right to conserve their assets and have distribution thereof — whether in the ancillary jurisdiction or in that of the main receivership, 23 R. C. L. § 157 — in the way prescribed by equity in relation to ancillary and primary receiverships. Superior Cabinet Corporation v. American Piano Company (D. C.) 39 F.(2d) 87; Clark on Receivers (2d Ed.) § 321; Frowert v. Blank, 205 Pa. 299, 54 A. 1000. This, clearly, is relief which equity can and, on a proper showing, will afford. Such a showing, we hold, has been made.
The appellants next contend that the bills reveal that the defendant corporations are solvent. They do. But that does not help the appellants on our finding of lost entities. If a main receivership be granted for a solvent corporation, its solvency does not prevent a court in another jurisdiction from appointing ancillary receivers, Brooks v. Smith (C. C. A.) 290 F. 33, which is what the court below did in fact as to one receivership and in principle as to the others', not to wind them up but to protect local creditors as to local assets in the administration of their affairs. We are not informed whether the parent corporation is solvent or insolvent. The indications are that it is insolvent.
The appellants’ fourth contention is that “Trustees of Pennsylvania is a foreign corporation with no fixed assets in Pennsylvania.” Whether or not that is true is not disclosed by the record, nor is it a subject of any assignment of error unless it be read from such general assignments as “the court erred in appointing receivers,” “the court erred in entering the decrees.” Lack of specification in these assignments will not permit us to review the question raised here for the first time.
And, finally, the appellants’ contention that “the bills are not verified by oath of the plaintiffs (the Protective Committee) or someone having knowledge of the facts,” falls, on the bills’ own showing that they were verified by oath of Harry Wallaeh, a member and the secretary of the Protective Committee, and therefore one of the unsecured simple contract creditors, to the effect that “the facts set forth are true and correct to the best of his knowledge, information and belief.”
Equity Rule 25, subd. 5 (28 USCA § 723), is invoked in eases of “special relief pending the suit,” ordinarily in matters of injunction. This of course must be' “by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked,” yet even if the application for the appointment of ancillary receivers in faet or in effect be a “special relief,” we regard the verification in this instance adequate in view of the position of the affiant and the facts alleged and not controverted.
The several decrees of the District Court here on appeal are affirmed.
Question: This question concerns the second 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:
|
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.
Per Ake SKANTZE, Appellant, v. UNITED STATES of America, Appellee.
No. 15905.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 9, 1960.
Decided Feb. 23, 1961.
Bastían, Circuit Judge, dissented in part.
Mr. T. Emmett McKenzie, Washington, D. C., for appellant.
Mr. Stephen Shulman, Asst. U. S. Atty., at the time of argument, for appellee. Messrs. Oliver Gasch, U. S. Atty., Carl W. Belcher, Asst. U. S. Atty., and John D. Lane, Asst. U. S. Atty. at the time of argument, were on the brief for appellee.
Before Washington, Danaher and Bastían, Circuit Judges.
PER CURIAM.
Defendant-appellant was convicted of the crimes of grand larceny and false pretenses. D.C.Code §§ 22-2201, 22-1301 (Supp. VIII, 1960). He was a member of the staff of the diplomatic corps of the Kingdom of Sweden, assigned to the embassy in Washington, D. C., as vice consul, chancellor and accountant. He was considered the cashier of the embassy; and it was one of his duties to keep an embassy cash fund in a safe in his office, to make certain disbursals from this fund, to replenish the money in the fund when needed, and to keep records. In order to replenish the cash in the fund, it was necessary for appellant, from time to time, to make out checks payable to “cash” and to obtain the signature of one of his superiors thereto. The checks would then be cashed and the proceeds deposited in the cash fund safe.
The events giving rise to this case occurred between 1956 and 1958. On behalf of the Government, there was testimony that on the several occasions in question appellant presented checks to one of his superiors for signature, saying that the money was needed for the embassy cash fund; that appellant came into possession of the proceeds of the checks and that he then pocketed the money received and falsely reported (by means of bookkeeping entries) having made payments to various business firms. Appellant was prosecuted under a 27-count indictment based on nine transactions such as described, the nine checks totaling $12,000. On each transaction described in the indictment, appellant was prosecuted for false pretenses, grand larceny and embezzlement. It was shown at trial that appellant had no authority to take the money for himself and that the firms he claimed to have paid had in fact received nothing. At the close of the evidence, the Government elected to dismiss the counts charging embezzlement. The jury returned a verdict of guilty on the remaining counts of grand larceny and of false pretenses. Appellant was sentenced to terms of from three to nine years on the grand larceny counts and from one to three years on those of false pretenses, the sentences to run concurrently. This appeal followed.
Appellant claims that the conviction cannot stand, because grand larceny and false pretenses are inconsistent offenses. We do not agree. Title 22-1301 of the D.C.Code defines false pretenses, in pertinent part, as follows:
“Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value, or procures the execution and delivery of any instrument of writing or conveyance of real or personal property, or the signature of any person, as maker, indorser, or guarantor, to or upon any bond, bill, receipt, promissory note, draft, or check, or any other evidence of indebtedness, and whoever fraudulently sells, barters, or disposes of any bond, bill, receipt, promissory note, draft, or check, or other evidence of indebtedness, for value, knowing the same to be worthless, or knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall, if the value of the property or the sum or value of the money or property so obtained, procured, sold, bartered, or disposed of is $100 or upward, be imprisoned not less than one year nor more than three years; or, if less than that sum, shall be fined not more than $200 or imprisoned for not more than one year, or both. * * * ”
The language quoted shows that appellant, if the Government’s evidence was believed (as it obviously was), committed the crime of false pretenses when he obtained the signature of his superior to the checks, and perhaps again when he negotiated them — though we need not pass on this latter point. Therefore, the convictions for false pretenses must stand.
As to the grand larceny counts: the governing statute, D.C.Code § 22-2201, provides:
“Whoever shall feloniously take and carry away anything of value of the amount or value of $100 or upward, including things savoring of the realty, shall suffer imprisonment for not less than one nor more than ten years.”
This statute has repeatedly been construed by this court. It has long been established that “one who obtains money from another upon the representation that he will perform certain service therewith for the latter, intending at the time to convert the money, and actually converting it, to his own use, is guilty of larceny.” Means v. United States, 1933, 62 App.D.C. 118, 119, 65 F.2d 206, 207, and cases cited. See also Graham v. United States, 1950, 88 U.S.App.D.C. 129, 132, 187 F.2d 87, 90, certiorari denied 1951, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353. In the instant case the trial judge pointed to the critical and controlling factor that this appellant from the very outset entertained the specific intent to steal his employer’s money. He not only intended to do so, he consummated his purpose and actually converted the money to his own use. The record overwhelmingly establishes his guilt. As to each of the transactions, the appellant represented to his superiors that the money was needed for the embassy’s cash account and thus procured their signatures to the checks. He intended when he wrote up the checks to keep the money if the bank should cash them as indeed it did. Then the appellant made false entries in the cash journals in an effort to cloak the transactions. He was properly found guilty of grand larceny.
The argument to the contrary errs, we think, in that it overlooks the manner in which the money came into appellant’s keeping. Appellant was a trusted employee and undoubtedly did have other money lawfully in his keeping; but the money stolen was not such. He procured it through a trick or deceit. His position in the embassy, while it undoubtedly was a material ingredient in his deception, does not change the nature of his acts. Means v. United States, supra; Graham v. United States, supra.
We need not discuss the remaining contentions of the parties, as we find no reversible error.
Affirmed.
. As a foreign service officer of the Kingdom of Sweden, appellant had diplomatic immunity. However, his own act of changing his status in 1955 from that of Swedish national to resident alien in the United States would appear to have operated to waive that immunity. No claim of immunity was or is made.
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_usc1
|
0
|
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.
STANDARD OIL CO. v. CITY OF TALLAHASSEE.
No. 13089.
United States Court, of Appeals Fifth Circuit.
June 30, 1950.
Rehearing Denied July 28, 1950.
Lawrence A. Truett, Chas. S. Ausley, Tallahassee, Fla., for appellant.
James Messer, Jr., City Attorney, Tallahassee, Fla., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges.
McCORD, Circuit Judge.
This action was brought by Standard Oil Company, a corporation organized under the laws of Kentucky, against the City of Tallahassee, a municipal corporation of the state of Florida, to enjoin the enforcement of a city zoning ordinance adopted by that municipality on April 27, 1948.
On April 30, 1949, a temporary restraining order was granted by the district court enjoining the City of Tallahassee from enforcing said ordinance against plaintiff pending a final hearing and disposition of the cause. On November 30, 1949, after considering the pleadings, stipulation of counsel, and the testimony adduced upon a full hearing of the case, the district court held the ordinance valid and enforceable, whereupon the temporary restraining order was dissolved and the suit dismissed.
The main question presented is whether the zoning ordinance involved is justified as a reasonable exercise of the police power of the municipality to promote the general welfare of its inhabitants, or whether, as it affects plaintiff’s property, it is so arbitrary and unreasonable as to constitute a confiscation of its property without due process of law, or so discriminatory as to deny appellant the equal protection of the law.
The material facts, as stipulated by the parties and found by the trial court, reveal that Standard Oil Company owns and operates a gasoline service station at the intersection of Lafayette and Monroe Streets in the City of Tallahassee, across from the main entrance to the State Capitol. The property on which the service station is located was purchased in 1938 for the purpose of constructing a station thereon, which was to be used as a retail outlet for the sale of plaintiff’s gasoline and oil products. At the time of its purchase there were no restrictions by ordinance against the use of the property for such purpose.
Chapter 15,520, Special Laws of Florida, Acts of 1931, specifically authorized the City of Tallahassee to regulate the location and use of buildings and lands within that City, pursuant to a comprehensive zoning plan. Subsequently, practically the same grant of authority was given all municipalities in the State through the enactment of Chapter 19,539, Laws of Florida, Act of 1939, F.S.A. § 176.01 et seq.
On April 13, 1936, acting under authority granted to it by Chapter 15,520 of the Special Laws of Florida, the City of Tallahassee adopted a comprehensive zoning plan for the City. The area within which plaintiff’s property is located was then designated as a residence district “A”, and under the terms of the zoning ordinance service stations could not be operated within the area. However, a later zoning ordinance adopted that same year changed the designation of the area to residence district “B”, and under this new classification service stations could be constructed and operated within the area. It was during the period when this latter ordinance was in effect that plaintiff purchased the property in dispute and constructed its service station thereon.
On January 24, 1939, the City adopted Ordinance No. 334, which removed from residence district “B” the area within which plaintiff’s property is located, and added it to business district “A”. This zoning ordinance also provided as follows: “No additional motor vehicle service station or stations shall be constructed or operated within the above described parts of this area of the City of Tallahassee, after the effective date of this ordinance; and further that all locations or cities within said parts or areas of the City now used for motor vehicle service stations shall be discontinued as such on and after January 1, 1949.”
Finally, by zoning Ordinance No. 542, adopted April 27, 1948, the City again changed the area in which plaintiff’s property is located from a business district to a residence district “A”. The above provision of Ordinance No. 334, requiring the discontinuance of the operation of service stations in said area by January 1, 1949, was also made applicable to the area in which plaintiff’s service station is located. It is this ordinance which plaintiff here seeks to enjoin.
There is evidence to the effect that plaintiff has spent considerable money in the construction, operation, and maintenance of its service station since it was first opened for business on or about November 1, 1938, and that the value of its property will be greatly depreciated if it is prohibited under the ordinance from using it for such purpose. However, it' is without dispute that the City of’Tallahassee had authority to enact such zoning ordinances, and that it had exercised such authority prior to plaintiff’s purchase of the property'here involved. Plaintiff originally acquired the property with full knowledge of the right of the City to modify .its zoning ordinances so as to conform to its requirements as a rapidly growing municipality. Moreover, the evidence further shows that other service stations formerly located in the same district where plaintiff’s station is located have ce.ased operation before the deadline '¿given them under the ordinance, and that plaintiff’s station is the only one' of five service stations affected by the zoning ordinance which is still in operation.
The courts have generally recognized that they should not inhibit a reasonable exercise of the zoning power of a municipality carried out pursuant to legislative grant by the state. Moreover, it has been held that a presumption of validity attends the enactment of such zoning ordinances. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497.
Legislation conferring the zoning power upon various Florida municipalities has been repeatedly sustained as constitutional by the Supreme Court of Florida. State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114; State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541; Miami Shores Village v. William N. Brockway Post, No. 124, 156 Fla. 673, 24 So.2d 33. And in such cases, we are not permitted to substitute our judgment for that of the city council, or to question the wisdom or policy of that body in adopting the ordinance under attack, so long as it does not infringe constitutional guaranties. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364; Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497; State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394, 190 So. 607.
The power of a municipality to require by ordinance the discontinuance of an existing property use also appears to be well established law in Florida. Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819; State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541; State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394, 190 So. 607. Here, plaintiff’s service station is near the State Capitol and the State Supreme Court Building, as well as several other state office buildings and a public school. It therefore becomes manifest that its discontinuance under the ordinance cannot be viewed as arbitrary and unreasonable, or as having no relation to the safety and general welfare of the community affected. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Ann.Cas.1917B, 927; State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82; See also, Texas Co. v. City of Tampa, 5 Cir., 100 F.2d 347; Marblehead Land Company v. City of Los Angeles, 9 Cir., 47 F.2d 528.
We find no merit in appellant’s contention that enforcement of this ordinance would entail any unjust discrimination, or would be tantamount to depriving it of its property without due process merely because the site was acquired and improved at considerable expense before the zoning ordinance was enacted. The general rule here applicable is that considerations of financial loss or of so-called “vested rights” in private property are insufficient to outweigh the necessity for legitimate exercise of the police power of a municipality. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348; Ann.Cas.1917B, 927; Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L R. 1016; Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819; See also, State ex rel. Oil Service Co. v. Stark, 96 W.Va. 176, 122 S.E. 533; Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721; Chicago & A. R. Co. v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 204; Cf. City of West Palm Beach v. Edward U. Roddy Corporation, Fla., 43 So.2d 709.
The judgment is
Affirmed.
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_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.
NORTH DAVIS BANK, a corporation, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAYTON, a corporation, Defendant-Appellee.
No. 71-1199.
United States Court of Appeals, Tenth Circuit.
March 27, 1972.
K. Roger Bean, Layton, Utah, for plaintiff-appellant.
J. Thomas Greene, Salt Lake City, Utah, for defendant-appellee.
Before LEWIS, Chief Judge, and PICKETT and DOYLE, Circuit Judges.
PICKETT, Circuit Judge.
In 1970, the First National Bank of Layton, Utah began construction of a building across the street from its principal banking house, intending to use such as a drive-in window facility for receiving deposits and cashing checks. Plaintiff North Davis Bank, a state bank, brought this action in state court seeking to enjoin the completion of the building and its use in connection with the business of the First National, contending that the facility would constitute a branch bank in violation of Utah law. The defendant removed the case to federal court pursuant to 28 U.S.C. § 1441(a). The trial court denied a motion to remand, determined that the facilities in question did not constitute a “branch bank,” and granted defendant’s motion to dismiss. On this appeal the jurisdiction of the federal district court is questioned, as well as the summary disposition of the case on its merits.
It is first urged that the removal was not proper and that the motion to remand should have been granted. The trial court was of the view that the allegations of the complaint present a right or an immunity arising under the Constitution and laws of the United States and that the federal court had jurisdiction.
What constitutes a case arising under the Constitution or a law of the United States has often been resolved by well defined principles and this court has had occasion recently to apply these several tests in State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 691 (10th Cir. 1971), citing Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), and Chandler v. O’Bryan, 445 F.2d 1045, (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972).
The tests stated in Gully for determining when a case arises under the laws of the United States are applicable here:
“ [A] right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388; First National Bank v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 374, 64 L.Ed. 690. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. Ibid; King County v. Seattle School District, 263 U.S. 361, 363, 364, 44 S.Ct. 127, 128, 68 L.Ed. 339. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (New Orleans v. Benjamin, 153 U.S. 411, 424, 14 S.Ct. 905, 38 L.Ed. 764; Defiance Water Co. v. Defiance, 191 U.S. 184, 191, 24 S.Ct. 63, 48 L.Ed. 140; Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776; Denver v. New York Trust Co., 229 U.S. 123, 133, 33 S.Ct. 657, 57 L.Ed. 1101), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218. Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff’s cause of action and anticipates or replies to a probable defense. Devine v. Los Angeles, 202 U.S. 313, 334, 26 S. Ct. 652, 50 L.Ed. 1046; The Fair v. Kohler Die & Specialty Co., supra.”
Appellant argues that the removal was improper in that the complaint as filed in state court neither raises nor asserts any federal right or question but that to the contrary is one based on a violation of Utah State Banking Law. Defendant, on the other hand, maintains that the action is one arising under 12 U.S.C. § 36(f) which defines a branch bank under federal law.
The conditions under which national banks may branch are embodied by the McFadden Act, 12 U.S.C. § 36. The policy established by the Act is generally referred to as one to create “competitive equality” between competing national and state banks and allows national banks to branch if, and only if, the host state permits one of its own state banks to branch. See Walker Bank & Trust Company v. Saxon, 352 F.2d 90 (10th Cir. 1965), aff’d, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). It is well settled that the conditions under which a national bank may branch are to be determined by reference to state law and “that a ‘branch’ may be established only when, where, and how state law would authorize a state bank to establish and operate such a branch.” First National Bank in Plant City, Fla. v. Dickinson, 396 U.S. 122, 130, 90 S.Ct. 337, 341, 24 L.Ed.2d 312 (1969) ; First Nat. Bank of Logan, Utah v. Walker Bank, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). What constitutes a branch of a national bank, however, is to be determined by application of the standards prescribed by 12 U.S.C. § 36(f). See Ramapo Bank v. Camp, 425 F.2d 333, 346 (3d Cir. 1970), cert. denied, 400 U.S. 828, 91 S.Ct. 57, 27 L.Ed. 2d 58 (1970), holding state law restrictions as to main office relocation are not to be read into the National Bank Act. In First National Bank in Plant City, Fla. v. Dickinson, 396 U.S. 122, 133, 90 S.Ct. 337, 343, 24 L.Ed.2d 312 (1969), the Supreme Court, in interpreting a question of what constitutes a branch of a national bank, held that this determination presented a threshold question of federal law. It stated:
“We reject the contention made by amicus curiae National Association of Supervisors of State Banks to the effect that state law definitions of what constitutes ‘branch banking’ must control the content of the federal definition of § 36(f). Admittedly, state law comes into play in deciding how, where, and when branch banks may be operated, Walker Bank, supra, for in § 36(c) Congress entrusted to the States the regulation of branching as Congress then conceived it. But to allow the States to define the content of the term ‘branch’ would make them the sole judges of their own powers. Congress did not intend such an improbable result, as appears from the inclusion in § 36 of a general definition of ‘branch.’ ”
Not every question of federal law arising in an action establishes that a federal law is the basis of the suit. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Anderson v. Bingham & G. Ry. Co., 169 F.2d 328 (10th Cir. 1948). “The case must be directly concerned with the construction of federal law and a determination of rights thereunder.” State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 691 (10th Cir. 1971). In the present ease it is clearly the gravamen of plaintiff’s suit that the construction of the drive-in window facility constitutes a branch. What constitutes a branch of a national bank is to be determined by the definition in § 36(f), not local law. First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). This is the essential element of the plaintiff’s claim. This is not a case in which a federal statute is indirectly or collaterally involved but it is one having its source in and arising under 12 U.S.C. § 36(f). International Ass’n of Machinists v. Central Airlines, 372 U.S. 682, 695, 83 S.Ct. 956, 10 L.Ed.2d 67 (1962.)
A state court ease is removable only when it is disclosed on the face of the complaint, unaided by answer or by petition for removal, that it is one arising under the Constitution or laws of the United States. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687 (10th Cir. 1971); Chandler v. O’Bryan, 445 F.2d 1045 (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S. Ct. 1176, 31 L.Ed.2d 241 (1972); Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970); Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748 (1st Cir. 1971). The complaint alleges that the First National Bank of Layton has or is about to illegally establish a branch, which action it seeks to enjoin. The allegations present rights and immunities arising from federal statutes and the case was properly removed.
The remaining question is whether the trial court erred in concluding summarily on a motion to dismiss that the proposed “drive-in” facilities did not constitute a “branch bank.”
The provisions of Rule 12(b), Federal Rules of Civil Procedure, provide that a trial court may, in its consideration of a motion to dismiss, treat it as a motion for summary judgment if matters outside the complaint are to be considered. Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965); Arrington v. City of Fairfield, Alabama, 414 F.2d 687, 692 (5th Cir. 1969); Soley v. Star & Herald Co., 390 F.2d 364, 366 (5th Cir. 1968); Bradford v. School District No. 20, Charleston, S. C., 364 F.2d 185, 187 (4th Cir. 1966). It is clear from the record that the trial court, in determining the nature of the facilities under construction, considered affidavits which contained matters outside the complaint and treated the motion, without objection, as a motion for summary judgment.
Under Federal Rule of Civil Procedure 56(c), a motion for summary judgment is appropriate only when the “pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hanley v. Chrysler Motor Corporation, 433 F.2d 708 (10th Cir. 1970); Frey v. Frankel, 361 F.2d 437, 442 (10th Cir. 1966). The facts disclosed by the affidavits are uncontroverted. The matter was presented to the trial court by the parties without any dispute as to facts.
The affidavits reveal that defendant First National Bank of Layton proposes to erect a drive-in facility on a bank-owned lot, which is now utilized for customer parking. The structure when completed would be located about 100 feet away from the present bank office and across a street 66 feet wide. The drive-in would be connected with the present bank office by pneumatic tubes with no structures intervening between the drive-in facility and the bank proper. The drive-in and the banking house will be a unity of operation, and the window extensions will be used to provide a service necessitated by the increasing demand to accommodate customers who arrive at the bank in automobiles.
There is no fixed test for determining what constitutes a branch bank. First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). Each case must be considered on its own facts. In this case it is disclosed that the proposed facility is an integral operating part of the bank proper. The outside drive-in teller’s window is nothing more than an enlargement of existing facilities for the convenience of customers in conducting bank business, and does not constitute “a separate branch bank, branch office, branch agency, additional office or branch place of business.” 12 U.S.C. § 36(f). It affords no competitive advantage as apparently such arrangements are not prohibited by Utah law. The Supreme Court of Utah in First Nat. Bank of Logan v. Walker Bank & Trust Co., 19 Utah 2d 18, 425 P.2d 414 (1967), in considering a Utah statute similar to 12 U.S.C. § 36(f), stated in a like situation that the totality of facts “portrays a single, integrated banking operation at a banking house, expanded in the manner described to accommodate customers coming to that same banking house.” There is no similarity in the proposed activity here with that in First National Bank v. Dickinson, supra.
Affirmed.
. Utah Statute § 7-3-6 provides generally that no branch bank shall be established in any city, town or village except those being of first class status. It is stipulated that Layton, Utah is a third class city.
. The National Bank Act, 12 U.S.C. § 36(c) (1) and (2) as amended provides:
“(c) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question ; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State iu question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the laws of the State on State banks.”
. 12 U.S.C. § 36(f) provides in pertinent part:
“(f) The term ‘branch’ as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business ... at which deposits are received, or checks paid, or money lent.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_typeiss
|
B
|
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.
Roy M. LIVINGSTONE v. Marion B. FOLSOM, Secretary, Department of Health, Education and Welfare, Appellant.
No. 11758.
United States Court of Appeals Third Circuit.
Argued March 19, 1956.
Decided May 25, 1956.
Rehearing Denied June 20, 1956.
McLaughlin, Circuit Judge, dissented.
John J, ■ Coundy Washington, D. • C.y (Warren E. Burger, Asst. Atty. Gen., W. Wilson White, U. S. Atty., Philadelphia, Pa., Melvin Richter, John J. Cound, Attorneys, Department of Justice, Washington, D. C., on the brief), for appellant.
John Martin, Doyle, Philadelphia, Pa., for appellee.
Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
' This is an appeal by the Secretary of Health, Education and Welfare from a judgment of the District Court for the Eastern District of Pennsylvania setting aside his decision disallowing plaintiff’s claim for old-age insurance benefits under the Social Security Act. Plaintiff’s claim was based on his assertion that his net earnings’ from his insurance business during the period January, 1951, through June, 1952,' entitled him to old-age insurance benefits. This claim was denied by the Secretary because he found that plaintiff'had no net income from his insurance business during that period.
Plaintiff is a lawyer. He has also been licensed,^s an insurance broker for many years. He does not advertise as an insurance broker, but has opportunities'to sell insurance in connection with his law practice which deals largely with corporate and reaf estate work. He described fils insurance work variously as “not a separate ’ "business * * * [but] .a separate activity”, “an incident' in the practice" , of law” and “a sideline”. A1-, though he conducted His insurance business from his law office, he testified that, he did" riot "rent "the office for that purpose and he clairiied further that none of his business expenses' were incurred' in connection with' this insurance work, not even telephone' or secretarial expense. ..In 1951 plaintiff .earned $1,524.95 from his insurance business, and $1,253.68 from his law practice; his total business' expenses were $5,112.61. In 1952, he earned $614.45 from his insurance business (all of which was earned in the first six months), and $2,397.96 from his law practice; his total business expenses were $3,608..65. Plaintiff paid Social Security taxes during these periods on his income from the insurance business. These payments were based on his entire insurance income in accord with his contention that he had no expenses at all in connection with- that activity.
Plaintiff applied for old-age benefits on July 18,1952. He could be eligible for these benefits only if he had received á riet income from his insurance business óf not less than $400 in both 1951 and 1952. His claim was denied by the Field Office of the Federal Security Agency on September 19, 1952, on the ¿round that his business expenses should have been allocated between his income from his insurance business and his income ■frofn' his law practice, and that if this was done he had not earned the amount of “self-employment income” required to qualify him for benefits. Plaintiff disagreed with this determination, reiterating his contention that he had no expenses in connection with his insurance' business. Pursuant to his request, a hearing before a referee was held on May 8, 1953, at which plaintiff repeated his contention, claiming that he could not see any other basis on which the expenses'' could be charged. On May 28, 1953, the referee found that “it does not appear reasonable * * * to charge all the business expenses to the. law practice”, that “on the evidence * * * it appears * * * that it. would be reasonable to prorate the expenses of both operations according to the gross income from” each, and that when the expenses are so prorated plaintiff had “no net income from the insurance business for the years. 1951 and 1952”. Plaintiff appealed to the Appeals Council of the Social Security Administration, which, on October 1, 1953, notified him that it had affirmed the referee’s decision and informed him that if he disagreed with this decision he might obtain judicial review by filing a civil action within sixty days from that date.
On November 27,1953 plaintiff filed a complaint in the District Court seeking review of the Appeals Council decision. Thereafter the Secretary moved for summary judgment. After argument the court filed an opinion in which it found that the Secretary’s decision to prorate plaintiff’s expenses on the basis of his gross income from each source would have been proper if there were no evidence of the actual expenses involved in each operation, but held that in view of plaintiff’s testimony that he had no expenses in connection with the insurance work, the Secretary’s formula was without support in the evidence. The court accordingly entered an order denying the Secretary’s motion for summary judgment, and reversing and setting aside the decision of the Secretary. D.C., 132 F.Supp. 638. The present appeal by the Secretary followed.
The order of the district court must be reversed. The Secretary drew the inference from the uncontradicted evidence that the plaintiff’s contention was unreasonable that all his business expenses for 1951 and 1952 were chargeable to his law practice and none to his insurance business. He found the plaintiff’s testimony that he had no expenses in his insurance business to be incredible in the light of his testimony that he conducted that business from his law office for which he paid rent, telephone and secretarial expense. We think that the inferences which the Secretary thus drew were binding upon the district court. For they have the support of substantial evidence. Walker v. Altmeyer, 2 Cir., 1943, 137 F.2d 531; Social Security Board v. Warren, 8 Cir., 1944, 142 F.2d 974; United States v. LaLone, 9 Cir., 1945, 152 F.2d 43. And see O’Leary v. Social Security Board, 3 Cir., 1946, 153 F.2d 704.
It was error for the district court to disregard these findings and base its conclusion upon the plaintiff’s unsupported statement that he had no expenses in connection with his insurance business. For in making this statement he ignored a basic principle of accounting that a reasonable share of overhead expenses is chargeable to a business activity in addition to the expenses directly incurred in carrying on the particular activity. Thus it is stated in Paton, Accountants’ Handbook, 3d Ed., at pp. 137-138:
“Joint Costs.- — In departmentalizing charges the accountant should endeavor to secure a fair and equitable distribution. Otherwise improper managerial decisions may result. This point of view is particularly important in the handling of joint or common charges. If any cost factor contributes to two or more functions or departments of activity the effect should be fairly apportioned; there should be no freeing of one department at the expense of another.”
Accordingly viewing the plaintiff’s insurance and legal activities as separate businesses, as the plaintiff' argues they are, and differentiating his income received from his insurance sales from that derived from his law practice, as he argues we must, it nonetheless is clear that the Secretary did not err in holding that each of these business activities should be charged with its share of the plaintiff’s overhead expenses, including the cost of maintaining his office from which he conducted both businesses.
The order of the district court will be reversed.
. 42 U.S.C.A. .§ 401 et seq.
. Under section 211 (cp (5) of the Social Security Act plaintiff’s income from the , practice of law was not subject to tbe act. 42 U.S.O.A. § 411 j[c) (5). . '
. The Appeals Council decision was the “final decision of the Secretary” for the purposes of judicial review under seetion 205(g) of the act. 20 C.FJR.1949 ed. § 403.710(e).
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:
|
sc_issuearea
|
B
|
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.
DAY-BRITE LIGHTING, INC. v. MISSOURI.
No. 317.
Argued January 10, 1952.
Decided March 3, 1952.
Henry C. M. Lamkin argued the cause for appellant. With him' on the brief were William- H. Armstrong and Louis J. Fortner. Thomas H. Cobbs was also of counsel.
John R. Baty, Assistant Attorney General of Missouri, for appellee. With him on the brief was J. E. Taylor, Attorney General. Arthur M. O’Keefe, Assistant Attorney General, was also of counsel.
J. Albert Woll, Herbert S. Thatcher and James A. Glenn filed a brief for the- American Federation of Labor, as amicus curiae, supporting app dlee-.
Mr. Justice Douglas
delivered the opinion of the Court.
Missouri has a statute, Mo. Rev. Stat., 1949, § 129.060, first enacted in 1897, which was designed to end the coercion of employees by employers in the exercise of the franchise. It provides that an employee may absent himself from his employment for four hours between the opening and closing of the polls without penalty, and that any employer who among other things deducts wages for that absence is guilty of a misdemeanor.
Appellant is a Missouri corporation doing business in St. Louis. November 5, 1946, was a day for general elections in Missouri, the polls being open from 6 A. M. to 7 P. M. One Grotemeyer, an employee of appellant, was on a shift that worked from 8 A. M. to 4:30 P. M. each day, with thirty minutes for lunch. His rate of pay was $1.60 an hour. He requested four hours from the scheduled work day to vote on November 5, 1946. That request was refused; but Grotemeyer and all other employees on his shift were allowed to leave at 3 P. M. that day, which gave them four consecutive hours to vote before the polls closed.
Grotemeyer left his work at 3 P. M. in order to vote and did not return to work that day. He was not paid for the hour and a half between 3 P. M. and 4:30 P. M. Appellant was found guilty and fined for penalizing Grotemeyer in violation of the statute. The judgment was affirmed by the Missouri Supreme Court, 362 Mo. 299, 240 S. W. 2d 886, over the objection that the statute violated the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and the Contract Clause of Art. I, § 10.
The liberty of contract argument pressed on us is reminiscent of the philosophy of Lochner v. New York, 198 U. S. 45, which invalidated a New York law prescribing maximum hours for work in bakeries; Coppage v. Kansas, 236 U. S. 1, which struck down a Kansas statute outlawing “yellow dog” contracts; Adkins v. Children’s Hospital, 261 U. S. 525, which held unconstitutional a federal statuté fixing minimum wage standards for women in the District of Columbia, and others of that vintage. Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits, as Tot v. United States, 319 U. S. 463, holds. But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided. That is the essence of West Coast Hotel Co. v. Parrish, 300 U. S. 379; Nebbia v. New York, 291 U. S. 502; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; and California Auto. Assn. v. Maloney, 341 U. S. 105.
West Coast Hotel Co. v. Parrish, supra, overruling Adkins v. Children’s Hospital, supra, held constitutional a state law fixing minimum wages for women. The present statute contains in form a minimum wage requirement. There is a difference in the purpose of the legislation.. Here it is not the protection of the health and morals of the citizen. Missouri by this legislation has sought to safeguard the right of suffrage by taking from employers the incentive and power to use their leverage over employees to influence the vote. But the police power is not confined to a narrow category; it extends, as stated in Noble State Bank v. Haskell, 219 U. S. 104, 111, to all the great public needs. The protection of the right of suffrage under our scheme of things is basic and fundamental.
The only semblance of substance in the constitutional objection to Missouri’s law is that the employer must pay wages for a period in which the employee performs no services. Of course many forms of regulation reduce the net return of the enterprise; yet that gives rise to no constitutional infirmity. See Queenside Hills Co. v. Saxl, 328 U. S. 80; California Auto. Assn. v. Maloney, supra. Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. Jt is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, - another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins cases.
The classification of voters so as to free employees from the domination of employers is an attempt to deal with an evil to which the one group has been exposed. The need for that classification is a matter for legislative judgment (American Federation of Labor v. American Sash Co., 335 U. S. 538), and does not amount to a denial of equal protection under the laws.
Affirmed.
Mr. Justice Frankfurter concurs in the result.
“Any person entitled to vote at any election in this state shall, on the day of such election, be entitled to absent himself from any services or employment in which he is then engaged or employed, for a period of four hours between the times of opening and closing the polls; and such voter shall not, because of so absenting himself, be liable to any penalty; provided, however, that his employer may specify the hours during which such employee may absent himself as aforesaid. Any person or corporation who shall refuse to any employee the privilege hereby conferred, or shall discharge or threaten to discharge any employee for absenting himself from his work for the purpose of said election, or shall cause any employee to suffer any penalty or deduction of wages because of the exercise of such privilege, or who shall, directly or indirectly, violate the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof be fined in any sum not exceeding five hundred dollars.”
Decisions contrary to that of the Missouri Supreme Court in this case have been rendered by the Court of Appeals of Kentucky in Illinois Central R. Co. v. Commonwealth, 305 Ky. 632, 204 S. W. 2d 973, and by the Supreme Court of Illinois in People v. Chicago, M. & St. P. R. Co., 306 Ill. 486, 138 N. E. 155. But cf. Zelney v. Murphy, 387 Ill. 492, 56 N. E. 2d 754. The Appellate Division of the Supreme Court of New York in People v. Ford Motor Co., 271 App. Div. 141, 63 N. Y. S. 2d 697, and the Appellate Department of the Superior Court of California in Ballarini v. Schlage Lock Co., 100 Cal. App. 2d 859, 226 P. 2d 771, held in accord with Missouri. For a review of legislation in this field, see 47 Col. L. Rev. 135.
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_r_bus
|
3
|
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.
CUSHING et al. v. MARYLAND CAS. CO. et al.
No. 13887.
United States Court of Appeals Fifth Circuit.
July 31, 1952.
Rehearing Denied Oct. 9, 1952.
See 198 F.2d 1021.
James J. Morrison, Arthur A. de la Hous-saye, Raymond H. Kierr, Gerard A. Rault, New Orleans, La., for appellants.
Eberhard P. Deutsch, Brunswick G. Deutsch, New Orleans, La., for appellees.
Before HOLMES, STRUM, and RIVES, Circuit Judges-
STRUM, Circuit Judge.
This appeal is from a summary judgment dismissing, as to the insurers involved, five consolidated actions at law brought to recover damages for the death of five seamen who drowned when the tug boat “Jane Smith” collided with a ¡bridge, capsized and sank in navigable waters within the admiralty jurisdiction in Louisiana. Federal jurisdiction is asserted both under Sec. 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and upon diversity of citizenship.
The suits are against Texas & Pacific Railway Company, owner of the bridge, and Maryland Casualty Company and Home Insurance Company, who are the liability insurance underwriters of the owner and charterer of the tug, insuring against loss of life by, or personal injury to, the crew of said vessel. The complaints allege that the deaths were due to the negligence of the bridge owner, and of the owner and •charterer of the tug.
Plaintiffs assert the right to directly sue the insurers under Louisiana’s “direct action” statute, Title 22, Sec. 655, La.Rev.Stat. 1950, LSA-R.S. 22:655, which provides in part: “The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy, * * * and said action may be brought against the insurer alone or against both the insured and the insurer, jointly * * The policies involved were issued and delivered in Louisiana.
The dominant question is whether or not the statute applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters. The district judge answered the question negatively. He was of the view that Sec. 655, supra, which relates to “liability” insurance, is confined to the ordinary type of liability insurance as defined in Title 22, Sec. 6(4), La.Rev. Stat.1950, LSA-R.S. 22:6(4), and does not extend to “Marine protection and indemnity insurance,” as defined in subd. (13) (e) of that title, which is the type of policy here sued upon. He was further of the view that to give effect to the direct action statute as to these policies would be an invasion of the field of exclusive federal jurisdiction over admiralty and maritime matters which would not only impair the characteristic features of general maritime law, but would contravene the essential purpose of limitation of liability proceedings in admiralty, under 46 U.S.C.A. § 183, which have ¡been instituted by this owner and charterer, and in which these plaintiffs have filed claims. As one of the policies also provides hull insurance, the district judge was further of the view that to the extent of plaintiffs’ recovery in the limitation proceedings, the owner would be compelled to surrender insurance money to the claimants therein, contrary to the rule established in Norwich & N.Y. Transp. Co. v. Wright, 13 Wall. 104, 80 U.S. 104, 20 L.Ed. 585, and in City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134, that an owner’s liability is confined to the value of the vessel after the damage, not before, and that insurance money belongs to- the owner, not to the claimants.
It appears to us that in enacting Sec. 655, supra, the Louisiana legislature used the term “liability insurance,” in its broad generic sense, meaning that form of insurance by which an insured is indemnified against liability on account of bodily injuries sustained by others. The statute is not limited to the one type of liability insurance defined in Sec. 6(4), Title 22, supra, but extends as well to marine liability insurance of the type here involved. The statute is remedial. It should be liberally construed to accomplish its obvious purpose, which is to- afford an injured person a direct action against a compensated insurer who has assumed ultimate liability. There is no- indication in Sec. 655 that the Louisiana legislature intended to deny the right of direct action to persons covered by marine policies, while extending it to all others. On the contrary, it appears to us that it was intended, so far as the state legislative powers are effective, to extend the right to all persons covered by what is broadly known as “liability insurance,” including policies of the type here in question. While the policies sued on cover marine activities, fundamentally they are ordinary contracts of indemnity insurance.
Title 28 U.S.C.A. § 1333, a part of the original Judiciary Act of 1789, provides that United States district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” Applying this clause in upholding the validity of the New York Arbitration statute as applied to a dispute under a charter party made and to be performed in that state, the United States Supreme Court said; “The ‘right of a common-law remedy,’ so saved to suitors, does not * * * include attempted changes 'by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved. * * * A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. * * * But otherwise, the state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit. * * * In no case has this court held void a state statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.” Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 277, 68 L.Ed. 582, 586. These principles are determinative here.
While Sec. 655, supra, confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully .assumed ¡by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction. These suits are at law, not in admiralty.
Appellees, the insurers, further contend that the Jones Act, 46 U.S.C.A. § 688, creates a right of action against an injured seaman’s employer, but not against the employer’s liability underwriter, and that the State of Louisiana can not add to the rights created by the Jones Act. It is unnecessary, however, to determine that question. Even if there were no jurisdiction, nor any right of action, under the Jones Act, which we do not decide, diversity of citizenship exists between all plaintiffs and the defendant insurers, and more than $3,000.00 is involved in each suit. These circumstances support federal jurisdiction. The complaints contain averments which sufficiently assert liability upon general principles of negligence, and also for accidental death within tlie coverage of the policies sued upon, so that a cause of action is stated.
Appellees’ contentions over-mflate a relatively simple proposition with apparent, but unreal, technical problems. Stripped of illusory technicalities, the Louisiana statute merely creates in favor of one who has been wrongfully injured, an additional and cumulative remedy at law against an insurer who has agreed to indemnify the tort-feasor against liability, by subrogating the injured person to all the rights of the insured within the terms and limits of the policy. Other existing remedies are not in the least impaired or affected. New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. Such contracts of insurance are for the benefit of the public, as well as of the insured employer. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351; West v. Monroe Bakery, Inc., 217 La. 189, .46 So.2d 122. The statute is simply a regulation by the state of insurance companies doing business within its boundaries, for which there is ample sanction in federal law. 15 U.S. C.A. §§ 1011, 1012, the McCarran Act. The limitation of liability statutes, 46 U.S. C.A. § 183 et seq., relate, not to “the business of insurance” as mentioned in the McCarran Act, but to the liability of shipowners. The object of that proceeding is to limit the liability of the owner, not to preclude injured persons from pursuing any remedy open to them against others. To permit such an action will not defeat the purpose of the federal limitation of liability statute, nor will it interfere with the harmony or uniformity of admiralty law in its international or interstate relations. That the remedy may not exist in states other than Louisiana is not a tenable objection. The same was true in Red Cross Line v. Atlantic Fruit Co., supra, involving the New York Arbitration statute.
The Louisiana statute is wholly a regulation of the liability of insurers doing business in Louisiana upon obligations voluntarily assumed by them there. We see no reason why it should not be applied to liability policies such as those here sued upon, even though the injuries were suffered upon navigable waters. Federal jurisdiction exists, and the complaints state a cause of action.
Reversed and remanded.
. The district judge said [99 F.Supp. 683]: “If these plaintiffs should be paid any part of their claims in the limitation proceedings, then the shipowner under his contracts of insurance has a right to bo reimbursed by his underwriters. If the underwriters’ exposure on the policies is exhausted in paying the claims in this case, then the shipowner’s right against his insurers will avail him nothing.
“The effect therefore of allowing these plaintiffs to proceed directly against the shipowner’s insurers -would be to force the owner to turn his insurance into the limitation proceeding as part of ‘the interest of such owner in such vessel’. This the owner is not required to do. City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134.”
. Gager v. Teche Transf. Co., La.App., 143 So. 62; Hudson v. Georgia Cas. Co., D.C., 57 F.2d 757.
. See also Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, and Great Lakes D. & D. Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, holding that although admiralty affords no relief for wrongful death under general maritime lawr, an action in personam, may be maintained in admiralty under a state “wrongful death” statute to recover for a death upon navigable waters as a result of a maritime tort. (Statutory remedies for personal injures or death suffered by a seaman, or for wrongful death on the high seas, are now provided by 46 U.S.C.A. §§ 688, 761). Also, see Jarka Corp. v. Hellenic Lines, 2 Cir., 182 F.2d 916, 919, holding general New York law applicable to a stevedoring contract, which is a maritime contract. What was said as to “uniformity” in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, has. been sharply limited by Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1087, 87 L.Ed. 1416.
. Fisher v. Home Indemnity Co., 5 Cir., 198 F.2d 218; New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R. 2d 128; Belanger v. Great American Indemn. Co., D.C.La., 89 F.Supp. 736; West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122.
. “Congress declares that the continued regulation * * * by the several States of the business of insurance is in tb© public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation * * * of such business by the several states.” 15 U.S.C.A. § 1011. “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance * * * unless such Act specifically relates to the business of insurance”. 15 U. S.C.A. § 1012(b).
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:
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songer_treat
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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.
UNITED STATES of America v. William SAMS et al. Appeal of Victor CARLUCCI.
No. 75-1023.
United States Court of Appeals, Third Circuit.
Argued April 28, 1975.
Decided Aug. 4, 1975.
Irving M. Green, New Kensington, Pa., for appellant.
Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., John C. Kenney, Acting Asst. Atty. Gen., Robert L. Kruch, Edward S. Christenbury, Larry L. Gregg, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before VAN DUSEN, ADAMS and GARTH, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
The two principal issues to be resolved on this appeal are:
1. Whether a district court may, on a coram nobis petition, annul a conviction under the federal wagering tax statutes when the conviction is based on a guilty plea entered prior to the time the Supreme Court held that the privilege against self incrimination furnished a complete defense against such charges; and
2. Whether the petition here presents a claim for the return of the fine imposed as a result of a conviction under the wagering tax statutes that is barred by the statute of limitations.
I.
On February 18, 1963, Victor Carlucci pleaded guilty to two counts of willful failure to pay the special federal occupational tax imposed on wagering. As a result, he was sentenced to pay a fine of $10,000.
In Marchetti v. United States and Grosso v. United States both decided January 26, 1968, the Supreme Court held that the framework of federal wagering tax statutes “may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination.” Overruling their decisions in Kahriger and Lewis, the Court declared that the practice of gambling was so permeated with criminal prohibitions that prosecution for failure to comply with the requirements of the federal gambling tax statutes would encroach upon the Fifth Amendment’s protection against compulsory self-incrimination.
Subsequently, in United States v. United States Coin and Currency the Supreme Court ruled that the Marchetti and Grosso decisions should be given retroactive effect to invalidate a forfeiture proceeding. Donald Angelini had been convicted of not registering as a gambler and not paying the federal gambling tax. The government, prior to the Court’s decisions in Marchetti and Grosso commenced forfeiture proceedings with respect to $8,674 which Angelini had in his possession at the time of his arrest. The Supreme Court held that the doctrine of Marchetti and Grosso should be applied to reverse the judgment of forfeiture.
This was the background when, almost eleven years after his conviction, Carluc-ci, in June, 1974, filed an application for a writ of error coram nobis. Carlucci requested that the district court vacate, annul and set aside his conviction and refund the fine paid. He predicated his application on the Fifth Amendment, the All Writs Act and section 1346(a)(2) of the Tucker Act. The district court denied all the relief sought. It reasoned that by entering a guilty plea Carlucci had waived any defense under the Fifth Amendment, and that because there was no congressional waiver of sovereign immunity, the court had no authority to order a return of the fine.
II.
On this appeal Carlucci contends that under Marehetti and Grosso the Fifth Amendment provides an absolute bar to his conviction, and that the principle of those cases should be applied retroactively. Carlucci further maintains that since at the time of his conviction he could not have known that the prosecution ran afoul of the Constitution, his plea of guilty was not knowing and voluntary, and therefore his conviction should be vacated.
In addition, the Tucker Act, according to Carlucci, affords the district court the power to order his fine refunded, and a coram nobis proceeding is a proper occasion upon which to present his demand for the return of the money unconstitutionally taken from him. Finally, .Car-lucci argues that since he could not have known prior to the decision of the Supreme Court in Coin and Currency that he possessed a cause of action for the refund of the fine, the statute of limitations did not commence running until the date of that decision.
The government, in response, submits that Carlucci’s guilty plea is not subject to collateral attack because it was voluntarily entered and because Carlucci received assistance of counsel which was adequate with respect to the then-existing law. Even if the conviction is invalid, the United States asserts, the district court has no jurisdiction to order the fine remitted. The six year statute of limitations, according to the government, began running at least at the time of Marehetti and Grosso, and thus the period for filing a proceeding under the Tucker Act elapsed before Carlucci instituted this action. Additionally, the government alleges that there is no statutory authorization for repayment of the fine, and that in any case Carlucci has not qualified for recovery because he has not submitted a claim to the Secretary of the Treasury in conformity with the requirements of 26 U.S.C. § 7422.
For reasons which will be set forth below, we reverse that portion of the district court’s judgment that declined to expunge the conviction, and affirm that portion of the judgment that denied Car-lucci’s Tucker Act claim.
HL
A. The effect of Carlucci’s Guilty Plea on the Availability of Collateral Relief.
In three companion cases of Brady, McMann and Parker the Supreme Court established the general rule that where a conviction is based upon a plea of guilty, the conviction is subject to federal collateral attack only on limited grounds. To invalidate his conviction the defendant must show that he did not make the plea knowingly, intelligently and voluntarily or upon a demonstration that the plea was not uttered with the assistance of counsel competent with respect to the law as it existed at the time of the conviction. In particular, the Court stated that “a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
However, in Bannister v. United States this Court, en bane, decided that the general rule of the finality of guilty pleas did not preclude the assertion in a federal habeas petition of a Fifth Amendment defense by a person who had, prior to the ruling in Leary, submitted a guilty plea to charges under the marihuana tax statutes, Bannister pleaded guilty to both counts of a two count indictment alleging criminal failure to pay the marihuana taxes, and in June, 1967, was sentenced to two concurrent prison terms. Thereafter, the Supreme Court, relying on the rationale of Marehetti and Grosso, held in Leary that the privilege against compulsory self-incrimination provided a defense against an accusation of concealing marihuana without payment of the federal transfer tax. It was the judgment of a majority of this Court, albeit on the basis of somewhat divergent reasoning, that in light of Leary Bannister was entitled to have the writ issue in spite of his guilty plea.
We have interpreted the Bannister decision as meaning that in a situation such as that now before us, where a petitioner seeks to upset an earlier guilty plea on the basis of a decision articulating previously unrecognized constitutional rights,
whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect . “the integrity of the conviction” . or does it constitute what [has been] described as an “essentially procedural” change in the law . . . ?
In the present case, the constitutional objection raised by Carlucci, like that in Bannister undermines “the integrity of the conviction.” Indeed, the right asserted is the same as that urged in Bannister — freedom from criminal punishment for not incriminating one’s self by paying a special tax on an activity closely circumscribed by criminal penalties. The Supreme Court, in Coin and Currency gave the following description of the self-incrimination privilege as formulated in Marehetti:
“Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the fact finding process . . . . Rather, Marehetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.”
We do not find persuasive the government’s argument that our decision in Bannister has been subverted by the opinion of the Supreme Court in Tollett v. Henderson. There the Supreme Court declared that the defendant’s guilty plea to an indictment for murder foreclosed him from litigating on habeas the issue of racial discrimination in the selection of the grand jury that had indicted him. Eschewing an analysis solely in terms of a knowing waiver of a constitutional right, the Court stated that in such cases the focus of the habe-as inquiry should be on “the nature of the advice and the involuntariness of the plea, not the existence as such of an antecedent constitutional infirmity.”
The situation before us, however, is distinguishable from that in Tollett. In Tollett, as in McMann, Brady and Parker, the nature of the recently acknowledged constitutional right which formed the basis for the challenge to the conviction was essentially procedural. Here, in contrast, the assertion is that the very conduct charged against Carluc-ci is constitutionally privileged.
In this case as in Bannister, and unlike Tollett and the cases of the trilogy, there is no longer any governmental interest in continuing to punish the offender. In Tollett the state of Tennessee had a legitimate continuing interest in persisting with the conviction and punishment of the perpetrator of the murder at issue. There was also an on-going public concern in the chastening of those who had committed the crimes involved in Parker, McMann and Brady. Here, however, since the Supreme Court has held that the conduct in question is not constitutionally punishable, upholding the conviction will not vindicate any legitimate societal goal.
Also there is no difficulty here in assessing what course Carlucci would have followed if he had, at the time of his conviction, known of his rights under Marchetti. In Tollett it is difficult, perhaps impossible, to determine whether the defendant, if he had known the grand jury had been selected in a racially discriminatory manner, would have voluntarily waived his right to challenge the indictment in exchange for the prospect of a less burdensome sentence following a guilty plea. We may be quite certain on the other hand, that if Carluc-cf had known of his Fifth Amendment right under Marchetti, and had been competently counseled, he would not have pleaded guilty. For here, unlike in Tollett, the constitutional right in question is not merely one of several possible “pleas in abatement” but a complete defense. Vacating the plea therefore does not present the United States with the arduous task of attempting, years after the trial would originally have taken place, to piece together a case for the prosecution. Carlucci is not now contesting the allegation that he did not pay the statutorily required taxes. Rather, he professes that his failure to do so was privileged under the Constitution.
To hold that Carlucci’s guilty plea prevents him from asserting the Fifth Amendment defense on collateral review would be inconsistent with the solicitude which the Supreme Court has evidenced for allowing defendants a realistic opportunity to assert the self-incrimination defense to prosecutions like those under the wagering tax statutes. The most significant case in this respect is Haynes v. United States. Charged with possession of an unregistered firearm, Haynes moved before trial to dismiss the indictment because the statute abridged his privilege against self-incrimination. After the trial court denied the motion, Haynes pleaded guilty. On his appeal from that conviction, the Supreme Court stated, “Petitioner’s plea of guilty did not, of course, waive his previous claim of constitutional privilege.”
Also in Leary, the defendant, who did not invoke the self-incrimination defense until after the verdict, took the stand and testified that he had indeed acquired the marihuana without paying the tax. “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,” the Supreme Court said in Tollett in explaining the finality accorded to guilty pleas, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” The Court held, however, that Leary’s admission that he had committed those acts which constituted a violation of the statute did not preclude him from contending, after the trial, that his conviction abrogated the Fifth Amendment.
The aspect of the self-incrimination privilege pressed by Leary before the Supreme Court, Justice Harlan stated, was not the right to remain silent at trial, but rather the right not to be punished for his previous failure to obey a statute which required an incriminatory act. “His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that that omission was excused by the privilege.”
Thus the seeming incongruity between the Supreme Court’s treatment of the self-incrimination defense and its later guilty plea cases intimates that the Court may, sub silentio, have recognized the distinction drawn in Bannister. In any case, there would appear to be no meaningful difference between a defendant who, like Leary, takes the stand and testifies to his guilt without invoking the Fifth Amendment defense, and one who admits his culpability more succinctly by entering a guilty plea.
In Blackledge v. Perry the Supreme Court signaled that there are exceptions to the general rule articulated in Brady, McMann, Parker and Tollett. Perry, after a trial without a jury, was convicted in the state district court of the misdemeanor of assault with a deadly weapon. As a consequence of that conviction, Perry had an automatic right to a trial de novo in the superior court. After Perry evidenced his intent to exercise that right, the prosecutor obtained an indictment charging him with the felony of “assault with a deadly weapon with intent to kill and inflict various bodily injury.” The indictment was grounded on the same assault that had been the basis of the earlier misdemeanor conviction. Perry pleaded guilty to the felony charge. Subsequently, however, he sought federal habeas corpus on the ground that the felony indictment deprived him of due process because it punished him for exercising his statutory right to a trial de novo. The Supreme Court held that, in spite of the guilty plea, federal habeas was available. The Court distinguished the holdings in Tol-lett and the McMann triad on the ground that the constitutional claims there did not, as did Perry’s argument, challenge the very power of the state to bring the defendant into court to answer the charge against him. In McMann, for example, the defendants could have been brought to trial without the use of the allegedly coerced confessions. And Tol-lett, Justice Stewart pointed out, could have been brought to trial for the same crime through a new indictment by a properly selected grand jury. In Perry, on the other hand,
The nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge, in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon [Perry] to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of “antecedent constitutional violations” or of a “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Rather, the right that he asserts and that we today accept is the right not to be hailed into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.
The right asserted by Carlucci is somewhat akin to that involved in Perry in that Carlucci is not objecting to the procedures by which he was arrested and convicted. Rather, he claims “the right not to be haled into court at all” because the institution of the prosecution itself derogated from his right not to incriminate himself.
Accordingly, we conclude that the district court erred in holding that, because of Tollett, Carlucci’s guilty plea is not open to collateral attack on the basis of Marchetti and Grosso.
B. Application of the Statute of Limitations to the Claim for Refund of the Fine.
Even if we assume arguendo that the Tucker Act provides authority for district courts to order the return of fines based on convictions derogating from constitutional rights, and further assume that a Tucker Act claim may be raised during the course of a coram no-bis proceeding, we must, because of the 'statute of limitations, conclude that the district court properly denied Carlucci’s plea for restitution of the penalty.
Actions against the United States such as the one pressed here are controlled by the statute of limitations contained in 28 U.S.C. Section 2401(a). That section provides: “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” The protection afforded by section 2401(a) “may not be waived by the United States, and where it .appears to the court that the time for bringing the action has run, the action must be dismissed.” Therefore, if Carlucci’s action for the return of the fine imposed in 1963 was filed out of time, the district court was without authority to grant the monetary relief requested.
Since the statute requires that the complaint be filed within six years “after the right of action first accrues,” a critical question is when Carlueci’s right of action “accrued.” The government argues that the cause of action accrued at the time the fine was imposed because all the events necessary to make out the claim for a refund had occurred at that time. Alternatively, the government contends that even if, as Carlucci asserts, the statute of limitations did not begin running until the claimant had reason to believe that he had a recoverable claim, the cause of action “accrued” on the date of the Supreme Court decisions in Marchetti and Grosso that the Fifth Amendment, properly interpreted, provided a defense to criminal charges under the gambling tax statutes.
Carlucci, on the other hand, contends that the limitation period did not begin when the fine was levied because Kahriger and Lewis indicated that, at least at that time, he did not have an enforceable claim against the United States. The statute began to run, Car-lucci asserts, when the Supreme Court declared in Coin and Currency that the Marchetti-Grosso interpretation of the Fifth Amendment would be applied retroactively.
We conclude that the statute of limitations commenced running no later than January 29, 1968, the day Marchetti and Grosso were decided. Consequently, Carlucci’s request for the return of the fine — a claim not presented until June 4, 1974 — was beyond the jurisdiction of the district court.
In resolving the issue regarding when the statute of limitations commenced running, we must bear in mind that the time when the statute begins running is a matter of congressional intent. The judiciary is not at liberty to create exceptions to or to enlarge the waiver of immunity by the government.
There is no specific evidence of the legislative intent with regard to the time from which we should measure the period specified in section 2401(a). In construing similarly worded waivers of sovereign immunity courts have generally defined a right of action as “accruing” upon the occurrence of the final event necessary to complete the elements of the claim. “A claim first accrues when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” Here, the wrongful conduct was complete upon payment of the fine, and the statute of limitations would therefore generally begin to run at that time.
The federal courts have, at least in some instances, postponed the commencement of the limitation peridd regulating suits against the United States where the claimant did not know, and in the exercise of reasonable diligence could not learn, that he had been injured by the government’s allegedly wrongful conduct. The Court of Claims has provided the following exposition of this variant:
In certain instances the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim. Plaintiff must either show that [the United States] has concealed its acts with the result that plaintiff was unaware of their existence or [plaintiff] must show that its injury was “inherently unknowable” at the accrual date.
This exception to the normal commencement of the limitations period does not appear applicable to the present claim, however, because Carlucci was aware of the damage to him at the time the fine was imposed. His situation is therefore distinguishable from that of the plaintiffs in Japanese War Notes who allegedly did not know that the United States was circulating counterfeit Japanese currency. Nor is his claim analogous to that of a medical malpractice plaintiff who cannot with reasonable diligence learn of the physician’s negligent action or of his own injuries until some future time.
In United States v. One 1961 Red Chevrolet Impala Sedan the claimant sought compensation for property which had been forfeited to the government because of its use in the conduct of a wagering operation that did not comply with the federal gambling tax statutes. The Fifth Circuit ruled that under section 2401(a) the limitations period did not begin to run against the claimant until the decisions in Marchetti and Grosso gave notice that the owner of the automobile had a Fifth Amendment defense against its seizure. That Circuit declared that the period should not commence until plaintiff had a “reasonable probability of successfully prosecuting his claim against the government,” and that prior to those Supreme Court decisions his suit would probably have been dismissed on the basis of Lewis and Kah-riger.
We need not, however, determine at this time whether section 2401(a) commenced running when the fine was imposed or when the Marchetti and Grosso decisions were announced. Under either test, Carlucci’s claim would be barred. This is so, because in any event the decisions in Marchetti and Grosso provided Carlucci with reasonable grounds to believe his rights had been violated. Although there had been no ruling that the Marchetti doctrine would be applied retroactively for the benefit of persons like Carlucci, there was certainly nothing indicating that Carlucci could not obtain a refund if he pursued one promptly. Even if we accept, ar-guendo, Carlucci’s argument that the running of section 2401(a) was suspended until such time as he had reason to know he might succeed with his claim against the United States, since Marchetti and Grosso were handed down more than six years before Carlucci applied for a refund, his claim is time-barred.
IV.
Accordingly, that portion of the judgment of the district court denying Car-lucci’s motion to set aside his conviction will be reversed, and that portion of the judgment refusing Carlucci’s request for a refund of the fine will be affirmed.
. Carlucci was convicted of violating 26 U.S.C. § 7203. He was indicted under 26 U.S.C. §§ 7201, 7262 and 18 U.S.C. § 371 as well. All of the allegations of the indictment related to his failure to pay special taxes on wagering. See 26 U.S.C. §§ 4401, 4411. See also 26 U.S.C. § 4412 mandating all persons required to pay the tax under § 4411 to register with the Internal Revenue Service. For a description of the statutory scheme for taxing wagers, see Marchetti v. United States, 390 U.S. 39, 42-44, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 65-66, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).
. 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889.
. 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906. See also Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (invalidating federal fire-arm registration statutes on similar self-incrimination grounds); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (striking down the marihuana transfer tax for the same reason).
. Marchetti, 390 U.S. at 42, 88 S.Ct. at 699.
. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953).
. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955).
. 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).
. 28 U.S.C. § 1651(a) provides:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
. 28 U.S.C. § 1346(a) provides:
“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 . .
. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
. Brady, 397 U.S. at 757, 90 S.Ct. at 1473.
. 446 F.2d 1250 (3rd Cir. 1971).
. 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).
. 26 U.S.C. § 4744(a)(2).
. Smith v. Yeager, 459 F.2d 124, 126 (3rd Cir. 1972).
. 401 U.S. at 723, 91 S.Ct. at 1045.
. 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
. 411 U.S. at 266, 93 S.Ct. 1602.
. Id.
. Cf. Bannister, 446 F.2d at 1254 (Biggs, J.); 446 F.2d at 1264-65 (Gibbons, J., concurring).
. We need not at this time determine the effect of a guilty plea in a plea bargaining situation where the self-incrimination defense does not apply to all of the charges. For instance, a defendant charged with possession of marihuana with intent to distribute and also accused of failure to pay the transfer tax may agree to plead to the tax count in exchange for dismissal of the other charge, the validity of which is unaffected by Leary. See Gaxiola v. United States, 481 F.2d 383 (9th Cir. 1973); Bannister, 446 F.2d at 1251-53.
. See Coin and Currency, 401 U.S. at 723, 91 S.Ct. 1041.
. See Bannister, 446 F.2d at 1254, 1255; United States v. Russo, 358 F.Supp. 436 (D.N.J. 1973).
. Tollett, 411 U.S. at 268, 93 S.Ct. 1602.
. Marchetti, 390 U.S. at 41-42, 88 S.Ct. 697. See Bannister, 446 F.2d at 1254, 1264; United States v. Liguori, 430 F.2d 842 at 849 (2 Cir.)
. Contrast McMann, 397 U.S. at 733, 90 S.Ct. 1441.
. See Bannister, 446 F.2d at 1254-55, 1264-65; Liguori, 430 F.2d at 849.
. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).
. Id. at 87 n. 2, 88 S.Ct. at 725.
. 397 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
. 411 U.S. at 267, 93 S.Ct. at 1608.
. 395 U.S. at 28, 89 S.Ct. at 1544.
. In Grosso, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the defendant had asserted in the district court only that the privilege against self-incrimination foreclosed his conviction for failure to pay the excise tax on wagering. He had not raised the constitutional issue with respect to the charges of failing to pay the occupational tax on wagering and conspiracy to avoid the latter tax. Even in the Supreme Court his arguments did not address the validity of the occupational tax allegations. The Supreme Court, however, held that in light of its earlier decisions in Lewis and Kahriger, “we are unable to view his failure to present this issue as an effective waiver of the constitutional privilege.” 390 U.S. at 71, 88 S.Ct. at 715. See also United States v. Manfredonia, 391 F.2d 229 (2d Cir. 1968); Greenwood v. United States, 392 F.2d 558 (4th Cir. 1968).
. 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
. 417 U.S. at 30-31, 94 S.Ct. at 2104.
. Although the Court is aware of the contrary precedent in the District of Maryland in Bluso v. United States, 375 F.Supp. 1085 (D.C.Md. 1974), we find the rationale there unpersuasive.
. See Pasha v. United States, 484 F.2d 630, 632 (7th Cir. 1973); DeCecco v. United States, 485 F.2d 372, 373 (1st Cir. 1973); United States v. Summa, 362 F.Supp. 1177, 1180 (D.Conn.1972), aff’d No. 73-1153 (2d Cir., filed August 14, 1973).
. See Pasha, 484 F.2d at 633; DeCecco, 485 F.2d at 373-74; Summa, 362 F.Supp. at 1179; United States v. Lewis, 478 F.2d 835, 836 (5th Cir. 1973).
. Christian Beacon v. United States, 322 F.2d 512, 514 (3d Cir. 1963). As the Fifth Circuit has stated more recently, “Failure to bring an action within the time specified under the Tucker Act does not merely provide the government with a waivable defense to the action, but deprives the district court of jurisdiction to hear the action at all.” United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5th Cir. 1972).
. Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968). See Crown Coat Front Co. v. United States, 386 U.S. 503, 514, 517, 520, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967).
. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Sori-ano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968).
. Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 358, 178 Ct.Cl. 630 (1967). See Cosmopolitan Mfg. Co. v. United States, 297 F.2d 546, 547, 156 Ct.Cl. 142 (1962). Cf. Note, “Developments in the Law-Statutes of Limitations,” 63 Harv.L.Rev. 1177, 120
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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songer_casetyp1_7-3-4
|
B
|
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 - bankruptcy, antitrust, securities".
In re PAN AMERICAN PAPER MILLS, INC., Debtor, Appellant.
No. 79-1583.
United States Court of Appeals, First Circuit.
Argued March 11, 1980.
Decided April 11, 1980.
Nelson I. Fishman, Baltimore, Md., with whom Howard A. Rubenstein, Baltimore, Md., was on brief, for appellant.
Marta Quinones de Torres, Asst. Sol. Gen., Dept, of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
WYZANSKI, Senior District Judge.
This appeal involves a tax priority claim made in bankruptcy proceedings. The question presented is whether unpaid “premiums” assessed under the Puerto Rico Workmen’s Accident Compensation Act, 11 •L.P.R.A., § 26, par. 3, for a period when an employer was covered but not insured constitute “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4).
§ 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4) provides:
(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof. .
The Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A., §' 1, et seq. (hereinafter the “WAC Act”) establishes a comprehensive, compulsory insurance system which the parties agree covered Pan American Paper Mills, Inc., (Pan American) and its employees during the years relevant to this case. See § 2. § 8 provides that the act shall be administered by a Manager who shall create a State Insurance Fund (hereinafter called “the Fund”). § 19 obliges every covered employer to insure his employees “in” the Fund. § 28 makes it the duty of every covered employer to file no later than July 20 of each year a “statement” or report showing the wages paid during the fiscal year that ended on the previous June 30. § 26 authorizes the Manager to assess premiums for the year following the report period, and provides that “said premiums shall be collected semi-annually in advance.” However, the premium for the first semester (July 1 to December 31) is not due until a date specified in the notice of assessment, and the premium for the second semester (January 1 to June 30) is not due until January 2. See § 26.
If the employer does not pay the premium before the end of the relevant semester, the employer is not insured against any accident that occurs during that semester. § 28, par. 6; The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, 61 P.R.R. 303, 308 (1943). Under the original form of the WAC Act, as enacted in the Puerto Rico Act of April 18, 1935, if the employer did not pay the premium before the end of the semester, then, because he was not insured for that semester, he was totally excused from any obligation to pay the premium at any time. The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, supra. However, the Puerto Rico Act of May 9,1942 amended the WAC Act to provide in the third paragraph of § 26 11 L.P.R.A.
In case any employer covered by this Act [chapter] fails to insure properly, the Manager may assess and levy on, and collect from him premiums for all such time as said employer may have remained uninsured, in the same manner as if he were insured.
Both before and after the 1942 amendment, a covered employee of a covered employer had the benefits of the WAC Act even though his employer was uninsured because he had failed promptly to pay a premium he owed. See § 16. That is, the employee was free to proceed to recover from the Fund accident compensation for any covered injury and, in turn, the Fund was entitled to be compensated by the uninsured, but covered employer for all costs thus incurred by the Fund. § 16; The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra.
Pan American failed to pay its WAC Act premiums amounting to $68,250.61 for the years 1972 through 1976. On account of covered injuries which Pan American employees sustained during those years, the Fund paid them $50,897.05.
June 26, 1975 Pan American filed a petition for relief under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701, et seq. The Bankruptcy Judge allowed the petition and continued Pan American as a debtor in possession. The Fund filed two claims which were consolidated; the first or priority claim sought $68,250.61 on account of unpaid premiums which the Fund alleged were “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4); and the second or' unsecured claim sought $50,897.05 on account of compensation for what the Fund had paid to Pan American employees.
The Bankruptcy Judge entered an order allowing both claims and according a § 64(a)(4) tax priority to the first claim. The District Judge affirmed the order, and Pan American appealed.
Pan American’s appeal is based on its argument that The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra held, and Central Boca Chica, Inc. v. Treasurer, 54 P.R.R. 404, 417 (1939) implied that an obligation imposed upon an uninsured employer to pay a “premium” to the Fund established under the Workmen’s Accident Compensation Act would be a penalty, and that therefore such an obligation cannot be a tax under § 64(a) of the Bankruptcy Act. We reject Pan American’s argument and affirm the District Court.
The question whether an obligation is a tax entitled to priority under § 64(a)(4) of the Bankruptcy Act is a federal question. City of New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028, 1029, 85 L.Ed. 1333 (1941); New Jersey v. Anderson, 203 U.S. 483, 491, 27 S.Ct. 137, 139, 51 L.Ed. 284 (1906).
It is undisputed and we hold that under federal law for purposes of Bankruptcy Act § 64(a)(4) Puerto Rico is a subdivision of the United States. What is disputed'is whether a premium claim covering an elapsed period is a claim for “taxes.”
The Supreme Court, taking a broad view of what constitutes “taxes” within the meaning of § 64(a)(4), has ruled that “the priority commanded ,by § 64 extends to those pecuniary obligations laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” Ibid; United States v. New York, 315 U.S. 510, 515-516, 62 S.Ct. 712, 714-715, 86 L.Ed. 998 (1942).
That broad approach led lower courts to hold that where, pursuant to an unemployment compensation law, a state exacts from an employer so-called “contributions” a state’s claim for such contributions is entitled to priority as a claim for taxes under Bankruptcy Act § 64(a)(4). Re William Akers, Jr. Co., 121 F.2d 846 (3rd Cir. 1941); Matter of Siegelbaum’s Inc., 38 F.Supp. 1009 (D.Conn.1941); Matter of Mid America Co., 31 F.Supp. 601 (S.D.Ill.1939); Re Oshkosh Foundry Co., 28 F.Supp. 412 (D.Wis. 1939).
We see no reason not to apply the same approach to situations where pursuant to a workmen’s compensation law a state or subdivision of the United States exacts from an employer so-called “premiums.” State Industrial Accident Commission v. Aebi, 177 Or. 361, 162 P.2d 513, 161 ALR 211 (1945). The reason that such premiums should be treated as taxes within § 64(a)(4) of the Bankruptcy Act is that they are pecuniary obligations imposed by the government for the purpose of defraying the expenses of an undertaking which it authorized.
Appellant’s argument in the case at bar that the Fund’s priority claim of $68,250.61 for premiums is not a tax because in return for the premiums involved in the claim Pan American received no insurance protection rests upon a misconception. Bankruptcy Act § 64 gives priority to a premium claim if it has certain tax characteristics not because it has insurance characteristics. The pertinent questions about a so-called premium are whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose.
In determining whether the premiums were “taxes” under Bankruptcy Act § 64(a)(4) it is of no consequence that had Pan American been prompt in paying the premiums it would have had as a quid pro quo insurance protection; nor is it of any consequence that since the corporation failed to make prompt payment it had no insurance protection. Pan American is not, except in a colloquial and inexact sense, punished in any way because of its delay. Pan American is merely failing to get a benefit that it would have enjoyed had it paid its premiums promptly.
Appellant’s contention that Pan American’s own dilatoriness converted a tax obligation into a “penalty” as that term is used in § 57(j) of the Bankruptcy Act, 11 U.S.C. § 93(j), is reminiscent of one of the unsuccessful contentions in United States v. New York, supra. There it was argued that 90% of the Title IX, Social Security Tax on employers was, for purposes of §§ 57 and 64 of the Bankruptcy Act, a penalty and not a tax because that 90% was payable to the federal government only if it were not used as a credit on account of payments made by the taxpayer to a state unemployment compensation fund. See United States v. New York, 315 U.S. 510, 516-517, 62 S.Ct. 712, 715, 86 L.Ed. 998 (1942). In rejecting that argument, Mr. Justice Byrnes said at p. 517, 62 S.Ct. at p. 715: “Although the employer is free to obtain a credit against it [90% of the Title IX tax] by contributing to his state fund, it cannot be said that it is any the less a tax because the employer has failed, either through choice or lack of resources, to make such a contribution.” So here although the employer is free by paying promptly to obtain insurance protection, it cannot be said that his premium obligation is any the less a tax because the employer has failed, either through choice or lack of resources, to make his premium payment promptly.
From the preceding analysis it follows that the Fund’s priority claim of $68,250.61 was appropriately allowed. Nor do we perceive any reason for reversing the allowance of the Fund’s unsecured claim of $50,-897.05, Puerto Rico in § 16 of the WAC Act imposed upon a covered but uninsured employer an obligation to compensate the Fund for whatever it had paid his employees while he was uninsured; § 26 of that act imposed upon him an obligation to pay “premiums.” We are not aware of any principle or of any authority which precludes the Puerto Rico legislature from imposing those obligations cumulatively. The cumulative obligations underline the point that the employer’s so-called premium obligation is not the conventional premium familiar in ordinary cases of insurance, (see 5 Couch on Insurance § 30:1 (2nd ed. I960)), but is indeed a tax which is payable even if it is not advantageous to the employer.
There is no merit in appellant’s preposterous contention that only so much of Pan American’s overdue premiums is payable as represents what the Fund was required to expend to pay Pan American’s employees for the period when the premiums were due but remained unpaid. If adopted, appellant’s contention would have the absurd consequence of giving to Pan American a financial advantage for not having paid its premiums promptly.
Affirmed.
. Appellant does not directly present the question whether premiums paid by an employer for a period when he was insured constitute “taxes” under Bankruptcy Act § 64.
. Those two cases were decided with respect to the WAC Act as it stood before the 1942 amendment added paragraph 3 to § 26. Hence those cases could at best offer dicta rather than holdings as to what is the meaning of the present version of § 26.
. Two early cases, Matter of Farrell, 211 F. 212 (W.D.Wash.1914) and Re Eureka Paper Co., 44 Am.Bank Rep. (F) 179 (D.C.Ref.1919) held that a payment by an employer to a workmen’s compensation act fund is not a tax. The reason given in Farrell (p. 213), that the exaction is “an assessment against a class for the benefit of a class”, is in the spirit of the subsequent decision involving the Agricultural Adjustment Act, United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1935), virtually overruled by the Social Security Act cases, Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed, 1245 (1937), Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937).
. See State Industrial Accident Commission v. Aebi, supra, which rejected the argument that an exaction from an employer to contribute to a workmen’s compensation act fund could not be a tax for the purposes of Bankruptcy Act § 64 because “under the Workmen’s Compensation Law the employer is paying for insurance which directly benefits him whereas under Unemployment Compensation Law the employer is- simply contributing to a fund, which is to be expended for the general welfare.” (162 P.2d at p. 516).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
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songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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 court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Darrell Gene BLACKBURN, Petitioner-Appellant, v. Armond CROSS, Chairman and Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees.
No. 74-2333.
United States Court of Appeals, Fifth Circuit.
April 2, 1975.
Rehearing and Rehearing En Banc Denied Aug. 6, 1975.
Philip A. Hubbart, Public Defender, Bennett H. Brummer, Stephen N. Lipton, Asst. Public Defenders, Miami, Fla., for petitioner-appellant.
Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Stephen V. Rosin, So. Miami, Fla., Asst. Attys. Gen., for respondentsappellees.
Before MORGAN and CLARK, Circuit Judges, and GORDON, District Judge.
LEWIS R. MORGAN, Circuit Judge:
At issue in this case is the retroactivity vel non of the principle announced in Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive application of the Wingate principle, and we therefore reverse the district court.
I.
On January 19, 1967, the petitioner was charged in an amended information with (1) breaking and entering a dwelling and unlawfully assaulting a person therein, and (2) attempted crime against nature. The petitioner entered a plea of not guilty and the trial by jury commenced.
At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and attempted to sexually assault her. She had seen only the profile and back of her assailant, but she furnished police with a description of the assailant and she identified the petitioner in a line-up. In addition to Fletcher, the state presented the testimony of two additional women, Catherine Austin and Patricia McCune, both of whom lived in the same apartment complex as Fletcher. Austin and McCune identified the petitioner as the assailant who had likewise broken into their apartments and had sexually assaulted them.
The petitioner had previously been acquitted after a trial by jury of the assault on McCune. At trial for the assault on Fletcher, McCune’s testimony was admitted over petitioner’s objection as evidence of a similar offense tending to establish the identity of the petitioner as Fletcher’s assailant.
Petitioner testified in his own behalf and presented an alibi defense. In addition to the three positive identifications of the petitioner,.the state presented evidence that four fingerprints of one hand and the thumb print of the other hand lifted from the jalousie window slats of the kitchen door of Fletcher’s apartment (where the breakin occurred) were those of the petitioner.
The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that McCune’s testimony was improperly admitted into evidence. Blackburn v. State, 208 So.2d 625 (Fla.App.1968). Defendant’s petition for a writ of habeas corpus — alleging that the holding in Wingate should be retroactively applied to his trial, and, hence that McCune’s testimony was inadmissible — was subsequently denied by the district court.
II.
The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal law only recently.
In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) a federal habeas corpus petitioner attacked his state conviction for the robbery of one of six men engaged in a poker game. The petitioner had previously been acquitted of the robbery of another one of the same poker players. The single issue in dispute at both trials was whether the petitioner had been one of the robbers. The Supreme Court held that the federal notion of collateral estoppel precluded relitigation of the petitioner’s participation in the robbery and that this rule is embodied in the double jeopardy clause of the Fifth Amendment.
In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the Ashe holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the robbery of a small store. At his trial, the state introduced evidence tending to show that Wingate had committed four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing remarks there was heavy reliance by the prosecutor on the evidence of additional robberies.
This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of which depends upon a successful relitigation of a fact issue which had previously been settled adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.
III.
Blackburn’s trial occurred before our decision in Wingate. Since the facts before us are virtually identical to those of Wingate, we must determine whether Wingate is to be applied retroactively.
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the Constitution neither prohibits nor requires retroactive application of new decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior history of the rule in question, its purpose and effect, and whether retrospective effect furthers or retards its operation. Id. at 626, 85 S.Ct. 1731.
Shortly thereafter, the standards for retroactive application were codified in a three-pronged test:
(a) The purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).
“ Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). Substantial consideration should be given the last two factors “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” Id. at 251, 89 S.Ct. at 1035; see Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); United States v. Scott, 425 F.2d 55, 58 (9th Cir. 1970) (en banc). Moreover,
[w]here the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion).
Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v. Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en banc) and cases cited therein. But where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect is required. United States v. Scott, supra, at 58 and cases cited therein; see Williams v. Estelle, supra, 500 F.2d at 208.
We must therefore determine the purpose behind the Wingate rule and whether this purpose relates to the integrity of the fact-finding system. The Wingate case, of course, held that the double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits a state from relitigating any issue which was determined in a prior prosecution of the same party. The purpose of this rule is bound up in the whole complex of values that the guarantee against double jeopardy represents. Cf. Tehan v. Shott, 382 U.S. 406, 414, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).
The policy underlying the prohibition against double jeopardy
is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).
In order to protect “a man who has been acquitted from having to ‘run the gantlet’ a second time,” Ashe incorporated the rule of collateral estoppel into the guarantee of double jeopardy. Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Wingate expanded this notion to include evidentiary as well as ultimate facts because
[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate v. Wainwright, 464 F.2d 209, 215 (5th Cir. 1972).
The Wingate court indicated that this evidence of prior acquittals was “prejudicial” and, hence, admission of such evidence could certainly influence the integrity of the fact-finding system. We therefore find that the Wingate rule warrants retroactive application.
IV.
The state argues that any error made in Blackburn’s trial was harmless, but petitioner responds that it would be inappropriate to apply the “harmless error anlaysis” to a double jeopardy claim. We need not decide whether a collateral estoppel claim is susceptible to harmless error analysis, for we find that the error committed in this case could not be adjudged harmless even if the appropriate constitutional standards were applied.
Recent Supreme Court decisions regarding “harmless constitutional error” inquire as to “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). Only if the court can declare with confidence “beyond a reasonable doubt” that such a possibility is excluded by the record can it declare a constitutional error harmless. Id. at 24, 87 S.Ct. 824; see Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626, 637-38 (5th Cir. 1972).
The evidence against Blackburn was quite convincing. However, in his closing argument the prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case sub judice) and relied upon the combined effect of all three identifications to establish reliability. Under these circumstances it is impossible for us to conclude that the erroneous admission of McCune’s testimony was harmless beyond a reasonable doubt.
Reversed and remanded with directions to issue the writ, subject to the state’s right to re-try the defendant.
. Petitioner was paroled on May 1, 1973, from the sentence presently under attack.
. Petitioner contends that the Wingate court’s application of the modified Ashe principle to a conviction that became final prior to the date of the Ashe decision is indicative of this court’s view of the retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule retroactively in reversing the denial of habeas corpus relief to Wingate.
While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively enunciates a retroactive rule, see Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not decide that question because we find that a retroactive application of the Wingate rule is required by the Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) analysis.
Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) which barred a state and municipal prosecution for the same act or offense, fully retroactive. The court indicated that “[t]he prohibition against being placed in double jeopardy is not readily susceptible of analysis under the Linkletter line of cases.” Robinson v. Neil, supra, 409 U.S. at 508, 93 S.Ct. at 878.
We believe that the Supreme Court’s retroactive application of double jeopardy principles, see Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we do not believe that Robinson is entirely dispositive of the question before us, for the rationale of Robinson was based upon the fact that double jeopardy principles normally preclude a new trial entirely, while procedural guarantees merely relate to the method of conducting trials:
The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Link-letter cases were found not to effect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as 'the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. Robinson v. Neil, supra] 409 U.S. at 509, 93 S.Ct. at 878.
While the Wingate rule is rooted in the principle of double jeopardy, its operation merely precludes the introduction of certain disfavored evidence. In light of the Robinson rationale it would be unreasonable for us to conclude that the Supreme Court in Robinson was addressing itself to the exclusion of evidence of prior crimes and, hence, intended Robinson to apply to procedural guarantees based upon the principle of double jeopardy. We therefore prefer to rest our decision upon the Linkletter line of cases.
. See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): “We distill from this whole body of cases the Court’s value judgment that people . are not to be punished by procedures which present ‘a serious risk that the issue of guilt or innocence may not have been reliably determined,’ or which produce a ‘clear danger of convicting the innocent.’ Practices, procedures or statutes which present the probability of risk of such consequences must be eradicated and the surest way is to prescribe retroactivity” (footnotes omitted).
. In his closing argument, the prosecuting attorney said:
Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher seeing his profile, the thinning hair in the back of the head, possibly her alone I would hate to convict this man on that kind of identification [sic]. I would be loathed too [sic], even in the case of the kind of testimony when you are trying a man by [sic] the heinous crime, but we are trying him because he committed a crime against the laws of the State of Florida. So that Rosemarie Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin, now we’ve got the law of probability working. Take that again. It gets better, much better. Pat McCune. Now we’ve got an identification that is almost nailed down. We’ve got three sensible girls standing up there and never flinching, never turning an eye. Are you going to kick that away like it was trash and rubbish, that kind of identification?
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_typeiss
|
A
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Warren M. ANDERSON, Defendant-Appellant.
No. 17544.
United States Court of Appeals, Seventh Circuit.
May 15, 1970.
Warren Anderson, Maywood, 111., Gerald Werksman, Russell Hirsch, Chicago, III., for appellant.
Thomas A. Foran, U. S. Atty., Jeffrey N. Cole, Asst. U. S. Atty., Chicago, 111., for appellee.
Before KNOCH, Senior Circuit Judge, KERNER, Circuit Judge and GORDON, District Judge.
Judge (Jordon is sitting by designation from the United States District Court for the Eastern District of Wisconsin.
KNOCH, Senior Circuit Judge.
Plaintiff-appellant, Warren M. Anderson, appeals from conviction in a Bench Trial, jury trial having been waived, of violating Title 18 U.S.C. § 113(c), assault with intent to do bodily harm with a dangerous weapon (a motor vehicle) without just cause or excuse, resulting in a suspended sentence, three months’ probation and a fine of $100.
There was a sharp conflict in the testimony of defendant and the prosecution’s witness, Lyman Reid, the victim of the alleged assault, presenting issues of credibility for the Court as trier of the facts.
It was stipulated that Hines Veterans Administration and the grounds appurtenant thereto at Hines, Illinois, are lands acquired for the use of the United States of America and under the exclusive jurisdiction thereof.
Defendant was an employee at Hines Hospital who drove to work regularly. On February 9, 1967, the day of the offense, the left fork of a road curving around a monument inside the gate, previously available to two-way traffic, was designated for one-way traffic leaving the grounds.
Lyman Reid, a structural firefighter with Hines Hospital, was put on Traffic detail shortly after noon on February 9, 1967. When defendant drove in, he informed defendant of the new one-way designation of the road, but his directions were not followed. When defendant came back shortly, Mr. Reid stopped him, and asked for identification. He testified that his instructions were to issue tickets for violations. When defendant refused to show any identification, Mr. Reid copied the license and sticker number on the front of the car and, after a few words with defendant, asked him to follow him as he walked along the way. The defendant testified that Mr. Reid was shouting belligerently and cursing although defendant said he expressed regret for going the wrong way. While Mr. Reid was walking past the monument with defendant’s car coming along behind him, another car came in the wrong way and was stopped by Mr. Reid. As this car began to back up, defendant’s car moved forward. Defendant said his motor was about to die and he was growing impatient with the delay while Mr. Reid was engaged with the other driver. Mr. Reid said that he was left with no place to go as defendant’s car was only two feet behind him and there were five foot high snow banks on the side. He said to save himself he jumped onto the hood of defendant’s car. Defendant testified that Mr. Reid was behind the other car talking to the driver when defendant started to move and that Mr. Reid then ran around from the second car and jumped onto defendant’s car from the side, apparently to prevent his departure; that defendant never intended to run Mr. Reid down or to hurt him.
Mr. Reid testified that he was carried out the gate, clinging to the windshield, blowing his whistle and beating with his hand on the window. He testified that defendant not only failed to stop at the gate stop sign but also ran through a red traffic signal light about 100 yards down Roosevelt Road and drove almost another block before sharply braking and hurling Mr. Reid from the hood of the ear into a snowbank. Mr Reid testified that he walked back to Hines.
Defendant’s report was that he proceeded slowly, that he did stop at the gate hoping Mr. Reid would alight but that the latter only started jumping on the front of the car and he was afraid to get out to confront him at that time. He said the traffic light on Roosevelt was green, that he stopped by the side of the road and Mr. Reid got off of his own volition.
Resolution of these factual issues was for the trier of the facts who saw and heard the witnesses. We will not weigh the evidence or determine the credibility of these witnesses. United States v. Miles, 7 Cir., 1968, 401 F.2d 65. 67.
Defendant contends that the evidence did not prove a violation of § 113(c), which carries a possible penalty of imprisonment for up to five years, but (if any offense) of § 113(d), assault by striking, beating or wounding, calling for a fine of not more than $500 or imprisonment for no more than six months, or both. He also argues that the evidence is insufficient to prove intent to do bodily harm and that this is a proper case to invoke the De Minimis doctrine, as an incident meriting only a summary hearing in a lower police court has been magnified into an indictable felony solely because of the location in which it occurred.
Defendant argues that we must look to the analogous Illinois statutes which define the offense shown here as “battery,” not the “assault” with which defendant was charged, making a fatal variance between charge and proof. We believe defendant’s reliance on Jerome v. United States, 1943, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 is misplaced. The Supreme Court there reversed a ruling that the generic term “felony” in § 2(a) of the Federal Bank Robbery Act included all offenses which were felonies under the law of the State in which the victim bank was located. The Court in criticizing the decision below said it put federal banks into a position somewhat like lands reserved for the use of the United States under what is now the Assimilative Crimes Act, Title 18 U.S.C. § 13.
Title 18 U.S.C. § 13 applies to acts not made punishable by an enactment of Congress which would be punishable if committed within the jurisdiction of the State in which the place reserved for the use of the United States is located. That is not our case. We are dealing here with a specific enactment of Congress.
In United States v. Gill, 7 Cir., 1953, 204 F.2d 740, cert. den. 346 U.S. 825, 74 S.Ct. 42, 98 L.Ed. 350, on which defendant also relies, John Patrick Gill was charged, inter alia, with assault with intent to commit felony. Indiana law was used as a reference not for definitions of “assault” but only for definition of the particular “felony” intended to be committed, which would not have been a crime against the United States unless it had been made so by Title 18 U.S.C. § 13 and which would not have qualified as a “felony” under federal law Title 18 U.S.C. § 1 unless it were punishable under State law by death or imprisonment for a term exceeding one year.
Defendant argues that “assault” does not include any touching, that counsel conducted his defense against a charge of assault and not of battery and that defendant has thus been seriously prejudiced by use of the wrong section of the statute in the charge. Defendant here, of course, is relying on a distinction which is drawn from Illinois law. The wording of § 113 however shows that “assault” in the federal Act is a more inclusive term. The section to which defendant draws our attention, § 113(d), speaks of “assault” by striking or wounding. Thus in Forsberg v. United States, 9 Cir., 1965, 351 F.2d 242, cert. den. 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212, the defendant was charged and convicted of assault with a dangerous weapon with intent to do bodily harm in violation of Title 18 U.S.C. § 113(c) where the victim had been stabbed. The wording of the Act is also dispositive of defendant’s theory that a felony assault under § 113(e) can be considered merged in a misdemeanor battery under § 113 (d).
If the Trial Judge credited Mr. Reid’s account of the event, as he evidently did, there was ample evidence from which to infer an intent to inflict bodily harm. We find defendant’s De Minimus argument unpersuasive.
The judgment of the District Court is affirmed.
Affirmed.
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:
|
sc_petitioner
|
027
|
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.
UNITED STATES v. FORTIER et al.
No. 14.
Argued October 10, 1951.
Decided December 11, 1951.
Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Samuel D. Slade.
Stanley M. Brown argued the cause for respondents and filed a brief for Fortier, respondent. With Mr. Brown on the brief was Meyer Green for Marino et al., respondents.
Briefs of amici curiae supporting respondents were filed by Alvan J. Goodbar for Doernhoefer; and by John G. Simms.
Per Curiam.
The United States brought this action under the Veterans’ Emergency Housing Act of 1946 to compel restitution of allegedly excessive prices charged by respondents in the sale of two houses. The District Court entered judgment for respondents, 89 F. Supp.708, and the Court of Appeals for the First Circuit affirmed, 185 F. 2d 608. We granted certiorari, 341 U. S. 925.
Maximum sales prices for the two houses had been stipulated by respondents in securing the permission to build required under Priorities Regulation 33. Statutory authority for that regulation had been repealed before the sale of respondents’ houses, except for a proviso continuing in full force and effect priorities for building materials issued under the Veterans’ Emergency Housing’ Act of 1946. The Government views the maximum prices stipulated by respondents as a condition of construction authorization and priorities assistance that survived repeal under the proviso. We reject this view.
The 1946 Act contained detailed authorization for price restrictions on houses and for priorities on building materials. When that Act was repealed in 1947, Congress provided for veterans’ preferences in the sale and rental of housing and for rent ceilings on certain accommodations constructed with the assistance of priorities secured under the 1946 Act. Congress addressed itself to the problem of veterans’ housing, but refrained from imposing any price restrictions on the sale of houses. Congress having indicated a contrary purpose, we will not impose such restrictions by implication.
Affirmed.
Mr. Justice Minton took no part in the consideration or decision of this case.
50 U. S. C. App. § 1821 et seq.
10 Fed. Reg. 15301, as amended, 11 Fed. Reg. 6598. Respondents ' were required to comply with this regulation by Veterans’ Housing Program Order No. 1, 11 Fed. Reg. 3190.
50 U. S. C. App. (Supp. IV) § 1881 (a), in repealing the 1946 Act, provided:
“That any allocations made or committed, or priorities granted for the delivery, of any housing materials or facilities under any regulation or order issued under the authority contained in said Act, and before the date of enactment of this Act [June 30, 1947], with respect to veterans of World War II, their immediate families, and others, shall remain in full force and effect.”
Respondents’ houses were not sold until November and December, 1947, months after repeal of the 1946 Act. As a result, no “penalty, forfeiture, or liability” had been incurred under the 1946 Act which would survive repeal under the general saving clause, 1 U. S. C. (Supp. IV) § 109. Compare United States v. Carter, 171 F. 2d 530 (C. A. 5th Cir. 1948).
50 U. S. C. App. (Supp. IV) § 1884 (a); id., § 1892 (c) (1) (B) (3) (A).
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_usc1sect
|
203
|
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 most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
In re PATE et al. PRUDENTIAL INS. CO. OF AMERICA v. PATE et al.
Nos. 6335, 6362.
Circuit Court of Appeals, Seventh Circuit.
Nov. 9, 1938.
George E. Drach and Wallace T. Filson, both of Springfield, 111., for appellant.
Colfax T. Martin, of Danville, 111., for appellees.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
SPARKS, Circuit Judge.
The holder of a master’s deed to premises sold under foreclosure proceedings appeals from an order of the District Court permitting the farmer-debtors to remain in possession of the premises for a period ending three years after the filing of his original petition for relief under section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203.
The farmer and his wife filed their petition for relief March 15, 1935, three days before the date fixed for a sale of his mortgaged premises under foreclosure proceedings. The District Court restrained the sale, but on June 15, 1935, vacated its restraining order, and the sale was thereupon had on July 15, 1935. On September 9, 1935, the District Court dismissed the bankruptcy proceeding and entered a judgment for costs against each debtor. On June 23, 1936, the court reinstated the proceeding and granted .the debtors leave to file their amended petition praying adjudication in bankruptcy, but on July 2, granted leave to appellant to proceed with its foreclosure in the state court, and authorized the receiver theretofore appointed by the state court to act as such. The order provided, however, that the appellant was not to transfer or assign its master’s certificate, nor was the master to issue his deed until further order of the District Court, which was given November 25, 1936. On May 27, 1937, the debtors filed their petition praying that the master’s deed be set aside and returned to the conciliation commissioner; for an accounting; and that their term of bankruptcy be extended to March 15, 1938. Acting on this petition, the court on June 25^ 1937, ordered that the debtors be allowed to remain in possession until March 15, 1938, under a lease to be entered into between appellant and the debtors, and that appellant was to hold its deed in the meantime without transfer or incumbrance until further order of the court. It is from this order that appellant appeals. Determination of the issue presented depends upon the validity and construction of subsection (n) of section 75, 11 U.S.C.A. § 203 (n), conferring jurisdiction upon the bankruptcy court over all property of a farmer-debtor as to which he has an unexpired period of redemption at the time he files a petition for relief under section 75. The cause was. held in- abeyance by this court pending decision by the Supreme Court of the case of Wright v. Union Central Life Insurance Company, 58 S.Ct. 1025, 82 L. Ed. 1490. That case, decided May 31, 1938, held section 75 (n) constitutional.
It is to be noted here that the sale of the property under the foreclosure proceeding had not even been held when on March 15, 1935, the debtors filed their petition for relief under section 75, nor had the period of redemption expired when on June 23, 1936, the court granted them leave to file their amended petition to pray adjudication in bankruptcy. They thereupon became entitled to an opportunity to comply with the provisions of section 75, subsection (s), 11 U.S.C.A. § 203(s), and to apply for the moratorium provided for by that section. See In re Price, 7 Cir., 99 F.2d 691, decided by this„court, November 9, 1938. The action of the court on November 25, 1936, in permitting the appellant to obtain the master’s deed rendered the relief to which appellees might he entitled nugatory as long as the master’s deed remained outstanding. There is no indication that the court tdok such action because it considered appellees not in -a position to avail themselves of the relief afforded by section 75 (s), but it merely stated that it appeared that the period of redemption had expired. In reconsidering its order, on petition of appellees, the court stated that the proceedings under section 75 (s) were still pending, and it apparently felt that there was a possibility of rehabilitation although it did not enter & finding to that effect, hence that its action in permitting the deed to issue was contrary to the intent and purpose of Congress. It then corrected its former action as it had power to do under the rilling in Wayne Gas Company v. Owens Company, 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557. There was no error, in this, and the decree is
Affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.
Answer:
|
songer_adminrev
|
O
|
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".
UNITED STATES of America, Appellee, v. Henry Grady YOUNG, Jr., Appellant.
No. 77-1346.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 12, 1977.
Decided Jan. 11, 1978.
Michael P. Shea, St. Charles, Mo., argued and filed brief, for appellant.
Stephen B. Higgins, Asst. U. S. Atty. (argued), and Barry A. Short (former U. S. Atty.), St. Louis, Mo., filed brief, for appellee.
Before LAY, BRIGHT, and HENLEY, Circuit Judges.
BRIGHT, Circuit Judge.
Henry Grady Young, Jr., appeals his conviction under 18 U.S.C. § 659 (1970) for knowing possession of property stolen from an interstate shipment. He argues that the district court erred in overruling his motion for acquittal at the close of the Government’s case. We affirm.
At approximately 9:30 p. m. on February 2, 1977, police officer Arthur Williams was investigating a tractor-trailer unit suspiciously parked on a St. Louis street. As he approached the scene in his unmarked police car, he observed appellant Young standing on a nearby corner. Young, upon seeing the car approaching, immediately ran down the sidewalk past a Chevrolet automobile parked approximately thirty feet away from the trailer, slamming the trunk shut as he ran by. Before the trunk was closed, Williams observed two large cardboard boxes inside. Williams apprehended both Young and Nathaniel Franklin, who was standing in the rear of the trailer. A search of the Chevrolet trunk revealed two cartons, each containing four Panasonic Citizens Band AM/FM radios. Further investigation disclosed that the radios had been removed from the tractor-trailer, that Franklin owned the Chevrolet, and that Franklin and Young had spent the evening together. Young and Franklin were tried together and convicted by a jury.
On appeal, Young argues that the Government’s evidence was insufficient to sustain the “possession” element of the charge against him. He further argues that for purposes of this appeal we should consider only the evidence presented by the Government in its case in chief.
The law is to the contrary. In deciding whether the Government’s evidence is sufficient to withstand a motion for acquittal, this court may examine the record as a whole, including evidence put on by the defendant. United States v. Davis, 542 F.2d 743, 746 (8th Cir.), cert. denied, 429 U.S. 1004, 97 S.Ct. 537, 50 L.Ed.2d 616 (1976); United States v. Geelan, 509 F.2d 737, 742 (8th Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975). A conviction can rest solely on circumstantial evidence, which is intrinsically as probative as direct evidence. United States v. Lambros, 564 F.2d 26 (8th Cir. 1977); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977).
The evidence, viewed as a whole, was sufficient to warrant a verdict of guilty. The jury could reasonably infer from Young’s running to the vehicle and closing the lid that he exercised joint possession of the car and the stolen merchandise. Young’s testimony at trial that he had spent the evening with Franklin was inconsistent with his earlier statements to F.B.I. agents, a fact the jury could have considered in judging Young’s credibility.
We affirm the conviction.
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_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
DEGENER et al. v. HARTFORD ACCIDENT & INDEMNITY CO.
No. 6364.
Circuit Court of Appeals, Third Circuit.
Oct. 14, 1937.
Rehearing Denied Nov. 30, 1937.
John E. Evans, Sr., John E. Evans, Jr., and Margiotti, Pugliese, Evans & Buckley, Linus P. McGuiness, and John M. Gallagher, all of Pittsburgh, Pa., for appellant.
Gifford K. Wright, of Pittsburgh, Pa. (Alter, Wright & Barron, of Pittsburgh, Pa., of counsel), for appellee.
Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.
BUFFINGTON, Circuit Judge.
In a state court, Chaplin & Co. brought suit against the defendant insurance company to recover damages sustained by it for which defendant, as alleged, was liable on its indemnity bond given to the plaintiff. No facts being in dispute, the case was heard by the court on the plaintiff’s motion for judgment for want, as was alleged, of a sufficient affidavit of defense. After hearing, the court, in an opinion entered judgment for the defendant. Whereupon plaintiff took this appeal.
The pleaded pertinent facts are that plaintiff, a stock brokerage firm, was requested by the Sterling Investment Corporation (hereafter called Sterling) to buy for it 100 shares of Le Moyne Steel Company stock at $140.50 per share, which the plaintiff did. Plaintiff alleged in its pleadings that, with the intent to defraud it, Sterling made false statements to plaintiff to induce it to buy said stock, inter alia, that such stock was being purchased “in the course of a bona fide sale from a third party,” and that “said stock had a market value of approximately the suggested purchase price for said stock,” and that “for the purpose of defrauding the plaintiffs, Sterling created a fictitious market value for said Le Moyne Steel Company stock, by making false sales and false purchases of the stock of said Company,” and which procedure is known as “wash sale,” when in fact Sterling “well knew the said Le-Moyne Steel Company stock, was worthless and without value.” It was further alleged that “at or about the same time that Sterling Investment Corporation gave to its New York agent the said order to sell the said LeMoyne Steel- Company stock, it gave to plaintiff orders to buy the same stock.” It was further alleged: “That relying upon the said false statements and fraudulent acts made by and for the Sterling Investment Corporation and being falsely induced by them, the plaintiff at its office in Pittsburgh, ordered its New York office to purchase in New York City, the said two hundred (200) shares of stock at the prices fixed by the agent of the Sterling Investment Corporation with plaintiffs.” It was further alleged, that “certificates for the said two hundred (200) shares of Le Moyne Steel Company stock were received from the Sterling Investment Corporation’s New York Agent by Plaintiffs’ Agent, the former forwarding the said money in the sum of $28,150.00, to the Sterling Investment Corporation,” and that “the said Sterling Investment Corporation received the said money of the plaintiffs in the sum of $28,150.00 which it had thus fraudulently obtained from the premises of the plaintiff and from the plaintiff’s bankers and recognized place of safe deposit.”
In accord with the above allegations, plaintiff, on the discovery of the alleged fraud some four months thereafter,, thus summarized its claim in the notice and proofs of loss furnished to defendant:
“On the 9th day of January, 1935, a loss was sustained by us through fraudulent means amounting to $24,003.34. The circumstances were as follows:
On the aforesaid date of January 9, 1935, the Sterling Investment Company, Pittsburgh, Pennsylvania by fraudulent means caused the loss to J. H. Holmes & Company in the sum of $24,003.34 by false and malicious representation as to the transactions involving the ownership of and value of 200 shares LeMoyne Steel Company Stock.”
On its part defendant in its affidavit of defense alleged, inter alia: “The bond sued upon provides that it does not cover ‘any loss resulting directly or indirectly from trading, actual or fictitious, whether in the name of the Insured or otherwise, and whether or not within the knowledge of the Insured.’ The loss which it is alleged the plaintiffs suffered was a loss resulting directly from trading.”
Referring to this defense that the transaction was a trading loss, the court below, so holding, said:
“This bond does not cover * * *
“(f) Any loss resulting directly or indirectly from trading, actual or fictitious, whether in the name of the Insured or otherwise, and whether or not within the knowledge of the Insured, and notwithstanding any act or omission on the part of any employee in connection therewith, or with any account recording the same.’
“If that portion of the statement relating to the stock transactions of plaintiffs with the Sterling Investment Corporation is to be considered other than as surplusage, the pleading discloses just such a loss as is contemplated by the paragraph quoted. The word ‘trading,’ as used, means the operation of the usual occupation of buying and selling stocks. In this connection it must not be forgotten that a stockbroker differs from the ordinary broker who is merely a conduit between buyer and seller. The stockbroker buys the stock with his own money, thereby becoming a creditor of the buyer as well as a trustee of the stock. The loss of plaintiffs resulted from trading — a fictitious trading and without the knowledge of the insured, it is true, but still the trading contemplated by the bond.”
But for present purposes assuming, but only assuming, that the transaction was not a trading loss, defendant alleges another defense; namely, that the transaction, whatever it was, was not one covered by the bond.
Now the bond indemnifies against loss, as stated by the court below, of “money, currency, bullion, bonds, debentures, scrip, certificates, warrants, transfers, coupons, bills of exchange,' promissory notes, bills of lading, warehouse receipts, checks or other similar securities, in which the insured has a pecuniary interest. * * *
“(B) Through larceny, whether common-law or statutory, robbery, burglary, holdup, theft, or other fraudulent means * * * while the property is within any of the Insured’s Offices covered hereunder, or upon the premises of the Insured’s Bankers in the United States or in any recognized place of safe deposit in the United States. * ■ * * ”
The plaintiff’s contention is that the loss was a loss of money, and that such money loss was caused by “fraudulent means.” But while the plaintiff lost money in the transaction and Sterling brought about such money loss by “fraudulent means,” the question still remains what the policy stipulated as the money whose loss the policy indemnified against and the location of that particular money. The policy provided : “The term ‘Money’ as used in this bond shall be deemed to mean currency, coin, bank notes (signed and unsigned), bullion, and uncanceled United States postage and revenue stamps.”
Likewise, the policy provided that the actual money whose loss was indemnified against was money “lost * * * while the property is within any of the insured’s offices covered hereunder or upon the premises of the insured’s bankers in the United States or in any recognized place of safe deposit in the United States”. The term here used is not mere money, not credit balances based on deposits with others, but on property, localized, specified money which is held in “safe deposit.” In that regard, the court well said: “In order to recover in the instant case the plaintiffs áre required to file a statement of claim which asserts facts that plainly bring them within the coverage of the bond. The pleader’s conclusions of law or fact, unsupported by the basic facts, will not do; and such basic facts must be alleged, not left to inference. The bond in suit, as this court interprets it, is an agreement to indemnify . plaintiffs for the theft, or its equivalent, of tangible articles, such as those mentioned in the bond, and is not to be widened by the clause, ‘or other fraudulent means,’ supra, so as to include every loss resulting from fraud. Under the provision of the contract upon which plaintiffs rely the property múst be within the insured’s offices, or upon the premises of insured’s bankers, or in any recognized place of safe deposit. A bank credit, or a credit with an agent or broker, has no localization. Money deposited with a bank (not in a safe deposit box) is not money of the depositor, but of the bank.”
Agreeing therewith, and without further discussion of other contentions made, all of which have been duly considered, we are of opinion that the plaintiff has not in its pleadings shown a cause of action on the bond, and the judgment below is therefore affirmed.
No opinion for publication.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
D
|
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".
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, ILLINOIS, Appellant, v. Joseph M. BONE, Jr., Trustee in Bankruptcy of John D. Schindler, Bankrupt, Appellee.
No. 17529.
United States Court of Appeals Eighth Circuit.
July 8, 1964.
Terence C. Porter, of Welliver, Porter & Cleaveland, Columbia, Mo., made argument for appellant and filed brief with William M. Howard, St. Louis, Mo.
Everett S. Van Matre, of Van Matre & Van Matre, Mexico, Mo., made argument for appellee and filed brief.
Before VAN OOSTERHOUT, BLACK-MUN and MEHAFFY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by American National Bank and Trust Company of Chicago, Illinois, (American Bank) from judgment of the district court adopting and confirming findings of fact and conclusions of law of the Referee in Bankruptcy denying American Bank a secured claim based upon a second Deed of Trust upon real estate of the bankrupt, John D. Schindler, upon the ground that such security constituted a preferential transfer voidable by the Trustee under § 60 of the Bankruptcy Act.
Mr. Schindler, a customer of the First National Bank of Centraba, Missouri, had loan needs in excess of the loan limits of the Centraba bank. In 1959 the Centraba bank arranged with its Chicago correspondent, American Bank, for the handling of the Schindler loan account. Loans in varying amounts were made to the bankrupt by the Centraba bank and sold without recourse to American Bank. All such loans were prearranged and secured by chattel mortgages upon livestock and crops. The aggregate of the loans at times ran up to $100,000.
In October 1960 American Bank learned that the bankrupt had sold a substantial amount of mortgaged beans and corn without applying the proceeds upon the mortgage debt. Thereupon, an officer of the bank made an investigation, arranged for the liquidation of the chattel security and for taking of additional security.
The additional security thereafter furnished included a $125,000 collateral note secured by second Deed of Trust upon bankrupt’s real estate. Said deed also secured a $25,000 collateral note to the Centraba bank which such bank sought to establish before the Referee. The claim of the Centraba bank is not before us upon this appeal.
The collateral agreements were signed making the trust deed security for the bankrupt’s debt to the American Bank. Aside from the preference issue, the validity of the Trust Deed is not challenged. The Trust Deed was recorded on November 21, 1960.
Mr. Schindler filed a voluntary bankruptcy petition on March 13, 1961, and was adjudged a bankrupt on the same date. It is undisputed that on the date of bankruptcy Schindler owed American Bank a principal balance of $38,430.97 and interest to date of bankruptcy of $496.63.
American Bank had on October 20, 1960, more than four months prior to bankruptcy, obtained from the bankrupt the chattel mortgage on 230 acres of growing fall wheat. The bankrupt’s real estate was sold free and clear of the ben of this chattel mortgage, with such lien being transferred to the sale proceeds. The value of the wheat was fixed at $12,000 and American Bank was allowed a secured claim in such amount. This finding is not challenged upon this appeal and its only significance is that if such $12,000 is paid, American Bank’s claim will be reduced to the extent of payment.
Before the Referee the Bank claimed interest for the period subsequent to the filing of the petition and for attorney’s fees. Such claims were disallowed and no error is here claimed with respect to the interest and attorney fee items.
American Bank was allowed an unsecured claim of $26,927.60 but was denied a lien for such amount under its Deed of Trust. This appeal is from the final order denying the secured claim based on the Deed of Trust.
American Bank’s secured claim was on file when the Referee on May 5, 1961, ordered the sale of the bankrupt’s real estate free and clear of claimant’s lien, which lien was transferred to the proceeds. The proceeds of sale in the amount of $425,000 were collected by the Trustee. After payment of prior liens, $106,333.89 of the proceeds remained in the Trustee’s hands, which amount is sufficient to take care of any secured claim American Bank may be entitled to.
The trial court, without hearing any additional evidence, affirmed by summary order the Referee’s determination that the Trust Deed was a preferential transfer voidable under § 60 of the Bankruptcy Act. The presence of many of the elements of voidable preference are clearly established and there is no attack upon the finding that the Trust Deed was made within four months of bankruptcy, that it constituted a transfer of property for the benefit of the creditor, that it was based upon an antecedent debt and that no new extension of credit was involved.
American Bank upon this appeal urges that the Referee and the district court erred in denying its secured claim based upon the Trust Deed upon the ground that such transfer constituted a voidable preference for the following reasons:
1. There is no substantial evidence to support the finding that the bankrupt was insolvent on November 21, 1960, the effective date of the Trust Deed.
2. There is no substantial evidence to support a finding that American Bank had reasonable cause to believe the bankrupt was insolvent on the date the transfer became effective.
Insolvency at the time of the transfer and reasonable cause to believe the debtor is insolvent are necessary elements of an action to set aside a preferential transfer under § 60. Such issues are ordinarily fact issues. In Teasdale v. Prosperity Co., 8 Cir., 290 F.2d 345, 348, we stated the applicable rule for review as follows:
“It is a settled rule of this and other coui'ts that the findings of fact by a referee in bankruptcy, if supported by substantial evidence, are not clearly erroneous; and, if approved and confirmed and adopted by the district court, they will not be disturbed on appeal.”
Section 1 (19) of the Bankruptcy Act, which is here controlling, provides that a person shall be deemed insolvent whenever the aggregate of his property shall not, at a fair valuation, be sufficient in amount to pay his debts. The Referee in his opinion thus states the test of insolvency:
“The statute describes the controlling standard of valuation with one brief phrase: ‘fair’.
“ ‘Fair valuation’ within the meaning of Sec. 1 (19) of the Act, means a value that can be made promptly effective by the owner of the property to pay his debts. Stern v. Paper [D.C.], 183 Fed. 228, 230, affirmed Paper v. Stern, 198 Fed. 642 (C.C.A.8th); In re Sedalia Farmers’ Co-Op Packing and Produce Company, 268 Fed. 898, 900 (D.C.Mo.). The Court of Appeals for the Second Circuit citing Stern v. Paper with approval in Syracuse Engineering Company v. Haight, 110 F.(2d) 468, 471, concludes that under the ‘balance sheet test’ of the Bankruptcy Act, ‘insolvency’ results when the aggregate of a debtor’s property is not sufficient at a fair valuation to pay his debts, which means a fair market price that can be made available for payment of debts within a reasonable period of time, and ‘fair market value’ implies a willing seller and a willing buyer.”
We believe such test as stated, when considered as a whole, properly reflects the law. American Bank objects to the language in the early part of the quotation with respect to value that can be made promptly effective. Standing in isolation, such statement is too broad. The latter statement from the Haight ease more accurately states the law. The statute itself requires the valuation to be fair. See Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 451, 21 S.Ct. 906, 45 L.Ed. 1171; Arkansas Oil & Mining Co. v. Murray Tool & Supply Co., 8 Cir., 127 F.2d 564, 566; 9 Am.Jur.2d Bankruptcy §§ 165, 1065.
The trial court set up a balance sheet based upon the evidence as follows:
“ASSETS:
Stipulation ..............................$ 55,664.08
Livestock and Crops ..................... 32,622.31
2005 Acre farm ............................. 425,000.00
Total ...............................$513,286.39
“LIABILITIES:
Secured (Stipulation) ....................$423,411.24
Unsecured (Stipulation) .................. 90,693.83
Total ......... $514,105.07
Net Worth —$818.68”
The liabilities existing on November 21, 1960, were agreed to by stipulation. The value of the general assets was stipulated as reflected by the first line of the statement. American Bank urges that a higher valuation should be placed upon the livestock and crops. While there is evidence to support a higher valuation, we are inclined to think that the value assigned such items by the Referee is not clearly erroneous. The principal controversy is with respect to the valuation placed upon the 2005 acre farm of the bankrupt.
It is noted that in the trial court’s balance sheet the assets and liabilities to-talled over a half million dollars and the liabilities fell short of the assets by only $818. Such figure is less than one-sixth of one percent of the total liabilities. An increase in valuation in the real estate of less than fifty cents an acre would establish solvency.
The burden of proof is on the Trustee to establish insolvency. The only proof that supports the valuation of the real estate made by the Trustee is the fact that the sale of the land for $425,000 was approved by the Trustee and that such sale was consummated.
The $425,000 sale was reported by the Trustee on April 28 as a private sale. Said report came only one week after the prior sale by the bankrupt had been rejected. The Trustee offered no evidence of any steps which he might have taken to find a buyer for the farm. There is no explanation of how the offer submitted reached the Trustee.
On May 5, 1961, at the approval hearing, William Boschert, who had learned of the sale a few days before, offered to purchase the real estate for $450,000 upon the same terms as the reported purchasers’ and tendered a down payment of $35,000 called for by such contract. The contract in connection with the reported sale provided that the purchasers could withdraw if they could not obtain financing, in which event the down payment would be considered rent on stated conditions. At the suggestion of a creditor, this option was withdrawn and removed. The reported purchasers consented to such change. Boschert submitted a financial statement showing considerable net worth, largely in nonliquid assets. He asked that the sale be held open until May 10, 1961, to enable him to arrange financing. Possession of the farm was to be given immediately. The reported purchasers insisted they would pay no more and that they would withdraw their offer if it were not accepted upon that day, stating as a reason that it was urgent that the crop be planted immediately. The Referee, after hearing from all the interested parties, approved the reported sale. No complaint is made that the Referee abused his discretion in approving the reported sale but it is strenuously urged that such hasty sale falls far short of establishing a fair valuation for the land and that this is particularly true in the absence of any showing of effort made by the Trustee to find a buyer. Related to the speed of the sale is the factor that 2005 acres constitutes a large tract of land and that purchasers with adequate means to purchase such a farm are relatively scarce.
American Bank offered substantial evidence that the fair value of the land was-substantially more than the $425,818 value required to make the bankrupt solvent,, including the following:
1. Two competent appraisers appointed by the Referee, whose qualifications are not challenged, valued the real estate at $455,000.
2. Appraisers for Equitable Life Assurance Society, who had placed a $300,-000 mortgage on the farm in 1959, fixed the value of the land at that time at. $450,000.
3. Three qualified witnesses placed' the fair market value of the farm on the-date of transfer at figures ranging from $500,000 to $549,000.
4. Substantial evidence appears in the-record that the bankrupt’s farm was highly fertilized and highly productive- and far superior to the land in the vicinity and that noteworthy production records had been maintained by college extension service.
5. The evidence heretofore referred to shows that Boschert was seriously interested in attempting to purchase the farm for $450,000 and that he would make an offer for such amount if he could arrange the financing and if he were allowed five days for such purpose..
The foregoing is substantial evidence-that the fair value of the land on the day of the transfer was considerably higher than the $425,000 valuation fixed by the-Referee. The Trustee’s claim that his-cross-examination of some of the witnesses establishes the valuation fixed by the Referee is without merit. The Trustee offered no expert testimony as to the value of the farm.
In Cullers v. Commissioner, 8 Cir., 237 F.2d 611, the Tax Court had increased the value of the land for tax purposes. The taxpayer had offered expert testimony supporting his valuation. The Commissioner offered no testimony. We held that the testimony of the expert witnesses could not be arbitrarily disregarded. We stated:
“It would seem that, if the valuation placed upon the real estate by the taxpayers and their witnesses was too low, the Commissioner could have produced some qualified witnesses who would have said so. The lack of such evidence operates against the Commissioner’s contentions. See Baltimore Dairy Lunch, Inc., v. United States, 8 Cir., 231 F.2d 870; Mayson Manufacturing Co. v. Commissioner, 6 Cir., 178 F.2d 115.
“An appellate court should not substitute its judgment for that of the trial court when there is substantial evidence to support the decision of the trial court. However, even though there may be evidence to support the trial court’s finding, the finding is clearly erroneous when the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Baltimore Dairy Lunch, Inc. v. United States, supra.” 237 F.2d 611, 617.
Upon the record before us in the present case, we conclude that substantial evidence is lacking to support the valuation finding made by the trial court with respect to the real estate or any finding that the fair value of the real estate on the date of transfer was less than $425,-818, the minimum figure needed to support solvency of the bankrupt on that date. We find no reasonable basis for rejecting the expert testimony of value made by competent witnesses in its entirety. As we stated in Cullers, the Trustee, if he felt the value assigned to the land by the witnesses was too high, should have been able to readily find expert testimony to present to the court.
While what we have heretofore said is dispositive of this appeal, it is also our view that the Trustee has not met the burden resting upon him to establish the reasonable cause to believe issue. We have no quarrel with the basic law on this issue stated by the Referee. While we believe there is considerable doubt upon the basis of this record whether the facts and circumstances were such as to put the bank on inquiry as to the debtor’s solvency in view of the substantial financial statements submitted by the borrower and the subsequent appraisements made of his property, we will assume without so deciding that the circumstances were such as to place the bank upon inquiry and thus make it chargeable with the notice of all facts that a diligent inquiry would disclose.
A diligent inquiry would have led to an investigation of the value of the real estate, the bankrupt’s most valuable asset. There is a unanimity of opinion among the experts who have testified that the value of the real estate ranged upward from $450,000 which is a far greater sum than necessary to establish solvency. Additionally, it is highly improbable that such an investigation would have disclosed the $90,000 in unsecured claims held by some seventy-three creditors holding claims running from a few dollars to $11,000, some for personal and farm indebtedness and some in connection with the feed and fertili2;er business operated by the bankrupt. The stipulation as to this indebtedness was made subsequent to bankruptcy and after claims had been filed. There were no suits against the bankrupt pending at the time of the bankruptcy.
We believe that the only reasonable inference to be derived from all of the evidence is that a careful and prudent investigation if made at the time of the transfer would not have disclosed that the bankrupt was insolvent.
The Trustee has failed to establish that the Trust Deed upon which American Bank relies is a voidable preference under § 60 of the Act.
Reversed and remanded with direction to allow unpaid balance as a secured claim against the proceeds of the sale of the real estate.
. The bankrupt had on January 27, 1961, offered his farm for sale at public auction and had entered into a prearranged contract to sell it to the highest bidder at the sale. The high hid was $359,-000. The Trustee rejected such sale on April 21, 1961, stating that the reasonable value of the real estate is materially in excess of the contract price. Such rejection was approved by the Referee. Under such circumstances, the auction bid cannot be aonsidered as substantial evidence as to the fair market value of the farm. The Referee’s opinion discloses that be placed no reliance upon tbe auction sale in making bis determination of value of tbe real estate.
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:
|
songer_initiate
|
A
|
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.
DEMIAN, LTD., Plaintiff-Appellant, v. CHARLES A. FRANK ASSOCIATES, Charles A. Frank and Jaguar International, Inc., Defendants-Appellees.
No. 113, Docket 81-7392.
United States Court of Appeals, Second Circuit.
Argued Oct. 23, 1981.
Decided Feb. 4, 1982.
Charles A. Frank, pro se.
Freedman & Lorry, P. C., Philadelphia, Pa. (Gary A. Zucker, Brooklyn, N. Y., Phillips & Cappiello, New York City, of counsel), for plaintiff-appellant.
Before LUMBARD, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.
MANSFIELD, Circuit Judge:
In this diversity suit for damages for breach of a contract for services in the importation of men’s leather and suede garments, plaintiff-appellant, Demian, Ltd. (“Demian”), the purchaser, appeals from a judgment of the Southern District of New York entered by Judge Charles L. Brieant in favor of the defendants Charles A. Frank Associates, Charles A. Frank and Jaguar International, Inc., New York residents and business organizations (herein collectively referred to as “Frank”), dismissing the complaint after a non-jury trial. We remand the case to the district court for further findings of fact, affirm the dismissal of Frank’s counterclaim for commissions, and deny Frank’s request for an award of costs, damages, and expenses, including attorneys’ fees.
At all pertinent times Demian, a Pennsylvania corporation, was an importer of high grade men’s leather garments for sale in the United States and Frank was a service organization with business acquaintances in the Orient. For a commission paid by American importers, Frank would locate manufacturers or sources of supply in the Far East and make arrangements for the manufacture of the goods in the Orient and their importation into the United States. To facilitate importation into the United States of goods made in Korea, Frank entered into an arrangement with K. C. Sun of Da Chong Hong Trading Co., Ltd. (“Sun”) in Korea, whereby, for 50% of Frank’s commission received for its services, Sun would locate Korean manufacturers and, following Frank’s instructions, do anything further required to effectuate the manufacture, sale and importation of goods purchased by Frank’s American clients. One of these clients was Demian.
After approving samples of leather jackets to be manufactured in Korea by Koreanna Moulson, Ltd., a manufacturer located by Frank and Sun, who submitted the samples for consideration, Demian placed two orders with Sun for the purchase of two styles meeting the specifications of the samples. Pursuant to arrangements made by Frank, Demian forwarded to Korea letters of credit in favor of Koreanna, to be honored upon presentation of a certificate by Sun that it had inspected the shipment of the leather jackets made by Koreanna and found them to be of merchantable quality, meeting the sample specifications.
Unfortunately Sun did not properly perform its inspection duties, issuing a certificate that released the purchase price to Koreanna against jackets that did not meet the specifications. In June 1980 Demian brought the present suit against Frank for breach of contract, alleging that in return for commission payments Frank had agreed to:
“(A) Assist plaintiff in the designing of leather jackets which were to be manufactured in the Republic of Korea;
“(B) Arrange for the manufacture of said jackets in the Republic of Korea;
“(C) Inspect said jackets upon completion of the manufacturing to insure that they complied with the standards and specifications required by plaintiff, and in accordance with the terms of a Letter of Credit opened by plaintiff.
“(D) Perform all services necessary to accomplish the importation of the jackets into the United States.”
Frank entered a general denial and counterclaimed for a 5% commission “for his services.”
At trial Michael Driban, President and owner of Demian, testified that, after Charles A. Frank had described his qualifications and his extensive experience in locating Oriental manufacturers, arranging for their manufacture of goods and importing garments into the United States, they entered into an arrangement under which Frank was to “oversee any program we would enter from start to finish.” Frank stated:
“Q What do you mean, from start to finish?
“A From the placing of the orders to making sure that the work was done in
time, to make sure the garments were packed in time, that every step of the production process was followed through, that the skins arrived in time to be cut, that the cutting was done in time, that the sewing was done in time, that the skins, when they arrived, were first quality, that when all was said and one [sic], the garments were inspected. Evenness of color, quality of skin, sewing details, etc., were packed, the documents were completed in a satisfactory manner, and that it went out on a ship that would ultimately get to us in time to permit us timely deliveries to our customer, which was our responsibility.”
With respect to responsibility for inspection of goods in Korea before release of Demian’s letter of credit, Driban testified that Frank advised that full responsibility would be assumed by him or, if he was not in Korea at the time of shipment, by his “man in Korea,” K. C. Sun, whom Driban had never met. On cross-examination by Mr. Frank, Driban testified:
“Q Did I ever represent to you as a guarantor of the factory—
“THE COURT: He said yes, you sure did. Why do you keep fooling around? Answer the question.
“A You told me you would be personally or someone from your office would be responsible for the final inspection of those garments. Without a certificate certifying to that effect payment would not be made to the factory.”
Frank’s defense was that he acted merely as a broker, without assuming responsibility other than to bring the principals together. On his deposition, however, he testified that he entered into a relationship with Mr. Sun whereby Sun would perform numerous services for him in Korea, including location of factories, help in obtaining clients, manufacture of garments, and inspection, and that “[i]f there were requirements that a particular client had that I could not do for the clients because I was not there, he would do it.” (App. 45A). Frank testified: “If I gave him instructions, he following them out. .. . Mr. Sun was to execute what I asked him to execute.” (App. 47A).
At the close of the trial Judge Brieant, although he found that Frank’s “services were totally useless” and he had been a malefactor who had engaged in “unconscionable” conduct, concluded:
“The most the proof shows, an agent was authorized by the principal to delegate a sub-agent and in the absence of some knowledge of it at the time of appointing Sun, that Sun was an improper person to be appointed, there is no liability, no vicarious liability when a sub-agent with the permission of the principal is appointed by an agent to work for the principal, and that is really what happened here with K. C. Sun.
“... there is no joint venture because, in order to have a joint venture, there must be an agreement proved to share losses and profits.
“.. . When two persons could broker in effect like that, neither one becomes the agent for the other, and Mr. Frank does not, by the facts of this case, become the person vicariously liable for the sins and omissions or defaults or delicts [sic] of K. C. Sun, and that is what is sought to be shown here in this case.” (App. 37A-38A).
Accordingly the court entered judgment dismissing the complaint. Finding that Frank’s services were worthless, he also dismissed its counterclaim for commissions, without costs to either side.
DISCUSSION
We do not question the district court’s finding that no joint venture existed between the parties since there is no evidence of profit or loss sharing between them, which is essential to recovery on a joint venture theory. Steinbeck v. Gerosa, 4 N.Y.2d 302, 317, 175 N.Y.S.2d 1, 13, 151 N.E.2d 170 (1958); Backus Plywood Corp. v. Commercial Decal, Inc., 208 F.Supp. 687, 691 (S.D.N.Y.1962); Allen Chase & Co. v. White, Weld & Co., 311 F.Supp. 1253, 1259 (S.D.N.Y.1970); Jasper v. Bernstein, 259 App.Div. 638, 639-40, 20 N.Y.S.2d 362, 363-64 (1st Dept. 1940); Gordon Co. Inc. v. Garcia Sugars Corp., 241 App.Div. 155, 156, 271 N.Y.S. 303 (1st Dept. 1934). Under the law of agency Frank’s liability to Demian for Sun’s improper certification turns on whether Sun was employed as Frank’s sub-agent to perform his duties as Demian’s agent or as an independent agent of Demian for which it would assume responsibility. If Sun was Frank’s subagent, Frank would be liable to Demian for the subagent’s conduct. 2 Restatement (Second) of Agency, § 406.
Ҥ 406. Liability for Conduct of Sub-agent
“Unless otherwise agreed, an agent is responsible to the principal for the conduct of a subservant or other subagent with reference to the principal’s affairs entrusted to the subagent, as the agent is for his own conduct; and as to other matters, as a principal is for the conduct of a servant or other agent.” Id. 252.
On the other hand, if Sun was not a sub-agent but a separate agent acting solely for Demian, Frank would not be liable. Restatement (Second) of Agency, §§ 5, 405.
§ 405. Liability for Conduct of Other Agents
“(1) Except as stated in Subsections (2) and (3), an agent is not subject to liability to the principal for the conduct of other agents who are not his subagents.
“(2) An agent is subject to liability to the principal if, having a duty to appoint or to supervise other agents, he has violated his duty through lack of care or otherwise in the appointment or supervision, and harm thereby results to the principal in a foreseeable manner. He is also subject to liability if he directs, permits, or otherwise takes part in the improper conduct of other agents.
“(3) An agent is subject to liability to a principal for the failure of another agent to perform a service which he and such other have jointly contracted to perform for the principal.” Id. 251.
Here we need not speculate as to the nature of the legal theory asserted by Demian as the basis for its claim against Frank. It does not ask the court to infer from the circumstances that Sun must have been Frank’s subagent rather than an independent agent procured by it as a broker. It claims that Frank breached an express agreement with it to inspect the jackets upon completion of the manufacture “to insure that they complied with the standards and specifications required by plaintiff, and in accordance with the terms of the Letter of Credit opened by plaintiff.” (Compl. Par. 6(C)). Under such an agreement Frank would be obligated either personally to inspect the manufactured jackets or to see to it that they were properly inspected by Sun and to issue a certificate or have Sun do so only if they conformed to the samples approved by Demian, which they admittedly did not. If Frank failed to perform these promises and allowed substandard jackets to be certified, he would under elementary principles of contract law be liable in damages to Demian regardless of any joint venture or subagency theory of liability.
The district court does not appear to have considered this issue of whether Frank expressly entered into an agreement with Demian to inspect properly and made no findings with respect to such an agreement. If there were no supporting evidence, we might let stand the dismissal of this claim for breach of an express contract. But here the record contains an abundance of testimony by Driban to the effect that Frank agreed to insure that Sun, whom Frank described as his “man in Korea” who followed Frank’s “instructions” and who would “execute what I asked him to execute,” would make a proper inspection and issue a certificate only if the jackets conformed to Demian’s specifications. Nor does Judge Brieant appear to have discredited Driban as a witness. Indeed at one point he appears to have accepted Driban’s testimony that Frank represented himself to be a “guarantor.” Judge Brieant’s characterization of Mr. Frank, on the other hand, indicates some doubt as to his reliability. The finding that Frank’s services were worthless and in violation of his contractual obligations, disentitling him to a commission, is supported by the record and not clearly erroneous.
In view of these circumstances we vacate the judgment dismissing the complaint and remand the case to the district court for further proceedings, findings, and decision. We affirm Judge Brieant’s denial of Frank’s counterclaim and deny as frivolous Frank’s claims for damages, costs, and attorney’s fees under 28 U.S.C. §§ 1912, 1927 and Fed.R.App.P. 38. Costs are awarded to Demian.
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_usc1
|
18
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Oren HOLSEY, Defendant-Appellant.
No. 245-70.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1970.
Russell Cranmer, Wichita, Kan. (Michaud & Cranmer, Wichita, Kan., on the brief), for defendant-appellant.
John J. Immel, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.
Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.
ORIE L. PHILLIPS, Circuit Judge.
Holsey was charged by indictment with bank robbery and in the commission thereof with putting the life of Fred L. McMillen in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d).
He was convicted, sentenced, and appealed. This court reversed, on the ground that evidence was seized by an unlawful search and was improperly admitted. See United States v. Holsey, 10 Cir., 414 F.2d 458.
He was again tried, convicted, and sentenced, and has appealed.
About noon on July 5, 1967, a man entered the National Bank of Wichita, in Wichita, Kansas. He approached Frederick McMillen, a teller of the bank, pointed a pistol at him, handed him a brown paper bag, and said, “Fill this up. I mean business. Don’t press any buttons.” McMillen reached in his cashier’s box, took money therefrom, and put it in the bag. Another teller, L. B. Warren, started to walk toward McMillen’s window, and the robber said, “Don’t move. Stay exactly where you are at.” After receiving the money, the robber fled from the bank. Another teller, Donna Drouhard, from about six feet from McMillen’s window, observed the robbery while it was in progress.
At a lineup held November 9, 1967, in the County Jail of Sedgwick County, Kansas, McMillen, Warren and Drou-hard identified Holsey as the man who committed the robbery. Holsey contends that the officers conducting the lineup compelled Holsey to be a witness against himself.
The natural color of Holsey’s hair was dark. Before his arrest, he had dyed his hair a light color, and it was a light col- or when the lineup was held. The jailer selected from available persons five who best resembled Holsey, except that their hair was dark. The bank tellers had theretofore given a description of the robber and stated that his hair was dark.
Prior to the holding of the lineup, Agents of the F.B.I. attempted to persuade Holsey to restore the dark color of his hair. Holsey refused. F.B.I. Agent Richard Eckberg supplied Holsey with a dark wig before the lineup was held, but Holsey refused to wear it. As a result, he was the only person in the lineup with light hair. Holsey also refused to put on articles of clothing furnished to him and the other five persons in the lineup. Holsey threw the clothing on the floor. The other five persons put it on. The officers asked the persons who were to appear in the lineup to wear dark glasses. All of them did so, except Holsey. He refused.
Two attorneys representing Holsey were present at the lineup.
The officers did everything possible to make the lineup fair. If Holsey suffered any disadvantage, it was because of what he, himself, did or refused to do. He apparently thought that perhaps the light color of his hair would be to his advantage. All he was compelled to do was to exhibit his person for observation in the lineup.
The following facts are pertinent, because of Holsey’s claim that the testimony of witnesses introduced at the trial was discovered from information that was obtained by the Agents of the F.B.I. by the unlawful search and seizure, and was therefore tainted by such unlawful search and was improperly admitted.
On November 1, 1967, Holsey was arrested, and a search made of his rented house and his automobile. Those were the searches held illegal by this court on the former appeal.
On October 23, 1967, Paul Farmer, an employee of the Sheriff’s office of Sedg-wick County, Kansas, gave Eckberg information that he had obtained, indicating that Holsey was involved in the bank robbery. Farmer also told Eckberg that Holsey was driving a 1961 Thunderbird automobile, bearing Tennessee license number Jl-3297, and that he believed it was a hardtop.
After receiving such information, Eckberg, on October 25, 1967, requested the F.B.I. in Nashville, Tennessee, to check such license number in the official records and determine in whose name the automobile, for which license number Jl-3297 was issued, was registered.
On October 31, 1967, the Nashville F. B.I. conducted such investigation and learned that a 1961 Ford Thunderbird automobile bearing Vehicle Identification Number IY71Z162734 was registered in the name of Jack D. Weber, 1044 South Sedgwick, Wichita, Kansas, Tennessee license number Jl-3297. Also, on October 31, 1967, the Nashville F.B.I. cheeked with the Title Section of the Motor Vehicle Division, Nashville, Tennessee, and learned that on August 16, 1967, a Ford Thunderbird two door hardtop, VIN IY71Z162734, was titled under Tennessee title number 12268693, and the records listed the owner as Jack D. Weber, 1044 South Sedgwick, Wichita, Kansas, and stated the vehicle was purchased by Weber on July 14, 1967, from “Doc” Jenkins Motors, 410 La-Fayette Street, Nashville, Tennessee, for $823. Such information led the F.B.I. to conduct a further investigation in the Nashville area. The information regarding the purchase of the Thunderbird from “Doc” Jenkins Motors led to the discovery by the F.B.I. of all the witnesses from Tennessee who testified at the second trial and what their testimony would be.
Walter W. Dunkling, an Agent of the F.B.I., stationed at Nashville, interviewed “Doc” Jenkins a few days after November 22, 1967. As a result of his interview with Jenkins, Dunkling located and interviewed Edward Collins and A. J. Tomlinson. Tomlinson told Dunkling he met a man by the name of Jack Weber at the Hermitage Hotel in Nashville, Tennessee. Dunkling then interviewed Edward F. Hocker, a clerk of such hotel, and learned that Weber made several local telphone calls from the hotel. Dunk-ling then learned that one of such local calls was made to the residence of Rudy Ruark. He then proceeded to interview Ruark and also several other persons to whom local calls were made, but who did not testify as witnesses at the second trial.
A document was found in the search of Holsey’s house on November 1, 1967, which evidenced the purchase of the Thunderbird from “Doe” Jenkins Motors by a person using the name Jack Weber and payment therefor by Weber of $823.85, but an F.B.I. Agent at Nashville, on October 31, 1967, had learned of the purchase of the Thunderbird from “Doc” Jenkins Motors on July 14, 1967, by a man giving his name as Weber, and the payment therefor of $823.
On October 28, 1967, Jerry Dietz, a highway patrolman, stopped Holsey (then using the name Jack Weber) and gave him a ticket for speeding and failure to register his vehicle in Kansas. Dietz testified at the trial and identified Holsey as the man he stopped on October 28, 1967. On October 31, 1967, Dietz heard a broadcast of a dispatch from the Highway Patrol dispatcher at Salina, Kansas, giving the name of the driver of an automobile as Lloyd O. Hol-sey, a description of the vehicle, and the license plate number. Dietz recognized it as a vehicle he had stopped on October 28, 1967, and he notified the dispatcher that he thought he should notify the F. B.I. Such notification to the Wichita F.B.I. led to Holsey’s arrest on November 1, 1967.
The document and other material found in the search of Holsey’s house gave the F.B.I. no new information. They already knew from the investigation of October 31, 1967, that a person using the name of Jack Weber had purchased the Thunderbird and they had information on October 31, 1967, that Hol-sey and Weber were the same person. They also knew prior to October 31, 1967, that Holsey was driving a Thunderbird which answered the description of the one registered by Weber in Tennessee and had the same license plate.
Jenkins testified at the second trial and identified Holsey as the person who had purchased the Thunderbird from him under the name of Weber.
Tomlinson testified at the second trial that he was a cab driver in Nashville in 1967; that he met a person known as Jack Weber, who said he was from Wichita, Kansas; that he transported such person in his cab several times. He identified Holsey as the man he knew as Jack Weber. He further testified that he drove such person to “Doc” Jenkins Motors, where such person purchased a 1961 Thunderbird; that there was a leak in the power steering of the Thunderbird, which had to be repaired, and that he drove such person back to the Hermitage Hotel.
Ruark testified at the second trial that he advertised a 1965 sports model Chevrolet for sale; that a person giving his name as Jack Weber answered the advertisement by telephone; that he arranged to meet such person at the Hermitage Hotel, and that the person stated he would be standing in front of- the Hermitage Hotel; that he went to the hotel and picked up a person, who introduced himself as Jack Weber, and that they failed to make a deal. Ruark pointed Holsey out in the courtroom as the person who had introduced himself to him as Jack Weber.
I. Did the conducting of the lineup compel Holsey to be a witness against himself?
In United States v. Wade, 388 U.S. 218, at 222, 87 S.Ct. 1926, at 1930, 18 L.Ed.2d 1149, the court said:
“We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. * * *”
The court cited with approval a statement to the same effect in Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021.
While prior to the trial Holsey was compelled to exhibit his person for observation in the lineup, he was in no way compelled to give any “evidence having testimonial significance.” He was compelled to exhibit his “physical characteristics,” but he was not compelled “to disclose any knowledge he might have.” If Holsey suffered any disadvantage in the lineup, it was due entirely to his actions and inactions. The jailer and the F.B.I. endeavored to make the lineup fair and impartial and free from any prejudice to Holsey, who refused to cooperate to that end.
On the first appeal, the court reviewed what occurred at the lineup and identification and concluded that the requirements laid down in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, were met, and that there was no violation of Holsey’s constitutional privilege against self-incrimination. We reaffirm that holding.
II. Was evidence introduced at the trial tainted by the unlawful search?
With respect to the contention that testimony was discovered and introduced at the trial by the use of information obtained by the F.B.I. Agents through the unlawful search, the record speaks for itself and refutes the claim.
The information, which led to the discovery of the witnesses from Nashville, Tennessee, who testified at the second trial and the pertinent facts that they knew and to which they would testify, was known to the F.B.I. Agents on or prior to October 31, 1967, and before the search was made. Hence, they were within the exception to the exclusionary prohibition laid down in Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441, and recognized in the following language in the opinion, which it quoted with approval from Sil-verthorne Lumber Co. v. United States, 251 U.S. 385, at 392, 40 S.Ct. 182, at 183, 64 L.Ed. 319, as follows:
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
Here, such knowledge obtained by the search gave the F.B.I. Agents no information they did not have before, and in nowise tainted the evidence received at the second trial.
Accordingly, the judgment is affirmed.
. Before the trial, Holsey had let his hair resume its natural dark color.
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_treat
|
D
|
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.
In re TRACY. JOHN HANCOCK MUT. LIFE INS. CO. v. TRACY.
No. 5482.
Circuit Court of Appeals, Seventh Circuit.
Nov. 14, 1935.
Rehearing Denied Dec. 30, 1935.
H. G. Greenebaum, Cyril A. Burns, and A. H. Fellheimer, all of Pontiac, Ill., for appellant.
George W. Hunt and Walter W. Winget, both of Peoria, Ill., for appellee.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
SPARKS, Circuit Judge.
This appeal involves petitions filed by appellee in the District Court under which he sought relief under section 75 of the Bankruptcy Act, as amended, 11 U.S.C.A. § 203. The court approved the debtor’s petitions and issued an order against all persons and particularly appellant, restraining them from forfeiting a certain contract theretofore entered into by the parties, and from any further proceedings with respect to. such forfeiture, or any attempt to dispossess appellee or his tenants from the real estate involved in the contract. Appellant moved to dissolve the restraining order and to dismiss the petitions on the grounds that the restraining order violated the provisions of the Clayton Act (38 Stat. 730); that the pleaded pertinent facts did not entitle the debtor to the relief demanded against appellant; and that section 75 of the Bankruptcy Act contravened certain provisions of. the Federal Constitution. Appellant’s motions were overruled and from that ruling this appeal is prosecuted.
Prior to the' enactment of section 75 of the Act, the debtor was the owner of a large tract of land in Stark County, Illinois, on which appellant held mortgages for approximately the 1933 value of the’ land. In the fall of 1931 all of these mortgages were in default. There were also junior liens upon the -land. Foreclosure proceedings were instituted in the' state, court upon all the mortgages and they culminated in decrees of foreclosure and sale. ■ In each case, the properties were bid in by the mortgagee, and the master’s certificates of purchase were issued to the respective purchasers. In May, 1933, the year for redemption having expired, and there having been no redemption, the ■ certificates of purchase were surrendered and deeds were issued and delivered to appellant, which were duly recorded.
On September 21, 1933, appellant and appellee entered into a written contract whereby appellant agreed to sell and convey to appellee all the premises in question for $69,000, of -which $12,000 was to be paid in various installments, and $57,000 was to be evidenced by a mortgage to be dated and executed March 1, 1939, at which time the deed was to be executed and delivered by appellant to appellee, provided the installments previously due had been paid. The contract further provided that upon the failure of appellee to make any of the payments or any part thereof, or to 'perform any of the covenants required of him, the contract at the option of appellant should be forfeited and determined, and that appellee should forfeit all payments made by him on the contract, and such payments should be retained by appellant in full satisfaction and liquidation of all damages by it sustained, and that appellant should have the right to re-enter and take possession of the premises. It was further mutually agreed that time should be of essence of the contract. Thereafter, appellee went into possession of the premises under the contract.
According to the terms of the contract the following amounts were to be paid on principal on the following dates: September 21, 1933, $1000; on or before January 1, 1934, $6000; March 1, 1934, S250; September 1, 1934, $250; March 1, 1935, $500, and $500 each six months thereafter until and including March 1, 1939, at which time, if the above required payments had been made, appellant was to deed tlie property to appellee who, in turn, was then to execute his note for $57,000 secured by a mortgage on the real estate. The total purchase price was to bear five per cent, interest per annum. Appellee made the first two payments of principal when due, amounting to $7000, but on March 1, 1934, he failed to pay the installment of $250 then due, and interest then due of $1100, and taxes for the first half of 1933 in the approximate sum of $308, which appellee had agreed to pay, were then due and unpaid. No further payments of cither principal or interest were made by appellee.
On September 10, 1934, appellant served upon appellee a written notice of non-performance by him, and a demand for immediate possession of all the premises. That notice contained the following:
“ * * * (appellant) does hereby and berein demand of you immediate possession of the following described real estate situated in the County of Stark and State of Illinois, known and described as follows, lo-wit: * * *
“You are further notified by * * * (appellant) that upon your failure to surrender immediate possession of the above and foregoing described real estate that * * * (appellant) will after the expiration of 30 days of the date upon which this demand and notice is -served upon you institute an action of forcible entry and detainer in accordance with the statute in such case made and provided.
“You are further notified that this demand and-notice is being served upon you by virtue of the fact that you were the purchaser under a certain contract entered into -on the 21st day of September, A. D., 1933, whereby and wherein * * * (appellant) covenanted and agreed to make, execute and deliver to you a special warranty deed to the premises hereinabove described upon your compliance with the covenants and conditions to be performed by you and which you have failed to perform.”
On October 5, 1934, appellee filed his petition for relief under section 75. The restraining order was thereupon issued without notice or bond and served upon appellant. Before the court denied appellant’s motion and continued the restraining order, appellee filed his amended and supplemental petition. The facts stated above, however, contain the material allegations of both petitions and are sufficiently set forth to present the questions raised.
The parties agree, and rightly so, that this is a “controversy” as distinguished from a “proceeding in bankruptcy.” It is therefore appealable from the District Court as a matter of right under section 24a of the Bankruptcy Act, as amended by Act May 27, 1926, 11 U.S.C.A. § 47 (a), and permission from this court need not be obtained.
We shall first discuss appellant’s contention that the admitted facts did not entitle the debtor to the relief demanded against appellant, and that the court erred in issuing and continuing the restraining order.
It is admitted that appellant was the owner o-f the premises in question on September 21, 1933, and on that day entered into the contract referred to whereby it agreed to convey the premises to appellee on March 1, 1939, for the sum of $69,000 with interest, provided appellee would pay the sum of $12,000 of the consideration named, at the times and in the amounts as designated in the contract, together with interest and taxes. The contract is clear that in case of appellee’s failure to perform any of the covenants required of him, appellant had an option either to enforce specific performance, or to forfeit and determine the contract, retaining the payments made as liquidated damages. The validity of the contract and appellee’s failure to perform his part of it are conceded, and the only question presented with respect to the contention now under discussion is whether appellant exercised its optional right to forfeit and determine the contract. If it did, it is the absolute owner of the premises and appellee ■ has no inte'rest in the property, and it can not be administered as a part of his estate under section 75.
Whether or not the option was properly exercised depends upon the construction of the written notice and demand^ of September 10, 1934, which was twenty-five days before appellee filed his petition. A perusal of the notice and demand satisfies us that it was a sufficient exercise of appellant’s option to retain its title to the premises and to cancel appellee’s promise to pay. Cf. Thiry v. Edson, 129 Ill.App. 128. It made a demand for immediate possession of the premises based upon the reason that appellee had failed to perform the covenants and conditions agreed upon in the contract, and it notified him that at the expiration of thirty days from his receipt of the notice it would institute an action of forcible entry and detainer under the applicable statute. Smith-Hurd Ann.St.Ill. c. 57. It is difficult to conceive a stronger or clearer statement of the remedy which appellant had decided to pursue. It is obvious that appellant was not entitled to both possession and specific performance. Hence, in demanding possession it disentitled itself to demand payments under the contract and clearly indicated the remedy it intended to pursue. It is true that in Craft v. Calmeyer, 274 Ill.App. 296, the court held that under the Illinois Statute, sections 2 and 3 of chapter 57, supra, the demand for possession must follow the thirty days notice of intention to sue, and both mus.t precede the instituting of the suit. We are not here concerned, however, with appellant’s right to sue for possession without making another demand in accordance with that opinion, but vye are determining whether there was a forfeiture of the contract. To do this it is proper to consider the entire notice, including the demand for possession, in order to determine what was the intention of appellant. The conclusion is inevitable that it intended to retain the land and cancel appellee’s promises to pay. That conclusion is fortified by appellant’s pleadings and contentions in the District Court and in this court. Not once has it asked to change the remedy so designated by it, nor has it given any intimation that it would. Indeed, under the circumstances, the court would hardly be warranted in permitting it to do so. The admitted facts are repugnant to any other interpretation of appellant’s intention. Here was a debt- or with assets which he said were worth only $43,000, and with liabilities approximating $208,000. He said the farm lands were worth only $40,000, and that his unsecured claims amounted to $138,048. He scheduled appellant’s claim as $69,000, secured by a mortgage on the real estate. Hence, conceding for the moment that this correctly stated the facts as to title to the land and payments due, there was left but $3,900 to pay the unsecured claims of $138,048, together with the costs of administration. Of course, we realize that a forfeiture can not be accomplished by mere intention, but appellee has seen fit to question the meaning of the language of the notice, and that fact renders competent any evidence that will disclose its true meaning. However, we think the meaning of the language is quite plain, but if it can. be considered ambiguous in any respect, we feol that such .ambiguity is fully explained by the facts surrounding the transaction.
Section 75 purports to deal only with property owned by the debtor. It would not be fair to attribute to Congress any other intention. The option referred to was a property right of appellant and it had a right to exercise that right in case of the debtor’s default, and this it did. We do not understand that the Bankruptcy Law contemplates the right to destroy or extend an option to .forfeit and determine a contract either for a debtor or creditor, which is based upon a good and sufficient consideration. It is true that section 75 (o), 11 U.S.C.A. .§ 203 (o) provides that except upon petition granted by the- judge after hearing, certain proceedings shall not be instituted, or if instituted shall not be maintained, which section includes proceedings for the recovery of possession of land. This provision, we think, contemplates land in which the debtor has some interest, or is rightfully claiming some interest. The purpose of the statute obviously is to enable. the court to control the property until that interest, if any, is determined. The fact that the statute contemplates the court granting permission to bring such ’an action would indicate that under some circumstances it should be granted. We can conceive of no instance which would more justly warrant such permission being given than where it is found that the debtor has no interest in the property.
We hold, therefore, that appellant properly exercised its option under the contract, and that since that time the debtor has had no interest in the land, and it should not be included in his assets. For these reasons it is unnecessary to consider the question of the constitutionality of section 75.
We think, however, that the court was warranted in issuing the restraining order for the purpose of holding all matters in statu quo until the property rights were determined. That determination having been made, the decision of the District Court is reversed and the cause remanded with instructions to dissolve the restraining order, and to dismiss the proceedings as against appellant, and for further proceedings not inconsistent with this opinion.
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:
|
songer_r_state
|
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 "state governments, their 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.
Earl C. SMITH, Appellant, v. B. J. RHAY, Superintendent of the Washington State Penitentiary at Walla Walla, Washington, Appellee.
No. 15794.
United States Court of Appeals Ninth Circuit.
April 18, 1958.
Earl C. Smith, in pro. per.
John J. O’Connell, Atty. Gen., Michael R. Alfieri, Asst. Atty. Gen., State of Washington, for appellee.
Before BONE, POPE and CHAMBERS, Circuit Judges.
BONE, Circuit Judge.
This is an appeal from the denial of a writ of habeas corpus by the United States District Court for the Eastern District of Washington, Southern Division.
Appellant is presently imprisoned at the Washington State Penitentiary in Walla Walla, Washington for a term of not more than twenty years pursuant to a judgment of the Superior Court of the State of Washington, in and for the County of Spokane, upon a plea of guilty by appellant to an information filed against him in that court, charging him with manslaughter.
Appellant’s principal contention is that the Washington state courts denied him due process of law as required by the Fourteenth Amendment of the Federal Constitution in that state law requires that he be informed by the court before pleading to a charge against him that he has a right to counsel provided by the state if he cannot afford to hire counsel of his own choosing. It is appellant’s contention that this information must come only from the court itself, and that anything less than a literal compliance with this lav/ of the State of "Washington is a denial of due process within the meaning of the Fourteenth Amendment.
We cannot agree with this contention. The guarantees of the Fourteenth Amendment are substantive, not procedural. This Court cannot interfere with the processes of state courts in administering their various state criminal codes unless the defendant is substantively denied a right guaranteed by the Constitution. Here, the substantive problem involved is whether appellant was really adequately informed of his rights as a defendant in a criminal action. The record we set out in the margin, ****conclusively shows that appellant was as fully informed as it is possible to so inform a person, and that appellant appeared to fully understand, (and we think he did fully understand) the meaning of what he was being told. The fact that this information did not come from the court itself but from the prosecuting attorney in the presence of the court, presents a matter of form and not of substance. The record leaves no doubt that appellant was correctly told at the proper time and in plain English exactly what rights he had and could enforce. To hold that his rights were overridden would be a disservice to the law.
Nor does this Court find merit in appellant’s contention that the statute specifying the penalty for manslaughter is unconstitutional as repugnant to the equal protection clause of the Fourteenth Amendment because it permits a judge to sentence one who has been convicted of manslaughter as for a felony on the one hand, or as for a gross misdemeanor on the other hand. In Daloia v. Rhay, 9 Cir., 252 F.2d 768, 770, this Court in disposing of an identical contention raised concerning the Washington statute specifying the penalty for assault in the second degree said:
“The crime defined in this statute is a felony, because it is one which, under the terms of the statute, ‘may’ be punished by imprisonment in the state penitentiary. It is no less a felony because, under the statute, a fine may be imposed as an alternative to a penitentiary sentence. Nor does such a statute deny equal protection of the law because it provides for a wide range between the minimum and the maximum sentence which may be imposed for the same crime.” (Footnotes omitted.)
This reasoning is equally applicable to the case at bar.
We have made a thorough search of the record and find no valid reason for granting the relief appellant seeks at our hands. It would appear that he seeks at this late date to change his plea and have his case retried in this Court. We cannot aid appellant on this sort of a plea. A conviction upon his plea of guilty is equally as final in its effects as a jury verdict.
The record convinces us that appellant has been awarded all the rights guaranteed to him by the Constitution. The order of the lower court denying appellant’s petition for a writ of habeas corpus is affirmed.
. RCW 10.40.030 (Refers to Revised Code of Washington.)
. Foster v. People of State of Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.
. The following appears in the record as occurring on the 16th day of February, 1954 before the Honorable Charles W. Greenough, Judge of the Superior Court of the State of Washington, in and for the County of Spokane:
“Mr. Evans (Prosecuting Attorney): [After ascertaining that appellant’s true name was Earl Clarence Smith and reading the information filed against appellant to him] Mr. Smith, you were in my office yesterday, were you not?
“The Defendant: Yes, sir.
“Mr. Evans: And it was explained to you at that time that you would be charged with manslaughter in this case?
“The Defendant: That is right.
“Mr. Evans: And you understand the nature of that charge? Was it explained to you?
“The Defendant: Yes sir.
“Mr. Evans: You were told, were you not that you would be brought into court today at which time you would be permitted to enter your plea of guilty or not guilty to this charge?
“The Defendant: Yes.
“Mr. Evans: Were you also told at that time that you would be entitled to a jury trial if you wanted it?
“The Defendant: That is right.
“Mr. Evans. Were you told that you would be entitled to have an attorney appointed for you if you did not have any funds ?
“The Defendant: That is right.
“Mr. Evans: You have had twenty-four hours to think about it, and you are aware, are you not, that you do not have to plead at this time but could have further time?
“The Defendant: That is right. I understand that I have more time.
“Mr. Evans: You understand that you can have more time?
“The Defendant: Yes.
“Mr. Evans: You made a confession in this case, Mr. Smith. Was there any inducement offered to you to make such a confession ? ♦
“The Defendant: No.
“Mr. Evans: Did anybody threaten you?
“The Defendant: No.
“Mr. Evans: Did anybody offer you any promises of any kind?
“The Defendant: No.
“Mr. Evans: As a matter of fact, did you know until yesterday what the charge would be in this matter?
“The Defendant: No, I did not.
“The Court: Do I understand, then, Mr. Smith, that you are ready to plead to the charge one way or the other at this time?
“The Defendant: Yes.
“The Court: And that you do not wish the advice of a counsel — an attorney?
“The Defendant: I do not.
“The Court: And you do not care to have your plea deferred for the additional period of a few days to enable you to think the matter over further?
“The Defendant: I do not.
“The Court: Are you ready to plead to this charge at this time?
“The Defendant: I am.
“The Court: What is your plea to the charge of manslaughter as filed in this court on this date by the Prosecuting Attorney, the charge being read to you by the Prosecuting Attorney, guilty or not guilty?
“The Defendant: Guilty, your Honor.”
. The pertinent statute reads as follows:
“Manslaughter is punishable by imprisonment in the state penitentiary for not more than twenty years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both fine and imprisonment.” RCW 9.48.060.
. RCW 9.11.020.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? 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.
AMERICAN CYANAMID COMPANY, a Corporation of the State of Maine, v. HAMMOND LEAD PRODUCTS, INC. a corporation of the State of Indiana, and Gary R. Mitchener, Appellants.
No. 73-1506.
United States Court of Appeals, Third Circuit.
Argued Nov. 26, 1973.
Decided April 15, 1974.
Donald Horowitz, Cummins, Cummins, Dunn, Horowitz & Pashman, Hacken-sack, N. J., for appellant Hammond Lead Products, Inc.
David R. Simon, Simon & Allen, Newark, N. J., for appellant Gary R. Mitche-ner.
Stephen M. Greenberg, Robinson, Wayne & Greenberg, Newark, N. J., for appellee.
Before KALODNER, ADAMS and ROSENN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
Can a Maine corporation, with principal headquarters in New Jersey, bring a diversity action in New Jersey against an Indiana corporation and an Indiana resident ?
The district court answered the question in the affirmative in its Order denying the defendants’ motions to dismiss for lack of venue under 28 U.S.C.A. § 1391(a) and certifying the issue to this Court pursuant to 28 U.S.C.A. § 1292(b).
American Cyanamid Company (Cy-anamid), a Maine corporation whose principal headquarters are located in New Jersey, a state in which it does business, brought this diversity action in the District of New Jersey against Hammond Lead Products, Inc. (Hammond), an Indiana corporation, and Gary Mitchener, an Indiana resident, charging unfair competition and seeking injunctive and compensatory relief.
Cyanamid’s complaint alleged, in relevant part, that Mitchener, a former employee of Cyanamid and the MacGregor Lead Company of Chicago, Illinois, a company acquired by Cyanamid, violated his “contractual and fiduciary duty” to Cyanamid when he left Cyanamid’s employ in July of 1971 and became employed with defendant Hammond’s Hal-stab Division in Indiana, and that Mitchener and Hammond engaged in acts of unfair competition, in that the defendants “lured away” certain of Cy-anamid’s employees and “conspired to unlawfully compete with plaintiff and to unlawfully use plaintiff’s secret, unique, confidential and valuable methods, techniques, products, customer specifications, data, processes and systems.”
The defendants moved to dismiss Cy-anamid’s complaint, inter alia, for lack of proper venue under 28 U.S.C.A. § 1391(a). The district court denied the motions upon oral argument, and entered an Order on May 14, 1973, denying the “Defendants' motion to dismiss the within action for lack of venue under Section 1391(a) of Title 28 U.S.C.” and certifying “pursuant to section 1292(b) . . . that this matter involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Accordingly, the defendants filed a petition for leave to appeal, which petition was granted by this Court on June 5,1973.
Concisely stated, the issue here is whether the plaintiff corporation Cy-anamid is entitled to the privilege of laying venue in the District of New Jersey solely because it does business in that state. The relevant venue statutes in this diversity suit are 28 U.S.C.A. § 1391(a) and § 1391(c). Section 1391(a) provides:
“A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.”
Section 1391(c) provides:
“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”
It is readily apparent, and not disputed, that two of the three venue options available to a plaintiff under § 1391(a) are clearly inapposite under the facts as stated, for New Jersey is neither the judicial district in which “all defendants reside” nor is it the judicial district “in which the claim arose.” And, but for the presence of § 1391(c), it could likewise not be argued that the third venue option of § 1391(a), plaintiff’s residence, applies here, since Cyanamid is a Maine corporation and, it has long been settled that “the ‘residence’ of a corporation, within the meaning of the venue statutes, is only in the ‘State and district in which it has been incorporated.’ ” Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 166, 68 S.Ct. 587, 589, 92 L.Ed. 614 (1948), quoting from Shaw v. Quincy Mining Co., 145 U.S. 444, 449, 12 S.Ct. 935, 36 L.Ed. 768 (1892). Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939), represented the only judicial exception to this proposition, in that Neirbo held that a corporation had “waived” its right to be sued only in its state of incorporation when the corporation obtained a license to do business and appointed an agent for the service of process in another state. This exception, however, as the Supreme Court was careful to point out in the Suttle case, supra, 333 U.S. at pages 167-168, 68 S.Ct. 587, did not imply that the “residence” of a corporation for venue purposes had been redefined.
With the passage of § 1391(c), as part of the general revision of the Judicial Code in 1948, Congress expanded the venue options available to a plaintiff in suits against a defendant corporation, clearly going beyond the Neirbo exception, by providing that “[a] corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business.” It is Cyanamid’s contention that the second clause of § 1391(c), “and such judicial district shall be regarded as the residence of such corporation for venue purposes,” evidences an intention on Congress’ part to completely overrule the long-standing rule of the Suttle case and its predecessors, thereby extending the expanded venue options of the first clause of § 1391(e) to plaintiff corporations. We disagree, and cast our vote with the other circuit courts which have rejected the same contention. See Manchester Modes, Inc. v. Schuman, 426 F.2d 629 (2d Cir. 1970); Carter-Beveridge Drilling Co. v. Hughes, 323 F.2d 417 (5th Cir. 1962) (per curiam); Robert E. Lee Co. v. Veatch, 301 F.2d 434 (4th Cir. 1961), cert. denied, 371 U.S. 813, 83 S.Ct. 23, 9 L.Ed.2d 55 (1962).
Although we recognize that there is a division of opinion among the district courts and the text writers as to the proper interpretation of § 1391 (c)’s somewhat nebulous language, in particular its latter clause, we remain unpersuaded that Congress, and the eminent and thorough staff of lawyers assembled to aid in the Judicial Code revision, would have made the change in the Sut-tle rule urged by Cyanamid via such imprecise language and without a clear indication to that effect in the legislative history.
We fail to see how the language “such corporation” as used in the second clause of § 1391(c) can refer to anything other than the antecedent phrase “[a] corporation may be sued," when this language is regarded in its normal syntactical usage.
The late Chief Judge Sobeloff in his analysis in Robert E. Lee & Co. v. Veatch, swpra, effectively disposed of Cyanamid’s syntactical contention as follows:
“It seems to us more probable that the term ‘such corporation’ was meant to limit the applicability of the subsection to defendant corporations, for the corporations referred to in the opening words of the section are those that are sued, not those that sue. This would certainly be the more natural usage of the ‘such.’ If the purpose of the subsection was to define the residence of all corporations, plaintiffs as well as defendants, the expected mode of expression would be ‘a corporation may sue or be sued.’ Moreover, had Congress designed to give the subsection the sweeping effect urged by the plaintiffs, a term like ‘all corporations’ would have been used in the second clause, instead of the restrictive term ‘such corporation.’ In summary, we think it would be inappropriate to read something into the statute which could have been so easily expressed, had this been within the congressional aim.” 301 F.2d at 438.
There is absolutely no support in the legislative history for Cyanamid’s interpretation of § 1391(c). Furthermore, the writings of several of the principal figures involved in the revision of the Judicial Code, some of which purport to identify the important changes adopted, fail to reveal any intent to change the Suttle rule. Finally, since the legislators and drafters of the Judicial Code emphasized that the Reviser’s Notes explained all changes in the law, it is of some import that only one obscure comment, affording no sustenance to Cyanamid’s contentions, relates to § 1391(c). Under these circumstances, we must be guided by the rule of statutory construction as stated by the Supreme Court in Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 199, 32 S.Ct. 626, 630, 56 L.Ed. 1047 (1912), and later reaffirmed in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), in a discussion of another venue provision involved in the 1948 Judicial Code revision: “[I]t will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed.” (emphasis supplied) (citations omitted).
Cyanamid nonetheless argues that despite the awkward language and the legislative silence, its interpretation of § 1391(c) should still prevail, for otherwise the section’s second clause would be redundant. This is not necessarily true, as was noted by Judges Sobeloff and Friendly, respectively, in the Robert E. Lee & Go., supra, and Manchester Modes, supra, cases.
The latter clause of § 1391(e) can readily he regarded as a provision intended to be used in connection with other “special” venue statutes, for purposes of defining the “residence” of a defendant corporation. Such was the application of the clause in Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966).
Alternatively, although with perhaps less facility, the second clause could have been aimed at the problem posed by the facts of the Suttle case. There, a Mississippi resident brought suit in the Eastern District of Louisiana against a partnership whose members resided in the Western District, and a Texas corporation which had qualified to do business in Louisiana. Then, as now under 28 U.S.C.A. § 1392(a), the applicable venue rule was that in a suit against two or more “defendants residing in different districts in the same State,” venue was proper in either district. Although the Eastern District would have been a proper venue district under the Neirbo rule in a suit against the Texas Corporation alone, the Supreme Court nevertheless held that venue was improperly laid under these facts. The Court emphasized, as noted earlier, that Neirbo had not changed the Suttle definition of corporate residence. Therefore, since the Texas corporation technically “resided” only in Texas, the predecessor to § 1392(a) could not be employed to make the Western District partnership suable in the Eastern District of Louisiana.
Accordingly, we hold that § 1391(c) applies only to defendant corporations.
The Order of the district court will be reversed, and the case remanded with directions to dismiss the complaint.
. Appellants do not contest this point. Appellant’s Brief at 3.
. For a brief discussion of the pre-1948 history of corporate venue, see 1 Moore, Federal Practice, j[ 0.142 [5.-3], at 1489-92 (2d rev. ed. 1974).
. The Supreme Court has not ruled on this question. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 156-157 n.20, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
. It is noteworthy that a substantial number of the district court opinions holding that § 1391(c) encompasses both plaintiff and defendant corporations have since been undermined precedentially by the subsequent decisions in the Second, Fourth and Fifth Circuit Courts of Appeals just cited in the text. E. g., Toilet Goods Association, Inc. v. Celebrezze, 235 F.Supp. 648 (S.D.N.Y.1964); Wear-Ever Aluminum, Inc. v. Sipos, 184 F.Supp. 364 (S.D.N.Y.1960); Travelers Ins. Co. v. Williams, 164 F.Supp. 566 (W.D.N.C. 1958); Standard Ins. Co. v. Isbell, 143 F.Supp. 910 (E.D.Tex.1956); Southern Paperboard Corp. v. United States, 127 F.Supp. 649 (S.D.N.Y.1955); Freiday v. Cowdin, 83 F.Supp. 516 (S.D.N.Y.1949).
. Those taking the position that § 1391(c) covers both plaintiff and defendant corporations include: 1 Barron & Holtzoff, Federal Practice and Procedure, § 80, at 388 (Rev. 1960) ; Wright, Federal Courts, § 42, at 155-56 (2d ed. 1970); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 L. & Contemp.Prob. 216 (1948); Note, the Proposed Revision of the Federal Judicial Code, 60 Harv.L.Rev. 424 (1947) ; Note, Federal Venue and the Corporate Plaintiff, 37 Ind.L.J. 363 (1962); Note, Federal Venue and the Corporate Plaintiff: Judicial Code Section 1391(c), 28 Ind.L.J. 256 (1953); Comment, 76 Harv.L.Rev. 641 (1963).
Those adhering to the view that § 1391(c) is limited to defendant corporations include: 1 Moore, Federal Practice, If 0.142 [5.-3], at 1503 (2d rev. ed. 1974) ; Comment, The Corporate Plaintiff and Venue Under Section 1391(c) of the Judicial Code, 28 U.Chi.L.Rev. 112 (1960); Comment, 48 Va.L.Rev. 968 (1962).
. See Hearings on H.R.1600 & 2055 Before Subcomm. No. 1 of the House Comm, on the Judiciary, 80th Cong., 1st Sess. (1947); H. R. Rep.No.308, 80th Cong., 1st Sess. (1947); S.Rep.No.1559, 80th Cong., 2d Sess. (1948).
. Barron, The Judicial Code: 1948 Revision, 8 F.R.D. 439 (1948) ; Galston, An Introduction to the New Federal Judicial Code, id. at 201; Holtzoff, The New Federal Judicial Code, id. at 343; Maris, New Federal Judicial Code: Enactment by 80th Congress a Notable Gain, 34 A.B.A.J. 863 (1948). Although all but Galston’s article refer to changes in the venue laws, no comment is made about the Suttle rule.
. See H.Rep.No.380, supra note 6, at 7; S. Rep.No.1559, supra note 6, at 2; Hearings on H.R.1600 & 2055, supra note 6/ at 40; Barron, supra note 7, at 441. Mr. Barron was the Chief Reviser.
. The note reads :
“In subsection (c), references to defendants ‘found’ within a district or voluntarily appearing were omitted. The use of the word ‘found’ made said section 111 ambiguous. The argument that an action could be brought in the district where one defendant resided and a nonresident defendant was ‘found,’ was rejected in Camp v. Gress, 1919, 39 S.Ct. 478, 250 U.S. 308, 63 L.Ed. 997. However, this ambiguity will be obviated in the future by the omission of such reference.”
. In light of our view of the language of § 1391(c), we find no merit in Cyanamid’s remaining policy arguments.
Additionally, we reject Cyanamid’s argu-' ment that either Pure Oil Co. v. Suarez, supra, or Denver R.R. Co. v. Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967), indicate an interpretation of § 1391(c) contrary to ours. Both of these cases dealt only with defendants, and indeed the very language Cyanamid quotes from Justice Harlan’s opinion in the Pure Oil case tends to support the theory that § 1391(c) was directed at the problem of corporations as defendants, with no thought given to corporations as plaintiffs:
“The effect of § 1391(c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant ‘is doing business.’ See Moore, Commentary on the Judicial Code 193-194 (1949) ; 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations.” 3 (emphasis supplied).
“3 As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885, 887, ‘The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was “intolerable if the traditional concepts of ‘residence’ and ‘presence’ kept a corporation from "being sued wherever it was creating liabilities.” ’ Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206-207, 86 S.Ct. pp. 1396-1397), the validity of this general observation was in no way questioned.” (emphasis supplied). 384 U.S. at 20.4 & n. 3, 86 S.Ct. at 1395.
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_district
|
G
|
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".
Marlon Louis FOWLER, Plaintiff-Appellant, v. BLUE BELL, INC., a corporation, Defendant-Appellee.
No. 83-7083.
United States Court of Appeals, Eleventh Circuit.
July 30, 1984.
Hatchett, Circuit Judge, dissented and filed opinion.
Michael Quinn, Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.
Charles A. Powell, III, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., W.T. Cranfill, Jr., Blakeney, Alexander & Machen, Charlotte, N.C., for defendant-ap-pellee.
Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.
JOHNSON, Circuit Judge:
The plaintiff-appellant, Marlon Louis Fowler, appeals a final judgment entered by the United States District Court for the Northern District of Alabama in favor of the defendant-appellee, Blue Bell, Inc., on Fowler’s claim under Title VII of the Civil Rights Act. 42 U.S.C.A. § 2000e et seq. We affirm the decision of the district court because we are unable to find clearly erroneous its conclusion that the nondiscriminatory reasons that Blue Bell offered for rejecting the appellant were not a pretext for discrimination.
In March 1970, Fowler applied for a job at Blue Bell’s Oneonta plant, which is engaged in the manufacture of clothing. The plaintiff testified that he had been told of openings in Blue Bell’s shipping and cutting rooms. Fowler subsequently returned to the plant to check on the progress of his application on a number of occasions, but was unable to speak with any managerial personnel. Sometime in November 1970, Fowler went to the plant and was finally able to obtain an interview with someone in the personnel department, probably with Eldon Pierce. Although Pierce was not permanently assigned to the personnel department, he was working there temporarily in late 1970 because the permanent personnel manager had recently left the company. Fowler was not hired. On December 14,1970, Fowler filed a charge with the EEOC in which he claimed that Blue Bell refused to hire him because he is black.
The EEOC notified Blue Bell of the charge in July 1971 and served its Field Director’s Findings of Fact on the company in December 1971. In July 1972, the EEOC notified Blue Bell that its local office was forwarding the investigation file to the Commission for determination of reasonable cause and that it would notify the company as soon as the Commission rendered a determination. A year later, having heard nothing more from the EEOC or Fowler and concluding that the Commission had closed the matter, Blue Bell destroyed all its personnel records covering the period relevant to Fowler’s application. In March 1975, however, the Commission issued a determination of reasonable cause, and it issued Fowler a right-to-sué letter in January 1976. Fowler filed this suit within 90 days.
The district court dismissed the claim under the doctrine of laches, holding that Fowler’s delay in prosecuting his case prejudiced Blue Bell by causing it to destroy all personnel records from which it could have defended the suit. The Fifth Circuit reversed, Fowler v. Blue Bell, Inc., 596 F.2d 1276, 1279-80 (5th Cir.1979), holding that any prejudice resulted from Blue Bell’s own negligence in destroying the records in disregard of the EEOC’s administrative regulations. The Court remanded the case for further proceedings.
On remand, the district court, on December 7, 1981, 92 F.R.D. 475, denied Fowler’s petition for class certification. On January 6, 1983, the court entered a final judgment on the merits in favor of the defendant. The court found that Fowler had presented a prima facie case of discriminatory treatment by showing that he is a member of a protected minority, that he applied for a job at Blue Bell for which he was qualified, and that Blue Bell continued to seek and hire applicants into positions for which Fowler was qualified after denying him a position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The court held, however, that Blue Bell had met its burden óf producing evidence of a legitimate reason for not hiring Fowler. See id; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). This evidence came primarily in the form of testimony from Eldon Pierce. Pierce testified, that he did not remember actually interviewing Fowler, but that because of a notation on Fowler’s application (which, despite the destruction of the personnel records, Blue Bell was able to locate a few weeks before trial), Pierce knew that he had handled the application. After reviewing Fowler’s application in light of what he knew the 1970 hiring criteria to have been, Pierce testified that the applicant would not have been hired because his erratic work history, as well as his request for a wage of at least $1.80 per hour when the company was able to guarantee only the minimum wage of $1.60 per hour, indicated that “he wouldn’t stay with us long.” The trial court held that Fowler failed to meet his burden of persuading it by a preponderance of evidence that the proffered reason was a pretext for discrimination. The court therefore held that Fowler had not made out a case of discrimination under Title VII, and it entered final judgment in favor of the defendant, Blue Bell. Fowler filed a timely notice of appeal.
A. The Defendant’s Intermediate Burden of Production
Fowler first contends that the district court erred in concluding that Blue Bell met its burden of producing evidence of a nondiscriminatory reason for not hiring him. The Supreme Court set forth the basic allocation of burdens in a Title VII discriminatory treatment case in which there is not direct evidence of discrimination in McDonnell Douglas Corp. v. Green, supra. The plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds, the defendant must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 411 U.S. at 802, 93 S.Ct. at 1824. If the defendant is able to do so, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the proffered reason or reasons were merely a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. In Texas Dept. of Community Affairs v. Burdine, supra, the Court clarified the nature of the defendant’s intermediate burden. The Court pointed out that proof of a prima facie case creates a presumption of discrimination. “The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” 450 U.S. at 254, 101 S.Ct. at 1094. The defendant meets this burden if it produces evidence that “raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through introduction of competent evidence, the reasons for the plaintiff’s rejection.” Id. at 254-55, 101 S.Ct. at 1094-95 (footnotes omitted). At no time does the burden of persuasion shift to the defendant, and “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254, 101 S.Ct. at 1094. We have stated that “the defendant’s burden of rebuttal is exceedingly light ____ [T]he defendant need not persuade the court that its proffered reasons are legitimate; the defendant’s burden is ‘merely one of production, not of proof.’ ” Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983).
We have further held, however, that the nature of the defendant’s selection process and of the reasons that he offers affects the weight of his burden. Where the reasons that the employer offers for rejection are based on purely subjective factors, the defendant’s burden is greater.
The Supreme Court’s requirement that “the defendant’s explanation of its legitimate reasons ... be clear and reasonably specific” provides the plaintiff with some protection against the potential for discrimination inherent in a subjective selection process involving subjective job criteria ____ Obviously, the more subjective the qualification sought and the more subjective the manner in which it is measured, the more difficult will be the defendant’s task in meeting the burden imposed by Burdine.
Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981) (citation omitted) (holding insufficient the reason that the plaintiff did not have a “pleasant personality” when it appeared that the defendant’s personnel supervisor equated pleasant personality characteristics with white people); see also Harris v. Birmingham Board of Education, 712 F.2d 1377, 1383-84 (11th Cir.1983) (holding insufficient the reason that one of the defendant’s agents held the erroneous belief that the plaintiff did not want the job). The reason that the defendant offers in this case, although somewhat subjective, is not so incapable of objective evaluation as to render it inadequate to meet the defendant’s burden of rebuttal. The defendant proffered the reason for not hiring Fowler that his application showed that he would not be likely to remain with the company for long. The defendant presented a reasonable explanation for its concern over this consideration — a stable workforce increases productivity and reduces training costs. Although the applicant’s “stability” could have been evaluated in a subjective manner, it was not; Eldon Pierce drew his conclusions about the likelihood that Fowler would stay with Blue Bell from the objective' evidence on his application regarding his prior job history and his requested starting wage. The district court was presented with more than a supervisor’s own subjective evaluation of an applicant’s personality or desire for the job. Consequently, Blue Bell’s proffered reason is not so subjective that evidence supporting it cannot meet the defendant’s production burden.
We now turn to the evidence the defendant presented in support of its explanation of Fowler’s rejection. Evidence on this point came from the plaintiff’s job application and from Eldon Pierce, who had been the temporary personnel manager in late-1970. The application showed that within the previous two years Fowler had held four different jobs in three different cities' in three different states. He had moved from Oneonta to Cleveland to Detroit and back to Oneonta. He had remained at none of the last three jobs for more than six months, and he had stayed at his last job for less than three months. He listed as his reasons for leaving these jobs: “came home,” “too dangerous,” “came home to check with the service,” and “not enough money for service.” Fowler had been earning $1.60 per hour in July 1968 when he left one job because his wages' were too low; his wages at the other jobs ranged from “$96 per week” to “3.31 per hour.” Where the application asked the salary desired, Fowler put “at least $1.80 per hour.”
Pierce testified that, although he did not remember Fowler or his application, based on what he knew the hiring criteria to have been in 1970, the applicant would never have been hired because his application revealed that he was unlikely to stay with the company very long. Fowler's history of shifting from job to job and from place to place indicated lack of stability. Moreover, Fowler had stated on the application that he desired at least $1.80 per hour and that he quit a job where he had earned $1.60 per hour because the pay was too low. Because Blue Bell would guarantee only the minimum wage of $1.60 per hour, Pierce testified that the application indicated to him that Fowler was unlikely to remain with the company.
Fowler claims that this evidence does not meet the Burdine burden because it constitutes a “present reason for past discrimination.” It is true that the application and the Pierce testimony are not direct evidence of the reasons for which Blue Bell did not hire the plaintiff. But Burdine does not require that the evidence of the defendant’s reasons for refusing to hire the plaintiff be direct. The Supreme Court stated only that “the defendant must clearly set forth, through introduction of admissible evidence, the reasons for the plaintiff’s rejection.” 450 U.S. at 255, 101 S.Ct. at 1094 (emphasis supplied). It is clear that the defendant has presented circumstantial evidence that raises a genuine issue of fact as to whether it discriminated against the plaintiff. A fact finder would be entitled to infer from Pierce’s testimony that the reason for Fowler's rejection in 1970 was not a discriminatory motive on the part of Blue Bell but rather was Fowler’s unstable work record, which indicated that he was unlikely to stay with the company for any length of time. Consequently, Blue Bell met its burden of production.
B. The Plaintiffs Proof of Pretext
Fowler next claims that if Blue Bell did meet its burden by presenting evidence of nondiscriminatory reasons for rejecting his application, these reasons were merely a pretext for discrimination. The district court found that the reasons presented by the defendant were not pretextual. Such a finding of nondiscrimination is factual and must be reviewed under the clearly erroneous standard. Pullman-Standard v. Swint, 456 U.S. 273, 289, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982); ACLU v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1110 (11th Cir. 1983).
In arguing that the court’s findings were clearly erroneous, Fowler first attacks Blue Bell’s assertion that it refused to hire him because of his unstable work record. He claims that Pierce testified that the reasons for an applicant’s having left his prior jobs would be important in evaluating his prior work history and that in the interview Pierce never asked Fowler about his reasons for leaving his prior jobs. Examination of the record indicates that Fowler’s argument is based on an incorrect interpretation of Pierce’s testimony. Pierce indicated that the reasons that an applicant had left his previous employment could be important but that in Fowler’s case they were not because his work history had simply been too erratic and because he had been earning in his earlier jobs over twice the salary that Blue Bell could guarantee him. Pierce testified that merely reviewing the face of the application told him that Fowler was unlikely to be a stable employee and was unlikely to have remained satisfied with the pay at Blue Bell. Moreover, the reasons for leaving employment that Fowler actually listed on the application did nothing to combat the appearance of instability. Fowler also points to evidence from the EEOC’s findings of fact that indicated that a white employee had been hired who had also held four jobs. But Blue Bell did not claim that it failed to hire Fowler merely because he had held four jobs in the past. Rather, the defendant asserted that Fowler’s past work history showed him to be an unstable employee on whom resources for training would be poorly invested.
Fowler attacked the claim that he had not been hired because he demanded “at least $1.80 per hour” by testifying that, in his interview with Pierce, Fowler told the supervisor that he would be willing to take $1.60 per hour because he was unemployed. There were a number of reasons why the trial court might have refused to give weight to Fowler’s testimony regarding the details of his employment interview, which occurred thirteen years before the trial. First, Fowler testified at his deposition that he never spoke to anyone at Blue Bell other than a secretary; he remembered the alleged interview with Pierce only on the eve of the trial. Moreover, at trial Fowler could not accurately remember what wage lie had requested on his application form. He stated that he had written “$1.80 or open” when, in fact, he had demanded “at least $1.80.” Even if in the interview Fowler had agreed to accept the minimum wage, Blue Bell’s explanation for rejecting him would not necessarily be rendered a pretext. Pierce pointed out that Fowler had left a job in Oneonta two years , earlier that paid $1.60 per hour for the expressed reason that the wage was too low. Since then Fowler had been paid significantly more than Blue Bell’s starting rate. Pierce intimated that even if Fowler was willing to work for $1.60 initially, it was unlikely that he would remain satisfied with that wage for very long. Fowler also claims that Blue Bell’s personnel records show that several white employees started at wages as high as $1.99 per hour, indicating that Blue Bell’s claim that it could not have paid Fowler the $1.80 that he demanded was clearly a pretext. The trial testimony showed that wage rates at Blue Bell were on an incentive system. The trial court found that Blue Bell could not have guaranteed the plaintiff more than the minimum wage, although Fowler could theoretically have earned much more. This finding was supported by the evidence.
Finally, Fowler urges that the district court’s findings should be held clearly erroneous because the district court did not in its opinion discuss explicitly all of the facts in the record that Fowler feels supported his contention of pretext. This argument misunderstands the nature of appellate review under the clearly erroneous standard. This Court may reverse a district court’s factual finding that is insulated by the clearly erroneous standard only if there is not substantial evidence in the record to support the finding and if, after reviewing the record as a whole, this Court is left with the definite impression that a mistake has been made. Lincoln v. Board of Regents, 697 F.2d 928, 939-40 (11th Cir.1983). The requirement that we review the record as a whole precludes any argument that merely pointing out facts that may cut against the district court’s interpretation and that the court did not discuss explicitly is grounds for overturning the court's findings. If the appellant’s contention were correct, appellate review of lower court factfinding would be reduced to a search of the record for facts that the district court neglected to mention. Instead, we must look at all the evidence to determine whether the district court’s ultimate findings were clearly in error. Our review of the record indicates that the district court’s finding on the issue of pretext was fairly supported by the evidence.
C. Admission of EEOC Affidavits
Fowler also claims that the district court erred in admitting affidavits that the EEOC collected during its field investigation. The appellant acknowledges that the actual report and findings of the commission’s field investigation are admissible under Fed.R.Evid. 803(8)(C), which excepts from the hearsay exclusion the results of federal investigation, but he contends that the affidavits that support those findings do not fall within 803(8)(C) and are therefore inadmissible hearsay. The contention is without merit because the district court admitted the affidavits not as evidence of the truth of statements that they contained but only for the limited purpose of showing the basis for the EEOC’s findings. Consequently, the affidavits were not hearsay.
Because we find not clearly erroneous the district court’s factual finding that the reasons Blue Bell offered for not hiring Fowler were legitimate and not a pretext for discrimination, the judgment of the district court is AFFIRMED.
. Decisions rendered after October 1, 1981, by a Former Fifth. Circuit Unit B panel or en banc court are binding on this Court. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).
. The EEOC field report gave no information about the unnamed white employee except that he had held four jobs before working at Blue Bell.
. Although the district court found that all of the witnesses were telling the truth about their recollections of what had occurred in 1970, the court did not find that all of those recollections were accurate or equally plausible.
. The district court further buttressed its findings by reference to statistical evidence, which showed that during the time period in question Blue Bell's workforce had a higher percentage of black employees than were in the workforce of the county as a whole. Although not disposi-tive, this evidence does tend to support the conclusion that Blue Bell did not discriminate against blacks in hiring.
. Because we affirm the district court’s dismissal of Fowler’s substantive claim, it is unnecessary for us to reach the issue of class certification. Were we to reach that issue, however, we would agree with the district court’s determination that Fowler should not be certified as a class representative because of his "total failure to show any identification with or knowledge of other discriminatees who might make up a class.” Jamerson v. Board of Trustees of the University of Alabama, 662 F.2d 320, 325 (5th Cir. Unit B 1981).
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_district
|
F
|
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".
ZELLER MARINE CORPORATION v. NESSA CORPORATION.
No. 103, Docket 20786.
Circuit Court of Appeals, Second Circuit.
Feb. 11, 1948.
L. HAND, Circuit Judge, dissenting.
Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
Purdy & Lamb, of New York City (Edmund F. Lamb, of New York City, of counsel), for Zeller 'Marine Corporation, libellant-appellant. •
Bigham, Englar, Jones & Houston, of New York City (Andrew J. McElhinney, of New York City, of counsel), for Nessa Corporation, respondent-appellee.
AUGUSTUS N. HAND, Circuit Judge.
The libellant, Zeller Marine Corporation, as • managing owner of the scow “Zeller No. 12,” brought this suit in admiralty to recover damages sustained by the scow on November 20, 1941, through the negligence of the respondent, Nessa Corporation, a stevedoring company, in allowing a, draft of steel girders, that was being unloaded from the scow by a sling, to fall from the sling, penetrate the deck of the scow and strike against the top of one of the fore and aft keelsons in the bottom of the hold. The keelson was made of long leaf yellow pine lumber about 39 feet in length and 12 inches square.
The damage caused by the striking of the end of the girder against the top of the keelson consisted of a V-shaped depression on the top of the keelson, the legs of which were about 3 inches long. The fibres of the wood within the area of this V-shaped depression were crushed to a depth varying — according to the estimates of different witnesses — between % inch and li/£ inches at the point of maximum depth. A split was found on the top of the keel-son about 2 inches from the port edge which ran forward toward the bow of the scow for a distance of about 28 or 29 inches. At its forward end this split was about 3 inches in from the port edge of the keelson. A second split was found on the side of the keelson beginning at a point about 2 inches down from the top of the keelson and running forward a distance of about 20 inches where it ended about 4 inches down from the top of the keelson. According to libellant’s witness, Swenson, although there were two separate splits showing, one on the top and one on the side of the keelson, they were in fact a single split starting at the top and finishing at the side of the keelson. There was a very slight bulge at the side of the keel-son at the point of the split which was not more than Via of an inch out of line. The width of the split was so fine that the edge of a screw driver only %2 of an inch wide at its edge and Via of an inch at its thickest part could not be inserted in the split. Li-bellant’s witness, Swenson, evidently using a thinner probe, said that at one point he reached a depth of 6 inches. The greatest length of either split was the 28 or 29 inch length of the top split which was only about 6 per cent of the entire 39 foot length of the keelson. The total extent of the damaged area was less than 168 cubic inches out of 61,400 cubic inches, representing the cubic area of the entire keel-son.
A libel and answer were filed and on February 3, 1943, an interlocutory decree was entered on consent in favor of the libellant for 90 per cent of libellant’s provable damages without interest or costs up to the date of the interlocutory decree.
Hearings were thereafter had before a Commissioner who reported that the libel-lant was entitled to have the damaged keel-son removed and replaced at an estimated cost of $6,550 and, because of the stipulation limiting recovery to 90 per cent of the latter sum, found that the recovery should be thus computed. Judge Rifkind, before whom exceptions to the Commissioner’s report were argued, found that the scow could be restored to as good a condition as it was in before the accident by renewing three damaged deck planks at an expense of $138, and repairing the damaged keelson at a cost of $580. He accordingly gave a decree to the libellant for 90 per cent of this amount, or $646.20, plus an additional sum representing interest and costs making a total of $793.46.
Upon a motion by the respondent to eliminate costs of the libellant the decree was resettled so as to award the sum of $782.46 to the latter. From the decree as thus resettled the libellant has appealed. In our opinion this decree was right and should be affirmed.
It was stipulated by the parties on April 14, 1944 that no repairs had been made to the keelson since the time of the accident and that for a period of about two and one-half years the vessel had continued to engage in the same type of diversified lighterage as before.' This in itself is persuasive evidence that the injury to the scow was not such as to justify replacement of the keelson and the attendant expense of renewing at least 37 out of 96 bottom planks at the cost for which the Commissioner allowed recovery. As Judge Addison Brown held — when dealing with a somewhat parallel situation — in the J. T. Easton, D.C., 24 F. 95, 96: “An owner whose boat is damaged by the negligence of another is entitled to have his boat repaired in a way which will not leave her essentially depreciated in her market value, or inferior for practical use. But where an injury can be perfectly repaired for all practical uses at slight expense, but, as in this case, cannot be placed in exactly the same condition as new, except by taking out and replacing much other good work at a very considerable expense, the court must hesitate in allowing damages on the basis of the latter mode of repair, especially where, as in this case, though a long time has elapsed, no such repair has been made. The court could only be warranted in allowing for new beams upon very plain and certain proof that the market value of the boat will otherwise be materially and certainly lessened.”
This opinion of Judge Brown, as might well be expected, states the proper rule of law for the recovery of damages by an owner whose vessel has been injured, and we find nothing in The Baltimore, 75 U.S. 377, 19 L.Ed. 463, which should be interpreted to the contrary. Any award must be calculated with recognition of the customary obligation of the injured party to minimize damages. In other words, he is only entitled to an award that would give him a boat as seaworthy and practically serviceable as before and not to an award, often much larger, sufficient to restore her to the identical condition she was in before the injury.
The general effect of the authorities has been a denial of damages based upon replacement of an injured portion of a vessel in cases where repairs made at a substantially lower cost would render her as serviceable as before. Streckfus Steamboat Line v. United States, 5 Cir., 27 F.2d 251, 252; The Loch Trool, D.C.N.D.Cal., 150 F. 429, 431; Socony No. 21, D.C.S.D.N.Y., 1934 A.M.C. 136.
The cases relied upon by the libellant for allowing the cost of replacement of the damaged portion of a vessel hold that the repair method rejected by the courts was only “temporary,” or did not put the vessel in “as good” a condition as before. Such authorities were satisfactorily distinguished by the trial judge. In his opinion he made the following observations as to the issues raised by the libellant and respondent at the hearing before the Commissioner: “During the hearing the libellant took the position, which was sustained by the special commissioner, that under the rule of restitutio in' integrum, the libellant was entitled to have the scow put back to its original condition, irrespective of the cost of removing and renewing the damaged keelson. It was the contention of the respondent that, where the cost of renewal was disproportionate to the cost of repairing the damage and putting the scow into as good a condition as it was before the injury, libellant was only entitled to the reasonable cost of such repair, together with the depreciation, if any, of the scow which had been damaged and repaired. Upon these two different theories each of the parties to the controversy proceeded in the presentation of evidence.”
As a result of his analysis he held that libellant was only entitled to recover the estimated cost of repairs sufficient to render the vessel as seaworthy and serviceable as before the damage occurred and sustained exceptions to the Commissioner’s report upon the theory that the latter had adopted libellant’s contention that it was “entitled to have the scow put back to its original condition, irrespective of the cost of removing and renewing the damaged keelson.” In other words, he did not disregard Admiralty Rule 43%, 28 U.S.C.A. following section' 723, requiring him to treat the report of the Commissioner as correct unless he was satisfied that error of law had been committed. He reversed the Commissioner only because the latter had made his report upon the theory that the libellant was entitled to recover the cost of restoring the damaged scow to the identical condition she was in before the accident, irrespective of other methods of repair that would make her equally serviceable. He allowed only the cost of replacing three deck planks and repairs to the keelson which he found sufficient to render the vessel Seaworthy and serviceable and upon the testimony which he credited properly denied any allowance for depreciation upon the authority of Sawyer v. Oakman, C.C., 7 Blatch. 290, and Loch Trool, D.C.N.D.Cal., 150 Fed. 429, 433.
In estimating the damages upon the basis of the cost of repairing the keelson without replacing it, the district judge followed the testimony of the respondent’s witness Horn who furnished the only evidence as to such cost. This was justified if the Commissioner, as the judge thought, had made no finding that only replacement of the keelson would render the boat as seaworthy and serviceable. The question is whether the Commissioner found that replacement was necessary to accomplish that result. We think that the Commissioner’s report, taken in connection with what transpired at the hearing before him, shows that he made no such finding but instead adopted the erroneous theory that the libellant was entitled to have its boat restored to the condition she was in before the accident irrespective of whether a far less expensive mode of repair would render her as useful for all practical purposes.
This was the theory advanced by the libellant at the hearing in questioning its witnesses Swenson, Sandos, and Bagger. When the respondent attempted to introduce evidence as to methods of repair other than replacement the libellant objected on the ground that the owner was “entitled to have his property restored to the condition it was in prior to the accident.” In connection with the discussion of the admissibility of that type of evidence, the Commissioner said (folio 92) : “He is entitled to have it put in its original condition; there is no question about that * * * Restitutio in integrum * * Testimony as to other types of repair seems only to have been allowed because the Commissioner did not wish to exclude anything which the court might later think should have been admitted. (Folios 93, 236.) He made no allusion in his report to methods of repair other than replacement and merely said that respondent’s experts stated “that in their opinion the driving of a few nails would cure the trouble. I do not agree with this.” But the respondent had shown by its witness Horn that repairs of the keelson would render the boat completely serviceable at a cost which Judge Rifkind adopted. On cross examination, libellant’s witness Swen-son admitted that other methods of repair would restore the boat to a seaworthy condition (folio 96) while libellant’s witness Bagger not only advocated removal of the keelson but stated on' cross examination that it was the only proper way to repair this damage (folio 429). Though this vital question was raised by the respondent the Commissioner failed to make any finding that replacement of the keelson was necessary in order to restore the boat to as seaworthy a condition as before. Instead he adopted libellant’s erroneous theory of damages, as presented by its witnesses. In further support of our view, it may be added that libellant contended, at least until the filing of its reply brief, that if there were any damage requiring any repair of the keelson it was entitled to a replacement without consideration of any other method.
The Commissioner having made no findings upon a proper rule of damages, we are not precluded by Admiralty Rule 43}/¿ from affirming the findings of fact and conclusions of law of the district judge, supported as they were by substantial evidence.
Decree 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:
|
songer_treat
|
B
|
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.
Cornelius BELL, Plaintiff-Appellant, v. E. T. GROAK, Chairman, Board of Appeals and Review, U. S. Civil Service Commission, J. A. Connor, Regional Director, Chicago Regional Office, U. S. Civil Service Commission, John Macy, Chairman, Civil Service Commission, Ludwig Andolsek and Robert Hampton, Commissioners, Civil Service Commission, Defendants-Appellees.
No. 15625.
United States Court of Appeals Seventh Circuit.
Dec. 8, 1966.
William Robinson Fishman, Arthur DeBofsky, Fishman & Fishman, Chicago, 111., for appellant.
Alan S. Rosenthal, Asst. Atty. Gen., Martin Jacobs, Attorney, Department of Justice, Washington, D. C., Edward V. Hanrahan, U. S. Atty., Chicago, 111., J. William Doolittle, Acting Asst. Atty. Gen., for appellees.
Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge and SWYGERT, Circuit Judge.
DUFFY, Senior Circuit Judge.
Plaintiff seeks a declaratory judgment that the United States Civil Service Commission must accept his appeal and grant him a hearing on the merits of his “discharge” as a post office employee. The District Court entered an order dismissing the complaint on the ground that it lacked jurisdiction to grant the relief sought.
In September 1949, plaintiff was employed as a distribution clerk at the United States Post Office in Chicago. He worked there through August 2, 1962. On that date he signed papers resigning his position of employment.
On August 4 and December 9, 1962, and on January 17, 1963, plaintiff wrote to the United States Post Office Department seeking reinstatement to his position. These requests were denied in separate letters.
The first answer was from the acting postmaster stating — “Based upon your previous record, your request of August 4, 1962, for reinstatement will not be granted.” The second answer by the postmaster stated — “Based upon your previous record, your request for reinstatement, dated December 9, 1962, will not be granted.” The third answer was also by the postmaster and stated — “Your request for reinstatement, dated January 7, 1963, will not be granted, due to your previous unsatisfactory record.”
Plaintiff claims that on March 20, 1964, upon learning that the United States Civil Service Commission had authority over his resignation, he appealed to the Civil Service Commission, Chicago Regional office.
In his appeal, plaintiff stated he was questioned by two postal inspectors on August 2, 1962, and was advised that he had only two choices; either resign, or the inspectors would bring proceedings against him. Plaintiff charged he was not given any opportunity to consult with others as to the course he should take.
On March 23, 1964, the Regional Director of the Chicago Region of the Civil Service Commission answered, requesting additional information, including an inquiry as to why an earlier appeal had not been filed. Plaintiff replied setting forth events which he claimed occurred in connection with his resignation.
By letter dated April 10, 1964, defendant Connor, the Regional Director of the United States Civil Service Commission, informed the plaintiff that the normal time limit for acceptance of appeals by the Commission expires at the end of ten days from the effective date of the action appealed. The Commissioner stated this time limit could be extended by the Commission when it is established that circumstances beyond the control of the employee prevent him from filing an appeal within the ten-day period. The Regional Director then stated that plaintiff’s appeal, taken nineteen months after the date of the action being appealed, was not considered to have been filed within a reasonable time. He also stated — “Although you allege you were extremely busy working and training for a new career, this is not a sufficient reason for your delay in filing an appeal to the Commission.” The letter further stated that an appeal could be taken from the action of the Regional Director to the Board of Appeals and Review.
On April 13, 1964, the plaintiff appealed the adverse decision to the Board of Appeals and Review of the Civil Service Commission. By letter dated May 6, 1964, defendant Groak, Chairman of the Board of Appeals and Review, denied plaintiff’s appeal.
Although plaintiff seeks a declaratory judgment, the relief prayed for is in the nature of a writ of mandamus. Plaintiff asks this Court to decree that the United States Civil Service Commission must accept an appeal from plaintiff in this cause.
Before the District Court, plaintiff contended the Court had jurisdiction under the Tucker Act, 28 U.S.C. § 1346 (a) (2). Apparently, this claim has been abandoned, as no mention thereof is made in the amended complaint. In any event, that claim could not be sustained. Wells v. United States, 9 Cir., 280 F.2d 275, 277.
In the District Court, after the Government had objected that the individual members of the Civil Service Commission must be parties to the suit, the complaint was amended to name the Commissioners as party-defendants. However, no attempt was made to obtain service on any one of them.
The Supreme Court has considered this question in Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. The Court said on page 515, 72 S.Ct. page 412: “Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.”
The Blackmar case also held that an action against, the Commissioners could be brought only in the District of Columbia. Congress has since extended the venue provisions so that suit may be brought in other districts. 28 U.S.C. § 1391(e). This section also provides for service “ * * * by certified mail beyond the territorial limits of the district in which the action is brought.” Thus, it is clear that the requirement of service upon the individual Commissioners is still essential, and that the amendment of the complaint to name them as defendants was not sufficient to confer jurisdiction. As was said by this Court in Rabiolo v. Weinstein, 7 Cir., 357 F.2d 167, 168, “ * * * the presence of venue does not dispense with the necessity for service in order to acquire personal jurisdiction.”
As a general proposition, in cases where there is an issue as to the voluntariness of the resignation of a government employee, we are of the view that the Civil Service Commission should hold a hearing unless such a hearing is barred by laches. See Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533, 534-535. However, we do not reach that question in this case.
We are here confronted with the fact that the members of the United States Civil Service Commission were not served with process. Under the Blackmar case, we must hold that the District Court did not have any jurisdiction to order the United States Civil Service Commission to do anything. It follows that the District Court was correct in dismissing the amended complaint for want of jurisdiction.
Affirmed.
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:
|
sc_respondentstate
|
55
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
DANIELS et al. v. VIRGINIA.
No. 485, Misc.
Decided June 17, 1963.
Theodore J. St. Antoine for petitioners.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Peterson v. City of Greenville, 373 U. S. 244.
. Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.
Question: What state is associated with the respondent?
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_appel2_7_2
|
B
|
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 appellant. 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 the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Plaintiff-Appellee, v. Alain Asland PEREZ, Jerome Latchinian, Robert Kurtz, Edward J. Hernandez, Juan Jesus Roca, Defendants-Appellants.
No. 86-5459.
United States Court of Appeals, Eleventh Circuit.
Aug. 24, 1987.
Donald I. Bierman, Bierman, Sonnett, Shohat & Sale, P.A., Robert M. Duboff, Benedict P. Kuehne, Miami, Fla., for Lat-chinian.
Jose M. Quinon, Coral Gables, Fla., Harry Solomon, Miami, Fla., for Hernandez.
Margaret S. Brodsky, Miami, Fla., for Alain A. Perez.
Laurel White Marc-Charles, Miami, Fla., for Kurtz.
Simon T. Steckel, Coral Gables, Fla., for Roca.
Leon B. Kellner, U.S. Atty., Michael E. Runowicz, Andrea M. Simonton, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla. for U.S.
Before KRAVITCH and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge:
In this case the appellants challenge their convictions for various drug-related offenses arising from an importation of cocaine for the purpose of financing the assassination of the president of Honduras. As we find the evidence sufficient to support the convictions of each defendant, the convictions are affirmed.
I. FACTS
The primary grounds of appeal concern the sufficiency of the evidence first in terms of the threshold requirement necessary to substantiate the use of co-conspirator statements under United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), and second in terms of generally supporting the convictions. As •the sufficiency of the evidence is challenged, a rather detailed recitation of the facts is required.
First, for clarity, it is noteworthy that the two principal actors behind the drug importation scheme were not defendants in this case. They are Gerard Latchinian, part owner of G & J Export Company, a Miami-based arms and munitions export business, and Faiz Sikaffy. The defendants in this case are Gerard Latchinian’s brother, Jerome Latchinian, Alain Perez, a G & J employee, Robert Kurtz, Edward Hernandez, and Juan Roca.
This case began when Charles Odorizzi, a former U.S. Army officer, was approached to assist in a plot to overthrow the Honduran government. Odorizzi informed the FBI and was joined by undercover agent Salvadore Escobedo in order to investigate the situation. In meetings with Gerard Latchinian and Faiz Sikaffy the undercover operatives agreed to kill the Honduran president in exchange for a combination of cash and drugs. It is the importation of drugs for this intended purpose that forms the basis of the convictions in this case. Three hundred kilos of cocaine were actually smuggled into the country. Aside from that, the majority of physical evidence in this case consisted of recordings of telephone conversations and business meetings.
As the parties’ meetings began to focus on drug importation, the actors’ discussions shifted to the logistical ends of that enterprise. The parties discussed pilots, landing strips, refueling, unloading, deodorizing a plane, and an undetected flight into the United States. What appears to have been an aborted importation attempt occurred on October 20 or 21, 1984. While Odorizzi’s and Escobedo’s help was not solicited for this effort, knowledge of this attempt comes from wiretaps on Latchinian’s and Sakiffy’s residence and Latchinian’s place of business.
Appellant Kurtz enters the scene in regard to this smuggling attempt through various conversations with Sikaffy. While language in Kurtz’s conversations was euphemistic, his speech indicates his intimate involvement in obtaining a pilot for the venture. This particular venture was aborted, however, so help from the undercover operatives was elicited for the next attempt.
On October 22, 1984, Sikaffy and Gerard Latchinian met with Odorizzi and told him they wanted to bring in a load of cocaine on the following Saturday. Sikaffy asked Odorizzi to obtain a pilot, referred to as a “doctor,” so he could test fly the plane in preparation for the flight. The next day, appellant Jerome Latchinian called Sikaffy and confirmed a meeting with Gerard Lat-chinian on Saturday. In the course of this conversation, Sikaffy asked appellant Lat-chinian to make a previously discussed proposal to Jerome’s friend. The following day, October 24, 1984, appellant Kurtz called Sikaffy and told him that Jose Cym-erman was going to pilot the plane. At a meeting with the undercover operatives that evening, plans were made for the flight. Sikaffy stated that appellant Kurtz would transport the cocaine once it arrived in the United States. Sikaffy further indicated that Kurtz had flown in the aircraft that morning and that it was prepared for the flight. Sikaffy also discussed the details of the money to be made, including his plan to give 10 kilos to an individual who had advanced them $100,000 for the plane. Kurtz would transport the remainder of the drugs to the Colombian owners in exchange for the money due them for importing the cocaine. Later that night, Gerard Latchinian received a call that problems had arisen in Colombia and the flight had to be cancelled until further notice.
Three meetings took place at Gerard Lat-chinian’s residence on October 26, 1984. The first occurred in the morning at approximately 10:00 a.m. The undercover operatives met with Sikaffy and Gerard Lat-chinian concerning the problems in Colombia that caused the cancellation. During the meeting, Sikaffy asked appellant Lat-chinian if he had contacted the individual with the $100,000. Appellant Latchinian responded negatively.
The second meeting that day occurred in the early afternoon. At that time, the undercover operatives were introduced to Jose Cymerman, who was to pilot the plane from Colombia, and to appellant Kurtz. Si-kaffy proposed flying in marijuana; however, the undercover operatives and the pilot preferred to import cocaine.
The third and final meeting of the day took place at approximately 6:00 p.m. Present were the undercover operatives, Sikaffy, and appellants Perez, Kurtz, and Jerome Latchinian. All six men sat around a coffee table in the livingroom throughout the course of the meeting. Sikaffy mentioned that the reason the earlier flight had been cancelled was his suspicion that the Colombian authorities were aware of the scheme. Speculation ensued that the pilot appellant Kurtz had located might be an informant. Appellants Latchinian and Kurtz acknowledged meeting the pilot in Orlando. Appellant Latchinian described how he had discussed matters with the pilot while driving with him. Appellants Kurtz and Latchinian discussed the possibility that the pilot was an informant. The group concluded that the venture could continue as long as a new pilot, Jose Cym-erman, was used.
Subsequent meetings were held the following day and on Sunday, October 28. These meetings involved further discussions concerning the importation scheme. Discussed were the two kilograms going to Kurtz for his distribution efforts, the money that appellant Latchinian would receive in advance, and the pilot’s arrival in Colombia.
On the morning of October 28, Sikaffy, Kurtz, Gerard Latchinian and Jerome Lat-chinian met at Sikaffy’s home and made a series of calls. In the space of 45 minutes, from 10:30 a.m. to 11:17 a.m., appellant Latchinian called the residence of appellant Hernandez three times. Each time he spoke to appellant Roca who answered the phone and took messages. In the course of the third call, appellant Latchinian asked Roca to give Hernandez a message that “the chicks are here” and that Jerome wanted to know if “we’re serious or not.” Shortly thereafter, Hernandez called Sikaffy’s residence and after speaking with Gerard Latchinian who advised him that “the girls are here,” Hernandez acknowledged receiving appellant Latchinian’s message. Sikaffy called Odorizzi by phone to advise him that the plane had arrived in Colombia at 10:30 and that it was being loaded with “a lot of meat.” Hernandez called Sikaffy’s residence again and asked appellant Latchinian to come over to his house.
At approximately 7:00 p.m., Kurtz, who was staying at Sikaffy’s residence, received a telephone call from Gerard Latchinian advising him that he and Sikaffy had arrived at Yero Beach and registered at a hotel under a false name. Gerard Latchini-an gave Kurtz a phone number for his brother Jerome to call if he should be in touch with Kurtz.
On October 28, 1984, an aircraft piloted by an FBI agent met with an aircraft over a rendevouz point in the Bahamas and led that plane into the United States. At approximately 6:00 p.m., the escorted plane, flown by Jose Cymerman, landed at a strip controlled by undercover FBI agents, and duffel bags containing 300 kilograms of cocaine were unloaded.
After being advised that the plane had landed safely, Kurtz, still at Sikaffy’s residence, called his wife and excitedly advised her that 300 “babies” had come in and that he would be coming home with a couple of them. Kurtz then made a second call to another woman to advise her that he had “300 white leghorns” “all full sized chicks” that had all “hatched.” Subsequently, Kurtz was advised by Gerard Latchinian that there would be no movement of the “flowers” that night.
Once the drugs had arrived in this country, the undercover operatives 'met with Gerard Latchinian and Sikaffy in order to settle the mechanics of the delivery of the cocaine and the exchange of the money.
On November 1, 1984, at approximately 2:00 p.m., agent Escobedo went to Gerard Latchinian’s office, at G & J Exports, and was admitted into the locked suite by appellant Perez. Perez was the only employee present. Just prior to this meeting, Sikaffy had a telephone conversation with appellant Latchinian at his brother’s house. Essentially, appellant Latchinian informed Si-kaffy that his man would take 20 kilograms of cocaine and that within two hours he would give Sikaffy half a million dollars in cash. Later, while Gerard Latchinian was meeting with Escobedo, he received a phone call from Sikaffy advising him that $100,000 was on its way. Gerard Latchini-an told his brother, who was with Sikaffy, that 20 kilograms were being sent to him and that it would be better if the exchange of money could be effectuated more hastily. Further discussions ensued between Escobedo and Gerard Latchinian.
Agent Escobedo left the office and spoke with FBI agent St. Pierre who was waiting in the hall. Escobedo brought Pierre back to the office and after being admitted by appellant Perez, introduced St. Pierre as one of his men. After further discussions, appellant Perez left the room upon hearing a knock at the door and went towards the front of the office and engaged in some conversation. Perez returned to the room carrying two plastic shopping bags full of money. Appellant Roca, who had delivered the money, apologized for being late and stated that all of it was there give or take a few dollars. A total of $99,975 was in the bags. Perez, Roca, Jose Cymerman, and Gerard Latchinian were arrested at that time.
After his arrest and upon being advised of his rights, Perez acknowledged being present at the October 26, 1984 meeting where discussion concerning the cocaine took place. Perez also admitted that he was present at the November 1, 1984 meeting wherein an individual was to deliver $100,000 as part payment for the cocaine.
Appellant Jerome Latchinian and Faiz Si-kaffy were arrested at Gerard Latchinian’s residence also on November 1. Also present at the house was appellant Hernandez who was not arrested at that time.
II. OPINION
The appellants were charged with various narcotic offenses. Included were charges for conspiracy to import cocaine in violation of 21 U.S.C. § 963, importation of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), conspiracy to possess cocaine intent to distribute in violation of 21 U.S.C. § 846, and attempted possession of cocaine with intent to distribute in violation of 21 U.S.C. § 846. Certain appellants were also charged with use of a telephone to facilitate these offenses. 21 U.S.C. § 843(b). After a jury trial on the issues, appellants Kurtz, Latchinian, Roca and Hernandez were convicted of all counts charged against them while appellant Perez was convicted on only two of the four counts he was charged with. Sentences ranged from seven to 18 years and included certain fines.
Various theories were postulated by members of the defense. Several played off the amorphous terminology and code words used by the parties in order to disguise their discussions about what the jury found to be involvement in a drug importation scheme.
Appellant Kurtz, who during the course of this matter was recorded as making references to “chicks,” “300 white leghorns,” and “300 babies,” defended on the grounds that he intended to start a chicken farm. His wife testified that her husband had always talked about raising chickens, but that he had never in their 28 years of marriage purchased any. Kurtz also put a longtime friend on the stand, Odell Beard, who testified that when Kurtz called her about the 300 babies she thought he was talking about raising fighting chickens. Beard, however, did concede that she seldom believed Kurtz except when he told her he loved her.
Hernandez, who was recorded referring to “chicks” and “girls” and his concern of whether or not the “girls had been separated”, defended on a somewhat different ground. Hernandez argued that he was recorded referring to the women who are involved in the wild sex parties that take place at Gerard Latchinian’s home. “Chicks” and “girls” were allegedly references to the female participants in these parties. Further, through medical testimony, Hernandez showed that appellant Jerome Latchinian is afflicted with the disease herpes which is an incurable and contagious venereal disease. Since both Lat-chinian and Hernandez participated in the sex parties, and since it would be imprudent for Hernandez to have sex with women who might have been infected by appellant Latchinian, Hernandez’s contends that his concern of whether or not the “girls had been separated” referred to the separation of the female participants for the party. Accordingly, Hernandez argued that he was not referring to the separation of the kilos of cocaine.
The other appellants’ defense theories concerned either the insufficiency of the government’s proof or their lack of knowledge or involvement with the various crimes charged.
As stated, the jury found against the appellants. The pilot, Jose Cymerman, pled guilty prior to trial. The principal grounds for appeal in this case concern the sufficiency of the evidence. First, the appellants argue that there was insufficient evidence on which to base their convictions. Second, if sufficient overall evidence existed upon which to base the convictions, the parties argue that much of the evidence leading towards that end was improperly admitted. They contend that since the law requires that sufficient independent evidence of involvement in a conspiracy is necessary prior to the introduction of the statements of co-conspirators, insufficient independent evidence of involvement in the conspiracy was produced at trial and the government’s failure to meet the legal threshold with such independent evidence precluded the introduction of co-conspirator statements. This argument is based on United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).
In James, the court outlined the requisite standard for the admissibility of co-conspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E). The court stated that:
[0]n appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the co-conspirator’s statement is offered are members of the conspiracy, and (3) that the statement was made during the course of and in furtherance of the conspiracy.
590 F.2d at 582. Accordingly, the prosecution must show by a preponderance of the evidence that the individual defendant is a participant in the conspiracy independent of the co-conspirator statements. This evaluation is made upon consideration of all non co-conspirator evidence offered by the prosecution. Independent evidence, of course, includes the defendant's own statements. United States v. Carter, 760 F.2d 1568, 1580-81 (11th Cir.1985).
In reviewing an allegation of error in the admission of co-conspirator statements, our role is to determine whether the district court was clearly erroneous in finding that a preponderance of the independent evidence established the existence of a conspiracy, that the declarant and the appellants were members of the conspiracy, and that the statements were made in the course of and in furtherance of the conspiracy. United States v. Alvarez, 755 F.2d 830, 855 n. 29 (11th Cir.1985). Upon reviewing the record, we conclude that the trial court correctly admitted the co-conspirator statements under James.
In regard to appellant Kurtz, independent evidence shows that Kurtz and Cymerman tested the aircraft that was ultimately used to import the load of cocaine. In intercepted phone conversations made after he received a coded message that the 300 kilos had arrived, Kurtz advised his associates that he would be arriving with a couple of them. The discredited testimony that he was going to raise chickens is unavailing. The independent evidence of conspiracy readily met the James standard.
Also, ample independent evidence indicated that appellant Latchinian was a member of the conspiracy. Jerome Latchi-nian discussed his conversations with the pilot that the group had tried to hire on a previous occasion. After the actual drugs arrived in the United States, appellant Lat-chinian made several incriminating telephone calls to appellant Hernandez’s home.
Appellant Latchinian was arrested at the place where the drugs were to have been delivered. Appellant’s own recorded statements served as direct evidence to independently establish his membership in the conspiracy.
The same Juan Roca who took the messages from appellant Latchinian arrived at Gerard Latchinian’s business carrying plastic shopping bags containing almost $100,000 in cash in small bills. At the time he delivered the money he apologized for being . late and indicated his knowledge of the contents of the bag by saying that the money was virtually all there. Gerard Latchinian, in Roca’s presence, indicated that Roca was one of Lat-chinian’s men, a statement with which Roca concurred. Roca’s actions, as well as his words, established independently his membership in the conspiracy.
With regards to appellant Hernandez, there was also independent evidence of his involvement in the conspiracy. Hernandez had telephone conversations with Gerard Latchinian and appellant Latchinian in which he expressed his concern of whether or not the girls had been separated. The disbelieved, testimony concerning social diseases is unavailing. Furthermore, he was present at the time and place where the cocaine was to be delivered.
Perez, Gerard Latchinian’s employee, was also shown to be involved in the conspiracy through independent evidence. He attended the October 26 meeting which addressed the drug importation scheme, he handled the money when it was delivered, and he was recorded making incriminating statements.
We find that the district court correctly found that the James standard was met so as to allow the introduction of co-conspirator statements. Furthermore, viewing the sufficiency of the properly admitted evidence at trial, and considered in the light most favorable to the government, we also conclude that the evidence as a whole established the appellants’ guilt beyond a reasonable doubt. As such, we find the evidence sufficient with regard to both challenges made by the appellants.
In terms of the appellants’ other grounds for appeal, which include an alleged Brady violation, certain jury misconduct, and the improper use of an informant, we find these contentions to be without merit. Accordingly, the convictions of all appellants are AFFIRMED.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this Court adopted as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.
Question: This question concerns the second listed appellant. 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)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
sc_adminaction_is
|
A
|
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.
THOMAS et al. v. CHICAGO PARK DISTRICT
No. 00-1249.
Argued December 3, 2001
Decided January 15, 2002
Scalia, J., delivered the opinion for a unanimous Court.
Richard L. Wilson argued the cause for petitioners. With him on the briefs were Wayne B. Giampietro and Michael J. Merrick.
David A. Strauss argued the cause for respondent. With him on the brief was Steven A. Weiss.
James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Stephanie R. Marcus, William G. Myers III, and Randolph J. Myers.
Bonnie I. Robin-Vergeer and Alan B. Morrison filed a brief for Public Citizen, Inc., as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the City of New York by Michael D. Hess, Corporation Counsel, Leonard J. Koerner, and Elizabeth I. Freedman; for the International City-County Management Association et al. by Richard Rvda and Charles A. Rothfeld; for the International Municipal Lawyers Association by Henry W. Underhill, Jr.; and for Morality in Media, Inc., et al. by Robin S. Whitehead and Bruce A. Taylor.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether a municipal park ordinance requiring individuals to obtain a permit before conducting large-scale events must, consistent with the First Amendment, contain the procedural safeguards described in Freedman v. Maryland, 380 U. S. 51 (1965).
I
Respondent, the Chicago Park District (Park District), is responsible for operating public parks and other public property in Chicago. See Ill. Comp. Stat., ch. 70, § 1505/7.01 (2001). Pursuant to its authority to “establish by ordinance all needful rules and regulations for the government and protection of parks . . . and other property under its jurisdiction,” §1505/7.02, the Park District adopted an ordinance that requires a person to obtain a permit in order to “conduct a public assembly, parade, picnic, or other event involving more than fifty individuals,” or engage in an. activity such as “creating] or emitting] any Amplified Sound.” Chicago Park Dist. Code, ch. VII, §§ C.3.a(l), C.3.a(6). The ordinance provides that “Applications for permits shall be processed in order of receipt,” § C.5.a, and the Park District must decide whether to grant or deny an application within 14 days unless, by written notice to the applicant, it extends the period an additional 14 days, §C.5.c. Applications can be denied on any of 13 specified grounds. § C.S.e. If the Park District denies an application, it must clearly set forth in writing the grounds for denial and, where feasible, must propose measures to cure defects in the application. §§C.5.d, C.5.e. When the basis for denial is prior receipt of a competing application for the same time and place, the Park District must suggest alternative times or places. § C.5.e. An unsuccessful applicant has seven days to file a written appeal to the General Superintendent of the Park District, who must act on the appeal within seven days. § C.6.a. If the General Superintendent affirms a permit denial, the applicant may seek judicial review in state court by common-law certiorari. See Norton v. Nicholson, 187 Ill. App. 3d 1046, 1057-1058, 543 N. E. 2d 1053, 1059 (1989).
Petitioners have applied to the Park District on several occasions for permits to hold rallies advocating the legalization of marijuana. The Park District has granted some permits and denied others. Not satisfied, petitioners filed an action pursuant to 42 U. S. C. § 1983 in the United States District Court for the Northern District of Illinois, alleging, inter alia, that the Park District’s ordinance is unconstitutional on its face. The District Court granted summary judgment in favor of the Park District, and the United States Court of Appeals for the Seventh Circuit affirmed. 227 F. 3d 921 (2000). We granted certiorari. 532 U. S. 1051 (2001).
II
The First Amendment’s guarantee of “the freedom of speech, or of the press” prohibits a wide assortment of government restraints upon expression, but the core abuse against which it was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the “evils” of the printing press in 16th- and 17-century England. The Printing Act of 1662 had “prescribed what could be printed, who could print, and who could sell.” Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 248 (1982). It punished the publication of any book or pamphlet without a license and required that all works be submitted for approval to a government official, who wielded broad authority to suppress works that he found to be “ ‘heretical, seditious, schismatical, or offensive.’” F. Siebert, Freedom of the Press in England, 1476-1776, p. 240 (1952). The English licensing system expired at the end of the 17th century, but the memory of its abuses was still vivid enough in colonial times that Blackstone warned against the “restrictive power” of such a “licenser” — an administrative official who enjoyed unconfined authority to pass judgment on the content of speech. 4 W. Blackstone, Commentaries on the Laws of England 152 (1769).
In Freedman v. Maryland, 380 U. S. 51 (1965), we confronted a state law that enacted a strikingly similar system of prior restraint for motion pictures. It required that every motion picture film be submitted to a Board of Censors before the film was shown anywhere in the State. The board enjoyed authority to reject films that it considered “ ‘obscene’ ” or that “ ‘tend[ed], in the judgment of the Board, to debase or corrupt morals or incite to crimes,’ ” characteristics defined by the statute in broad terms. Id., at 52, n. 2. The statute punished the exhibition of a film not submitted to the board for advance' approval, even where the film would have received a license had it been properly submitted. It was no defense that the content of the film was protected by the First Amendment.
We recognized in Freedman that a scheme conditioning expression on a licensing body’s prior approval of content “presents peculiar dangers to constitutionally protected speech.” Id., at 57. “[T]he censor’s business is to censor,” ibid., and a licensing body likely will overestimate the dangers of controversial speech when determining, without regard to the film’s actual effect on an audience, whether speech is likely “‘to incite’” or to “‘corrupt [the] morals,’” id., at 52-53, n. 2. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 561, and n. 11 (1975). In response to these grave “dangers of a censorship system,” Freedman, supra, at 58, we held that a film licensing process must contain certain procedural safeguards in order to avoid constituting an invalid prior restraint: “(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.” FW/PBS, Inc. v. Dallas, 493 U. S. 215, 227 (1990) (principal opinion of O’Connor, J., joined by Stevens and Kennedy, JJ.) (citing Freedman, supra, at 58-60).
Petitioners contend that the Park District, like the Board of Censors in Freedman, must initiate litigation every time it denies a permit and that the ordinance must specify a deadline for judicial review of a challenge to a permit denial. We reject those contentions.. Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum. The Park District’s ordinance does not authorize a licensor to pass judgment on the content of speech: None of the grounds for denying a permit has anything to do with what a speaker might say. Indeed, the ordinance (unlike the classic censorship scheme) is not even directed to communicative activity as such, but rather to all activity conducted in a public park. The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded. And the object of the permit system (as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District’s rules, and to assure financial accountability for damage caused by the event. As the Court of Appeals well put it: “[T]o allow unregulated áeeess to all comers could easily reduce rather than enlarge the park’s utility as a forum for speech.” 227 F. 3d, at 924.
We have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman. “A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.” Niemotko v. Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result). “[T]he [permit] required is not the kind of prepublication license deemed a denial, of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.” Poulos v. New Hampshire, 345 U. S. 395, 403 (1953). Regulations of the use of a public forum that ensure the safety and convenience of the people are not “inconsistent with civil liberties but... [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend.” Cox v. New Hampshire, 312 U. S. 569, 574 (1941). Such a traditional exercise of authority does not raise the censorship concerns that prompted us to impose the extraordinary procedural safeguards on the film licensing process in Freedman.
III
Of course even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content. See Forsyth County v. Nationalist Movement, 505 U. S. 123, 131 (1992). We have thus required that a time, place, and manner regulation contain adequate standards to guide the official’s decision and render it subject to effective judicial review. See Niemotko, supra, at 271. Petitioners contend that the Park District’s ordinance fails this test.
We think not. As we have described, the Park District may deny a permit only for one or more of the reasons set forth in the ordinance. See n. 1, supra. It may deny, for example, when the application is incomplete or contains a material falsehood or misrepresentation; when the applicant has damaged Park District property on prior occasions and has not paid for the damage; when a permit has been granted to an earlier applicant for the same time and place; when the intended use would present an unreasonable danger to the health or safety of park users or Park District employees; or when the applicant has violated the terms of a prior permit. See Chicago Park Dist. Code, ch. VII, § C.5.e. Moreover, the Park District must process applications within 28 days, § C.5.c, and must clearly explain its reasons for any denial, §C.5.e. These grounds are reasonably specific and objective, and do not leave the decision “to the whim of the administrator.” Forsyth County, 505 U. S., at 133. They provide “‘narrowly drawn, reasonable and definite standards’” to guide the licensor’s determination, ibid, (quoting Niemotko, supra, at 271). And they are enforceable on review — first by appeal to the General Superintendent of the Park District, see Chicago Park Dist. Code, ch. VII, § C.6.a, and then by writ of common-law certiorari in the Illinois courts, see Norton v. Nicholson, 187 Ill. App. 3d 1046, 543 N. E. 2d 1053 (1989), which provides essentially the same type of review as that provided by the Illinois administrative procedure act, see Nowicki v. Evanston Fair Housing Review Bd., 62 Ill. 2d 11, 14, 338 N. E. 2d 186, 188 (1975).
Petitioners contend that the criteria set forth in the ordinance are insufficiently precise because they are described as grounds on which the Park District “may” deny a permit, rather than grounds on which it must do so. This, they contend, allows the Park District to waive the permit requirements for some favored speakers, while insisting upon them for others. That is certainly not the intent of the ordinance, which the Park District has reasonably interpreted to permit overlooking only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements. See Tr. of Oral Arg. 31-32. Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements. On petitioners’ theory, every obscenity law, or every law placing limits upon political expenditures, contains a constitutional flaw, since it merely permits, but does not require, prosecution. The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements would be far outweighed, we think, by the accompanying senseless prohibition of speech (and of other activity in the park) by organizations that fail to meet the technical requirements of the ordinance but for one reason or another pose no risk of the evils that those requirements are designed to avoid. On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech.
* * *
Because the Park District’s ordinance is not subject to Freedman’s procedural requirements, we do not reach one of the questions on which we granted certiorari, and on which the Courts of Appeals are divided: whether the requirement of prompt judicial review means a prompt judicial determination or the prompt commencement of judicial proceedings. Compare Nightclubs, Inc. v. Paducah, 202 F. 3d 884, 892-893 (CA6 2000); Baby Tam & Co. v. Las Vegas, 154 F. 3d 1097, 1101 (CA9 1998); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58 F. 3d 988, 998-1001 (CA4 1995) (en banc), with Boss Capital, Inc. v. Casselberry, 187 F. 3d 1251, 1255-1257 (CA11 1999); TK’s Video, Inc. v. Denton County, 24 F. 3d 705, 709 (CA5 1994); Graff v. Chicago, 9 F. 3d 1309, 1324-1325 (CA7 1993) (en banc); Jews for Jesus, Inc. v. Massachusetts Bay Transp. Authority, 984 F. 2d 1319, 1327 (CA1 1993). For the foregoing reasons, we affirm the judgment of the Court of Appeals.
It is so ordered.
Section C.5.e of the ordinance provides in relevant part:
“To the extent permitted by law, the Park District may deny an application for permit if the applicant or the person on whose behalf the application for permit was made has on prior occasion's made material misrepresentations regarding the nature or scope of an event or activity previously permitted or has violated the terms of prior permits issued to or on behalf of the applicant. The Park District may also deny an application for permit on any of the following grounds:
“(1) the application for permit (including any required attachments and submissions) is not fully completed and executed;
“(2) the applicant has not tendered the required application fee with the application or has not tendered the required user fee, indemnification agreement, insurance certificate, or security deposit within the times prescribed by the General Superintendent;
“(3) the application for permit contains a material falsehood or misrepresentation;
“(4) the applicant is legally incompetent to contract or to sue and be sued;
“(5) the applicant or the person on whose behalf the application for permit was made has on prior occasions damaged Park District property and has not paid in full for such damage, or has other outstanding and unpaid debts to the Park District;
“(6) a fully executed prior application for permit for the same time and place has been received, and a permit has been or will be granted to a prior applicant authorizing uses or activities which do not reasonably permit multiple occupancy of the particular park or part hereof;
“(7) the use or activity intended by the applicant would conflict with previously planned programs organized and conducted by the Park District and previously scheduled for the same time and place;
“(8) the proposed use or activity is prohibited by or inconsistent with the classifications and uses of the park or part thereof designated pursuant to this chapter, Section C.I., above;
“(9) the use or activity intended by the applicant would present an unreasonable danger to the health or safety of the applicant, or other users of the park, of Park District Employees or of the public;
“(10) the applicant has not complied or cannot comply with applicable licensure requirements, ordinances or regulations of the Park District concerning the sale or offering for sale of any goods or services;
“(11) the use or activity intended by the applicant is prohibited by law, by this Code and ordinances of the Park District, or by the regulations of the General Superintendent...
FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990), which applied two of the Freedman requirements, involved a licensing scheme that “targeted] businesses purveying sexually explicit speech.”
Petitioners do not argue that the Park District’s ordinance fails to satisfy other requirements of our time, place, and manner jurisprudence, under which the permit scheme “must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” Forsyth County v. Nationalist Movement, 505 U. S. 123, 130 (1992); see also Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984).
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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.
Juan Avalos GUEVARA, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 16364.
United States Court of Appeals Fifth Circuit.
March 28, 1957.
Joseph A. Calamia, El Paso, Tex., for appellant.
Wm. Monroe Kerr, Asst. U. S. Atty., El Paso, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., Holvey Williams, Asst. U. S. Atty., El Paso, Tex., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Appellant was convicted under two counts for violating the provisions of the Internal Revenue Code relating to marihuana. The primary question is whether the district court erred in denying the defendant’s motion for judgment of acquittal.
The evidence is simple and was given by only two witnesses. George D. Scales, a Treasury Department Customs Agent, testified that, according to a chemical analysis which he had secured, the cigarettes found in defendant’s car were marihuana cigarettes, and that, upon his demand upon the defendant for the required order form, the defendant failed to produce it and said that he had no such form. Mr. Scales apparently had no other connection with the case: The principal witness for- the Government was George D. Hernandez, a detective in the Police Department of the City of El Paso. He testified that at about 9 o’clock on the evening of August 23,1956, he was in the Arlington Bar at the intersection of El Paso and Paisano Streets in El Paso and saw Guevara walking along the street acting as though he was looking for some other person; that Guevara entered the Central Hotel which was across the street from the saloon and remained there for some ten minutes; that shortly after coming back on El Paso Street, Guevara met another man who in this case remains nameless. Hernandez shadowed Guevara and his companion as they walked around the block and got into a parked car which was not locked. Both men got into the front seat, Guevara getting in on the driver’s side and driving the car away. At this point, Officer Hernandez got into a parked police car with two other officers who had been helping him, and they followed the car Guevara was driving for some three and one-half blocks, until it was stopped at an intersection by a red light. At this point Hernandez and one of the other officers, named Gonzales, rushed out and without more ado jplaeed Guevara and his companion under arrest. The two prisoners were taken to the police station in the police car and Hernandez alone drove Guevara’s car to the police station. There it was searched and a stick of wood wrapped with tape and prepared as a club was found on the floor directly under Guevara’s seat, and a package containing 50 marihuana cigarettes was also found on the floor under the seat but in the middle of the car about halfway between the driver’s seat and the passenger’s seat. Guevara admitted owning the club, explaining that he carried it for protection since recently he had been attacked and knifed by an assailant, but both he and his companion denied any knowledge of the marihuana cigarettes which lay on the floor under the seat between them. The police officers believed the statement made by both men that Guevara was only carrying his passenger home and, therefore, released this unnamed companion and he went on his way. Officer Hernandez stated on cross-examination that, during the time in which he had Guevara under observation, Guevara committed no unlawful act. He also testified that the seat of the car was so constructed that either Guevara or his companion could’ have placed the cigarettes in the position where they were found merely by lowering a hand.
The Government relies on the presumption permitted by the statute. This evidentiary device adopted by the Congress has its roots in our early common law. Its reasonableness in marihuana cases is probably supported by similar grounds to those stated by the Supreme Court in connection with legislation on the opium trade. There is no question as to its constitutionality here.
“Possession” is not defined by statute. It must, of course, be a knowing possession. It has been said that in common speech and in legal terminology no term is more ambiguous than the word “possession,” and this is especially true when it occurs in criminal statutory provisions. It is so fraught with danger that the courts must scrutinize its use with all diligence, and the jury must be carefully instructed in order to prevent injustice. In Barfield v. United States, 5 Cir., 229 F.2d 936, 940, we called attention to the necessity for a clear and understandable instruction on the concept of possession. Here, as there, possession is crucial to the whole case.
“ ‘The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.’ Glasser v. United States, supra, [315 U.S. 60, 62 S.Ct. 469]. In circumstantial evidence cases, this Court has said that the test to be applied is whether the jury might reasonably find that the evidence excludes every reasonable hypothesis except that of guilt. Vick v. United States, 5 Cir., 216 F.2d 228, 232, and cases there cited; see also United States v. Levy, 7 Cir., 138 F.2d 429, 430, 431.” Lloyd v. United States, 5 Cir., 226 F.2d 9, 13-14.
Was then the jury warranted in deducing from the evidence inferences which excluded every reasonable hypothesis but that of guilt? We think not. The cigarettes were in such position in the car that they could easily have been placed in the unlocked vehicle by any person. Under the circumstances here proved, there is no rational connection between ownership and possession of the automobile and possession of the cigarettes. For all that the present evidence shows, it is just as reasonable to believe that the cigarettes belonged to the passenger as to the appellant. A jury must not be left to speculate and surmise in a criminal case, merely hoping that they are drawing the proper inference.
“The authorities are clear that circumstantial evidence may, of course, be sufficient to convict. Nevertheless, because of the fact that it is circumstantial and that a grave wrong may be done to an innocent man by reasoning from circumstances not sufficiently cogent in themselves or as connected, and particularly not sufficiently exclusive of every innocent hypothesis, the courts have been very sedulous to prevent an innocent man being found guilty where the evidence does not conform to the acceptable standards.” Rodriguez v. United States, 5 Cir., 232 F.2d 819, 821.
The judgment of conviction is reversed, but, since the Government may possibly have further evidence, the cause is remanded for further proceedings not inconsistent with this opinion. See Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; cf. Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426.
Reversed and remanded.
. First Count: “ * * * Juan Avalos Guevara, Jr., being then and there a transferee required to pay the transfer tax imposed by law, acquired and obtained, by transfer, from some person to your Grand Jurors unknown, 50 Marihuana Cigarettes, without having paid such lax.” Second Count: “* * * transported and concealed, and facilitated the transportation and concealment of 50 Marihuana Cigarettes, knowing that said Marihuana had been acquired and obtained without the transfer tax provided for in Section 4741(a) of Title 26, United States Code, having been paid.”
. 26 U.S.C.A., § 4744(a) (2):
‘‘ * * * Proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand, by the Secretary or his delegate, to produce the order form required by 4742 to be retained by him shall be presumptive evidence of guilt under this subsection and of liability for .the tax imposed by section 4741(a).”
. 1 Wigmore on Evidence, § 152.
. Yee Hem v. United States, 268 U.S. 178, 183, et seq., 45 S.Ct. 470, 69 L.Ed. 904.
. United States v. Maghinang, D.C.Del., 111 F.Supp. 760, 761; 9 Wigmore on Evidence § 2518, n. 3, 4, 5, and 6.
. 72 C.J.S., p. 233, and cases collected under notes 87 & 88.
. See also United States v. Tijerina, D.C., 138 F.Supp. 759, in which Judge Allred held that the finding of a package of marihuana in the curve of the bumper of the automobile was not sufficient to show possession in either the owner or the passengers of the car.
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_genapel1
|
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.
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.
James Gordon PENN, Plaintiff-Appellant, v. Clara RINALDI, doing business under the firm name and style of Queens Truck Rental, Defendant, and Mack Trucks Inc., Defendant-Appellee.
No. 9, Docket 28122.
United States Court of Appeals Second Circuit.
Argued Oct. 1, 1963.
Decided Oct. 1, 1963.
Joseph K. Guerin, New York City (Myers & Guerin, New York City, on the brief), for plaintiff-appellant.
John B. Shields, New York City (John L. Quinlan, Bigham, Englar, Jones & Houston, New York City, on the brief), for defendant.
David S. Konheim, New York City (Konheim & Halpem, New York City, on the brief), for defendant-appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
PER CURIAM.
In open court we affirm the judgments of the District Court for the Southern District of New York which dismissed the complaint against the defendants Clara Rinaldi, doing business under the firm name and style of Queens Truck Rental, and against Mack Trucks, Inc. because of a prior judgment dismissing a similar complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The effect of such a dismissal, prescribed by the Rule itself, is a matter of federal law, Kern v. Hettinger, 303 F.2d 333 (2 Cir., 1962)
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_respond1_3_2
|
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.
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)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Humberto RIVERA, Defendant-Appellant.
No. 87-5681.
United States Court of Appeals, Fourth Circuit.
Argued July 11, 1988.
Decided Oct. 24, 1988.
Trevor Washington Swett, III (Geoffrey Judd Vitt, Caplin & Drysdale, Chartered, Washington, D.C., on brief), for defendant-appellant.
Paul G. Cassell, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., Keith A. Logan, Sp. Asst. U.S. Atty., William G. Otis, Asst. U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.
Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.
CHAPMAN, Circuit Judge:
Humberto Rivera was convicted of nine counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). The appellant claims error by the trial court in the admission of the deposition testimony of certain alien witnesses, who had been deported prior to trial; in failing to charge the jury that there must be proof of a direct and substantial relationship between the defendant’s conduct and the alien’s violation of the law; and in excluding evidence and forbidding argument relating to the eligibility of the aliens for amnesty. Finding no merit in these exceptions, we affirm.
I
Appellant was indicted following an investigation by the U.S. Immigration and Naturalization Service into the transportation of illegal aliens into the northern part of Virginia from other states. At a work site, a number of illegal aliens were arrested, and shortly thereafter appellant and three others were charged with illegal transportation of illegal aliens.
Following the arrest of Rivera and the aliens, Rivera posted bond and was released from custody. The illegal aliens could not arrange the posting of a bond and they were retained in custody for a period of approximately three weeks. An attorney was appointed for these aliens, and shortly thereafter he made a motion to have their testimony taken by deposition pursuant to the Material Witness Statute, 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15. This motion also asked that the illegal aliens be released from custody and allowed to leave the country. At the hearing on the motion the United States Attorney supported the taking of the depositions and the attorney for the appellant opposed. The trial judge, in granting the motion, made the following finding:
Exceptional circumstances have been shown in that the witnesses are being incarcerated awaiting a trial. And humanitarian considerations alone demand that something be done to release them from incarceration, when their only purpose for being incarcerated is to be witnesses. And whether they voluntarily flee after their depositions have been taken or whether the INS deports them back to their countries of origin is beside the point.
Pursuant to the court’s order, the depositions were taken and the appellant and his attorney were present at each deposition and participated therein, not only by cross-examining the witnesses, but by the attorney making certain comments into the record as to the demeanor and condition of the witness, i.e., “Let the record reflect that the witness is having a great deal of difficulty right now. He is very ill.” “Also let the record reflect that the witness has been disturbed and is very shaky, he is crying.”
After the depositions were taken the deposed aliens elected to voluntarily leave the country, rather than face normal deportation proceedings, and they were returned to Mexico.
At trial one of these depositions was read in its entirety, and since the other deposition testimony was quite similar, only selected portions of the direct and cross-examination of two other depositions were read. The evidence showed that Rivera leased a small apartment and that seven aliens lived with him in the apartment. Appellant took the witness stand and admitted that he had transported a number of aliens to work in Virginia and that he had also transported them from Ohio to Virginia. Initially, he denied that he knew that any of them were illegal aliens, but he finally admitted that he was aware, at the time of his arrest, that Nicolas Guerrero-Avila was an illegal alien. He also admitted that he had cashed checks for the aliens because they had no personal identification.
Upon conviction Rivera was sentenced to three years imprisonment on each count, with the sentences to run concurrently. However the sentences were suspended upon service of the short period of time that Rivera had been incarcerated, and he was placed on probation.
II
Appellant claims that the use of the depositions violated his Sixth Amendment right to be confronted by the witnesses against him. The thrust of this claim is that the depositions cannot be used until the trial court finds that the witnesses are “unavailable to testify”. He relies on Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber and Woods were jointly charged with armed robbery and at a preliminary hearing, Woods waived his privilege against self-incrimination and gave testimony incriminating Barber. Barber’s attorney did not cross-examine Woods. Seven months later Barber was tried on the robbery charge in Oklahoma. At this time Woods was in a federal prison in Texas, and the State of Oklahoma made no effort to obtain Woods’ presence at trial, but over petitioner’s objection, introduced the transcript of Woods’ preliminary hearing testimony, and claimed that Woods was unavailable to testify. Speaking through Justice Marshall, the Court noted that the State had made no effort to obtain the presence of Woods and it had assumed that the mere absence of the witness from the jurisdiction of the court was sufficient to show impossibility to compel his attendance. The court rejected this assumption of unavailability and concluded “... a witness is not “unavailable” for purposes of the foregoing exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.” 390 U.S. at 724-25, 88 S.Ct. at 1321-22.
Barber was discussed and distinguished by the court in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In Mancusi a Tennessee prosecutor introduced a transcript of direct and cross-examination of the witness who had left the United States and taken permanent residence in Sweden. Prior to trial the prosecutor had attempted to subpoena the witness at his last known address. The Court found that the witness was unavailable because the State of Tennessee was powerless to compel his attendance and the court pointed out that in Barber the state had not met its obligation to make a good-faith effort to obtain the presence of a witness and had merely shown that he was beyond the boundaries of the prosecuting state, but in Mancusi the witness was out of the country and beyond the compulsory processes of the court.
The appellant argues that the deported witnesses are not “unavailable,” because the United States by its own efforts made them unavailable by deporting them to Mexico. Actually, the witnesses left this country voluntarily after they were deposed and released from custody. The depositions resulted from a motion of the attorney representing the incarcerated alien witnesses. The appellant was heard on the motion and the judge made the necessary findings under Federal Rule of Criminal Procedure 15 and 18 U.S.C. § 3144. At the time the depositions were taken the witnesses could not make bail. If they were released from custody, they had no place to stay, and there was no way to ensure that they would be present at trial two months later. The appellant and his attorney were present at the taking of the depositions, the attorney cross-examined the witnesses, and he was allowed to make his personal observations of the witnesses a part of the record.
If the court had denied the motion for depositions, these alien material witnesses would have been incarcerated for more than three months, even though they were neither indicted nor convicted of a crime. The appellant was both indicted and convicted on nine counts, and he spent less time incarcerated than did these witnesses, who were deposed and deported.
We find that the trial court followed both the letter and spirit of 18 U.S.C. § 3144 and Rule 15, and its finding of Exceptional Circumstances was not clearly erroneous. On the present facts the illegal alien witnesses, who had been deposed and had left the country rather than await deportation, were unavailable within the meaning of Federal Rule of Criminal Procedure 15(e). The introduction of these depositions at appellant’s trial did not deny him the right of confrontation.
The United States Attorney had a dual responsibility in this case. It was his duty to consider the rights of the witnesses, as well as the rights of the appellant, and to also comply with his duty of deporting the illegal aliens without undue delay. This problem was recognized by the Court in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), in which the defendant was charged with transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(2). Valenzuela-Bernal had been arrested shortly after he crossed the Mexican-United States border with five illegal aliens lying down in the back of his automobile. After arrest the defendant and the passengers were interviewed. Three of the passengers admitted they were illegally in the country and identified the defendant as the driver of the car. The United States Attorney concluded that the three passengers possessed no evidence material to the prosecution or the defense and two of the passengers were deported to Mexico. Following conviction Valenzuela-Bernal contended that he was denied his Fifth Amendment right to due process and Sixth Amendment right of compulsory process for obtaining favorable witnesses by the deportation of the two witnesses. The Court pointed out that the Executive Branch is charged with the responsibility of faithfully executing laws and stated:
... [t]he Government is charged with a dual responsibility when confronted with incidents such as that which resulted in the apprehension of respondent. One or more of the persons in the car may have violated the criminal laws enacted by Congress; but some or all of the persons in the car may also be subject to deportation as provided by Congress. The Government may, therefore, find itself confronted with the obligation of prosecuting persons in the position of respondent on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted.
The power to regulate immigration— an attribute of sovereignty essential to the preservation of any nation — has been entrusted by the Constitution to the political branches of the Federal Government. See Mathews v. Diaz, 426 U.S. 67, 81 [96 S.Ct. 1883, 1892, 48 L.Ed.2d 478] (1976). “The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens.’ ” Kleindienst v. Mandel, 408 U.S. 753, 766 [92 S.Ct. 2576, 2583, 33 L.Ed.2d 683] (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 [87 S.Ct. 1563, 1566, 18 L.Ed.2d 661] (1967)). In executing this power, Congress has adopted a policy of apprehending illegal aliens at or near the border and deporting them promptly. Border Patrol agents are authorized by statute to make warrantless arrests of aliens suspected of ‘attempting to enter the United States in violation of ... law,’ 8 U.S.C. § 1357(a)(2), and are directed to examine them without ‘unnecessary delay' to determine ‘there is prima facie evidence establishing’ their attempted illegal entry. 8 C.F.R. § 287.3 (1982). Aliens against whom such evidence exist may be granted immediate voluntary departure from the country. See 8 U.S.C. § 1252(b); 8 C.F.R. § 242.5(a)(2)(i) (1982). Thus, Congress has determined that prompt deportation, such as occurred in this case, constitutes most effective effort for curbing the enormous flow of illegal aliens across our southern border.
Id. at 864, 102 S.Ct. at 3444-45.
The court also recognized the substantial financial and physical burdens upon the government resulting from any effort to detain alien witnesses and that it was impossible to prosecute many cases involving transportation and harboring of illegal aliens because of the witness problem.
In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), it was held that to establish a Sixth Amendment violation of the right to compulsory process required more than the mere absence of testimony, and that the criminal defendant must show that he was denied compulsory process for obtaining witnesses in his favor. In the present case Rivera has made no showing that he has been denied testimony favorable to him, nor has he shown that the deposition testimony was any different from what the live testimony of the witnesses would have been.
In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), it was determined that “the lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Id. at 74, 100 S.Ct. at 2543. We agree with the district judge that the actions of the United States Attorney in this case were reasonable. The motion to depose was made by the attorney for the witnesses and the U.S. Attorney supported the motion as being proper under the statute and the Federal Rules of Criminal Procedure as exceptional circumstances. Proper notice was given to appellant and his attorney was heard in opposition to the witnesses’ motion to have their depositions taken. Appellant and his attorney were present and participated fully in the taking of the depositions. The requirements and procedures of 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15 were duly met and followed. The witnesses were entitled to release and their testimony could be and was adequately secured by deposition. The appellant was not prejudiced by the use of the depositions and the absence of the three illegal aliens.
The suggestions made by the appellant as to how the presence of the illegal aliens could have been assured at trial are all unrealistic and totally lacking in merit.
Other circuits have faced the problem of deposing illegal aliens and using deposition testimony in criminal trials. In United States v. Terrazas-Montano, 747 F.2d 467 (8th Cir.1984), the court found, on facts very similar to those now before us, that exceptional circumstances did exist to justify the use of the depositions of illegal aliens, who were deported prior to trial. The court found that they were “unavailable”, and to require the government to show that it was unable to procure their attendance at trial would be a useless act. The court also determined that “the trial-type setting of the depositions produced sufficient ‘indicia of reliability’ to satisfy the Sixth Amendment.” Id. at 469.
In United States v. Seijo, 595 F.2d 116 (2d Cir.1979), the court observed that when Federal Rule of Criminal Procedure 15 was originally adopted it only allowed criminal defendants to take depositions, but that the rule was amended in 1975 to permit the government to take depositions for use in criminal cases and conditioned admissibility of the deposition upon “unavailability” as defined in Rule 804(a) of the Federal Rules of Evidence. The court further found that Congress intended to expand the potential for the use of depositions by the government in criminal cases.
The appellant cites United States v. Provencio, 554 F.2d 361 (9th Cir.1977), which is not relevant because the aliens had not been released and were still available to testify. United States v. Vasquez-Ramirez, 629 F.2d 1295 (9th Cir.1980), is not applicable because the Federal Rules of Criminal Procedure were not followed in taking the deposition. Also, United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir.1987), is distinguishable because it involved a standing order issued by the judges of the Western District of Texas which required all alien material witnesses to be deposed and released within sixty days of their detention. The government confessed error primarily because the district court’s order did not address the issue of “exceptional circumstances” and that the district judges under the order exercised no discretion. The circuit court .reversed, but found that many of the issues raised by the standing order had not been properly briefed or addressed. We find no prece-dential value to this opinion.
III
We find no merit to the appellant’s claim that the judge erred in his instruction under 8 U.S.C. § 1324(a)(1)(B). Appellant contends that the judge did not give the charge that he had requested on the “substantial relationship between the transportation of the alien and the furtherance of the alien’s unlawful presence in the United States.” Although the trial judge did not use the exact language requested, he clearly and completely covered this element in his instructions and this exception is but a matter of semantics and not substance.
IV
The final exception is also without merit. Appellant claims that he was prevented from eliciting evidence and making arguments relating to the amnesty program for undocumented aliens. He asserts that he should have been able to argue that the aliens were eligible for amnesty and therefore they were not in the United States illegally. The amnesty program was created under the Immigration Reform and Control Act on November 6, 1986. Pub.L. 99-603, 100 Stat. 3359. The trial judge was correct in finding that it was irrelevant to the present case. The present prosecution is for violation of 8 U.S.C. § 1324(a)(1)(B) and it is necessary to show that the alien, who is transported by the defendant, “has come to, entered, or remains in the United States in violation of the law.... ” Amnesty is irrelevant until it is granted. The record reflects that the various aliens, who were transported by defendant, had come to and entered this country illegally. There was no evidence or proffer that any of them had applied for amnesty. If at some later time they may have been eligible to apply for amnesty, this does not change their illegal status at the time of entry and at the time of the illegal transportation. In his testimony Rivera did not testify that he thought any of the aliens were entitled to amnesty. The trial judge was correct in preventing the non-issue of amnesty from coming in and adding confusion to the case.
AFFIRMED.
. 8 U.S.C. § 1324(a)(1)(B) Bringing in and harboring certain aliens.
(a) Criminal Penalties.
(1) Any person who—
(B) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or move or attempts to transport or moves such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
shall be fined in accordance with Title 18, imprisoned not more than five years, or both, for each alien in respect to whom any violation of this subsection occurs.
. Title 18, § 3144 Release or Detention of a material witness.
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of § 3142 of this Title. No material witness may be detained because of inability to comply with any conditions of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
.Rule 15 of Federal Rules of Criminal Procedure.
Depositions.
(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged, be produced at the same time and place. If a witness is detained pursuant to § 3144 of title 18, United States Code, the court on written notice of the witness and upon notice to the parties may direct that the witness’ deposition be taken. After the deposition has been subscribed the court may discharge the witness.
Rule 15(e):
(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness’ deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
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 interest of person asserting due process rights violated. 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.
Jesse W. ELMORE, Appellee, v. UNITED STATES of America, Appellant.
No. 72-1280.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 28, 1972.
Decided Sept. 13, 1972.
Stanton R. Koppel, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Walter H. Fleischer, Atty., Dept. of Justice, and Leigh B. Hanes, Jr., U. S. Atty., on brief), for appellant.
Leroy Moran, Roanoke, Va., for appel-lee.
Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.
PER CURIAM:
The plaintiff, a contract carrier for the Postal Service, seeks to recover the value of twenty-three long guns which the Government had withheld from his compensation, because of the loss of such guns while in the Postal Service. The District Court charged the contract carrier with the value of four such guns, which were conclusively shown to have reached the parcel post annex in Roanoke, Virginia, by notices sent to the Police Department of Roanoke, but he declined to charge the contract carrier with the value of the other guns. In doing so, he placed a higher standard of proof upon the United States than was permissible.
The testimony showed an unusual number of losses of long guns (rifles and shotguns) moving through the mails to addressees in the area of Roanoke, Virginia, where the plaintiff, Elmore, had certain contracts for the carriage of mail and parcel post, including moving all mail and parcel post from the railroad station to the main post office and from the main post office to the parcel post annex.
In the course of investigation, a long gun in a package bearing the clear, bold “FIREARM” label, required by postal regulations, was placed in the mails addressed to an addressee in the Roanoke area. In its stock there had been inserted a short range radio transmitter, so that its location could be followed and observed. Carlton D. Traynham, one of Elmore’s drivers, was seen to pick up the parcel and later to load it onto his truck. Instead of unloading it at the parcel post annex, however, he left it in his truck and later drove to his home, where he placed the parcel containing the gun beneath an oil tank.
After securing search warrants, officers went to the house and seized the parcel containing the gun and radio transmitter. In the trunk of Trayn-ham’s car, they also discovered and seized another gun which earlier had been lost or stolen from the mails.
Thereafter the Government deducted from Elmore’s compensation the value of twenty-three guns, not including the two which had been recovered from Trayn-ham, which had been lost or stolen from the mails while in the course of delivery to Roanoke addressees. Of those twenty-three guns, four had reached the parcel post annex, for one of the supervisors there had notified the Roanoke Police Department of the receipt of each of those four guns. The other nineteen guns apparently never reached the parcel post annex, as, indeed, the test gun containing the radio transmitter did not. The District Judge thus charged Elmore with the value of four guns affirmatively shown to have actually reached the parcel post annex in Roanoke, but concluded that the Government had failed to prove that the remaining nineteen guns had reached the Roanoke area. In this latter conclusion, we think that he was mistaken.
The regularity of the mails is such that proof of mailing is prima, facie proof of receipt by the addressee, but the permissible inferences become limited when a breakdown in the Postal Service is shown with respect to a particular class or classes of items. Then, the general deduction prevails that items within the indicated class, or classes, reached the carrier or the area in which the particular breakdown is shown to have occurred but were lost there if undelivered to the ultimate addressee. This was the explicit holding of Boerner v. United States, 2 Cir., 117 F.2d 387. See, also Pasadena Research Laboratories v. United States, 9 Cir., 169 F.2d 375.
The District Judge recognized that the proof here made out a prima facie case of receipt by Traynham. He declined to apply it against Elmore “because nowhere is bad faith charged against the Elmores.”
It is true that no one charged the Elmores with bad faith or wrongdoing. Their only fault was ineffective supervision of their employees, particularly Traynham, but the law makes a contract carrier responsible for losses due to the neglect of his agents and his employees. Though the Elmores, themselves, be subject to no moral censorship, they are as responsible for losses as a thieving employee of theirs who actually causes it. It simply was in irrelevance to observe that the Elmores were not charged with bad faith or affirmative wrongdoing.
The Government’s proof here was ample to show that each of the nineteen guns came into the possession of Elmore’s employees. Proof that unusual losses of guns were being sustained in the Roanoke area, not elsewhere in Virginia, coupled with the observed fact of Traynham’s theft of one gun and his possession of another stolen gun, in combination, was ample to make out a prima facie case that each of the guns reached Elmore, who had the exclusive contract of carriage of parcel post from the railroad station to the main post office and from the main post office to the parcel post annex.
The proof, of course, only made out a prima facie case, which should prevail only if unrebutted. Elmore, with Traynham’s assistance, attempted to rebut it. Trayham testified that he did not steal any one of the twenty-three guns. He denied that he had stolen the gun found in the trunk of his car, claiming that it had been given him by a friend, unfortunately, recently deceased. He was on the point of denying that he had stolen the test gun with the radio transmitter, when reminded that he had entered a plea of guilty to its theft.
The situation created a case for the factfinder. The prima facie case should prevail, unless Elmore’s attempt to rebut it through Traynham’s testimony was believed. We need not remand for further findings, however, because the District Judge plainly stated his disbelief of Traynham. He arrived at his conclusion, not by findings that some of the guns were lost or stolen while in the possession of others than Elmore, but simply by a failure to recognize that a prima facie case had been made out with respect to the nineteen guns, as well as with respect to the four which were affirmatively shown to have reached the parcel post annex in Roanoke, Virginia.
Under these circumstances, there is no unresolved factual issue and we may simply direct the entry of judgment for the United States.
Reversed.
. 39 U.S.C.A. § 6434; see, also, 39 C.F.R. 522.4(a).
. “VVe are not concerned with the four guns found by the District Judge to have been stolen by Traynham.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_issue_2
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12
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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.
JAY v. BOYD, DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE.
No. 503.
Argued May 3, 1956.
Decided June 11, 1956.
Will Maslow and John Caughlan argued the cause for petitioner. On the brief were Mr. Caughlan and Norman Leonard.
John V. Lindsay argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Gray Thoron, Beatrice Rosenberg, J. F. Bishop and L. Paul Winings.
Mr. Maslow and Shad Polier filed a brief for the American Jewish Congress, as amicus curiae, urging reversal.
Mr. Justice Reed
delivered the opinion of the Court.
[Petitioner brought this habeas corpus proceeding to test the validity of the denial of his application under §§244 (a)(5) and 244 (c) of the Immigration and Nationality Act of 1952, 66 Stat. 215, 216, 8 U. S. C. §§ 1254 (a)(5) and 1254 (c), for discretionary suspension of deportation. He contends that the denial of his application was unlawful because based on confidential, undisclosed information. The District Court denied the writ, holding, so far as pertinent here, that, “after complying with all the. essentials of due process of law in the deportation hearing and in the hearing to determine eligibility for suspension of deportation, [the Attorney General may] consider confidential information outside the record in formulating his discretionary decision.” The Court of Appeals affirmed, concluding, inter alia, that petitioner was not “denied due process of law in the consideration of his application for suspension of deportation because of the use of this confidential information.” 222 F. 2d 820, 820-821; rehearing denied, 224 F. 2d 957. We granted certiorari, 350 U. S. 931, to consider the validity of 8 CFR, Rev. 1952, § 244.3, the Attorney General's regulation which provides:
“§ 244.3 Use of confidential information. In the case of an alien qualified for . . . suspension of deportation under section . . . 244 of the Immigration and Nationality Act the determination as to whether the application for . . . suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.”
Following a hearing, the fairness of which is unchallenged, petitioner was ordered deported in 1952 pursuant to 8 U. S. C. (1946 ed., Supp. V) § 137-3. That section provided for the deportation of any alien “who was at the time of entering the United States, or has been at any time thereafter,” a member of the Communist Party of the United States. Petitioner, a citizen of Great Britain, last entered the United States in 1921. .-At the deportation hearing he admitted having been a voluntary member of the Communist Party from 1935 through 1940. He attacked the validity of the deportation order in the courts below on the ground that there is “no lawful power . . . under the Constitution or laws of the United States” to deport one who has “at no time violated any condition imposed at the time of his entry.” But that point has been abandoned, and in this Court petitioner in effect concedes that he is deportable. See Galvan v. Press, 347 U. S. 522; Harisiades v. Shaughnessy, 342 U. S. 580.
In 1953, upon motion of petitioner, the deportation order was withdrawn for the purpose of allowing petitioner to seek discretionary relief from the Attorney General under § 244 (a) (5) of the Act. The application for suspension of deportation was filed and a hearing thereon was held before a special inquiry officer of the Immigration and Naturalization Service. The special inquiry officer found petitioner to be qualified for suspension of deportation — that is, found that petitioner met the statutory prerequisites to the favorable exercise of the discretionary relief. But the special inquiry officer decided the case for suspension did not “warrant favorable action” in view of certain “confidential information.” The Board of Immigration Appeals dismissed an appeal, basing its decision “Upon a full consideration of the evidence of record and in light of the confidential information available.” Thus, the Board in considering the appeal reviewed the undisclosed information as well as the evidence on the open record. Petitioner then commenced the present habeas corpus action.
As previously noted, § 244 (a)(5) of the Act provides that the Attorney General “may, in his discretion” suspend deportation of any deportable alien who meets certain statutory requirements relating to moral character, hardship and period of residence within the United States. If the Attorney General does suspend deportation under that provision, he must file, pursuant to § 244 (c), “a complete and detailed statement of the facts and pertinent provisions of law in the case” with Congress, giving “the reasons for such suspension.” So far as pertinent here, deportation finally cancels only if Congress affirmatively approves the suspension by a favorable concurrent resolution within a specified period of time. There is no express statutory grant of any right to a hearing on an application to the Attorney General for discretionary suspension of deportation. For purposes of effectuating these statutory provisions, the Attorney General adopted regulations delegating his authority under § 244 of the Act to special inquiry officers; giving the alien the right to apply for suspension during a deportation hearing; putting the burden on the applicant to establish the statutory requirements for eligibility for suspension; allowing the alien-applicant to submit any evidence in support of his application; requiring the special inquiry officer to present evidence bearing on the applicant’s eligibility for relief; and requiring a “written decision” with “a discussion of the evidence relating to the alien’s eligibility for such relief and the reasons for granting or denying such application.” The Attorney General also promulgated the regulation under attack here, 8 CFR, Rev. 1952, § 244.3, see pp. 347-348, supra, providing for the use by special inquiry officers and the Board of Immigration Appeals of confidential information in ruling upon suspension applications if disclosure of the information would be prejudicial to the public interest, safety or security.
We note that petitioner does not suggest that he did not receive a full and fair hearing on evidence of record with respect to his statutory eligibility for suspension of deportation. In fact, petitioner recognizes that the special inquiry officer found in his favor on all issues relating to eligibility for the discretionary relief and that those findings were adopted by the Board of Immigration Appeals. This favorably disposed of petitioner’s eligibility for consideration for suspension of deportation — the first step in the suspension procedure. Thus, we have here the case of an admittedly deportable alien who has been ordered deported following an unchallenged hearing, and who has been accorded another full and fair hearing on the issues respecting his statutory qualifications for discretionary suspension of deportation./!
It is urged upon the Court that the confidential information regulation is invalid because inconsistent with § 244 of the Act. In support of this claim, petitioner argues that § 244 implicitly requires the Attorney General to give a hearing on applications for suspension of deportation. It is then said that this statutory right is nullified and rendered illusory by the challenged regulation, and that therefore the regulation is invalid. But there is nothing in the language of § 244 of the Act upon which to base a belief that the Attorney General is required to give a hearing with all the evidence spread upon an open record with respect to the considerations which may bear upon his grant or denial of an application for suspension to an alien eligible for that relief. Assuming that the statute implicitly requires a hearing on an open record as to the specified statutory prerequisites to favorable action, there is no claim here of a denial of such a hearing on those issues. Moreover, though we assume a statutory right to a full hearing on those issues, it does not follow that such a right exists on the ultimate decision — the exercise of discretion to suspend deportation.
Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant’s eligibility. However, Congress did not provide statutory standards for determining who, among qualified applicants for suspension, should receive the ultimate relief. That determination is left to the sound discretion of the Attorney General. The statute says that, as to qualified deportable aliens, the Attorney General “may, in his discretion” suspend deportation. It does not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Although such aliens have been given a right to a discretionary determination on an application for suspension, cf. Accardi v. Shaughnessy, 347 U. S. 260, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace. Like probation or suspension of criminal sentence, it “comes as an act of grace,” Escoe v. Zerbst, 295 U. S. 490, 492, and “cannot be demanded as a right,” Berman v. United States, 302 U. S. 211, 213. And this unfettered discretion of the Attorney General with respect to suspension of deportation is analogous to the Board of Parole’s powers to release federal prisoners on parole. Even if we assume that Congress has given to qualified applicants for suspension of deportation a right to offer evidence to the Attorney General in support of their applications, the similarity between the discretionary powers vested in the Attorney General by § 244 (a) of the Act on the one hand, and judicial probation power and executive parole power on the other hand, leads to a conclusion that § 244 gives no right to the kind of a hearing on a suspension application which contemplates full disclosure of the considerations entering into a decision. Clearly there is no statutory right to that kind of a hearing on a request for a grant of probation after criminal conviction in the federal courts. Nor is there such a right with respect to an application for parole. Since, as we hold, the Attorney General’s discretion is not limited by the suggested hearing requirement, the challenged regulation cannot be said to be inconsistent with § 244 (a) of the Act.
Petitioner says that a hearing requirement, with a consequent disclosure of all considerations going into a decision, is made implicit by § 244 (c) if not by § 244 (a). Section 244 (c), it will be recalled, requires the Attorney General to file with Congress “a complete and detailed statement of the facts” as to cases in which suspension is granted, “with reasons for such suspension.” This statutory mandate does not, however, order such a report on cases in which suspension is denied. Section 244 (c) actually emphasizes the fact that suspension is not a matter of right. Congress was interested in limiting grants of this relief to the minimum. It evidenced an interest only in the reasons relied upon by the Attorney General for granting an application so that it could have an opportunity to accept or reject favorable administrative decisions. This in no way suggests that the applicant is to be apprised of the reasons for a denial of his request for suspension.
Petitioner also points to § 235 (c) of the Act, 8 U. S. C. § 1225 (c), which specifically authorizes the Attorney General to determine under some circumstances that an alien is excludable “on the basis of information of a confidential nature.” It is argued from this that had Congress intended to permit the use of confidential information in rulings upon applications for suspension of deportation, it would have expressly so provided in language as specific as that used in § 235 (c). The difficulty with this argument is that § 235 (c) is an exception to an express statutory mandate under § 236 (a) of the Act, 8 U. S. C. § 1226 (a), that determinations of admissibility be “based only on the evidence produced at the inquiry.” No such express mandate exists with respect to suspension of deportation, and, therefore, no specific provision for the use of confidential information was needed if normally contemplated by the broad grant of discretionary power to the Attorney General.
It is next argued that, even if the confidential information regulation is not inconsistent with § 244 (a), it nevertheless should be held invalid. Emphasizing that Congress did not in terms authorize such a procedure, petitioner contends that the Act should be construed to provide a right to a hearing because only such a construction would be consistent with the “tradition and principles of free government.” On its face this is an attractive argument. Petitioner urges that, in view of the severity of the result flowing from a denial of suspension of deportation, we should interpret the statute by resolving all doubts in the applicant’s favor. Cf. United States v. Minker, 350 U. S. 179, 187-188. But we must adopt the plain meaning of a statute, however severe the consequences. Cf. Galvan v. Press, 347 U. S. 522, 528. As we have already stated, suspension of deportation is not given to deportable aliens as a right, but, by congressional direction, it is dispensed according to the unfettered discretion of the Attorney General. In the face of such a combination of factors we are constrained to construe the statute as permitting decisions based upon matters outside the administrative record, at least when such action would be reasonable.
It may be that § 244 (a) cannot be interpreted as allowing a decision based on undisclosed information in every case involving a deportable alien qualified for suspension. Thus, it could be argued that, where there is no compelling reason to refuse to disclose the basis of a denial of an application, the statute does not contemplate arbitrary secrecy. However, the regulation under attack here limits the use of confidential information to instances where, in the opinion of the special inquiry officer or the Board of Immigration Appeals, “the disclosure . . . would be prejudicial to the public interest, safety, or security.” If the statute permits any withholding of information from the alien, manifestly this is a reasonable class of cases in which to exercise that power.
Our conclusion in this case is strongly supported by prior decisions of this Court. In both Knauff v. Shaugh-nessy, 338 U. S. 537, and Shaughnessy v. Mezei, 345 U. S. 206, we upheld a regulation of the Attorney General calling for the denial of a hearing in exclusion cases where the Attorney General determined that an alien was ex-dudable on the basis of confidential information, and where, as here, the disclosure of that information would be prejudicial to the public interest. And again, as here, the statutes involved in those cases did not expressly authorize the use of such information in making the administrative ruling. It is true that a resident alien in a deportation proceeding has constitutional protections unavailable to a nonresident alien seeking entry into the United States, and that those protections may militate against construing an ambiguous statute as authorizing the use of confidential information in a deportation proceeding. Cf. Kwong Hai Chew v. Colding, 344 U. S. 590. But the issue involved here under § 244 (a) is not whether an alien is deportable, but whether, as a deportable alien who is qualified for suspension of deportation, he should be granted such suspension. In view of the gratuitous nature of the relief, the use of confidential information in a suspension proceeding is more clearly within statutory authority than were the regulations involved in the Knauff and Mezei cases.
Concluding that the challenged regulation is not inconsistent with the Act, we must look to petitioner’s claim that the use of undiscloséd confidential information is unlawful because inconsistent with related regulations governing suspension of deportation procedures. As previously noted, an application for suspension is considered as part of the “hearing” to determine deporta-bility. 8 CFR, Rev. 1952, §§ 242.53 (c) and 242.54 (d) ; and see 8 CFR, Rev. 1952, § 242.5. The alien is entitled to “submit any evidence in support of his application which he believes should be considered by the special inquiry officer.” 8 CFR, Rev. 1952, § 242.54 (d). The hearing to determine deportability, during which the suspension application is considered, is to be a “fair and impartial hearing.” 8 CFR, Rev. 1952, § 242.53 (b). And a decision of the special inquiry officer on the request for suspension must contain “the reasons for granting or denying such application.” 8 CFR, Rev. 1952, § 242.61 (a).
We conclude that, although undisclosed information was used as a basis for denying suspension of deportation, none of the above-mentioned regulations was transgressed. While an applicant for suspension is, by regulation, entitled to “submit any evidence in support of his application,” that is merely a provision permitting an evidentiary plea to the discretion of those who are to make the decision. In this respect it is not unlike the “statement” and the opportunity to present “information in mitigation of punishment” to which a convicted defendant is entitled under Rule 32 (a) of the Federal Rules of Criminal Procedure before criminal sentence is imposed. And the situation is not different because the matter of suspension of deportation is taken up in the “fair and impartial” deportation “hearing.” Assuming that such a “hearing” normally precludes the use of undisclosed information, the “hearing” here involved necessarily contemplates the use of confidential matter in some circumstances. We must read the body of regulations governing suspension procedures so as to give effect, if possible, to all of its provisions. Cf. Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198.
This same rationale leads us to conclude that the requirement of a decision containing “reasons” is fully complied with by a statement to the effect that the application has been denied on the basis of confidential information, the disclosure of which would be prejudicial to the public interest, safety or security. Section 244.3 says that such information may be used “without the disclosure thereof to the applicant.” Reading the provision for a statement of the “reasons” for a decision in the light of § 244.3, it follows that express reliance on confidential information constitutes a statement of the “reasons” for a denial of suspension within the meaning of § 242.61 (a). If “reasons” must be disclosed but confidential information need not be, the former mandate, which certainly comprehends the latter provision, must be satisfied by an express invocation of the latter provision.
Congress has provided a general plan dealing with the deportation of those aliens who have not obtained citizenship although admitted to residence. Since it could not readily make exception for cases of unusual hardship or extenuating circumstances, those matters were left to the consideration and discretion of the Attorney General. We hold that in this case the Attorney General has properly exercised his powers under the suspension statute and we affirm the judgment below.
It is so ordered.
The District Judge wrote no opinion. The quote is taken from the Findings of Fact and Conclusions of Law, Record 15, 17-18.
A similar provision is now contained in 8 U. S. C. § 1251 (a)(6)(C).
“In determining cases submitted for hearing, special inquiry-officers shall exercise . . . the authority contained in section 244 of the Immigration and Nationality Act to suspend deportation.” 8 CFR, Rev. 1952, § 242.6.
The finding was:
“As the respondent has not been found to have been a Communist Party member later than 1940, it follows that more than ten years has elapsed since the assumption of the status which constitutes the ground for his deportation. Evidence of record, consisting of affidavits of persons well acquainted with the respondent, together with employment records, as well as a report of an investigation by this Service, satisfactorily establishes that he has been physically present in the United States for a continuous period of not less than ten years last past. A check of the local and Federal records reveals no criminal record. An independent character investigation, as well as the above related affidavits tend to establish that for the ten years immediately preceding his application for relief, he has been a person of good moral character.
"... He has stated that if he were deported he would suffer extreme and unusual hardship in that he would be separated from relatives and friends, and in effect that he would find it almost impossible to maintain himself because of lack of funds. On the record, respondent appears to be qualified for suspension of deportation.”
Section 244 (a) (5) of the Act provides in pertinent part that “the Attorney General may, in his discretion, suspend deportation” in the case of a deportable alien who (1) has been present in the United States for at least ten years since the ground for his deportation arose; (2) “proves that during all of such period he was and is a person of good moral character”; and (3) is one “whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship.”
In his petition for a writ of habeas corpus petitioner alleged, “Upon information and belief," that the "confidential information” considered by the special inquiry officer, and later by the Board of Immigration Appeals, was nothing more than the fact that petitioner’s name had appeared on a list circulated by the American Committee for the Protection of the Foreign Born, an organization which had been designated subversive by the Attorney General, ex parte. Petitioner claimed that “Solely by reason of [his] name appearing on said list, his case for discretionary relief was prejudged and no fair or impartial consideration of his case was given . . . .” In its Return to the Order to Show Cause, the Government denied that the confidential information relied upon was as alleged by petitioner, and denied that the case had been prejudged. The District Court made no specific finding with respect to the character or substance of the confidential information, but it did determine that the special inquiry officer and the Board of Immigration Appeals “exercised their independent judgment in denying discretionary relief.” See Accardi v. Shaughnessy, 347 U. S. 260, 349 U. S. 280; Marcello v. Bonds, 349 U. S. 302.
Petitioner apparently abandoned this allegation and argument in the Court of Appeals. In his petition for a writ of certiorari in this Court, he indirectly raises the point again by claiming to be “entitled to a judicial hearing upon ... his allegation of fact in habeas corpus proceedings that the undisclosed and so-called confidential matter . . . was of such a character that its consideration was not authorized by applicable regulations established by the Attorney .General.” However, petitioner made no direct assertion in this Court with respect to prejudgment. In this state of the record we conclude that there is no claim of prejudgment before this Court. See n. 22, infra.
No further administrative appeal was then available to petitioner. See 8 CFR, Rev. 1952, §§ 242.61 (e), 6.1 (b) (2), 6.1 (h) (1).
8 CFR, Rev. 1952, § 242.6 quoted in part at note 3, supra. Petitioner does not suggest, nor can we conclude, that Congress expected the Attorney General to exercise his discretion in suspension cases personally. There is no doubt but that the discretion was conferred upon him as an administrator in his capacity as such, and that under his rulemaking authority, as a matter of administrative convenience, he could delegate his authority to special inquiry officers with review by the Board of Immigration Appeals. 66 Stat. 173, 8 U. S. C. § 1103.
8 CFR, Rev. 1952, § 242.54 (d).
Ibid.
Ibid.
CFR, Rev. 1952, §242.53 (c).
8 CFR, Rev. 1952, § 242.61 (a).
See notes 4 and 5, supra, and accompanying text.
Congress first provided for suspension of deportation in 1940 by adding a new provision to the Immigration Act of 1917. 54 Stat. 672, as amended, 62 Stat. 1206, 8 U. S. C. (1946 ed., Supp. V) § 155 (c). That new provision provided that “the Attorney General may . . . suspend deportation” under certain circumstances. In enacting the Immigration and Nationality Act of 1952, Congress added the phrase “in his discretion” after the words “the Attorney General may.” In an analysis of draft legislation leading up to the 1952 Act, prepared by the Immigration and Naturalization Service for the assistance of the congressional committees, it was stated that the new words were suggested “in order to indicate clearly that the grant of suspension is entirely discretionary . . . .” That analysis was considered by the congressional committees. See S. Rep. No. 1137, 82d Cong., 2d Sess., p. 3; H. R. Rep. No. 1365, 82d Cong., 2d Sess., p. 28.
As stated by Judge Learned Hand, “The power of the Attorney General to suspend deportation is a dispensing power, like a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict.” United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489, 491. See also S. Rep. No. 1137, 82d Cong., 2d Sess., p. 25, for an indication that suspension of deportation is a matter of grace to cover cases of unusual hardship. And see 81 Cong. Rec. 5546, 5553, 5554, 5561, 5569-5570, and 5572, where early proposed legislation for administrative suspension of deportation was variously described as a procedure for “clemency” and “amnesty,” and was compared with presidential discretion. And see S. Rep. No. 1515, 81st Cong., 2d Sess., p. 600, emphasizing that suspension of deportation is an entirely discretionary action which does not follow automatically from compliance with the formal eligibility requirements.
“. . . if in the opinion of the Board [of Parole] such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.” (Emphasis supplied.) 18 IT. S. C. §4203. See United States v. Anderson, 76 F. 2d 375, 376; Losieau v. Hunter, 90 U. S. App. D. C. 85, 193 F. 2d 41.
A sentencing court “may suspend . . . sentence and place the defendant on probation” if it is “satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby.” 18 U. S. C. § 3651.
“The probation service of the court shall make a presentenee investigation and report to the court before the imposition of sentence or the granting of probation . . . .” Rule 32(c)(1), Fed. Rules Crim. Proc. “The report of the presentenee investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the Court.” Rule 32 (c)(2), Fed. Rules Crim. Proc. “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.” Rule 32 (a), Fed. Rules Crim. Proc.
Cf. Williams v. New York, 337 U. S. 241, where this Court held that there is no constitutional bar to setting a state criminal sentence on the basis of “out-of-court information.”
“If it appears to the Board of Parole from a report by the 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.” 18 U. S. C. § 4203 (a).
Note also that only certain prisoners are eligible for this discretionary relief. 18 U. S. C. § 4202.
See Knauff v. Shaughnessy, 338 U. S. 537, and Shaughnessy v. Mezei, 345 U. S. 206, upholding a regulation of the Attorney General to a similar effect which had been promulgated prior to the existence of § 235 (c) or any other such specific statutory authority.
It is not claimed that a contrary construction would render the statute and regulation unconstitutional, or even that a substantial constitutional question would thereby arise. The thrust of the argument is rather that the statute should be construed liberally in favor of the alien as a matter of statutory interpretation. In any event, in this case we have not violated our normal rule of statutory interpretation that, where possible, constructions giving rise to doubtful constitutional validity should be avoided. That rule does not authorize a departure from clear meaning. E. g., United States v. Sullivan, 332 U. S. 689, 693; Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U. S. 315, 334-335. Moreover, the constitutionality of § 244 as herein interpreted gives us no difficulty. Cf. Williams v. New York, 337 U. S. 241.
Petitioner presents the claim that the decision of the special inquiry officer was void in that the “so-called confidential matter . . . was of such a character that its consideration was not authorized by applicable regulations established by the Attorney General.” See note 6, supra. To the extent that this is an allegation that the undisclosed information, if revealed, would not have been prejudicial to the public interest, petitioner is arguing that the decision violated 8 CFR, Rev. 1952, § 244.3. The Board of Immigration Appeals, the District Court, and the Court of Appeals concluded, in effect, that the special inquiry officer found that the disclosure of the information would have been contrary to public interest, safety or security. We accept that finding. Nothing more is required by the regulation.
The substance of this regulation is now incorporated in § 235 (c) of the Act, 8 U. S. C. § 1225 (c). See pp. 356-357, supra.
See note 18, supra.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
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sc_petitioner
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055
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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.
GREENE v. GEORGIA
No. 96-5369.
Decided December 16, 1996
Per Curiam.
Petitioner was convicted of murder, armed robbery, and aggravated assault by a jury in Taylor County, Georgia, and sentenced to death. At trial, over petitioner’s objection, the court excused for cause five jurors who expressed reservations about the death penalty. The Supreme Court of Georgia affirmed, citing Wainwright v. Witt, 469 U. S. 412 (1985), as “controlling authority” for a rule that appellate courts must defer to trial courts’ findings concerning juror bias. 266 Ga. 439, 440-442, 469 S. E. 2d 129, 134-135 (1996).
Wainwright v. Witt, supra, delineated the standard under the Sixth and Fourteenth Amendments for determining when a juror may be excused for cause because of his views on the death penalty: whether these views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Id., at 424. Addressing petitioner’s federal constitutional chai-lenge to the juror disqualifications in this case, the Supreme Court of Georgia correctly recognized that Witt is “the controlling authority as to the death-penalty qualification of prospective jurors . . . .” 266 Ga., at 440, 469 S. E. 2d, at 134.
spective . . . Witt also held that, under 28 U. S. C. § 34. courts must accord a presumption of correctness to state courts’ findings of juror bias. 469 U. S., at 426-430. The Supreme Court of Georgia said that Witt was also “controlling authority” on this point, and it therefore ruled that “[t]he conclusion that a prospective juror is disqualified for bias is one that is based upon findings of demeanor and credibility which are peculiarly within the trial court’s province and such findings are to be given deference by appellate courts. Wainwright v. Witt, [469 U. S.,] at 428.” 266 Ga., at 441, 469 S. E. 2d, at 134-135.
at 441, Witt is not “controlling authority” as to -135. review to be applied by state appellate courts reviewing trial courts’ rulings on jury selection. Witt was a case arising on federal habeas, where deference to state-court findings is mandated by 28 U. S. C. § 2254(d). But this statute does not govern the standard of review of trial court findings by the Supreme Court of Georgia. There is no indication in that court’s opinion that it viewed Witt as merely persuasive authority, or that the court intended to borrow or adopt the Witt standard of review for its own purposes. It believed itself bound by Witt’s standard of review of trial court findings on jury-selection questions, and in so doing it mistaken.
In a similar case involving a state court’s that the First Amendment required it to reach a particular result, we said: “We conclude that although the State of Ohio may as a matter of its own law privilege the press in the circumstances of this case, the First and Fourteenth Amendments do not require it to do so.” Zacchini v. Scripps- Howard Broadcasting Co., 433 U. S. 562, 578-579 (1977). Here, too, the Supreme Court of Georgia is free to adopt the rule laid down in Witt for review of trial court findings in jury-selection cases, but it need not do so. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are therefore granted, the judgment of the Supreme Court of Georgia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
We express no opinion as to the correctness of the Supreme Court of Georgia’s application of the Witt standard in this case.
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_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.
John C. WEBB and Helen H. Webb, Appellants, v. UNITED STATES of America, Appellee.
No. 7999.
United States Court of Appeals Fourth Circuit.
Argued Jan. 13, 1960.
Decided Jan. 18, 1960.
John C. Webb, pro se.
Hugh Nugent, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., on brief), for appellee.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
Affirmed upon the opinion of the District Court, United States v. 72.71 Acres of Land, etc., 23 F.R.D. 635.
Affirmed.
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_respond1_7_5
|
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 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).
FORSYTH FURNITURE LINES, Inc., v. DRUCKMAN.
(Circuit Court of Appeals, Fourth Circuit.
October 20, 1925.)
No. 2360.
Sales <@=>150(3) — Contract of sale not breached by premature shipment.
Contract for sale of furniture, providing for shipments at rate of one car a week, held not breached by shipment o£ carload a week ahead of time, where consequences of such premature shipment 'were separable and independent of principal provisions and purposes of contract, • and entailed on buyer nothing more than a trifling loss, which was capable of exact determination in money.
In Error to the District Court of the United States for the Western District of North Carolina, at Greensboro; Edwin. Y. Webb, Judge.
Action by the Forsyth Furniture Lines, Inc., against A. M. Druekman. Judgment for defendant, and plaintiff brings error.
Reversed and remanded.
Louis M. Swink, of Winston-Salem, N. C. (Swink, Clement & Hutchins, of Winston-Salem, N. C., on the brief), for plaintiff in error.
W. M. Hendren, of Winston-Salem, N. C., and Wm. P. Bynum, of Greensboro, N. C. (Bynum, Hobgood & Alderman, of Greensboro, N. C., and Manly, Hendren & Womble, of Winston-Salem, N. C., on the brief), for defendant in error.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
ROSE, Circuit Judge.
The Forsyth Furniture Lines, Inc., the plaintiff in error here, was plaintiff below. It sued the defendant in error, A. M; Druekman, a citizen of New York, to recover something over $40,000, the loss it said it sustained in consequence of defendant’s refusal to take and pay for a large lot of furniture which it had bought from it. The parties will be referred to as the buyer and the seller, respectively.
The seller is a manufacturar of furniture at Winston-Salem, N. C.; the buyer, a jobber of furniture in New York. Early in September, 1920, the seller had on hand a large quantity of a particular design of dining room furniture which it called No. 50, Queen Anne’s style. It wished to close out the entire lot and to discontinue its further manufacture. On or about September 6th, the buyer chanced to be in Winston-Salem. While there, he inspected the furniture in question, and on the succeeding Saturday, the 11th of the month, at his office in Now York, in an interview with the" president of the seller, entered into a written agreement to buy the specifically enumerated items, making up the entire lot, at prices which in the aggregate figured out a net total of some $108,000. The furniture was to be shipped at the rate of one ear per week, to c/o Baltimore & Ohio, Twenty-Sixth Street Stores, New York City. Payments were to be made on the 10Hi of the month following shipments. At the same time the buyer gave the seller two shipping orders, each for a lot of the furniture which would, as the testimony showed, have made a load for a, furniture car 50 feet long. One of these orders was to be shipped “at ones” and the other one week after the first. The seller shipped the first order the 22d of September, tli'e second on the 27th, and followed with the third on the 29th. Upon learning of the third shipment within a week after the first had been made, the buyer took the position that the seller had broken the contract, and that he was released from any obligation under it. He refused to accept and pay for any of the three shipments, directed the seller to make no further deliveries, and notified it that the ■contract was at an end. The learned court below being of opinion that the position taken by the buyer was within his legal rights instructed the jury to return a verdict for him.
The sole question now presented is whether the action of the seller in shipping the three cars when and as it did, relieved the buyer from all obligation under the contract. Wo speak of the shipping of three cars. It is true that the part .of the furniture sent actually went forward in five. The seller offered evidence that in the trade a ear meant a 50-foot furniture car that it had on the occasion of each shipment ordered from the carrier such a ear, but, the railroad not having one of them, sent in its place two smaller cars into which the seller loaded the same quantity of furniture as would have gone into one 50-foot car. It was open to the buyer to contradict this testimony and thereby to raise an issue of fact for the jury for whatever, if anything, it was legally worth. The controversy on this subject has no bearing on the propriety of instructing a verdict.
The seller says that the first order given on September 11th required a shipment “at once.” Literally construed, it says that might mean that the goods should be put on the car on Monday the 13th, or within two or three days of that date. If the agreement did call for shipment at any time before the 17th and shipments were to be at the rate of one car per week, the seller had the right to expect that three cars would be shipped in September. After the contract was signed, the furniture had to be taken out of the storage portion of the seller’s warehouse, each article rubbed down, and all of it crated. Moreover, cars for shipment had to be obtained from the railroad. All this took some time. The buyer does not claim that a shipment on September 22d was not “at once” within the meaning of those words as the parties used them. The buyer indeed insists that the first shipment was in time, and says that the second should not have gone forward before September 29th, instead of being made on September 27th as it was, and that there was no justification at all for making the third shipment on the 29 th. We may confine our consideration to the latter contention, for if the buyer was not relieved by the shipment of the third carload on September 29th, a week ahead of time according to his calculation, obviously, he was not by the second shipment which was made only two days at the most before it should have been.
The buyer, in support of his contention that the premature shipment relieved him from all obligation, cites among other cases National Bank of Commerce v. Lamborn (C. C. A.) 2 F.(2d) 23, 36 A. L. R. 509; Bowles v. Shand, 2 App. Cases 455; Filley v. Pope, 115 U. S. 213, 6 S. Ct. 19, 29 L. Ed. 372. In them the question upon which the court was called to pass was not quite the same as that which is here presented. In none of them, to use the language of Norrington v. Wright, 115 U. S. 188-204, 6 S. Ct. 12, 29 L. Ed. 366, still more confidently relied on by the buyer, was there a contract for the sale of a specific lot of goods identified by independent circumstances, such as all those deposited in a particular warehouse as the buyer in the ease at bar testified was here the fact so far as concerns all of the No. 50 Queen Anne’s style belonging to tbe seller. In National Bank of Commerce v. Lamborn, in Bowles v. Shand, and in Filley v. Pope, the buyer had agreed to buy goods of a particular description; a material part of such description being the termini of the intended voyage upon which the goods were to be carried or the date upon or the port from which they were to be shipped. In every one of them the goods tendered to the buyer did not correspond in one or the other of the respeets mentioned to the things which he had bought. Whether they might not have served his purpose quite as well was something into which the court had no warrant to inquire. They certainly would not have been covered by any insurance he might have put upon them, or upon the profits to be realized by him from whatever interest he had in them.
In the instant case, the parties differ as to whether the contract of sale was an executed or executory one. The buyer says that the title to the furniture did not pass to him at the time the bargain was made because the seller had still to rub down the goods in order to put them in shape for delivery. We shall not go into the vast and somewhat artificial learning as to when title passes under similar circumstances. Whether in the instant ease it did or did not, the goods to which the contract pertained were certain described and identified existing articles of furniture. They were not some thousands of bags of Java white sugar, or of Madras rice, or some hundreds of tons of No. 1 Shotts pig iron, which may ór may not have been in existence at the time the agreement concerning them was made, or if in being, may or may not then have belonged to the seller. The contract for them could have «been filled by any white Java sugar, Madras rice, or No. 1 Shotts pig iron, provided such sugar, rice* or pig iron as the case might be was shipped from and to the port designated in the contract and at the time specified therein.
Nor,’ so far as it appears upon this record, does this ease resemble Barton v. Kane, 17 Wis. 37, 84 Am. Dec. 728, cited by the buyer, in which the seller knowingly sent more goods than had been ordered, an action which the Wisconsin court thought savored of bad faith. Certainly, no such intentional disregard of the terms of the contract is here established as would justify the court in directing on that ground a verdict for the buyer. All the testimony suggests that the seller, in view of the abundant signs of an approaching collapse in the furniture market, was nervously anxious not to be held in default because the furniture was not shipped as fast as might be required by a literal interpretation of the contract. Nor was the seller the only one to misunderstand the terms of the agreement. The buyer himself overlooked the fact that he had given a written order for a second ear to be shipped a week after the first, and asserted that he was not bound to accept more than one car shipped in September. On the 29th of that month, on learning that a second car had gone forward, he notified the seller that he would not accept it unless the seller agreed that, so far as payment was concerned, it should be treated as an October and not as a September shipment. This demand the buyer explains was due to his having forgotten that he had signed an order for a second shipment to follow one week after the first. Instead of a falling, there might have been a rising, market, and the seller might have been the one who was seeking release from its obligation. To free it would require little if any greater strictness of construction of the terms of the contract than is now contended for by the buyer. The departure by the seller from the terms of the contract to the extent that they were departed from, not only entailed upon the buyer nothing more than at the most a trifling loss, but, what is much more important, the loss that was caused him is one which in dollars and cents is capable of exact determination. Assuming the buyer’s construction of the bargain to be correct, he could not be made to pay for the extra ear until November 10th, and he could not be required to begin paying storage thereon until the date at which that ear would have reached the Baltimore & Ohio storage warehouse, had it not been shipped until October 6th, which would have been two weeks after the first ear went forward or one week after the third ear actually moved. The consequences of the breach alleged against the seller are separable and independent of the principal provisions and purposes of the contract. They are all trifling in themselves. They are capable of certain' and definite ascertainment in money. The buyer is so situated that he has in his own hands the means of absolutely protecting himself against any loss or inconvenience resulting from the alleged departure from the terms of the contract. Under such a combination of circumstances he cannot be permitted to escape from his obligation merely because the other party, in consequence of a misunderstanding, committed what is possibly a trifling breach of one of the terms, when for it complete and accurately determined compensation can be made.
It follows that tlie learned court below erred in directing a verdict for the defendant, that its judgment must be reversed, and the case remanded for a new trial.
Reversed.
The late Judge WOODS agreed that the judgment in the above case should be reversed, but died before be passed upon the above opinion.
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:
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songer_procedur
|
D
|
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.
LIBERTY MUTUAL INSURANCE COMPANY, as partial assignee and subrogee of Alfonse Marchica, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 138, Docket 26462.
United States Court of Appeals Second Circuit.
Argued Jan. 5, 1961.
Decided May 11, 1961.
Lumbard, Chief Judge, dissented.
Thomas F. Keane, Brooklyn, N. Y. (Albert P. Thill, Brooklyn, N. Y., of counsel), for plaintiff-appellant.
George Cochran Doub, Asst. Atty. Gen., Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., Alan S. Rosen-thal, Herbert E. Morris, Attys., Dept, of Justice, Washington, D. C., for defendant-appellee.
Before LUMBARD, Chief Judge, and MAGRUDER and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.
Alfonse Marchica, a longshoreman employed by Monti Marine Corporation, was injured in the course of his employment on March 18, 1958 aboard defendant’s vessel “General Buckner.” On November 16, 1959 Marchica accepted compensation from plaintiff Liberty Mutual Insurance Company, his employer’s workmen’s compensation insurance carrier, under an award pursuant to Section 33 (33 U.S.C.A. § 933) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. On March 7,1960, less than four months after Marchica’s acceptance of the compensation award, but only eleven days prior to the expiration of a two-year time bar within which the United States could be sued for having caused Marchica’s injuries, plaintiff instituted an action against the defendant United States, al- leging that Marchica’s injuries were caused by defendant’s negligence and the unseaworthiness of its vessel. Upon defendant’s motion Judge Bartels of the United States District Court for the Eastern District of New York dismissed the action as prematurely brought. Plaintiff appeals. The sole question on appeal is whether under the provisions of 33 U.S.C.A. § 933 plaintiff was empowered to commence this action on March 7, 1960.
Section 933(h) provides that: “Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section.” Therefore, once appellant made compensation payments under the award to Marchica it was subrogated to the rights against third persons possessed by the employer it had contracted to cover.
Sections 933(a) and (b) provide:
Ҥ 933. Compensation for injuries where third persons are liable
“(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.
“(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” ' (Emphasis supplied.)
In his opinion below in this case, Liberty Mutual Ins. Co. v. United States, D.C.E.D.N.Y.1960, 183 F.Supp. 944, Judge Bartels construed the emphasized language to mean that the injured employee had an exclusive right to sue during the six months subsequent to a compensation award, and the statutory assignment of the employee’s cause of action gave the employer no right to sue until the termination of this six month period. We are in accord with this interpretation. It is supported by the legislative history of the section as that history is set out and discussed by the lower court at 183 F.Supp. 945-946. We hold that during the six months’ period within which the employee retains the cause of action neither the employer nor its subrogated compensation carrier may initiate an action against an alleged third party tort-feasor, but of course can obtain reimbursement for compensation payments out of any sum the employee may recover in a suit initiated by him during that time. International Terminal Operating Co. v. Waterman Steamship Co., 2 Cir., 1959, 272 F.2d 15, certiorari denied 1960, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739.
Appellant complains that this interpretation of the statutory language is unrealistic for if, as here, an injured employee does not choose to bring suit against the third party and does not accept a compensation award until within six months of the time-bar expiration date, the employer and its insurance carrier are forever prevented from obtaining any reimbursement from the tortfeasor. We recognize this to be so, but the unfortunate position in which plaintiff finds itself to be is not a unique one. See, e. g., Hartford Accident & Indemnity Co. v. Eastern Air Lines, D.C.S.D.N.Y.1957, 155 F.Supp. 263; Hartford Accident & Indemnity Co. v. United States, D.C.S.D.N.Y.1955, 130 F.Supp. 839. If relief from operation of the statute is indicated it must be sought from the Congress and not from the courts.
Affirmed.
. 40 U.S.C.A. § 745 and 28 U.S.C. § 2401 (b).'
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_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.
UNITED STATES of America, Appellant, v. SURFACE COMBUSTION CORPORATION, Appellee.
No. 12162.
United States Court of Appeals Sixth Circuit.
Feb. 9, 1955.
H. Brian Holland, Andrew D. Sharpe, Ruppert Bingham, Ellis N. Slack, I. Henry Kutz) Washington, D. C., Sumner Canary, Cleveland, Ohio, and Clarence M. Condon, Toledo, Ohio, for appellant.
G. C. Scharfy, of Shumaker, Loop & Kendrick, Toledo, Ohio, for appellee.
Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.
PER CURIAM.
The sole question in this case is whether the United States is entitled, to retain interest collected upon an excess profits tax deficiency where such deficiency was later extinguished under § 722 of the Internal Revenue Code, 26 U.S.C.A. § 722, and the tax upon which such interest was collected was refunded to the taxpayer. The district court held that the taxpayer was entitled to the return of the interest it had paid, and granted its motion for summary judgment.
We have withheld decision pending determination of the question by the Supreme • Court. In United States v. Koppers Co. and Premier Oil Refining Co. of Texas v. United States, 348 U.S. 254, 75 S.Ct. 268, the Supreme Court on January 31, 1955 decided .the precise question adversely to the taxpayer.
Upon the authority of those decisions, it is accordingly ordered that the judgment of the district court, be and it here-1 by is reversed, and the ease is remanded, to the district court for entry of final judgment in'- favor of appellant, the United States of America.
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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
CARLOS v. NEW YORK
No. 524.
Decided December 8, 1969
Herald Price Fahringer and Eugene Gressman for petitioner.
Per Curiam.
The petition for a writ of certiorari is granted and the judgment is reversed, Redrup v. New York, 386 U. S. 767.
The Chief Justice and Mr. Justice Harlan are of the opinion that certiorari should be denied. However, the case having been taken for review, they would affirm the judgment of the state court upon the premises stated in Mr. Justice Harlan’s separate opinion in Roth v. United States, 354 U. S. 476, 496 (1957), and in his dissenting opinion in Memoirs v. Massachusetts, 383 U. S. 413, 455 (1966).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
sc_casedisposition
|
B
|
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.
SEREBOFF et ux. v. MID ATLANTIC MEDICAL SERVICES, INC.
No. 05-260.
Argued March 28, 2006
Decided May 15, 2006
Peter K. Stris argued the cause for petitioners. With him on the briefs were Radha A. Pathak, John C. Stein, Shaun P. Martin, William Delgado, and Jason H. Wilson.
Gregory S. Coleman argued the cause for respondent. With him on the brief were Thomas F. Fitzgerald and William F. Hanrahan.
James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Clement, Deputy Solicitor General Kneedler, Howard M. Radzely, Nathaniel I. Spiller, and Edward D. Sieger.
Jeffrey Robert White and Kenneth M. Suggs filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for America’s Health Insurance Plans, Inc., et al. by Waldemar J. Pflepsen, Jr., Stephanie W. Kanwit, Stephen H. Goldberg, Jan S. Amundson, and Quentin Riegel; for the Blue Cross Blue Shield Association by Anthony F. Shelley, Alan I. Horowitz, and Laura G. Ferguson; for the Central States, Southeast and Southwest Areas Health and Welfare Fund by William J. Nellis, Thomas C. Nyhan, and James P. Condon; for the National Association of Subrogation Professionals by John D. Kolb, Damn P. Kiefer, and Thomas H. Lawrence III; for the National Coordinating Committee for Multiemployer Plans by Donald J. Capuano and R. Richard Hopp; for the Southwest Carpenters Health & Welfare Trust by Desmond C. Lee; for the Self-Insurance Institute of America, Inc., by John E. Barry, Thomas W. Brunner, Lawrence H. Mirel, Bryan B. Davenport, and George J. Pantos; and for the Society for Human Resource Management et al. by Térese M. Connerton, Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant.
Chief Justice Roberts
delivered the opinion of the Court.
In this case we consider again the circumstances in which a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) may sue a beneficiary for reimbursement of medical expenses paid by the ERISA plan, when the beneficiary has recovered for its injuries from a third party.
I
Marlene Sereboff’s employer sponsors a health insurance plan administered by respondent Mid Atlantic Medical Services, Inc., and covered by ERISA, 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (2000 ed. and Supp. III). Marlene Sereboff and her husband Joel are beneficiaries under the plan. The plan provides for payment of certain covered medical expenses and contains an “Acts of Third Parties” provision. This provision “applies when [a beneficiary is] sick or injured as a result of the act or omission of another person or party,” and requires a beneficiary who “receives benefits” under the plan for such injuries to “reimburse [Mid Atlantic]” for those benefits from “[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise).” App. to Pet. for Cert. 38a. The provision states that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees in writing to a reduction.” Ibid.
The Sereboffs were involved in an automobile accident in California and suffered injuries. Pursuant to the plan’s coverage provisions, the plan paid the couple’s medical expenses. The Sereboffs filed a tort action in state court against several third parties, seeking compensatory damages for injuries suffered as a result of the accident. Soon after the suit was commenced, Mid Atlantic sent the Sereboffs’ attorney a letter asserting a lien on the anticipated proceeds from the suit, for the medical expenses Mid Atlantic paid on the Sereboffs’ behalf. App. 87-90. On several occasions over the next two years, Mid Atlantic sent similar correspondence to the attorney and to the Sereboffs, repeating its claim to a lien on a portion of the Sereboffs’ recovery, and detailing the medical expenses as they accrued and were paid by the plan.
The Sereboffs’ tort suit eventually settled for $750,000. Neither the Sereboffs nor their attorney sent any money to Mid Atlantic in satisfaction of its claimed lien which, after Mid Atlantic completed its payments on the Sereboffs’ behalf, totaled $74,869.37.
Mid Atlantic filed suit in District Court under § 502(a)(3) of ERISA, 29 U. S. C. § 1132(a)(3), seeking to collect from the Sereboffs the medical expenses it had paid on their behalf. Since the Sereboffs’ attorney had already distributed the settlement proceeds to them, Mid Atlantic sought a temporary restraining order and preliminary injunction requiring the couple to retain and set aside at least $74,869.37 from the proceeds. The District Court approved a stipulation by the parties, under which the Sereboffs agreed to “preserve $74,869.37 of the settlement funds” in an investment account, “until the [District] Court rules on the merits of this case and all appeals, if any, are exhausted.” App. 69.
On the merits, the District Court found in Mid Atlantic’s favor and ordered the Sereboffs to pay Mid Atlantic the $74,869.37, plus interest, with a deduction for Mid Atlantic’s share of the attorney’s fees and court costs the Sereboffs had incurred in state court. See 303 F. Supp. 2d 691, 316 F. Supp. 2d 265 (Md. 2004). The Sereboffs appealed and the Fourth Circuit affirmed in relevant part. 407 F. 3d 212 (2005). The Fourth Circuit observed that the Courts of Appeals are divided on the question whether § 502(a)(3) authorizes recovery in these circumstances. See id., at 219-220, n. 7. We granted certiorari to resolve the disagreement. 546 U. S. 1030 (2005).
II
A
A fiduciary may bring a civil action under § 502(a)(3) of ERISA “(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U. S. C. § 1132(a)(3). There is no dispute that Mid Atlantic is a fiduciary under ERISA and that its suit in District Court was to “enforce . . . the terms of” the “Acts of Third Parties” provision in the Sereboffs’ plan. The only question is whether the relief Mid Atlantic requested from the District Court was “equitable” under § 502(a)(3)(B).
This is not the first time we have had occasion to clarify the scope of the remedial power conferred on district courts by § 502(a)(3)(B). In Mertens v. Hewitt Associates, 508 U. S. 248 (1993), we construed the provision to authorize only “those categories of relief that were typically available in equity,” and thus rejected a claim that we found sought “nothing other than compensatory damages.” Id., at 256, 255. We elaborated on this construction of § 502(a)(3)(B) in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), which involved facts similar to those in this case. Much like the “Acts of Third Parties” provision in the Sereboffs’ plan, the plan in Knudson reserved “ ‘a first lien upon any recovery, whether by settlement, judgment or otherwise,’ that the beneficiary receives from [a] third party.” Id., at 207. After Knudson was involved in a car accident, Great-West paid medical bills on her behalf and, when she recovered in tort from a third party for her injuries, Great-West sought to collect from her for the medical bills it had paid. Id., at 207-209.
In response to the argument that Great-West’s claim in Knudson was for “restitution” and thus equitable under § 502(a)(3)(B) and Mertens, we noted that “not all relief falling under the rubric of restitution [was] available in equity.” 534 U. S., at 212. To decide whether the restitutionary relief sought by Great-West was equitable or legal, we examined cases and secondary legal materials to determine if the relief would have been equitable “[i]n the days of the divided bench.” Ibid. We explained that one feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on “particular funds or property in the defendant’s possession.” Id., at 213. That requirement was not met in Knudson, because “the funds to which petitioners claim[ed] an entitlement” were not in Knudson’s possession, but had instead been placed in a “Special Needs Trust” under California law. Id., at 214, 207. The kind of relief Great-West sought, therefore, was “not equitable — the imposition of a constructive trust or equitable lien on particular property — but legal — the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson].” Id., at 214. We accordingly determined that the suit could not proceed under § 502(a)(3). Ibid.
That impediment to characterizing the relief in Knudson as equitable is not present here. As the Fourth Circuit explained below, in this case Mid Atlantic sought “specifically identifiable” funds that were “within the possession and control of the Sereboffs” — that portion of the tort settlement due Mid Atlantic under the terms of the ERISA plan, set aside and “preserved [in the Sereboffs’] investment accounts.” 407 F. 3d, at 218. Unlike Great-West, Mid Atlantic did not simply seek “to impose personal liability ... for a contractual obligation to pay money.” Knudson, 534 U. S., at 210. It alleged breach of contract and sought money, to be sure, but it sought its recovery through a constructive trust or equitable lien on a specifically identified fund, not from the Sereboffs’ assets generally, as would be the case with a contract action at law. ERISA provides for equitable remedies to enforce plan terms, so the fact that the action involves a breach of contract can hardly be enough to prove relief is not equitable; that would make § 502(a)(3)(B)(ii) an empty promise. This Court in Knudson did not reject Great-West’s suit out of hand because it alleged a breach of contract and sought money, but because Great-West did not seek to recover a particular fund from the defendant. Mid Atlantic does.
B
While Mid Atlantic’s case for characterizing its relief as equitable thus does not falter because of the nature of the recovery it seeks, Mid Atlantic must still establish that the basis for its claim is equitable. See id., at 213 (whether remedy “is legal or equitable depends on ‘the basis for [the plaintiff’s] claim’ and the nature of the underlying remedies sought”). Our ease law from the days of the divided bench confirms that Mid Atlantic’s claim is equitable. In Barnes v. Alexander, 232 U. S. 117 (1914), for instance, attorneys Street and Alexander performed work for Barnes, another attorney, who promised them “one-third of the contingent fee” he expected in the case. Id., at 119. In upholding their equitable claim to this portion of the fee, Justice Holmes recited “the familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. On the basis of this rule, he concluded that Barnes’ undertaking “create[d] a lien” upon the portion of the monetary recovery due Barnes from the client, ibid., which Street and Alexander could “follow . . . into the hands of . . . Barnes,” “as soon as [the fund] was identified,” id., at 123.
Much like Barnes’ promise to Street and Alexander,, the “Acts of Third Parties” provision in the Sereboffs’ plan specifically identified a particular fund, distinct from the Sereboffs’ general assets — “[a]ll recoveries from a third party (whether by lawsuit, settlement, or otherwise)” — and a particular share of that fund to which Mid Atlantic was entitled — “that portion of the total recovery which is due [Mid Atlantic] for benefits paid.” App. to Pet. for Cert. 38a. Like Street and Alexander in Barnes, therefore, Mid Atlantic could rely on a “familiar rul[e] of equity” to collect for the medical bills it had paid on the Sereboffs’ behalf. Barnes, supra, at 121. This rule allowed them to “follow” a portion of the recovery “into the [Sereboffs’] hands” “as soon as [the settlement fund] was identified,” and impose on that portion a constructive trust or equitable lien. 232 U. S., at 123.
The Sereboffs object that Mid Atlantic’s suit would not have satisfied the conditions for “equitable restitution” at common law, particularly the “strict tracing rules” that allegedly accompanied this form of relief. Reply Brief for Petitioners 8. When an equitable lien was imposed as restitutionary relief, it was often the case that an asset belonging to the plaintiff had been improperly acquired by the defendant and exchanged by him for other property. A central requirement of equitable relief in these circumstances, the Sereboffs argue, was the plaintiff’s ability to “‘trac[e]’ the asset into its products or substitutes,” or “trace his money or property to some particular funds or assets.” 1D. Dobbs, Law of Remedies §4.3(2), pp. 591, n. 10, 592 (2d ed. 1993).
But as the Sereboffs themselves recognize, an equitable lien sought as a matter of restitution, and an equitable lien “by agreement,” of the sort at issue in Barnes, were different species of relief. See Brief for Petitioners 24-25; Reply Brief for Petitioners 11; see also 1 Dobbs, supra, §4.3(3), at 601; 1 G. Palmer, Law of Restitution § 1.5, p. 20 (1978). Barnes confirms that no tracing requirement of the sort asserted by the Sereboffs applies to equitable liens by agreement or assignment: The plaintiffs in Barnes could not identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held, yet that did not preclude them from securing an equitable lien. To the extent Mid Atlantic’s action is proper under Barnes, therefore, its asserted inability to satisfy the. “strict tracing rules” for “equitable restitution” is of no consequence. Reply Brief for Petitioners 8.
The Sereboffs concede as much, stating that they “do not contend — and have never suggested — that any tracing was historically required when an equitable lien was imposed by agreement” Id., at 11. Their argument is that such tracing was required when an equitable lien was “predicated on a theory of equitable restitution.” Ibid. The Sereboffs appear to assume that Knudson endorsed application of all the restitutionary conditions — including restitutionary tracing rules — to every action for an equitable lien under § 502(a)(3). This assumption is inaccurate. Knudson simply described in general terms the conditions under which a fiduciary might recover when it was seeking equitable restitution under a provision like that at issue in this case. There was no need in Knudson to catalog all the circumstances in which equitable liens were available in equity; Great-West claimed a right to recover in restitution, and the Court concluded only that equitable restitution was unavailable because the funds sought were not in Knudson’s possession. 534 U. S., at 214.
The Sereboffs argue that, even under Barnes, equitable relief would not have been available to fiduciaries relying on plan provisions like the one at issue here, because when the beneficiary agrees to such a provision “no third-party recovery” exists which the beneficiary can “place . . . beyond his control and grant [the fiduciary] a complete and present right therein.” Brief for Petitioners 26, 25 (internal quotation marks omitted). It may be true that, in contract cases, equity originally required identification at the time the contract was made of the fund to which a lien specified in the contract attached. See, e. g., Trist v. Child, 21 Wall. 441, 447 (1875) (“[A] mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto”). But Barnes explicitly disapproved of this rule, observing that Trist addressed the issue only in dicta (since the contract containing the lien provision in Trist was illegal), and treating the “question as at large,” even in light of earlier opinions that had dealt with it head on. Barnes, supra, at 120 (citing Trist, supra; Christmas v. Russell, 14 Wall. 69 (1872); Wright v. Ellison, 1 Wall. 16 (1864)).
Apart from those cases, which Barnes discredited, the Sereboffs offer little to undermine the plain indication in Barnes that the fund over which a lien is asserted need not be in existence when the contract containing the lien provision is executed. See 4 S. Symons, Pomeroy’s Equity Jurisprudence § 1236, pp. 699-700 (5th ed. 1941) (“[A]n agreement to charge, or to assign . . . property not yet in existence,” although “creat[ing] no legal estate or interest in the things when they afterwards come into existence . . . does constitute an equitable lien upon the property” just as would “a lien upon specific things existing and owned by the contracting party at the date of the contract”); Peugh v. Porter, 112 U. S. 737, 742 (1885) (“[I]n contemplation of equity, [it] is not material” that the “very fund now in dispute” was “not... in existence” when an equitable lien over that fund was created). Indeed, the most they can muster in this regard are several state cases predating Barnes and a single decision that rests, contrary to the Sereboffs’ characterization, on the simple conclusion that a contractual provision purporting to secure an equitable lien did not properly do so. See Brief for Petitioners 26; Reply Brief for Petitioners 12; Taylor v. Wharton, 43 App. D. C. 104 (1915).
The Sereboffs finally fall back on the argument that Barnes announced a special rule for attorneys claiming an equitable lien over funds promised under a contingency fee arrangement. Outside of this context, they say, the “typical rules regarding equitable liens by assignment” persisted and would have prevented recovery here. Reply Brief for Petitioners 13.
But Barnes did not attach any particular significance to the identity of the parties seeking recovery. See 232 U. S., at 119. And as Barnes itself makes clear, other cases of this Court — not involving attorney’s contingency fees — apply the same “familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Id., at 121. In Walker v. Brown, 165 U. S. 654 (1897), for instance, the Court approved an equitable lien over municipal bonds transferred to a company to facilitate its business. When a supplier of the company suspended shipments because of delinquent debts, the individual who had transferred the bonds assured the supplier that “ ‘any indebtedness that they may be owing you at any time, shall be paid before the return to me of these bonds ... and that these bonds ... are at the risk of the business of [the company], so far as any claim you may have against [it].’” Id., at 663. The Court found that this undertaking created an equitable lien on the bonds, which the supplier could enforce against the individual after the bonds had been returned to him when the company became insolvent. Id., at 666. As in Barnes, the Court resolved the case by applying general equitable principles, stating that “[t]o dedicate property to a particular purpose, to provide that a specified creditor and that creditor alone shall be authorized to seek payment of his debt from the property or its value, is unmistakably to create an equitable lien.” 165 U. S., at 666.
C
Shifting gears, the Sereboffs contend that the lower courts erred in allowing enforcement of the “Acts of Third Parties” provision, without imposing various limitations that they say would apply to “truly equitable relief grounded in principles of subrogation.” Reply Brief for Petitioners 5. According to the Sereboffs, they would in an equitable subrogation action be able to assert certain equitable defenses, such as the defense that subrogation may be pursued only after a victim had been made whole for his injuries. Id., at 5-6. Such defenses should be available against Mid Atlantic’s action, the Sereboffs claim, despite the plan provision that “[Mid Atlantic’s] share of the recovery will not be reduced because [the beneficiary] has not received the full damages claimed, unless [Mid Atlantic] agrees , in writing to a reduction.” App. to Pet. for Cert. 38a.
But Mid Atlantic’s claim is not considered equitable because it is a subrogation claim. As explained, Mid Atlantic’s action to enforce the “Acts of Third Parties” provision qualifies as an equitable remedy because it is indistinguishable from an action to enforce an equitable lien established by agreement, of the sort epitomized by our decision in Barnes. See 4 Palmer, Law of Restitution §23.18(72), at 470 (A subrogation lien “is not an express lien based on agreement, but instead is an equitable lien impressed on moneys on the ground that they ought to go to the insurer”). Mid Atlantic need not characterize its claim as a freestanding action for equitable subrogation. Accordingly, the parcel of equitable defenses the Sereboffs claim accompany any such action are beside the point.
* * *
Under the teaching of Barnes and similar cases, Mid Atlantic’s action in the District Court properly- sought “equitable relief” under § 502(a)(3); the judgment of the Fourth Circuit is affirmed in relevant part.
It is so ordered.
Compare Administrative Comm. of Wal-Mart Assoc. Health & Welfare Plan v. Willard, 393 F. 3d 1119 (CA10 2004), Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F. 3d 348 (CA5 2003), and Administrative Comm. of Wal-Mart Stores, Inc. Assoc. Health & Welfare Plan v. Varco, 338 F. 3d 680 (CA7 2003), with Qualchoice, Inc. v. Rowland, 367 F. 3d 638 (CA6 2004), and Westaff (USA) Inc. v. Arce, 298 F. 3d 1164 (CA9 2002).
The Sereboffs argue that, even if the relief Mid Atlantic sought was “equitable” under § 502(a)(3), it was not “appropriate” under that provision in that it contravened principles like the make-whole doctrine. Neither the District Court nor the Court of Appeals considered the argument that Mid Atlantic’s claim was not “appropriate” apart from the contention that it was not “equitable,” and from our examination of the record it does not appear that the Sereboffs raised this distinct assertion below. We decline to consider it for the first time here. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).
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_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.
John A. CURTIS, Petitioner-Appellant, v. Raymond J. BUCHKOE, Warden, Respondent-Appellee.
No. 15662.
United States Court of Appeals Sixth Circuit.
Aug. 27, 1964.
Jacob K. Stein (court appointed), Cincinnati, Ohio, for appellant.
John A. Curtis, on brief, Marquette, Mich., in pro. per.
James R. Ramsey, Lansing, Mich., Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald T. Kane, Asst. Atty. Gen., Lansing, Mich., on brief, for appellee.
Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges.
ORDER AFFIRMING JUDGMENT OF THE DISTRICT COURT.
Appellant was convicted by a jury on J une 15, 1949, in the Recorder’s Court for the City of Detroit, of the offense of armed robbery, and is presently serving his sentence in a Michigan State Prison.
The petition for writ of habeas corpus was dismissed by the District Court for the Western District of Michigan, Northern Division, on the ground that appellant has not exhausted his remedies in the state courts of Michigan.
At the time of his conviction, appellant had a right under Michigan law to file a delayed application to appeal to the Supreme Court of Michigan without limitation of time. This right of delayed appeal to the Supreme Court of Michigan remains available to appellant at the present time under the new General Court Rule 806.4(2) of that Court. Hampton v. Buchkoe, 334 F.2d 6 (C.A. 6). Appellant therefore has available to him a remedy in the state courts, which he has not exhausted. 28 U.S.C. § 2254.
It is ordered that the decision of the District Court be and hereby is affirmed.
The Court expresses appreciation to Mr. Jacob K. Stein of the Cincinnati Bar who represented appellant ably as court-appointed counsel on the appeal in this case.
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_usc1sect
|
1007
|
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 most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
J. L. AUSTIN, Administrator, C.T.A., of the Estate of Henry Vann, individually and as Agent for George W. Gillette, Marguerite B. Gillette and husband, George W. Gillette, Eliza B. Williamson, Lillian M. Bellamy, and Mary B. Barroll, Appellees, v. Cooper JACKSON, T. Eugene Tart, and James E. Wright, as Review Committee of the United States Department of Agriculture for Sampson County, North Carolina, Appellants.
No. 9994.
United States Court of Appeals Fourth Circuit.
Argued Nov. 4, 1965.
Decided Dec. 6, 1965.
Florence Wagman Roisman, Atty., Dept, of Justice, (John W. Douglas, Asst. Atty. Gen., and Alan S. Rosenthal, Atty., Dept, of Justice, and Robert H. Cowen, U. S. Atty., on brief), for appellant.
John V. Hunter, III, Raleigh, N. C. (Terry Sanford, Raleigh, N. C., and J. E. Tucker, New Bern, N. C., and Sanford, Cannon & Hunter, Raleigh, N. C., and Ward & Tucker, New Bern, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
J. SPENCER BELL, Circuit Judge:
This case involves the cancellation of flue cured tobacco allotments placed on the farm now owned by the appellees by persons whose original tobacco land had been taken by eminent domain. Basically the facts are as follows. The Bellamy heirs owned farms with allotments to produce 13.8 acres of tobacco under the Agricultural Adjustment Act. 7 U.S.C. §§ 1281-1393. The lands were taken by eminent domain proceedings for the erection of the Kerr Dam. Payments for the land by the Federal Government did not include payment for the value of the tobacco allotments. Though as a general rule allotments run with the land and may not be transferred from one farm to another, an exception is made for allotments attached to land which is taken by eminent domain. 7 U.S.C. § 1313(h).
By deed dated March 1,1955, the heirs, through their agent Gillette, were conveyed the farm involved in this case from Henry Vann. The consideration for the transfer was a note for $35,000 made by the heirs to Vann. At the same time the heirs leased the land back to Vann for two years in return for Vann paying the taxes and insurance and completing three buildings which he had already started. On May 13, 1955, this deed was filed for recordation. Revenue stamps were never placed on the deed. On this same day tobacco allotments of the Bellamy heirs were transferred from the State Pool to the Vann farm. Prior to this date, on April 29,1955, Gillette, who was a retired army engineer, had indicated to Vann that due to the fact that business required him to go abroad the heirs, who had anticipated that he would manage the farm, were considering selling the property. Vann offered to pay $49,000 (to cancel the note for $35,000 and pay $14,-000 in cash) for the land and the allotments. At this time Vann gave Gillette checks for $14,000. Vann testified that Gillette was committed to refund the cash payment if the transaction was not completed. Nothing further was done until late 1956. By deed dated January 27, 1957, the Bellamy heirs conveyed the land back to Vann.
In 1958 the Sampson County Committee cancelled the division of Vann’s farm and redetermined the 1955, 1956, 1957 and 1958 acreage allotments on the ground that the Bellamy heirs had not been owners of the land to which the allotments were transferred. On appeal, the Review Committee, after a hearing, upheld the County Committee’s actions.
Pursuant to 7 U.S.C. § 1365, Vann sought review in the district court. The district court vacated the redetermination and remanded the case to the Review Committee holding that “the purported findings of facts made by the Review Committee are not sufficient in law to support the conclusions reached.” We concur in this finding and further find that the Review Committee failed in its duty to render a reasoned opinion. “Courts ought not to have to speculate as to the basis for an administrative agency’s conclusion.” Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 586 (1 Cir. 1964). Indeed to prevent this speculation the Administrative Procedure Act requires that “All decisions (including initial, recommended, or tentative decisions) shall become part of the record and include a statement of * * * findings and conclusions, as well as the reasons or basis therefor, upon all material issues of fact, law, or discretion presented on the record.” [Emphasis supplied.] 5 U.S.C.A. § 1007(b); see Burlington Truck Lines v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). This requirement is especially important where the administrative tribunal is lacking in legal expertise. The Committee, which adopted verbatim the department’s proposed findings and conclusions, was composed of three tobacco farmers. With regard to the more normal situation of an experienced body, the Supreme Court has stated:
“The administrative process will best be vindicated by clarity of its exercise. Since Congress has defined the authority of the Board and the procedure by which it must be asserted and has charged the federal courts with the duty of reviewing the Board’s orders * * *, it will avoid needless litigation and make for effective and expeditious enforcement of the Board’s order to require the Board to disclose the basis of its order. We do not intend to enter the province that belongs to the Board, nor do we do so. All we ask of the Board is to give clear indication that it had exercised its discretion with which Congress has empowered it.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271 (1941).
The Review Committee’s finding of facts recited the documentary facts which were not in dispute. It found dates of deeds and transactions. The first “conclusion” of the Review Committee, “that the actual transaction was the [a] sale * * * of 13.8 acres of flue cured tobacco allotment,” ought properly to have been included in the finding of facts.
The second conclusion is a true conclusion. “[T]hat the deed dated March 1, 1955 * * * did not constitute a purchase of the acreage * * * within the meaning of Section 725.620 of the Flue-cured Tobacco Marketing Quota Regulations for the year 1955-56 Marketing Year.” Putting aside the question of whether those regulations are applicable to this case we point out that the conclusion is supported by absolutely no reasoning. There is no indication of how this result was reached. It is unavailing that the department in the name of the Committee now brings forth reasons supporting the Review Committee’s determination. For it is “a simple but fundamental rule of administrative law. * * * that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). Without any reason given for the Review Committee’s conclusion that the initial purchase did not satisfy the statute this court has no choice but to remand. Even if proper reasons do exist from the facts to uphold the decision the court may not imply them. As in the case where administrative action cannot be upheld on the reasons the agency has assigned, the court will not state proper reasons and uphold but will remand the case to the agency. SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Davis, Administrative Law § 16.14.
As was found by the district court, the findings of fact are not sufficient to support the conclusion. The essential element in determining the case is the specific intent of the Bellamy heirs at the time of the initial purchase. Even reading the first conclusion as a finding of fact there is no finding as to the intent at the time of purchase. There is only finding as to the total transaction. The district court ought to remand the case to the Review Committee, instructing them to find the facts of the initial transaction. Of course subsequent happenings might bear on their determination of the initial facts. There are several possible findings. First, the parties may have intended to perpetrate a fraud with the sole purpose of unlawfully transferring tobacco allotments. Second, the parties may have in good faith believed that the creation of a paper title was enough to allow the transfer of the tobacco allotments. Third, the heirs may have intended to sell the land after purchasing and placing the allotments on it, but at the time of purchase had formed no intention as to whom or when they would sell it. And fourth, there may have been intent to farm the property but Gillette’s changed business requirements forced a change in plans necessitating resale of the farm. Until such findings are made as to the circumstances surrounding the initial purchase and these circumstances are related to the requirements of the statute the courts are not in a position to review the determination of the Review Committee. The focal point of the department’s interest is naturally in its over-all program of limiting the production of tobacco in order to maintain the price, but the individual owners have a property right which should not be expropriated without due process of law.
The decision of the district court is
Affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5? Answer with a number.
Answer:
|
songer_numresp
|
5
|
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.
GREENE et al. v. O’CONNOR et al.
No. 85.
Circuit Court of Appeals, Second Circuit.
Dec. 6, 1937.
Joseph R. Truesdale, of New York City (Murray C. Bernays, Abraham Friedman, and Raymond H. Berry, all of New York City, of counsel), for appellants.
Hays, Wolf, Kaufman & Schwabacher, of New York City (Wolfgang S. Schwabacher, Solomon I. Sklar, and Sydney C. Weinstein, all of New York City, of counsel), for appellees Rubenfeld and Sklar, executor.
Alexander D. Smith, of New York City (Maurice Smith, of New York City, of counsel), for appellee O’Connor.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a decree dismissing on the merits a bill in equity filed by the receivers of the Metropolitan Dairy Products, Inc., against five individuals and two corporations, to rescind a sale by that company to the defendants, Rubenfeld and Sobel — together with one, Leiter, not a party- — of all the shares of stock of two companies, the corporate defendants. (It will be convenient to disregard the plaintiffs, and to speak of the Metropolitan Dairy Products, Inc., as itself the plaintiff, and of the two defendant companies, whose shares were sold, as the Middletown Companies.) The equity of the bill is that Leiter and O’Con-nor, who were directors of the. plaintiff, disposed of the Middletown shares in dereliction of their fiduciary duty, and that Rubenfeld and Sobel, by confederating with them, rendered themselves equally liable to an accounting. The facts as found by the judge were as follows. For some time before 1927 Rubenfeld, Leiter and Sobel owned all the Middletown shares; somewhat later they took in one, Max, and in October, 1928, all but Leiter sold out their interests to Klein, Goodman and Abrams, both companies being then valued at $388,-000. In April, 1929, Klein, Goodman and Abrams in turn sold their shares to O’Con-nor at the same figure; whereupon he and Leiter, who had thus become the sole owners, organized the plaintiff, to which they assigned the Middletown shares in exchange for 100,000 of the plaintiff’s shares; O’Con-nor taking 63,750 and Leiter 36,250. Leiter became the president, and managed the business; O’Connor, a promoter, was vice-president. .In the following July the plaintiff, through O’Connor, bought the shares of another dairy, Tietjen & Steffen, valued at $167,670, which it paid for with 50,000 shares of its stock; in August it contracted to buy the assets of a retail dairy known as the Kent Model Dairy for $100,000. Through Leiter’s long experience in the business, he-had acquired a personal goodwill among the customers of the Middletown Companies, though it does not appear that this was while he was acting as their director or officer. Because of this good-will his possible competition was feared in case he left the companies, though he was proving unsatisfactory to O’Connor, who neither liked nor trusted him. By November the companies were short of funds, and Rubenfeld and Sobel wished to reacquire them; therefore, on November 21st with Leiter, whom they needed for the reason just given, they submitted an offer to the plaintiff — to be accepted by December 10th— to buy the Middletown shares for $343,000 (with certain adjustments not necessary to mention); $160,000 payable in cash, $80,-000 by a demand note, and the balance in time notes, running over about two and a half years. The ninth article of this offer made it a condition that “satisfactory arrangements” should be “made between Howard O’Connor and the said mentioned- Isador Leiter for the payment to the said Isador Leiter of his share or interest in Metropolitan Dairy Products, Inc. and the return to him simultaneously with the passing of title herein to the businesses mentioned of the said demand note for $80,000.” Although the offer lapsed on December 10th, apparently the negotiations were not dropped; for by December 18th one, Garey— O’Connor’s lawyer, who had been retained not long before — had agreed with Leiter upon $5.20 as the price for his remaining shares in the plaintiff, 27,500. O’Connor had been selling the shares at much higher figures ranging from $14 down to $6.25, and Garey had had difficulty in beating down the price, but after this figure had been agreed on, Leiter, Rubenfeld and Sobel made a new offer to the plaintiff, which came before a meeting of the board of directors on December 23d. They were to pay $200,000 in cash (subject to adjustments), and Leiter was to “donate” his shares in the plaintiff as an “inducement” to the bargain. Leiter was not present at the meeting and did not vote, and Garey testified that the directors were fully informed of the original offer, of the price at which Leiter’s shares were appraised, of the necessity of selling the properties because, the earnings had been decreasing, ■of the lack of confidence in the integrity .and ability of Leiter, and of the necessity of his continued connection with the Middletown Companies because of the danger to them from his competition. The directors, so informed, accepted the proposal, and .appointed a special committee to prepare the contract, which was completed by January ,2d. One, Weinberg — the lawyer for Rubenfeld, Sobel and Leiter — insisted that the ■shareholders should assent, and a meeting was called on January 14th for the 24th, •at which the minutes of the directors’ meeting of the 23d, the contract of January 2d and Leiter’s letter were read. The directors’ •minutes did not record the original offer of November 21st, and only stated that a cash price of $200,000 together with Leiter’s “donation” of his shares had been offered for the Middletown shares. The shareholders confirmed the contract by a large vote, and their action was later ratified on April 17th .at the annual shareholders’ meeting. On .these findings the judge held that all facts relevant to the transaction had been disclosed, and that the plaintiff had not been overreached.
The only debatable question of fact is as to the completeness of the disclosure at the directors’ meeting on December 23d, and as to how the parties had in fact understood the ninth article of the offer of November 21st. As to both the judge accepted the word of Garey, and although there was contrary testimony, we see no reason to disturb the finding. Indeed, it seems to us for the following reasons that the documentary evidence confirmed it. The plaintiff’s case presupposed that the original offer was better than the contract, and was for that reason suppressed; that •was its chief count against the transaction as a whole. .If it was not in fact better, the argument disappears, for there was no •reason to suppress what would have been harmless if disclosed. The first question is therefore what the ninth article really meant; The plaintiff says that O’Connor was not only to make “satisfactory arrangements * * * for the payment” of Leiter’s interest, but was to buy it himself; and that he would have had to pay $80,000 into the treasury in order to “return” the note. If so, the article was drawn very badly, for it was totally unnecessary to “return” the nóte; Leiter could have paid it — or, indeed, any of the other notes — as soon as he received the cash. The words do not naturally mean that O’Connor should take it up, and it is curious, if he was to do so, that his duty should have been so ill defined. True, it is difficult to see why the note should have been given if the plaintiff was to “return” it at once; but it is equally difficult to see why it should have been given, if O’Connor must pay it and “return” it. However, so far as the language was equivocal, the parties cleared it up in O’Connor’s letter of January 4, 1930. That was written, as it shows on its face, to allow the buyers to take $343,000 as their tax “basis,” if they sold the Middletown shares; it said that the “real deal” was for $343,000 in cash, and by “real deal” it of course meant not the original offer, but the actual sale. Confessedly upon the sale Leiter’s shares were accepted instead of cash, and the only possible conclusion is that the parties considered them cash. If they did so then, they presumably did so in the original offer, and the ninth article meant what Garey said everyone agreed that it meant. A reason why the contract of sale, unlike the offer, did not state the consideration as wholly cash is reasonably explained by the fact that in the plaintiff’s income tax return, Leiter’s shares were valued not at $5.20, but at about $3.19, that being their cost on the corporate books; and that in this way the whole transaction was made to show a loss, and was so accepted by the taxing officers. The formal change to a sale for $200,000, accompanied by a collateral promise by Leiter to “donate” his shares as an “inducement” from a sale for $343,-000, of which Leiter’s shares were to be taken at an agreed price, was of no moment whatever, once the share price was fixed at $5.20. From all this we conclude that the sale was in substance the same as the offer, that there was no motive to conceal it, and that the judge’s finding— which might indeed stand without it — was clearly right.
Yet although the original offer was disclosed, it does not follow that everything else was, or that the valuation of Leiter’s shares was justified. Their book value was not $143,000. The balance sheet of the plaintiff after the Middletown shares are deducted is in evidence; it shows assets of $558,000 and liabilities of $41,000, or a net value of $517,000, which gives to each of the 150,000 shares a book value of about $3.-25, and creates an excess allowance of nearly 54,000 for Leiter’s 27,500 shares. The defendants justify this by saying that the shares were worth more than their book value, that it was desirable to get rid of Leiter, and that the Middletown shares, owing to his power effectively to compete with the companies, had the agreed value only in case he went along with them. It is true that the shares had always sold for more than $3.25; indeed, even after the October slump one, Claggett, was still offering them for $14.50 a share, though it does not appear that he sold any. Moreover, in January, 1930, the market had somewhat recovered from its first sharp drop and it may be that $5.20 was still a possible price. But that aside, it was legitimate for the plaintiff to pay a substantial sum to get rid of Leiter, if it could not safely-discharge him; and in fact it could not safely discharge him. So far as concerned O’Con-nor, we cannot see any possible answer to this, nor can we say that the allowance— even assuming that the value of the plaintiff’s shares was no more than their book value — was unfair or beyond what directors might honestly fix. The situation might be different as to Leiter, who by hypothesis profited by his potential ability to compete with the Middletown Companies. It is true that he is not a party, but, as we have said, the bill charges that Rubenfeld and Sobel, who actually divided the profit with him, became confederates in this abuse of his position, and are charged with the same liability as he. That depends upon whether it is improper for a corporate officer to profit by a surrender of his power to make competitive use of a good-will which is his own property. It is of course true that a fiduciary may not compete with his beneficiary (Restatement of Trusts § 170 Comment a); but so far as we can find, that duty ends .with the relation, and we can see no reason why it should not, at least if the good-will was not acquired during, and by means of, his position, so as itself to be impressed with the trust. The only cases we have been able to find, accord with this view, and, indeed, do not even impose the suggested limitation. Bristol v. Scranton (C.C.) 57 F. 70, affirmed (C.C.A.3) 63 F. 218; Heinz v. National Bank of Commerce (C.C.A.8) 237 F. 942, 953; Stover v. Gamewell F. A. Tel. Co., 164 App.Div. 155, 149 N.Y.S. 650.
The plaintiff replies that while this may be true after the director resigns, he may not make use of his power as a threat before he does. There is not a scintilla of evidence that Leiter ever threatened to compete if he was not taken along by Rubenfeld and Sobel, but it would make no difference if he had. If he might lawfully -use his good-will competitively after he retired, he might lawfully bargain with the plaintiff about it before, provided all was open and at arm's length. It was like his other property, for, as we have already said, there is no evidence that he acquired it while acting as an officer of the Middletown Companies. Therefore, the case in this aspect depends upon whether the desirability of getting rid of Leiter, and his power to injure the Middletown Companies was fully disclosed at the meeting "of December 23d. Garey says it was, and in this he was not contradicted; clearly we should not disturb that finding.
We think, therefore, that the defendants satisfied the burden of proving that everything essential was disclosed to the directors, and that there was no overreaching. That ends the case, because the charter gave the directors power to' sell the shares without the assent of the shareholders. The plaintiff argues that nevertheless, if all was not disclosed to the shareholders at their meeting, the sale may be rescinded, because, although the directors might have acted alone, they did not choose to do so, and the condition which they imposed was hedged by the same limitations as their own action. There is, however, no evidence that the directors ever required the shareholders’ assent. The original offer had said that all formalities must be approved by Weinberg; and the contract, that all papers and “legal proceedings” should be approved by the respective counsel of both parties; but it was Weinberg, not the directors, who insisted upon the shareholders’ assent. He or his clients might forego that which he alone had demanded; as for the plaintiff, it was concluded by its directors, and could be held, if the buyers were content. We agree with Judge Woolsey that the whole case “is based principally on innuendo”; it has no solid support whatever.
Decree affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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sc_issuearea
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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 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.
SAENZ, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, et al. v. ROE et al., on behalf of themselves and all others similarly situated
No. 98-97.
Argued January 13, 1999
Decided May 17, 1999
Stevens, J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, G. J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 511. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 521.
Theodore Garelis, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, Charlton G. Holland III, Senior Assistant Attorney General, Frank S. Furtek, Supervising Deputy Attorney General, and Janie L. Daigle, Deputy Attorney General.
General Waxman argued the cause for the United States as amicus curiae in support of petitioners in part and respondents in part. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Edward C. DuMont, Mark B. Stem, Kathleen Moriarty Mueller, and Peter J. Smith.
cause respondents. With him on the brief were David S. Schwartz, Daniel P. Tokaji, Evan H. Caminker, Laurence H. Tribe, Martha F. Davis, Karl Manheim, Steven R. Shapiro, Alan L. Schlosser, Richard Rothschild, Clare Pastore, and Jordan C. Budd.
Briefs of amici curiae urging reversal were filed for the Commonwealth of Pennsylvania et al. by D. Michael Fisher, Attorney General, John G. Knorr III, Chief Deputy Attorney General, Betty D. Montgomery, Attorney General of Ohio, and Jeffrey S. Sutton, State Solicitor, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Robert A Butterworth of Florida, Thurbert E. Bhker of Georgia, Margery S. Bronster of Hawaii, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, and Christine 0. Gregoire of Washington; for the Institute for Justice by Douglas W. Kmiec, William H. Mellor, and Clint Bolick; for the National Governors’ Association et al. by Richard Ruda and James I. Crowley; for the Pacific Legal Foundation by Sharon L. Browne and Deborah J. La Fetra; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp.
Briefs of amici curiae urging by Paul M. Dodyk and Henry A Freedman; for the American Bar Association by Philip S. Anderson and Paul M. Smith; for the Brennan Center for Justice at New York University School of Law et al. by Burt Neubome and Deborah Goldberg; for Catholic Charities USA et al. by Louis R. Cohen; for the National Law Center on Homelessness and Poverty by Ann E. Bushmiller; for Sixty-six Organizations Serving Domestic Violence Survivors by Susan Frietsche; for Social Scientists by Lawrence S. Lust-berg; and for William Cohen et al. by Roderick M. Hills, Jr., and Charles S. Sims.
Justice Stevens
delivered the opinion of the Court.
In 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived residents. The scheme limits the amount payable to a family that has resided in the State for less than 12 months to the amount payable by the State of the family’s prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.
1 — 1
California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two — a mother and one child — is $456 a month, but in the neighboring State of Arizona, for example, it is only $275.
a relatively modest reduction in its vast welfare budget, the California Legislature enacted § 11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, § 11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.
On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in § 11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under § 11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the Ml California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the Ml California grant of $504 for a family of two.
The District Court a and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute “produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states.” Relying primarily on our decisions in Shapiro v. Thompson, 394 U. S. 618 (1969), and Zobel v. Williams, 457 U. S. 55 (1982), he concluded that the statute placed “a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents.” Green v. Anderson, 811 F. Supp. 516, 521 (ED Cal. 1993). In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily affirmed for the reasons stated by the District Judge. Green v. Anderson, 26 F. 3d 95 (CA9 1994).
petition for certiorari. 513 U. S. 922 (1994). We were, however, unable to reach the merits because the Secretary’s approval of § 11450.03 had been invalidated in a separate proceeding, and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed. Anderson v. Green, 513 U. S. 557 (1995) (per curiam). Accordingly, § 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), 110 Stat. 2105.
replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to “apply to a family the rules (including benefit amounts) of the [TANF] program ... of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months.” 110 Stat. 2124, 42 U. S. C. § 604(c) (1994 ed., Supp. II). With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement § 11450.03. The California Department of Social Services therefore issued an “All County Letter” announcing that the enforcement of § 11450.03 would commence on April 1,1997.
The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State “on January 29th, intending to reside in another state, and returned on April 15th,” their benefits are determined by the law of their State of residence from January 29 to April 15, assuming that that level was lower than California’s. Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family’s motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country.
II
On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green, but also challenging the constitutionality of PRWORA’s approval of the durational residency requirement. As in Green, the District Court issued a temporary restraining order and certified the case as a class action. The court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green.
He did, however, make certain parties’ factual contentions. He noted that the State did not challenge plaintiffs’ evidence indicating that, although California benefit levels were the sixth highest in the Nation in absolute terms, when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs’ contention that § 11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year.
The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs — an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately $2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute.
deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. Roe v. Anderson, 134 F. 3d 1400 (CA9 1998). It agreed with the District Court’s view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits, and that class members might suffer irreparable harm if §11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue, we granted certiorari because of the importance of the case. Anderson v. Roe, 524 U. S. 982 (1998). We now affirm.
I — ! HH
The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. United States v. Guest, 383 U. S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U. S. 618 (1969), the right is so important that it is “assert-able against private interference as well as governmental action ... a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion).
In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Id., at 629. We squarely held that it was “constitutionally impermissible” for a State to enact dura-tional residency requirements for the purpose of inhibiting the migration by needy persons into the State. We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” id., at 634, and that no such showing had been made.
case argues that §11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State’s legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a “specialized choice-of-law-type provision” that “should be subject to an intermediate level of constitutional review,” merely requiring that durational residency requirements be “substantially related to an important governmental objective.” The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.
IV
The “right to travel” discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California, 314 U. S. 160 (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest, 383 U. S. 745 (1966), which afforded protection to the “Tight to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.’ ” Id., at 757. Given that § 11450.03 imposed no obstacle to respondents’ entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of “free ingress and regress to and from” neighboring States, which was expressly mentioned in the text of the Articles of Confederation, may simply have been “conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” Id., at 758.
The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, §2, provides:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Thus, by virtue of a person’s state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the “Privileges and Immunities of Citizens in the several States” that he visits. This provision removes “from the citizens of each State the disabilities of alienage in the other States.” Paul v. Virginia, 8 Wall. 168, 180 (1869) (“[Wjithout some provision . . . removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Repub-lie would have constituted little more than a league of States; it would not have constituted the Union which now exists”)* It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U. S. 518 (1978), to procure medical services, Doe v. Bolton, 410 U. S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U. S. 385 (1948). Those protections are not “absolute,” but the Clause “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.” Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Zobel, 457 U. S., at 74 (O’Connor, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State.
What is at issue in this case, then, is this third aspect of the right to travel — the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...
Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bond fide residence therein, with the same rights as other citizens of that State.” Id., at 80. Justice Bradley, in dissent, used even stronger language to make the same point:
“The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens.” Id., at 112-113.
That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro, see supra, at 499, but it is surely no less strict.
Y
Because this case involves discrimination against citizens who have completed their interstate travel, the State’s argument that its welfare scheme affects the right to travel only “incidentally” is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See Dunn v. Blumstein, 405 U. S. 330, 339 (1972). But since the right to travel embraces the citizen’s right to. be treated equally in her new State of residence, the discriminatory classification is itself a penalty.
that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen’s length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a. college education, that will be enjoyed after they return to their original domicile. See, e. g., Sosna v. Iowa, 419 U. S. 393 (1975); Vlandis v. Kline, 412 U. S. 441 (1973).
The classifications challenged in this case — and there are many — are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California’s. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad subeategory of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify § 11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class.
These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small — surely not large enough to justify a burden on those who had no such motive. Second, California has represented to the Court that the legislation was not enacted for any such reason. Third, even if it were, as we squarely held in Shapiro v. Thompson, 394 U. S. 618 (1969), such a purpose would be unequivocally impermissible.
Disavowing any desire to nia has instead advanced an entirely fiscal justification for its multitiered scheme. The enforcement of § 11450.03 will save the State approximately $10.9 million a year. The question is not whether such saving is a legitimate purpose but whether the State may accomplish that end by the discriminatory means it has chosen. An evenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would produce the same result. But our negative answer to the question does not rest on the weakness of the State's purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: “That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.” Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. Thus § 11450.03 is doubly vulnerable: Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds to be distributed among its needy citizens. As in Shapiro, we reject any contributory rationale for the denial of benefits to new residents:
“But we need not rest on the particular facts of these cases. Appellants’ reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens.” 394 U. S., at 632-633.
See also Zobel, 457 U. S., at 64. In short, the State’s legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.
<
The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of § 11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.
Article I of the Constitution grants Congress power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers’ affirmative delegation, but also by the principle “that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination.” Williams v. Rhodes, 893 U. S. 23, 29 (1968) (footnote omitted). Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.
“Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and ‘to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion....’ Ex parte Virginia, 100 U. S. 339,346 (1880). Congress’ power under § 5, however, ‘is limited to adopting measures to enforce the guarantees of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.’ Katzenback v. Morgan, 384 U. S. 641, 651, n. 10 (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e. g., Califano v. Goldfarb, 430 U. S. 199, 210 (1977); Williams v. Rhodes, 393 U. S. 23, 29 (1968).” Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 732-733 (1982).
The Solicitor General does not unequivocally defend the constitutionality of § 11450.03. But he has argued that two features of PRWORA may provide a sufficient justification for state durational requirements to warrant further inquiry before finally passing on the section’s validity, or perhaps that it is only invalid insofar as it applies to new arrivals who were not on welfare before they arrived in California.
He first points out that because the TANF program gives the States broader discretion than did AFDC, there will be significant differences among the States which may provide new incentives for welfare recipients to change their residences. He does not, however, persuade us that the disparities under the new program will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California’s monthly benefit of $673 for a family of four with Mississippi’s benefit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a more permissible justification for classifying California citizens than a policy of imposing special burdens on new arrivals to deter them from moving into the State. Nor is the discriminatory impact of §11450.03 abated by repeatedly characterizing it as “a sort of specialized choice-of-law rule.” California law alone discriminates among its own citizens on the basis of their prior residence.
The Solicitor General also suggests that we should recognize the congressional concern addressed in the legislative history of PRWORA that the “States might engage in a 'race to the bottom’ in setting the benefit levels in their TANF programs.” Again, it is difficult to see why that concern should be any greater under TANF than under AFDC. The evidence reviewed by the District Court indicates that the savings resulting from the discriminatory policy, if spread equitably throughout the entire program, would have only a miniscule impact on benefit levels. Indeed, as one of the legislators apparently interpreted this concern, it would logically prompt the States to reduce benefit levels sufficiently “to encourage emigration of benefit recipients.” But speculation about such an unlikely eventuality provides no basis for upholding § 11450.03.
Finally, the Solicitor General suggests discrimination might be acceptable if California had limited the disfavored subcategories of new citizens to those who had received aid in their prior State of residence at any time within the year before their arrival in California. The suggestion is ironic for at least three reasons: It would impose the most severe burdens on the neediest members of the disfavored classes; it would significantly reduce the savings that the State would obtain, thus making the State’s claimed justification even less tenable; and, it would confine the effect of the statute to what the Solicitor General correctly characterizes as “the invidious purpose of discouraging poor people generally from settling in the State.”
* * *
Citizens of the United States, whether rich or poor, have the right to choose to be citizens “of the State wherein they reside.” U. S. Const., Arndt. 14, § 1. The States, however, do not have any right to select their citizens. The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, “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.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
California Welf. & Inst. Code Ann. §11450.03 (West Supp. 1999) provides:
“(a) Notwithstanding the máximum aid payments specified in paragraph (1) of subdivision (a) of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph (1) of subdivision (a) of Section 11450, not to exceed the maximum aid payment that would have been received by that family from the state of prior residence.
shall not become operative until the date of approval by the United States Secretary of Health and Human Services necessary to implement the provisions of this section so as to ensure the continued compliance of the state plan for the following:
Security Act (Subchapter 4 (commencing with Section 601) of Chapter 7 of Title 42
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:
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sc_declarationuncon
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
BOLGER et al. v. YOUNGS DRUG PRODUCTS CORP.
No. 81-1590.
Argued January 12, 1983 —
Decided June 24, 1983
David A. Strauss argued the cause for appellants. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Getter.
Jerold S. Solovy argued the cause for appellee. With him on the brief were Robert L. Graham and Laura A. Raster
Robert D. Joffe, Eve W. Paul, and Dara Klassel filed a brief for the Planned Parenthood Federation of America, Inc., et al. as amici curiae urging affirmance.
Michael L. Burack, Charles S. Sims, and Janet Benshoof filed a brief for the American Civil Liberties Union as amicus curiae.
Justice Marshall
delivered the opinion of the Court. Title 39 U. S. C. § 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee’s mailings, the statute violates the First Amendment. We affirm.
Section 3001(e)(2) states that “[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs . . . ,” As interpreted by Postal Service regulations, the statutory provision does not apply to unsolicited advertisements in which the mailer has no commercial interest. In addition to the civil consequences of a violation of § 3001(e)(2), 18 U. S. C. §1461 makes it a crime knowingly to use the mails for anything declared by § 3001(e) to be nonmailable.
Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs’ decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:
—multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics;
—flyers exclusively or substantially devoted to promoting prophylactics;
—informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs’ products in particular.
In 1979 the Postal Service traced to a wholesaler of Youngs’ products an allegation of an unsolicited mailing of contraceptive advertisements. The Service warned the wholesaler that the mailing violated 39 U. S. C. § 3001(e)(2). Subsequently, Youngs contacted the Service and furnished it with copies of Youngs’ three types of proposed mailings, stating its view that the statute could not constitutionally restrict the mailings. The Service rejected Youngs’ legal argument and notified the company that the proposed mailings would violate § 3001(e)(2). Youngs then brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailings, violated the First Amendment and that Youngs and its wholesaler were refraining from distributing the advertisements because of the Service’s warning.
The District Court determined that § 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and it therefore held that the statute’s absolute ban on the three types of mailings violated the First Amendment. 526 F. Supp. 823 (1981).
Appellants brought this direct appeal pursuant to 28 U. S. C. § 1252, see United States v. Darusmont, 449 U. S. 292, 293 (1981), and we noted probable jurisdiction, 456 U. S. 970 (1982).
II
Beginning with Bigelow v. Virginia, 421 U. S. 809 (1975), this Court extended the protection of the First Amendment to commercial speech. Nonetheless, our decisions have recognized “the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978). Thus, we have held that the Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 562-563 (1980); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772, n. 24 (1976).
For example, as a general matter, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Department of Chicago v. Mosley, 408 U. S. 92, 95 (1972). With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances. See Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530, 538-539 (1980); Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R. M. 455 U. S. 191, 200 (1982), content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, 440 U. S. 1 (1979) (upholding prohibition on use of trade names by optometrists).
Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech, we must first determine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute “fully protected” speech, so that § 3001(e)(2) amounts to an impermissible content-based restriction on such expression. Appellants argue, and the District Court held, that the proposed mailings are all commercial speech. The application of § 3001(e)(2) to appellee’s proposed mailings must be examined carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.
Most of appellee’s mailings fall within the core notion of commercial speech — “speech which does ‘no more than propose a commercial transaction.’ ” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 762, quoting Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376, 385 (1973). Youngs’ informational pamphlets, however, cannot be characterized merely as proposals to engage in commercial transactions. Their proper classification as commercial or noncommercial speech thus presents a closer question. The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 265-266 (1964). Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp. 11, 24 (CD Cal. 1973). Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be' insufficient by itself to turn the materials into commercial speech. See Bigelow v. Virginia, 421 U. S., at 818; Ginzburg v. United States, 383 U. S. 463, 474 (1966); Thornhill v. Alabama, 310 U. S. 88 (1940).
The combination of all these characteristics, however, provides strong support for the District Court’s conclusion that the informational pamphlets are properly characterized as commercial speech. The mailings constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as venereal disease and family planning. We have made clear that advertising which “links a product to a current public debate” is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. Cf. Metromedia, Inc. v. San Diego, 453 U. S. 490, 540 (1981) (Brennan, J., concurring in judgment).
We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech.
p-H I — I I — I
The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S., at 563. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, “it at least must concern lawful activity and not be misleading.” Id., at 566. Second, we ask whether the governmental interest is substantial. If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. Ibid. Applying this analysis, we conclude that § 3001(e)(2) is unconstitutional as applied to appellee’s mailings.
We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S., at 388. In this case, however, appellants have never claimed that Youngs’ proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates “‘substantial individual and societal interests’” in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, 431 U. S. 678, 700-701 (1977), quoting Virginia Pharmacy Board, supra, at 760, 763-766. Youngs’ proposed commercial speech is therefore clearly protected by the First Amendment. Indeed, where — as in this case — a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount. See Carey v. Population Services International, supra; Bigelow v. Virginia, supra.
We must next determine whether the Government’s interest in prohibiting the mailing of unsolicited contraceptive advertisements is a substantial one. The prohibition in § 3001(e)(2) originated in 1873 as part of the Comstock Act, a criminal statute designed “for the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use.” Act of Mar. 3, 1873, ch. 258, §2, 17 Stat. 599. Appellants do not purport to rely on justifications for the statute offered during the 19th century. Instead, they advance interests that concededly were not asserted when the prohibition was enacted into law. This reliance is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve. See Ohralik v. Ohio State Bar Assn., 436 U. S., at 460. Cf. Doe v. Bolton, 410 U. S. 179, 190-191 (1973) (a State may readjust its views and emphases in light of modern knowledge).
In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents’ efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control. The first of these interests carries little weight. In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was “classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.” 431 U. S., at 701. We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech. Id., at 701, n. 28.
Recognizing that their reliance on this interest is “problematic,” appellants attempt to avoid the clear import of Carey by emphasizing that § 3001(e)(2) is aimed at the mailing of materials to the home. We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. See Rowan v. Post Office Department, 397 U. S. 728, 737 (1970) (upholding the constitutionality of 39 U. S. C. §3008). But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment “does not permit the government to prohibit speech as intrusive unless the ‘captive’ audience cannot avoid objectionable speech.” Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S., at 542. Recipients of objectionable mailings, however, may “‘effectively avoid further bombardment of their sensibilities simply by averting their eyes.’” Ibid., quoting Cohen v. California, 403 U. S. 15, 21 (1971). Consequently, the “short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned.” Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (SDNY), summarily aff’d, 386 F. 2d 449 (CA2 1967), cert. denied, 391 U. S. 915 (1968).
The second interest asserted by appellants — aiding parents’ efforts to discuss birth control with their children— is undoubtedly substantial. “[PJarents have an important ‘guiding role’ to play in the upbringing of their children . . . which presumptively includes counseling them on important decisions.” H. L. v. Matheson, 450 U. S. 398, 410 (1981), quoting Bellotti v. Baird, 443 U. S. 622, 637 (1979). As a means of effectuating this interest, however, § 3001(e)(2) fails to withstand scrutiny.
To begin with, § 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U. S. C. § 3008, parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children’s perception of sensitive subjects. Under these circumstances, a ban on unsolicited advertisements serves only to assist those parents who desire to keep their children from confronting such mailings, who are otherwise unable to do so, and whose children have remained relatively free from such stimuli.
This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not “reduce the adult population. . . to reading only what is fit for children.” Butler v. Michigan, 352 U. S. 380, 383 (1957). The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), this Court did recognize that the Government’s interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children. At the same time, the majority “emphasize[d] the narrowness of our holding,” id., at 750, explaining that broadcasting is “uniquely pervasive” and that it is “uniquely accessible to children, even those too young to read.” Id., at 748-749 (emphasis added). The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication. See Consolidated Edison Co. v. Public Service Comm’n of New York, supra, at 542-543; FCC v. Pacifica Foundation, supra, at 748 (broadcasting has received the most limited First Amendment protection).
Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp., at 21. Cf. Carey v. Population Services International, 431 U. S., at 708 (Powell, J., concurring in part and concurring in judgment) (provision prohibiting parents from distributing contraceptives to children constitutes “direct interference with . . . parental guidance”). Because the proscribed information “may bear on one of the most important decisions” parents have a right to make, the restriction of “the free flow of truthful information” constitutes a “basic” constitutional defect regardless of the strength of the government’s interest. Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 95-96 (1977).
> H-I
We thus conclude that the justifications offered by appellants are insufficient to warrant the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. As applied to appellee’s mailings, § 3001(e)(2) is unconstitutional. The judgment of the District Court is therefore
Affirmed.
Justice Brennan took no part in the decision of this case.
Section 3001(e)(2) contains express limitations. In particular, an advertisement is not deemed unsolicited “if it is contained in a publication for which the addressee has paid or promised to pay a consideration or which he has otherwise indicated he desires to receive.” In addition, the provision does not apply to advertisements mailed to certain recipients such as a manufacturer of contraceptives, a licensed physician, or a pharmacist. See §§ 3001(e)(2)(A) and (B).
Domestic Mail Manual § 123.434 (July 7, 1981). The Manual, which is issued pursuant to the Postal Service’s power to adopt regulations, 39 U. S. C. § 401, is incorporated by reference into 39 CFR pt. Ill (1982).
The Postal Service’s interpretation of § 3001(e)(2) resulted from the decision in Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp. 11 (CD Cal. 1973), in which a three-judge court held that the prohibition on the mailing of “advertisements” could not constitutionally be expanded beyond the commercial sense of the term, id., at 24.
The offense is punishable by a fine of not more than $5,000 or imprisonment for not more than 5 years, or both, for the first offense; and a fine of not more than $10,000 or imprisonment for not more than 10 years, or both, for each subsequent offense. 18 U. S. C. § 1461.
In the District Court, Youngs offered two examples of informational pamphlets. See Record, Complaint, Group Exhibit C. The first, entitled “Condoms and Human Sexuality,” is a 12-page pamphlet describing the use, manufacture, desirability, and availability of condoms, and providing detailed descriptions of various Trojan-brand condoms manufactured by Youngs. The second, entitled “Plain Talk about Venereal Disease,” is an eight-page pamphlet discussing at length the problem of venereal disease and the use and advantages of condoms in aiding the prevention of venereal disease. The only identification of Youngs or its products is at the bottom of the last page of the pamphlet, which states that the pamphlet has been contributed as a public service by Youngs, the distributor of Trojan-brand prophylactics.
The District Court ordered that the multi-item drugstore flyers containing promotion of contraceptives could be mailed to the same extent such flyers could be mailed if they did not contain such promotion. With respect to flyers and pamphlets devoted to promoting the desirability or availability of contraceptives, the court’s order states that such materials were mailable only under four conditions:
“First, they must be mailed in an envelope that completely obscures from the sight of the addressee the contents. Second, the envelope must contain a prominent notice stating in capital letters that the enclosed material has not been solicited in any way by the recipient. Third, the envelope must contain a prominent warning that the contents are ‘promotional material for contraceptive products.’ Fourth, the envelope must contain a notice, in less prominent lettering than the warning and the other notice, but not in ‘fine print,’ that federal law permits the recipient to have his name removed from the mailing list of the mailer of that envelope, and citing to 39 U. S. C. § 3008(a).” 526 F. Supp. 823, 830 (1981).
Youngs did not file a cross-appeal challenging these restrictions, and their propriety is therefore not before us in this case.
Before that time, purely commercial advertising received no First Amendment protection. See Valentine v. Chrestensen, 316 U. S. 52, 54 (1942).
Our decisions have displayed a greater willingness to permit content-based restrictions when the expression at issue fell within certain special and limited categories. See, e. g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) (libel); Miller v. California, 413 U. S. 15 (1973) (obscenity); Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942) (fighting words).
Brief for Appellee 17; see id., at 12, 13, 15, 20, 25-31, 31-32.
See Brief for Appellants 13-14, n. 6; Reply Brief for Appellants 1 (“We do not suggest that a prohibition comparable to Section 3001(e)(2) can be applied to fully protected, noncommercial speech”).
“526 F. Supp., at 826.
Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978). To the extent any of appellee’s mailings could be considered noncommercial speech, our conclusion that § 3001(e)(2) is unconstitutional as applied would be reinforced.
For example, the drugstore flyer consists primarily of price and quantity information.
One of the informational pamphlets, “Condoms and Human Sexuality,” specifically refers to a number of Trojan-brand condoms manufactured by appellee and describes the advantages of each type.
The other informational pamphlet, “Plain Talk about Venereal Disease,” repeatedly discusses condoms without any specific reference to those manufactured by appellee. The only reference to appellee’s products is contained at the very bottom of the last page, where appellee is identified as the distributor of Trojan-brand prophylactics. That a product is referred to generically does not, however, remove it from the realm of commercial speech. For example, a company with sufficient control of the market for a product may be able to promote the product without reference to its own brand names. Or a trade association may make statements about a product without reference to specific brand names. See, e. g., National Comm’n on Egg Nutrition v. FTC, 570 F. 2d 157 (CA7 1977) (enforcing in part a Federal Trade Commission order prohibiting false and misleading advertising by an egg industry trade association concerning the relationship between cholesterol, eggs, and heart disease). In this case, Youngs describes itself as “the leader in the manufacture and sale” of contraceptives. Brief for Appellee 3.
“See Note, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, 44 U. Chi. L. Rev. 205, 236 (1976). Of course, a different conclusion may be appropriate in a case where the pamphlet advertises an activity itself protected by the First Amendment. See Murdock v. Pennsylvania, 319 U. S. 105 (1943) (advertisement for religious book cannot be regulated as commercial speech); Jamison v. Texas, 318 U. S. 413 (1943). This case raises no such issues. Nor do we mean to suggest that each of the characteristics present in this case must necessarily be present in order for speech to be commercial. For example, we express no opinion as to whether reference to any particular product or service is a necessary element of commercial speech. See Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Sourcebook on Corporate Image and Corporate Advocacy Advertising, 95th Cong., 2d Sess., 1149-1337 (Comm. Print 1978) (FTC Memorandum concerning corporate image advertising).
Cf. Time, Inc. v. Hill, 385 U. S. 374, 388 (1967), quoting Thornhill v. Alabama, 310 U. S. 88, 102 (1940) (defining public issues as those “about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period”).
See Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980).
See also Eisenstadt v. Baird, 406 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965).
Appellants argue that §3001(e)(2) does not interfere “significantly” with free speech because the statute applies only to unsolicited mailings and does not bar other channels of communication. See Brief for Appellants 16-24. However, this Court has previously declared that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U. S. 147, 163 (1939). See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 757, n. 15 (1976). Nor is the restriction on the use of the mails an insignificant one. See Blount v. Rizzi, 400 U. S. 410, 416 (1971), quoting Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407, 437 (1921) (Holmes, J., dissenting) (“The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues . . .”). The argument that individuals can still request that they be sent appellee’s mailings, Brief for Appellants 19, does little to bolster appellants’ position. See Lamont v. Postmaster General, 381 U. S. 301, 307 (1965) (Government’s imposition of affirmative obligations on addressee to receive mail constitutes an abridgment of the addressee’s First Amendment rights).
Of course, the availability of alternative means of communication is relevant to an analysis of “time, place, and manner” restrictions. See Consolidated Edison Co. v. Public Service Comm’n of New York, supra, at 541, n. 10; Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 93 (1977). Appellants do not, however, attempt to justify § 3001(e)(2) as a time, place, or manner restriction. Nor would such a characterization be tenable in light of § 3001(e)(2)’s content-based prohibition. See Consolidated Edison Co. v. Public Service Comm’n of New York, supra, at 536; Linmark Associates, Inc. v. Willingboro, supra, at 93-94; Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975).
The driving force behind § 3001(e)(2) was Anthony Comstock, who in his diary referred to the 1873 Act as “his law.” See Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 UCLA L. Rev. 44, 57 (1961). Comstock was a prominent antivice crusader who believed that “anything remotely touching upon sex was . . . obscene.” H. Broun & M. Leech, Anthony Comstock 265 (1927). See Poe v. Ullman, 367 U. S. 497, 520, n. 10 (1961) (Douglas, J., dissenting). The original prohibition was recodified and reenacted on a number of occasions, but its thrust remained the same — “to prevent the mails from being used to corrupt the public morals.” S. Rep. No. 113, 84th Cong., 1st Sess., 1 (1955). In 1970 Congress amended the law by striking the blanket prohibitions on the mailing of all advertisements for contraceptives, but it retained without any real discussion the ban on unsolicited advertisements. See, e. g., S. Rep. No. 91-1472, p. 2 (1970).
The party seeking to uphold a restriction on commercial speech carries the burden of justifying it. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 570 (1980); Linmark Associates, Inc. v. Willingboro, supra, at 95.
See Brief for Appellants 24 (“Congress did not announce these interests in the legislative history when it enacted Section 3001(e)”).
See id., at 24-33.
See, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 915-920 (1982); Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971); Cohen v. California, 403 U. S. 15 (1971).
Brief for Appellants 30.
Title 39 U. S. C. §3008, a prohibition of “pandering advertisements,” permits any householder to insulate himself from advertisements that offer for sale “matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.” § 3008(a). The addressee’s rights are absolute and “unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents — or indeed the text of the language touting the merchandise.” Rowan, 397 U. S., at 737.
For example, many magazines contain advertisements for contraceptives. See M. Redford, G. Duncan, & D. Prager, The Condom: Increasing Utilization in the United States 145 (1974) (ads accepted in Family Health, Psychology Today, and Ladies’ Home Journal in 1970). Section 3001(e)(2) itself permits the mailing of publications containing contraceptive advertisements to subscribers. Similarly, drugstores commonly display contraceptives. And minors taking a course in sex education will undoubtedly be exposed to the subject of contraception.
In Butler this Court declared unconstitutional a Michigan statute that banned reading materials inappropriate for children. The legislation was deemed not “reasonably restricted” to the evil it sought to address; rather, the effect of the statute was “to burn the house to roast the pig.” 352 U. S., at 383.
See New York v. Ferber, 458 U. S. 747, 756-758 (1982).
See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386-390 (1969).
The statute also quite clearly denies information to minors, who are entitled to “a significant measure of First Amendment protection.” Erznoznik v. City of Jacksonville, 422 U. S., at 212. See
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
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
George E. PENLAND, Jr., et al., Plaintiffs, Vernon Ward, Plaintiff-Appellant, v. WARREN COUNTY JAIL; Billy Delaney, in his official capacity as Sheriff of Warren County, Tennessee; and H.T. Pelham, in his official capacity as County Executive of Warren County, Tennessee, Defendants-Appellees.
No. 85-5439.
United States Court of Appeals, Sixth Circuit.
Argued April 15, 1986.
Decided August 1, 1986.
David Kozlowski (argued), Legal Services of South Central Tennessee, Inc., Tullahoma, Tenn., for plaintiff-appellant.
Robert W. Boyd, Jr. (argued), McMinnville, Tenn., for defendants-appellees.
Before LIVELY, Chief Judge, MERRITT and JONES, Circuit Judges.
MERRITT, Circuit Judge.
Plaintiffs appeal the District Court’s order denying certification of their proposed class action and the magistrate’s adverse ruling on two substantive issues in their prisoner civil rights action over conditions in a small county jail on the Cumberland plateau in Tennessee.
Plaintiffs George Penland and Jimmy Earls filed this action pro se while serving time at the Warren County Jail in Tennessee. Later, able counsel filed an amended complaint in their action, stating a claim under 42 U.S.C. § 1983 (1982) and addressing eight issues: prisoner idleness, health care, mail, discipline, fire safety, food, access to courts, and visitation. The plaintiffs also sought, under Fed.R.Civ.P. 23(b)(2), certification of a class composed of all present and future prisoners at the Warren County Jail (and a subclass composed of all pretrial detainees held at the jail). District Judge Taylor denied plaintiffs' motion for class certification.
The parties consented, under 28 U.S.C. § 636(c)(1) (1982), to have the action heard by a magistrate. Penland and Earls were released from jail before their case was tried, but plaintiff Vernon Ward then intervened. The magistrate ruled in plaintiffs’ favor on all substantive issues except prisoners’ access to courts and their visitation conditions. Plaintiffs appealed to the District Court, under 28 U.S.C. § 636(c)(4), and Judge Hull affirmed the magistrate’s order.
The defendants did not appeal the District Court’s order, and their counsel states that they are taking measures to comply with the magistrate’s opinion. Plaintiffs wished to appeal, but, because the parties had agreed that the magistrate should try the case and that appeal of right would be to the District Court under 28 U.S.C. § 636(c)(1) & (4), plaintiffs could not appeal to the Court of Appeals as of right. Rather, they moved the Sixth Circuit for leave to appeal under 28 U.S.C. § 636(c)(5). The Court heard the matter en banc, and Judge Contie writing for the Court granted plaintiffs’ motion for leave to appeal on questions of class certification, access to the courts, and prisoner visitation rights. Pen-land v. Warren County Jail, 759 F.2d 524 (6th Cir.1985) {en banc). Judge Contie’s opinion holds that the two substantive issues were “substantial and important question^] of law that ha[d] not directly been addressed by this court,” 759 F.2d at 531, but he stated no holding on any of the issues. This appeal followed.
On plaintiffs’ motion to certify the proposed class action, the District Court found that all the requirements of Fed.R.Civ.P. 23(a) were met: (1) the members of the proposed class are so numerous that joinder would be impracticable, (2)
questions of law or fact are common to the proposed class, (3) the proposed named representatives’ claims would be typical of the claims of class members generally, and (4) the named representatives, and their counsel, would fairly and adequately protect the interests of the class. Nevertheless, Judge Taylor denied certification on grounds that certifying a class action was “neither necessary to protect the interests of the desired class, nor is it a superior method for providing the relief asked for in this type of lawsuit.” The Judge held that any declaratory or injunctive relief ordered in a non-class-action suit would “likely inure to the benefit of other similarly situated individuals,” so there was no need for the action to go forward as a class action. (Quoting Inmates, Washington City Jail v. England, 516 F.Supp. 132 (E.D.Tenn. 1980)). Despite Judge Taylor’s denial of class certification, this suit has been treated as a class action almost from its inception.
Judge Contie, speaking for our en banc Court, criticized the denial of class certification:
The “superior method” criterion has been held relevant, however, only to class actions sought to be certified under F.R. C.P. 23(b)(3). Moreover, this court has specifically held that notice to class members is not required in all F.R.C.P. 23(b)(2) class actions, although notice may be given in a particular case under F.R.C.P. 23(d)(2) if any of the interests listed therein merit protection. Thus, there exists a substantial likelihood that the class certification issue was decided on a ground inconsistent with a decision of this court. Whether the district court and the magistrate actually failed to follow precedent is a question that we leave to the panel assigned to hear this case.
759 F.2d at 531 (emphasis added, citations omitted). Since all the named plaintiffs in this action have been released from jail, under normal procedure we must either dismiss the action as moot or certify it as a class action. We agree with the en banc Court’s criticism of the procedure followed below and we reverse the District Court’s refusal to certify this suit as a class action under Fed.R.Civ.P. 23(b)(2). See also Johnson v. City of Opelousa, 658 F.2d 1065, 1069-70 (5th Cir.1981).
Moving to the substantive points of this appeal, plaintiffs argue that conditions in the Warren County Jail concerning prisoners’ visitation and prisoners’ access to courts or legal representation violate the first amendment rights of the prisoners and of their visitors. This jail is located in a rural Tennessee county, and we note that measures that are achievable in larger institutions may not be reasonable in the smallest of local jails.
The first amendment, as construed, sets up a balancing test in these situations and requires an examination of reasonable alternatives available. See Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977) (held, in prisoner’s right of access to courts suit, that the first amendment is satisfied if the goal of meaningful access is achieved by any of the alternative means available); accord, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) (Justice Burger, in a plurality opinion, exhorts trial judge to consider reasonable alternatives to barring press from criminal trial). The record is completely lacking in evidence concerning alternative methods of access to courts and visitation. The record lacks complete information detailing present jail conditions in relation to prisoners’ access to courts, to legal representation, and to legal resource material and conditions concerning prisoners’ visitation rights and facilities. Therefore, we remand this matter to the District Court for the court to assess present jail conditions relative to plaintiffs’ claims in comparison with reasonable alternatives.
. We are informed by counsel that plaintiff Ward was released from the jail while the matter was still pending, and that the District Court informed defendants that it would not entertain any motions to dismiss on mootness grounds.
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_erron
|
D
|
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 civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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".
UNITED STATES of America, Appellant, v. William T. SOMERS et al.
No. 76-2009.
United States Court of Appeals, Third Circuit.
Argued Dec. 2, 1976.
Decided Feb. 25, 1977.
Jonathan L. Goldstein, U. S. Atty., for appellant; Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., on brief.
Ralph J. Kmiec, Cherry Hill, N. J., for Arthur W. Ponzio, appellee.
Before FORMAN, ROSENN and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
In this appeal we are called upon to review the question which we had previously —and, as now appears, erroneously — stated should need no review.
In United States v. Salerno, (Appeal of William Silverman), (hereinafter “Silverman I”), 538 F.2d 1005 (3d Cir. 1976), Judge Rosenn, writing for this Court, held: (1) that 28 U.S.C. § 2255 provides jurisdiction to challenge a sentence imposed under 18 U.S.C. § 4208(a)(2) prior to the adoption of the 1973 Parole Guidelines, when the intent of the sentencing judge is frustrated by the application of those guidelines; and (2) that because the intent of Silverman’s sentencing judge was thwarted by the implementation of the guidelines, Silverman’s original sentence could be modified.
In Silverman’s case the intent of the original sentencing judge (who was no longer a member of the district court when Silver-man sought resentencing) could be ascertained only by interpreting and construing the sentencing colloquy appearing in the sentencing transcript. Forecasting that such a circumstance — unavailability of the original sentencing judge — would be a rare one, Judge Rosenn wrote:
We do not believe that our holding will seriously burden either the district court or this court. Where the motion to vacate sentence can be directed to the sentencing judge, the question whether his sentencing expectations have been frustrated is easily resolved and there should be no need for review of that decision in the Court of Appeals. In the rare case, as here, when the original sentencing judge is no longer on a district court bench, and the record convincingly shows by the statement of the trial judge at sentencing that he intended to have the defendant receive meaningful parole consideration, then we believe that resentencing should be required, [emphasis supplied.]
Silverman I, 538 F.2d at 1009.
We now face the very circumstance foreseen by Judge Rosenn where the district court judge who (1) sentenced the defendant Ponzio on May 21, 1973, (2) was informed of the “new” Parole Guidelines, (3) found his original intent to have been frustrated by those guidelines, and (4) vacated the sentence under authority of Silverman. Believing that the original sentencing judge is in the best position to know his own intent and that his determination of that intent is conclusive, we affirm the order of the district court reducing Ponzio’s sentence. In so doing, however, we do not relax or depart from the narrow holding of Silverman I as interpreted by the same panel of this Court which denied rehearing in Silverman II.
I.
On March 8, 1973, appellee Ponzio was convicted with others of various counts of an indictment which, among other things, charged Ponzio with acts of extortion in violation of 18 U.S.C. § 1951 (The Hobbs Act) and § 1952 (The Travel Act).
On May 21, 1973, Ponzio was sentenced on Count I (conspiracy to violate The Hobbs Act) to prison for a term of six years
. [P]ursuant to the provisions of Title 18 U.S.C. § 4208(a)(2), defendant to be eligible for parole at such time as the Board of Parole shall determine.
Judgment of sentence, May 21, 1973.
His conviction on 15 other counts resulted in terms of five year imprisonment on each count, concurrent with each other count, and concurrent with the sentence imposed on Count I. In sum, therefore, although Ponzio faced a total term in prison of six years, the Parole Board had the discretion to release him on parole at any time.
Ponzio’s conviction was affirmed by this Court on May 31, 1974, United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). As noted, the Supreme Court of the United States denied certiorari on October 15, 1974.
On November 19, 1974, Ponzio commenced serving his sentence and, thereafter, pursuant to a timely motion under Rule 35, F.R.Crim.P., made application for reduction of his sentence. On January 13, 1975, the judge who originally sentenced Ponzio reduced his sentence from six to five years imprisonment.
Thereafter, on July 26, 1976, Ponzio wrote a letter again seeking relief from his sentence. Treating that letter as a motion pursuant to 28 U.S.C. § 2255, on August 6, 1976, the original sentencing judge on authority of Silverman I granted Ponzio’s motion, vacated his sentence and resentenced him to time served. The government thereupon applied for a stay of the district court’s order, and sought to return Ponzio to custody. Both of the government’s motions were denied. This appeal followed.
II.
Our analysis begins with, and is controlled by Silverman I and II. Silverman I, relying upon the “legislative history of section 4208(a)(2) and district court sentencing practice thereunder,” held that where the implementation of the guidelines frustrated the sentencing judge’s probable expectation (with respect to the original sentence imposed, viewed at the time of imposition), resentencing was required.
We recognize that the problem presented in Silverman I was that of ascertaining the intent of the original sentencing judge who was no longer available (in a sentencing context) to reveal his own prior intent. That problem, however, does not confront us here.
In this case, the district court judge who originally sentenced Ponzio on May 21, 1973 to a six year term under § 4208(a)(2) not only was available to rule on Ponzio’s § 2255 proceeding, but he was also able, in an unequivocal fashion, to explain his May 1973 sentencing intent and expectations.
It is true that when Ponzio was sentenced on May 21, 1973, the only indication of the sentencing judge’s intent was the imposition of sentence pursuant to § 4208(a)(2). However, the very selection of that statute as a sentencing vehicle, a choice made prior in time to the promulgation of the new guidelines, is significant. Without more, it tells us that the sentencing judge implicitly expected (and indeed, provided the mechanism for) early parole eligibility, conditioned only upon the Parole Board’s satisfaction with Ponzio’s institutional adjustment and rehabilitation progress. Silverman I, supra ; see also Garafola v. Benson, 505 F.2d 1212, 1218 (7th Cir. 1974); Lambert v. United States, 392 F.Supp. 113, 117 n.2 (N.D.Ga.1975). It is also true that during the Rule 35 hearing, — and indeed, during the entire period between May 1973 and August 1976, — no other expression of intent or expectation was voiced by the sentencing judge. It was only at the August 6, 1976 hearing in connection with Ponzio’s § 2255 proceeding, that the district court judge for the first time expressly addressed the subject of his original sentencing expectations and intent.
As we have previously observed, directly after Ponzio had commenced serving his six year sentence in November 1974, he had moved to reduce his sentence under F.R.Crim.P. 35. The Parole Guidelines had been public knowledge • for about one year at that time, and while Ponzio’s application for reduction of sentence did not directly advance the Silverman theory presently relied upon, Ponzio’s motion papers referred tangentially to the Guidelines in connection with a discussion of the sentence of a codefendant. Essentially, Ponzio’s Rule 35 application dealt with disparity in sentences between Ponzio and his codefendants, hardship on Ponzio’s family, and arguments addressed to rehabilitation and to the purposes of imprisonment (all of which Ponzio claimed to have satisfied or discharged). As a result of this application, the same judge who had originally sentenced Ponzio to six years imprisonment reduced his sentence to five years, but without opinion or comment.
It was in this setting that Silverman I was filed by this Court on July 15, 1976. On July 26,1976, Ponzio sent a letter to the sentencing judge seeking relief from further imprisonment. Viewing that letter as a petition under § 2255, argument was scheduled by the court on August 6, 1976.
It was then, for the first time, that what had been implicit in the district court’s sentence, became explicit. The district court said:
[B]ut sentence originally was imposed in May of 1973 and as pointed out in the opinion of the U. S. v. Salerno in late 1973, which was some period of time after the sentence was originally imposed upon you, the Board of Parole adopted new criteria and procedures for parole determinations. Those standards were not within the contemplation of this Court at the time that sentence was imposed upon you when the Court’s sentence was that you be sentenced pursuant to the provisions of Section 4208 A2. [emphasis supplied.] I may have indicated to you at that time, although I do not have the transcript before me, but I do know that there have been many, many times that defendants have appeared before this Court and I have indicated the liberality of that proceeding and have indicated that as long as you behaved yourself while in custody and demonstrated that you have been rehabilitated and ready to be returned to society, the Board of Parole would give you every consideration. As a matter of fact, numerous inmates have clamorously requested that sentences imposed be changed to § 4208 A2; because they felt that they would get earlier parole. That clamor had considerably subsided because it has been indicated to me as well as to many other federal judges that early parole is not being given under the new standards, procedures, and regulations adopted by the Board of Parole.
X * * X X *
Now, also, at the time that I originally imposed sentence upon you and at the time that that sentence was reduced, I was clearly under the impression that the factors to be considered by a Parole Board would be whether you've paid your debt to society, how you behaved while you were in your institution, what the chances were of returning you to society, whether you have been rehabilitated. Those were the old standards. Now they have the new standards and it could be that you would serve maybe four years by the time the Parole Board made up its mind what to do.
X X * X x ' X
As I’ve indicated further, I don’t see eye to eye with this computerized, statistical, and generalized consideration of parole. My sentencing expectations have been frustrated by the Board’s new guidelines and their procedures and their salient factors. And for those reasons, as well as for the more important reason that I am not without compassion, I think you’ve paid your debt to society. I think your family has been under a considerable strain, and I’m going to vacate the prior sentence that was imposed upon you and a new sentence will be imposed of the time you have already served, and I would sign an order to that effect, which I have before me. [emphasis supplied.]
Transcript, August 6, 1976, pp. 12-13, 14, 18-19.
In the final but unreported opinion which followed the August 6, 1976 hearing, but which incorporated the oral observations made at that hearing as they depicted his motivating factors, the district court judge wrote:
[T]he legislative history of § 4208(a)(2) is comprehensively discussed in the Salerno opinion, and there is no need to repeat that history here. Prior to the adoption of the new guidelines which are now in effect, and which became effective in late 1973, the Parole Board based its decision primarily upon institutional behavior and the probability of recidivism. See C.F.R. § 2.4 (1973). Those were the criteria which were in effect at the time this defendant was sentenced, and with which this court was familiar when sentence was imposed. It was also this court’s understanding that a defendant sentenced under § 4208(a)(2) would become immediately eligible' for parole after sentence had been imposéd. This is in sharp contrast to the other sentencing options available to a federal judge. See 18 U.S.C. § 4202, and 18 U.S.C. § 4208(a)(1).
* * * * * *
It was the expectation of this court when the defendant was sentenced that he would receive early meaningful consideration for parole. The adoption of the new parole guidelines subsequent to the time of sentencing has frustrated that expectation. In fact, prior to the adoption of the new parole guidelines, this court was regularly inundated with requests from defendants and their counsel for sentences under § 4208(a)(2). Such requests are no longer made, largely, we think, because of the new guidelines. Not only does the Salerno opinion provide a jurisdictional basis upon which this court may act, the judicial conscience requires corrective action.
Op. August 25, 1976, pp. 3-4, 7.
III.
As we read Silverman I and II, it is the intent and expectation of the district court judge who sentences under § 4208(a)(2) which are controlling and which must be searched out to determine if relief may be ordered under 28 U.S.C. § 2255. In our judgment, there can be no better evidence of a sentencing judge’s expectations or intent than his own statement of those facts.
We are aware that here the sentencing judge not only attributed the thwarting of his sentencing intent and expectations to the operation of the Guidelines, but he also relied upon an additional list of reasons to support his order reducing Ponzio’s sentence. Had the district court’s action resulted solely from these latter considerations (i. e., good conduct; time served; sufficient punishment; rehabilitation; family hardship; loss of pension; deterrence, etc.) we would have been obliged to reverse its order, for it is only in the case of frustration of the district court’s sentencing expectations that the Silverman doctrine affords grounds for relief (under the “collateral attack” provisions of § 2255 (see note 9, supra)). We recognize that sentencing courts are not vested with those functions belonging to the Parole Board, D'Allesandro v. United States, 517 F.2d 429 (2d Cir. 1975), or “with [the] powerfs] of a super parole board.” Silverman II, supra. Hence, we will not countenance Silverman relief where the district court’s basis for reducing sentence is predicated wholly upon considerations other than frustration of its original sentencing intent.
Here, however, we are not faced with that situation. Although the district court’s opinion speaks of such extraneous matters, we cannot ignore the factor which we find to be at the core of the district court opinion — the frustration of its original sentencing expectations which were specifically so expressed by the original sentencing judge. We do no more here than apply the Silverman principle as it has previously been announced by this Court — but with the assurance of greater certainty insofar as knowledge of the district court judge’s intent is concerned.
While reaffirming the viability of Silver-man, we nevertheless restate the admonition found in Silverman II that the Silver-man doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines.
IV.
We conclude this opinion with an observation, collateral to the decision itself but nevertheless required to be made because of the effect which counsel’s failure to supply necessary documents might have had upon our decision. As we have noted, the focal point for application of the Silverman doctrine is the district court judge’s intent and expectations at the time of imposition of sentence. We would have expected, therefore, that the documents and transcripts relevant, and indeed essential, to that issue would be furnished to us as part of the appendix on this appeal. Such was not the case.
Had it not been for our independent inquiry and had we not obtained these documents through our own efforts, we would not have had available for examination:
the relevant docket entries;
the original judgment of sentence;
the original sentencing transcript of May 21, 1973;
the memoranda, motion and submissions in connection with the Rule 35 hearing;
Ponzio’s § 2255 letter of petition;
the absolutely essential August 6, 1976 transcript;
the August 6, 1976 orders (vacating sentence and denying stay pending appeal) from which the government’s appeal was taken;
the government’s Notice of Appeal; the district court’s August 25, 1976 written opinion.
Not one of these documents, each of which was vital to our determination and to this opinion, appears in the appendix on appeal. This Court was required to make separate and independent inquiries to assemble the necessary record materials. Ponzio, the appellee apparently submitted no papers for inclusion in the appendix and did not even recite in his brief those portions of the district court’s comments and opinion which supported his contentions and which were instrumental to this Court’s application of the Silverman doctrine. The government’s appendix merely sets forth a number of legal opinions which taken together, constitute no more than a frontal assault on this Court’s Silverman decision.
While we recognize the obligations imposed upon the appellant by the Federal Rules of Appellate Procedure (F.R.A.P. 30(a) and this Court’s Local Rules, we cannot countenance the appellee’s failure to comply with the applicable provisions of F.R.A.P. 30(b). Nor can we understand or justify his reliance upon this Court to discharge his functions in “piecing out” and supporting the essential elements of the position which he advocates. While we deplore counsels’ disregard of the requirements of our Rules, (F.R.A.P. 30, Third Cir.R. 21) we are even more dismayed by the level of appellate advocacy which has been exhibited on this appeal.
Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels’ case and to supply counsels’ record deficiencies. Henceforth, our displeasure with counsels’ refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3).
V.
The August 6, 1976 order of the district court vacating Ponzio’s original sentence and resentencing him to “the time already spent in jail” will be affirmed. The August 6, 1976 order of the district court denying the United States a stay pending appeal will be dismissed as moot. (See note 5 supra).
. Section 4208(a)(2) reads, in pertinent part:
(a) Upon entering a judgment of conviction . requiring] that the defendant be sentenced to imprisonment for a term exceeding one year,
(2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.
The 1973 Parole Guidelines were published for the first time in the Federal Register on November 19, 1973. 28 C.F.R. § 2.52, 38 F.R. 31942 (Nov. 19, 1973).
. United States v. Salerno (Silverman II) 542 F.2d 628 (3d Cir. 1976) (Sur Petition for Rehearing).
. A more detailed history of the facts and trial leading to Ponzio’s conviction may be found in United States v. Somers, 496 F.2d 723 (3d Cir. 1974).
. United States v. Salerno (Silverman I) 538 F.2d 1005 (3d Cir. 1976). Silverman I was filed on July 15, 1976.
. In light of our disposition we have no occasion to comment upon the district court’s actions in denying a stay of its order and refusing to return Ponzio to custody pending action on the government’s appeal.
. The order from which the government appealed was not entered in a criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit. Heflin v. United States, 358 U.S. 415, 418 n.7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). Accordingly, the action, being civil in nature, is governed by the rules, statutes and appellate practice, (United States v. Hayman, 342 U.S. 205, 209 n.4, 72 S.Ct. 263, 96 L.Ed. 232 (1951)) controlling civil actions. See Neely v. United States, 546 F.2d 1059 at 1064-1067 (3d Cir. 1976); Wright and Miller, Federal Practice and Procedure § 590 (1969). See also United States v. DiRusso, 548 F.2d 372, (1st Cir. 1976) (Di-Russo II).
. 538 F.2d at 1008.
. While we recognize that the Rule 35 hearing came well after the implementation of the new Parole Guidelines, and that Ponzio’s moving papers referred to, and included a copy of the Guidelines, we nevertheless are not persuaded that these circumstances require that relief be denied to this § 2255 application. While counsel undoubtedly had the “tools” (Guidelines) in his hands to fashion a remedy for Ponzio, he did not draw the district court judge’s attention to the issue of the impact which the Parole Guidelines had upon Ponzio’s initial sentence. Compare DiRusso II, note 6 supra.
Even the government does not contend that any reliance (if such there was) upon the Guidelines in a Rule 35 hearing would thereby “exhaust” § 2255 jurisdiction under Silverman I. The most that can be argued, granting that the district court had jurisdiction (see n.9 infra), is that the court abused its discretion in affording § 2255 relief on the same grounds as had been urged in a Rule 35 hearing. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) precludes any mechanistic application of the doctrine of res judicata in successive § 2255 proceedings. Sanders establishes those circumstances under which the district court may give weight to a prior denial of § 2255 relief. 373 U.S. at 15, 83 S.Ct. 1068. In emphasizing that the Sanders test is “the ends of justice”, Justice Brennan concluded, id. at 17, 83 S.Ct. at 1078, that
No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, [Successive Motions on Grounds Previously Heard and Determined] cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading.
We believe that where the prior application for relief has been made under Rule 35, the Sanders res judicata criteria are the same. United States v. Jasper, 481 F.2d 976, 978-80 (3d Cir. 1973).
We are satisfied (1) that the same ground that formed the basis for the § 2255 decision (new Parole Guidelines) was not relied upon by the district court when it reduced Ponzio’s sentence from six to five years; and that therefore (2) the district court did not abuse its discretion.
We cannot help but observe that at no time during the Rule 35 proceedings, was any reference to the Guidelines made by the district court. Moreover, a one year reduction in sentence, from six to five years, had no practical impact whatsoever on Ponzio’s sentence, for the Parole Guidelines relative to Ponzio’s offense, as cited to the court by Ponzio’s attorney, indicated that, depending upon his parole prognosis, Ponzio would serve between 26 and 36 months. Supplemental Memorandum in Support of Motion for Reduction of Sentence, Cr. No. 323-72, at 3 (received at request of the Court). This latter circumstance, if no other, leads us to conclude that the Guidelines argument was never fairly presented to the district court at the Rule 35 hearing.
. 28 U.S.C. § 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In Silverman I, 538 F.2d at 1008 n.4, this Court, on the jurisdictional aspect, held:
The district judge also concluded and we agree that 28 U.S.C. § 2255, which provides in relevant part that a district court has jurisdiction of a motion “to vacate, set aside, or correct” a sentence imposed without jurisdiction, “in excess of the maximum authorized by law, or . otherwise subject to collateral attack,” is an appropriate vehicle for making this claim. See Kortness v. United States, supra, 514 F.2d [167,] 170 [(8th Cir. 1975)]; United States v. Perchada, 407 F.2d 821, 823 (4th Cir. 1969). Cf. United States v. Hayman, 342 U.S. 205, 216-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952).
See also Jacobson v. United States, 542 F.2d 725 (8th Cir. 1976); United States v. Clinkenbeard, 542 F.2d 59 (8th Cir. 1976).
On the surface it would appear that the First Circuit would disagree with our Silverman jurisdictional holding. See DiRusso II note 6 supra; United States v. DiRusso, 535 F.2d 673 (1st Cir. 1976). However, a close reading of DiRusso II reveals that the question presented in Silverman and here has not yet been presented to that Court. See DiRusso II, at 375 n.2. A distinction is made in DiRusso II between those cases where “the sentences that were collaterally attacked had been imposed either prior to or contemporaneously with the promulgation and general awareness” of the new Guidelines. Both Silverman and Ponzio had been sentenced prior to the Guidelines; DiRusso had not. Nor are we convinced that the Rule 35 proceeding, see note 7 supra, under the peculiar factual circumstances present here, should yield a different result.
Other circuits have apparently assumed that relief of the type afforded in Silverman is available only under 28 U.S.C. § 2241, thereby requiring the proceeding to be brought before a district court with jurisdiction over the prisoner or his custodian. See, e. g., Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975); Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974); see also the discussions in Jacobson and Clinkenbeard, supra.
This jurisdictional issue need not detain us, for Silverman I resolved that issue for this Court, and its holding may not be modified except by this Court en banc. Third Circuit Internal Operating Procedures, M.2. As we have observed, the government’s petition for rehearing in Silverman I was denied by Silver-man II, supra.
. We have not overlooked Ponzio’s motion to dismiss the government’s appeal. Ponzio had moved to dismiss the appeal and to strike certain correspondence which forwarded copies of two recent opinions. (Clinkenbeard and Jacobson, supra) bearing on the Silverman principle, on the ground that the form of the government’s submission did not comply with the rules of this Court concerning filing of reply briefs. The cases submitted had been decided after all briefs were filed, and were furnished for the information of the Court and Ponzio. Apart from any other consideration requiring the denial of Ponzio’s motion, we did not regard the government’s submission as a “reply brief” within the purview of F.R.A.P. 28(c).
Of more importance here, however, is that the views which we have expressed in text above reflect our concerns not with form but rather with substance; in particular, the omission of papers from the appendix which papers are crucial to the resolution of the issues before us.
Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_3_3
|
G
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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 "federal government (including DC)", specifically "agency whose first word is "federal"". Your task is to determine which specific federal government agency best describes this litigant.
NATURAL GAS PIPELINE CO. OF AMERICA v. FEDERAL POWER COMMISSION et al.
No. 7454.
Circuit Court of Appeals, Seventh Circuit.
June 30, 1942.
See, also, 129 F.2d 515.
J. J. Hedrick, 'of Chicago, Ill., S. A. L. Morgan, of Amarillo, Tex., and Geo. I. Haight, of Chicago, Ill., for petitioners.
Charles V. Shannon, Stanley M. Morley, and Edmond H. Lange, for respondent Federal Power Commission.
Wm. S. Youngman, Jr., Richard J. O’Connor, Geo. Slaff, and Daryal A. Myse, all of Washington, D. C., and Geo. F. Barrett, of Chicago, Ill., for other respondents.
Before EVANS and KERNER, Circuit Judges.
PER CURIAM.
The first problem is to determine the net amount of the refund. To do this, it will be necessary to determine whether or not there is liability for income or excess profits taxes, and, if so, in what amount. It will also be necessary to anticipate with such accuracy as may be possible the cost of making the refund and any other expenses properly chargeable against the fund. The cost of making the refund, will depend upon the method employed. If one of the simple, short-cut methods hereinafter outlined can be followed, this cost would be but a small fraction of that which would be entailed in carrying out a fully elaborated method of arriving at the amounts to be refunded.
Two short-cut and practical methods of making this refund are as follows:
' (a) The utility companies would furnish the figures from which the percentage which the sum to be. refunded bears to the total amount charged to their customers would be determined. A list of the names and addresses of all such customers must be obtained and the refund mailed to them or credited on such customers’ current bills. The cost of carrying out the utilities’ part in this method and the cost of sending refund checks to some 850,000 consumers of the Peoples Company would involve an additional expense.
(b) An even less expensive method would be to have the conipany make the refund in its entirety by making a percentage deduction from the amounts of the customers’ gas bills for some selected future month or months, and crediting the amount of the refund against the amounts due to the company from the customer. If this method could be used all cost of making and mailing checks would be avoided, and the cost of carrying out the Company’s part of making the refund on this basis would not exceed $100,000.
It may be found that a distribution under method (a) would establish the most favorable possible basis for the necessary closing agreement with the Commissioner of Internal Revenue. It would relieve the Peoples Company of any possible liability for income and excess profits taxes in connection with the fund. We are thoroughly satisfied that there is no liability of any of the utilities for Federal income tax where this money is paid to the consumer. We also are convinced that there would be no liability of any utility that received the money from petitioners and paid the sum to its customers in the same year it was received. We are also well satisfied, that if the sum were paid by petitioners to the utilities and any one of the utilities should hold such payments, or take notion which asserted ownership thereof, then said utility or utilities would be subject to a Federal income tax.
(c) Another alternative method of making the refund would contemplate the recomputing of all bills actually rendered during the twenty or more month period in which the fund was accumulated, and the payment to each customer of a sum computed on the basis of bills rendered before discount for prompt payment, etc. This method, while more exact theoretically, would nevertheless involve many assumptions, and would perhaps create more problems than it would solve. The cost of making the refund to the Peoples Company’s customers on this basis would be out of all proportion to the cost of either of the short-cut methods described above, probably falling somewhere between $350,-000 and $500,000. The difference in cost would be so great that it is quite possible that in every instance the consumer would actually receive a larger refund under one of the more simplified methods (a) or (b). It should also be noted that by using one of the short-cut methods the time employed in making the refund would certainly be shortened.
Even if the labor could be obtained to carry out plan (c), we hold it should not be adopted. Whether plan (a) or plan (b) be adopted will depend on the report of our specially appointed official, Mr. Tappan Gregory, who is directed to investigate and report to us on the merits and practicability of both plans.
Before we can determine the total amount to be refunded to the customers, we must be informed on the cost of distribution. Two substantial items are Clerk’s fees of 1% of the fund (this is fixed by statute and goes to the U. S. Government ultimately, though collected by the Clerk) and postage of either 2 cents or 3 cents depending on where the customer lives. A third item is the cost of the services (labor mostly) of making checks and computing the amount of refund. The number of customers is estimated at over 850,000.
On this matter, too, we direct Mr. Gregory, as officer of this court, to investígate and report, and at an early date, what he estimates said cost will be.
Associated with this problem of costs, one utility serving Nebraska City asks that the refund go to it and not to its customers. That it and others may know and plan accordingly, we express our conclusion, and our holding, which is all refunds zohich petitioners must make, belong to the consumers, for whose benefit these proceedings were instituted. The utilities with whom petitioners contracted, were merely conduits, by which natural gas transported by petitioners was delivered to customers by utilities. The refunds do not belong and should not go to the utilities. The price paid by the utilities was fixed by contract. It, together with cost of services and interest, etc., was what made up the utilities’ bill to their consumers. These rates or charges were approved by the Illinois Commerce Commission. The proceedings which were instituted by Federal Power Commission and furthered by the Illinois Commerce Commission to reduce the natural gas cost to the utilities were for the benefit of the consumers. They so declare. Most of the utilities have steadfastly disclaimed any right to or interest in the refund. They realize that the proceedings were for the benefit of the consumers, not to enrich them. An exception is the Nebraska City utility, which believes it is the beneficiary of a windfall, to which it intends to hold on, if once it can get possession of it. It entertains the old and outmoded conception of utility magnates and utility counsel which overlooked the trustee status of a public utility, whose excuse for existence is service to the public to whom it owes the duty to diligently endeavor to render ever better service at lower rates, as well as to earn a fair return on the capital invested in it. In fact it was the position of counsel for the Pipeline company in the U. S. Supreme Court that under no circumstances could the utility claim any refund and that if anyone was entitled to the refund, it would be the consumers.
A public utility located in Nebraska City and another located in Iowa held contracts with petitioners. As between the two contracting parties, their contract ' would be binding, but the business of the petitioners was subject to regulation by the Federal Power Commission and also in part by the Illinois Commerce Commission. These two bodies sought to reduce charges to the consumers. As between petitioners and utilities they were not interested, but these boards were interested in reducing charges to the consumers. For the consumers the Federal Power Commission acted. Petitioners so understood the nature of the contract and defended on the ground that they had no contract with these consumers and owed nothing to them as consumers, — nor were they subject to Federal regulation for the consumers’ benefit. Nebraska City and all other utilities stood by and accepted the situation as it was tendered by the pleadings and the parties. Now one or two of these utilities located where no state supervisory commission exists, are endeavoring to seize the fruits of the litigation brought for the consumers and retain the money for their own individual gain. It would be a gross travesty upon the proceedings, if they were to succeed. Wkh their efforts in this respect, we have no sympathy.
The court will make an order on this finding that the money refunded by petitioners belongs to the consumers and none belongs to the utility or utilities.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Which specific federal government agency best describes this litigant?
A. Federal Aviation Administration
B. Federal Bureau of Investigation (FBI)
C. Federal Coal Mine Safety Board
D. Federal Communications Commission
E. Federal Deposit Insurance Corporation and FSLIC
F. Federal Election Commission
G. Federal Energy Agency (Federal Power Commission)
H. Federal Energy Regulatory Commission
I. Federal Home Loan Bank Board
J. Federal Housing Authority (FHA)
K. Federal Labor Relations Authority
L. Federal Maritime Board
M. Federal Maritime Commission
N. Federal Mine Safety & Health Administration
O. Federal Mine Safety & Health Review Commission
P. Federal Reserve System
Q. Federal Trade Commission
Answer:
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sc_casedisposition
|
D
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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.
YOUNG, COMMISSIONER OF FOOD AND DRUG ADMINISTRATION v. COMMUNITY NUTRITION INSTITUTE et al.
No. 85-664.
Argued April 30, 1986
Decided June 17, 1986
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 984.
Paul J. Larkin, Jr., argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Geller, Leonard Schaitman, Marleigh D. Dover, and Thomas Scarlett.
William B. Schultz argued the cause for respondents. With him on the brief were Alan B. Morrison and Katherine A. Meyer.
Briefs of amici curiae urging reversal were filed for the State of South Carolina by Philip C. Olsson, T. Travis Medlock, Attorney General, and Brooks Shealy, Assistant Attorney General; for the American Feed Industry Association by David F. Weeda; for the Grocery Manufacturers of America, Inc., by Peter Barton Hutt; for the National Food Processors Association by H. Edward Dunkelberger, Jr.; and for the National Peanut Council, Inc., by James M. Goldberg.
Justice O’Connor
delivered the opinion of the Court.
We granted certiorari in this case to determine whether the Court of Appeals for the District of Columbia Circuit correctly concluded that the Food and Drug Administration’s longstanding interpretation of 21 U. S. C. § 346 was in conflict with the plain language of that provision. 474 U. S. 1018 (1985). We hold that, in light of the inherent ambiguity of the statutory provision and the reasonableness of the Food and Drug Administration’s interpretation thereof, the Court of Appeals erred. We therefore reverse.
I
A
The Food and Drug Administration (FDA) enforces the Federal Food, Drug, and Cosmetic Act (Act) as the designee of the Secretary of Health and Human Services. 21 U. S. C. § 371(a). See also 21 CFR §5.10 (1986). The Act seeks to ensure the purity of the Nation’s food supply, and accordingly bans “adulterated” food from interstate commerce. 21 U. S. C. § 331(a). Title 21 U. S. C. § 342(a) deems food to be “adulterated”
“(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2)(A) if it bears or contains any added poisonous or added deleterious substance (other than [exceptions not relevant here]) which is unsafe within the meaning of section 346a(a) of this title . . . .”
As this provision makes clear, food containing a poisonous or deleterious substance in a quantity that ordinarily renders the food injurious to health is adulterated. If the harmful substance in the food is an added substance, then the food is deemed adulterated, even without direct proof that the food may be injurious to health, if the added substance is “unsafe” under 21 U. S. C. §346.
Section 346 states:
“Any poisonous or deleterious substance added to any food, except where such substance is required in the production thereof or cannot be avoided by good manufacturing practice shall be deemed to be unsafe for purposes of the application of clause (2)(A) of section 342(a) of this title; but when such substance is so required or cannot be so avoided, the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health, and any quantity exceeding the limits so fixed shall also be deemed to be unsafe for purposes of the application of clause (2)(A) of section 342(a) of this title. While such a regulation is in effect . . . food shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated . . . .”
Any quantity of added poisonous or added deleterious substances is therefore “unsafe,” unless the substance is required in food production or cannot be avoided by good manufacturing practice. For these latter substances, “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary for the protection of public health.” It is this provision that is the heart of the dispute in this case.
The parties do not dispute that, since the enactment of the Act in 1938, the FDA has interpreted this provision to give it the discretion to decide whether to promulgate a § 346 regulation, which is known in the administrative vernacular as a “tolerance level.” Tolerance levels are set through a fairly elaborate process, similar to formal rulemaking, with evidentiary hearings. See 21 U. S. C. § 371(e). On some occasions, the FDA has instead set “action levels” through a less formal process. In setting an action level, the FDA essentially assures food producers that it ordinarily will not enforce the general adulteration provisions of the Act against them if the quantity of the harmful added substance in their food is less than the quantity specified by the action level.
B
The substance at issue in this case is aflatoxin, which is produced by a fungal mold that grows in some foods. Aflatoxin, a potent carcinogen, is indisputedly “poisonous” or “deleterious” under §§342 and 346. The parties also agree that, although aflatoxin is naturally and unavoidably present in some foods, it is to be treated as “added” to food under § 346. As a “poisonous or deleterious substance added to any food,” then, aflatoxin is a substance falling under the aegis of § 346, and therefore is at least potentially the subject of a tolerance level.
The FDA has not, however, set a § 346 tolerance level for aflatoxin. It has instead established an action level for aflatoxin of 20 parts per billion (ppb). In 1980, however, the FDA stated in a notice published in the Federal Register:
“The agency has determined that it will not recommend regulatory action for violation of the Federal Food, Drug, and Cosmetic Act with respect to the interstate shipment of corn from the 1980 crop harvested in North Carolina, South Carolina, and Virginia and which contains no more than 100 ppb aflatoxin . . . .” 46 Fed. Reg. 7448 (1981).
The notice further specified that such corn was to be used only as feed for mature, nonlactating livestock and mature poultry. Id., at 7447.
In connection with this notice, two public-interest groups and a consumer (respondents here) brought suit against the Commissioner of the FDA (petitioner here) in the United States District Court for the District of Columbia. Respondents alleged that the Act requires the FDA to set a tolerance level for aflatoxin before allowing the shipment in interstate commerce of food containing aflatoxin; that the FDA had employed insufficiently elaborate procedures to set its aflatoxin action level even if a tolerance level was not required; and that the FDA’s decision to grant the 1980 exemption from the action level independently violated the Act and the FDA’s own regulations.
On a motion for summary judgment, the District Court deferred to the FDA’s interpretation of §346, and therefore ruled that the FDA need not establish a tolerance level for aflatoxin before allowing the shipment of aflatoxin-tainted corn in interstate commerce. The District Court also ruled against respondents on their other claims.
The Court of Appeals reversed the District Court’s conclusion as to the proper interpretation of § 346. 244 U. S. App. D. C. 279, 757 F. 2d 354 (1985). The Court of Appeals determined that Congress had spoken directly and unambiguously to the precise question at issue:
“The presence of the critical word ‘shall’ plainly suggests a directive to the Secretary to establish a tolerance, if a food with an unavoidable . . . deleterious substance is to be considered unadulterated.
“It is . . . clear from the structure of the sentence at issue here that the phrase relied upon by the Secretary simply does not modify the pivotal word ‘shall.’” Id., at 282, 283, 757 F. 2d, at 357, 358.
After examining the entirety of § 346, the Court of Appeals also concluded that, since tolerance levels make food with added harmful substances unadulterated, tolerance levels were necessary before food could be judged unadulterated. Id., at 283, 757 F. 2d, at 358.
The Court of Appeals considered none of the other issues before the District Court, and therefore only the § 346 issue is before this Court.
II
The FDA’s longstanding interpretation of the statute that it administers is that the phrase “to such extent as he finds necessary for the protection of public health” in § 346 modifies the word “shall.” The FDA therefore interprets the statute to state that the FDA shall promulgate regulations to the extent that it believes the regulations necessary to protect the public health. Whether regulations are necessary to protect the public health is, under this interpretation, a determination to be made by the FDA.
Respondents, in contrast, argue that the phrase “to such extent” modifies the phrase “the quantity therein or thereon” in §346, not the word “shall.” Since respondents therefore view the word “shall” as unqualified, they interpret § 346 to require the promulgation of tolerance levels for added, but unavoidable, harmful substances. The FDA under this interpretation of § 346 has discretion in setting the particular tolerance level, but not in deciding whether to set a tolerance level at all.
Our analysis must begin with Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We there stated:
“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. . . . [A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id., at 842-844.
While we agree with the Court of Appeals that Congress in § 346 was speaking directly to the precise question at issue in this case, we cannot agree with the Court of Appeals that Congress unambiguously expressed its intent through its choice of statutory language. The Court of Appeals’ reading of the statute may seem to some to be the more natural interpretation, but the phrasing of § 346 admits of either respondents’ or petitioner’s reading of the statute. As enemies of the dangling participle well know, the English language does not always force a writer to specify which of two possible objects is the one to which a modifying phrase relates. A Congress more precise or more prescient than the one that enacted § 346 might, if it wished petitioner’s position to prevail, have placed “to such extent as he finds necessary for the protection of public health” as an appositive phrase immediately after “shall” rather than as a free-floating phrase after “the quantity therein or thereon.” A Congress equally fastidious and foresighted, but intending respondents’ position to prevail, might have substituted the phrase “to the quantity” for the phrase “to such extent as.” But the Congress that actually enacted § 346 took neither tack. In the absence of such improvements, the wording of § 346 must remain ambiguous.
The FDA has therefore advanced an interpretation of an ambiguous statutory provision.
“This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency’s] understanding of this very ‘complex statute’ is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency]. Train, Inc. v. NRDC, 421 U. S. 60, 75, 87 (1975) . . . .” Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985).
We find the FDA’s interpretation of § 346 to be sufficiently rational to preclude a court from substituting its judgment for that of the FDA.
To read §346 as does the FDA is hardly to endorse an absurd result. Like any other administrative agency, the FDA has been delegated broad discretion by Congress in any number of areas. To interpret Congress’ statutory language to give the FDA discretion to decide whether toleranee levels are necessary to protect the public health is therefore sensible.
Nor does any other portion of § 346 prohibit the FDA from allowing the shipment of aflatoxin-tainted food without a tolerance level, despite the Court of Appeals’ conclusion to the contrary. The Court of Appeals stated:
“Since the existence of a regulation operates to render the food legally unadulterated, the statute, in our view, plainly requires the establishment by regulation of tolerances before aflatoxin-tainted corn may lawfully be shipped in interstate commerce.” 244 U. S. App. D. C., at 283, 757 F. 2d, at 358.
The premise of the Court of Appeals is of course correct: the Act does provide that when a tolerance level has been set and a food contains an added harmful substance in a quantity below the tolerance level, the food is legally not adulterated. But one cannot logically draw from this premise, or from the Act, the Court of Appeals’ conclusion that food containing substances not subject to a tolerance level must be deemed adulterated. The presence of a certain premise (i. e., tolerance levels) may imply the absence of a particular conclusion (i. e., adulteration) without the absence of the premise implying the presence of the conclusion. For example, the presence of independent and adequate state-law grounds in the decision of a state supreme court means this Court has no jurisdiction over the case, but the absence of independent and adequate state grounds does not mean that this Court necessarily has jurisdiction. The Act is silent on what specifically to do about food containing an unavoidable, harmful, added substance for which there is no tolerance level; we must therefore assume that Congress intended the general provisions of § 342(a) to apply in such a case. Section 342(a) thus remains available to the FDA to prevent the shipment of any food “[i]f it bears or contains any poisonous or deleterious substance which may render it injurious to health.” See generally United States v. Lexington Mill & Elevator Co., 232 U. S. 399, 411 (1914) (discussing proper interpretation of the language that became § 342(a)).
The legislative history of the Act provides no single view about whether Congress intended § 346 to be mandatory or permissive with respect to tolerance levels. Compare, e. g., Confidential House Committee Print 2, on Interstate and Foreign Commerce, 75th Cong., 1st Sess., S. 5, §406(a), reprinted in 5 Legislative History of the Federal Food, Drug, and Cosmetic Act and its Amendments 767, 792 (Dept. of Health, Education, and Welfare 1979) (changing, without explanation, words “is authorized to” to “shall” in relevant provision), with H. R. Rep. No. 2139, 75th Cong., 3d Sess. 6 (1938) (stating that, under the Act, “the establishment of tolerances is authorized”) (emphasis added). A clearer indication of Congress’ intentions with regard to tolerance levels occurred in 1954, when Congress condemned the cumbersomeness of the tolerance-level procedure as applied to pesticides. Congress fashioned a more streamlined procedure for those and other deliberately added substances. See 21 U. S. C. §346a. But in revisiting §346, Congress did not change the procedures governing unintentionally added substances like aflatoxin. This failure to change the scheme under which the FDA operated is significant, for a “congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” NLRB v. Bell Aerospace, Co., 416 U. S. 267, 275 (1974). See FDIC v. Philadelphia Gear Corp., ante, at 437; Zenith Radio Corp. v. United States, 437 U. S. 443, 457 (1978). In sum, although the legislative history is not unambiguous, it certainly is no support for assertions that the FDA’s interpretation of §346 is insufficiently rational to warrant our deference.
Finally, we note that our interpretation of § 346 does not render that provision superfluous, even in light of Congress’ decision to authorize the FDA to “promulgate regulations for the efficient enforcement of [the] Act.” 21 U. S. C. § 371(a). Section 346 gives the FDA the authority to choose whatever tolerance level is deemed “necessary for the protection of public health,” and food containing a quantity of a required or unavoidable substance less than the tolerance level “shall not, by reason of bearing or containing any added amount of such substance, be considered to be adulterated.” Section 346 thereby creates a specific exception to § 342(a)’s general definition of adulterated food as that containing a quantity of a substance that renders the food “ordinarily . . . injurious to health.” Simply because the FDA is given the choice between employing the standard of § 346 and the standard of § 342(a) does not render § 346 superfluous.
For the reasons set forth, the judgment is reversed, and the case is remanded to the Court of Appeals for the District of Columbia Circuit for further proceedings consistent with this opinion.
Reversed.
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_source
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J
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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.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Clay B. BROWN and Dorothy E. Brown, Donald L. Brown and Ingrid R. Brown, Charles William Booth and Nancy H. Booth, Donald Lee Brown, Philip F. Brown, Marilyn Brown, Respondents.
Nos. 18228-18233.
United States Court of Appeals Ninth Circuit.
Dec. 10, 1963.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, and Gilbert E. Andrews, Attorneys, Department of Justice, Washington, D. C., for petitioner.
Mautz, Souther, Spaulding, Kinsey & Williamson, and William H. Kinsey, Portland, Or., for respondents.
Arthur A. Armstrong, Los Angeles, Cal., amicus curiae.
Before HAMLIN and DUNIWAY, Circuit Judges, and KUNZEL, District Judge.
DUNIWAY, Circuit Judge.
The Commissioner of Internal Revenue asks us to reverse decisions of the Tax Court. We are of the opinion that the decisions must be affirmed.
Involved is a transaction of the type described by Moore and Dohan in an article entitled: “Sales, Churches and Monkeyshines,” 11 Tax.L.Rev. 87 (1956), and by Lanning in an article entitled: “Tax Erosion and the ‘Bootstrap sale’ of a Business,” 108 U. of Pa.L.Rev. 623 (1960). The transaction is described in great detail in the findings of the Tax Court, which are reported at 37 T.C. 461. In his opening brief the Commissioner states: “No exception is taken to the detailed basic findings of the Tax Court.”
In the same brief the Commissioner summarizes what he contends are the essentials of the transaction. We quote the summary, but with additions, in brackets, from the record:
“Taxpayers, consisting of Clay Brown, his wife and three children, and the two Booths, owned substantially all of the stock of Clay Brown & Company, which had lumber interests and saw mills near For-tuna, California. Although the total cost basis of their investment was only $42,000, the accumulated surplus of the corporation at January 31, 1953 was $448,472, and prospects of future earnings were good.
“In the summer of 1952, Clay Brown, the president of the corporation and spokesman for the other stockholders, was approached by a representative of the Institute, a tax-exempt corporation, who supplied him with brochures describing the tax advantages of a particular type of ‘sale’ transaction. [There was considerable bargaining, at arms length, and a price was agreed upon that was within a reasonable range in light of the earnings history of the corporation and the adjusted net worth of its assets.] When, as it happened, taxpayers agreed to the plan, a complex set of interrelated legal documents was drafted to give it effect. Pursuant to the overall plan agreed upon in advance, the following steps were taken:
“(a) Taxpayers endorsed and delivered all of their shares in the corporation to the Institute, together with $125,000 face amount of promissory notes of the corporation held by Clay Brown and his wife. On the same day, February 4, 1953, the Institute delivered to taxpayers its promissory note in the face amount of $1,300,000. The note, which was to mature approximately 10 years later, was nonnegotiable and noninterest bearing. The Institute assumed no liability for payment of the note from its own assets. Payment of the purchase price was to be made solely out of amounts received by the Institute as ‘rental’ income of the business assets, of which 90 percent would be turned over to taxpayer as periodic installments.
“(b) The Institute was left no option as to the disposition of the property, which was provided for in predrafted instruments. The following steps were taken pursuant to-the plan: (1) The corporation was. dissolved; (2) $5,000 of the current assets was turned over to taxpayers as a down payment; (3) the-remaining net current assets were-‘sold’ for another promissory note to a new corporation, Fortuna Mills, Inc., organized by taxpayer Clay Brown’s attorneys for the specific-purpose of taking over the business of the dissolved corporation; [All of the issued stock of Fortuna was. purchased by the attorneys, with their own funds, for $25,000.] (4) all of the other assets were mortgaged back to taxpayers, permitting reacquisition of [that portion of] the business assets in the event of default on the installments on the-purchase price; (5) the same assets were ‘rented’ by the Institute to Fortuna for 80 percent of the net profits of the business, without allowance for taxes or depreciation. The Institute, retaining 10 percent of this amount, was obligated to-turn over the balance to taxpayers to be applied toward the purchase-price.
“(c) As part of the plan, taxpayer Clay Brown was employed as-‘general manager’ of Fortuna at an. annual salary of $25,000, and it was. provided that if he ceased to act as general manager, his successor would be selected by taxpayers. He exercised substantially the same powers as those which he had as-president of the dissolved corporation, and no property could be sold without his consent. Moreover, Brown personally guaranteed mortgage loans of the old company transferred to Fortuna, and he also personally guaranteed another $50,000 loan to Fortuna, which had been ■capitalized at only $25,000.
“The new Fortuna corporation took over the operation of the business, which continued for 4% years on the same premises, with the same operating personnel and under practical control of taxpayers. On June 19, 1957, after suffering business reverses, Fortuna shut down the mill on word from Clay Brown. 'Taxpayers did hot exercise their option to declare a default and formally reacquire their property by foreclosure. Instead, they arranged for the Institute to sell the assets, retaining 10 percent of the proceeds. 'The assets, which had been appraised prior to the original ‘sale’ to the Institute at more than $1,-'000,000 were sold at only $300,000, to outsiders at sometime in July, 1959. Taxpayer received 90 percent of the proceeds. Steps were taken at that time to settle out and cancel all of the tricornered arrangements between Fortuna, the Institute and taxpayers. The net financial result of the plan was that taxpayers received a total of $936,131.85.”
We think we should add to this summary certain additional findings and conclusions of the Tax Court which are;
1. That there was a change of economic benefits in the transaction.
2. That the primary motivation of the Institute was the prospect of ending up with the assets free and clear after the purchase price had been fully paid, which would then permit the Institute to convert the property into money for use in cancer research.
In the court below the Commissioner took two alternative positions: One was that the transaction was a sham. This position is abandoned here. The other, which the Commissioner also takes before us, was that the Tax Court erred in holding that there was a sale within the meaning of section 117(a) of the Internal Revenue Code of 1939 and section 1222(3) of the Internal Revenue Code of 1954 because, so the Commissioner says, certain normal aspects of the sale of a business were missing. These are (1) shift of business risk; (2) shift of benefit of income; (3) shift of operational control; (4) permanent shift of ownership of assets and (5) release of sellers from business indebtedness. The Commissioner relies upon Burnet v. Harmel, 1932, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199 as to shift of business risk, upon Helvering v. Clifford, 1940, 309 U.S. 331, 60 S.Ct. 554, 84 L. Ed. 788 as to shift of benefit of income, and on Commissioner v. Sunnen, 1948, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 as to shift of operational control.
We think that the Commissioner’s contentions are well answered in the opinion of the Tax Court, and also in the following cases: Commissioner v. Johnson, 1 Cir., 1959, 267 F.2d 382; Union Bank v. United States, Ct.Cl., 1961, 285 F.2d 126.
Here, as in those cases, there was a transfer of title; there was a shift of business risk in the sense that the operation of the business was in the hands of a new company owned by third persons, albeit managed under a contract by one of the taxpayers; there was a shift of benefit of income in the sense that Fortuna retained 20% of it and the Institute retained 10% of 80%; there was no understanding that the assets were to come back to the taxpayers under any circumstances other than a default in the payment of the purchase price; there was a permanent shift of ownership of assets. The management contract and the guarantee of certain of Fortuna’s borrowings by one of the taxpayers (Clay Brown), were designed to secure the payment of the price. There was no understanding that, if the business should be unsuccessful, Brown would take action to “trigger” a default, thus causing a reversion of the mortgaged assets to the taxpayers. As was said by the court in Commissioner v. Johnson, supra, “The mere fact that the security holders may in the future have to resume proprietorship of the enterprise does not nullify the fact that they had sold those proprietary interests.” (267 F.2d at 385)
The Commissioner relies also on Kolkey v. Commissioner, 7 Cir., 1958, 254 F.2d 51. This case was distinguished in Commissioner v. Johnson, supra, on the ground that in Kolkey the facts were different and the Tax Court had found, in substance in that case, that there was no sale. The Tax Court made the same distinction here, and we think it was correct. We think that the real holding in Kolkey was that the transaction was a sham. Here, the finding is the other way and the evidence sustains it.
There is no question that this transaction took the form that it did because the Institute is a tax-exempt corporation and that the price to be paid was probably greater for that reason. These facts may have some relevance in' connection with possible tax liabilities of the Institute, but they do not, as a matter of law, establish that, so far as the taxpayers were concerned, the sale of their stock was not a genuine sale, which is the only issue involved in this case.
We think that it is of some significance that the problem of misuse by tax-exempt organizations of their tax exemption in transactions similar to this was considered by the Congress, which adopted certain remedial legislation in the Revenue Act of 1950. The history of this legislation appears in H.R.Rep. No. 2319, 81st Cong. 2d Sess., 1950-2, Cum.Bull. 330, 408-11, and in S.Rep. No. 2375, 81st Cong. 2d Sess., 1950-2, Cum.Bull. 483, 502 if. Certain aspects of the transaction now before us were undoubtedly “tailored” to fit the law as amended by Congress in 1950, particularly section 101 of the Internal Revenue Code of 1939 as amended, and sections 421, 422, and 423. These sections all relate to the income and tax exempt status of the purchasing Institute; none of them purports to deny to the sellers the right to treat the sale, for tax purposes, as a sale, and therefore to treat moneys received as capital gains. Congress could have dealt with that aspect of such transactions but did not do so. If, as is indicated by the writers of the articles cited at the beginning of this opinion, the present situation, insofar as the tax position of the sellers is concerned, is undesirable from a tax standpoint, it is still possible for Congress to provide a remedy.
Affirmed.
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_certreason
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS et al. v. AMOS et al.
No. 86-179.
Argued March 31, 1987
Decided June 24, 1987
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Powell, Stevens, and.ScALiA, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 340. Blackmun, J., post, p. 346, and O’Connor, J., post, p. 346, filed opinions concurring in the judgment.
Rex E. Lee argued the cause for appellants in No. 86-179. With him on the briefs were Wilford W. Kirton, Jr., Dan S. Bushnell, M. Karlynn Hinman, Benjamin W. Heineman, Jr., Carter G. Phillips, and Ronald S. Flagg. Assistant Attorney General Reynolds argued the cause for the United States in No. 86-401. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, and Andrew J. Pincus.
David B. Watkiss argued the cause for appellees in both cases. With him on the brief were Elizabeth T. Dunning, John A. Powell, Joan E. Berlin, and John E. Harvey
Together with No. 86-401, United States v. Amos et al., also on appeal from the same court.
Briefs of amici curiae urging reversal were filed for the American Association of Presidents of Independent Colleges and Universities et al. by Edward McGlynn Gaffney, Jr.; for the American Jewish Congress by Marc D. Stem and Amy Adelson; for the Baptist Joint Committee on Public Affairs by Donald R. Brewer and Oliver S. Thomas; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Christian Legal Society et al. by Michael W. McConnell, Michael J. Woodruff, Samuel E. Ericsson, Kimberlee W. Colby, Philip E. Draheim, and Forest D. Montgomery; for the General Conference of Seventh-day Adventists by Warren L. Johns, Walter E. Carson, and Melvin B. Sabey; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the United States Catholic Conference by John A. Liekweg and Mark E. Chopko; and for the Council on Religious Freedom by Lee Boothby, James M. Parker, Robert W. Nixon, and Rolland Truman.
Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by Michael H. Gottesman, Robert M. Weinberg, David M. Silberman, and Laurence Gold; for the Anti-Defamation League of B’nai B’rith by Harold P. Weinberger, Justin J. Finger, Jeffrey P. Sinensky, Jill L. Kahn, Ruti G. Tietel, and Meyer Eisenberg; for the Employment Law Center of the Legal Aid Society of San Francisco by Joan M. Graff, Robert Barnes, and Robert E. Borton; and for the Women’s Legal Defense Fund et al. by Donna Lenhoff.
Jordan W. Lorence filed a brief for Concerned Women of America as amicus curiae.
Justice White
delivered the opinion of the Court.
Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-l, exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion. The question presented is whether applying the § 702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment. The District Court held that it does, and these cases are here on direct appeal pursuant to 28 U. S. C. §1252. We reverse.
I
The Deseret Gymnasium (Gymnasium) in Salt Lake City, Utah, is a nonprofit facility, open to the public, run by the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB), and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). The CPB and the COP are religious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association sometimes called the Mormon or LDS Church.
Appellee Mayson worked at the Gymnasium for some 16 years as an assistant building engineer and then as building engineer. He was discharged in 1981 because he failed to qualify for a temple recommend, that is, a .certificate that he is a member of the Church and eligible to attend its temples.
Mayson and others purporting to represent a class of plaintiffs brought an action against the CPB and the COP alleging, among other things, discrimination on the basis of religion in violation of §703 of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2. The defendants moved to dismiss this claim on the ground that § 702 shields them from liability. The plaintiffs contended that if construed to allow religious employers to discriminate on religious grounds in hiring for nonreligious jobs, §702 violates the Establishment Clause.
The District Court first considered whether the facts of these cases require a decision on the plaintiffs’ constitutional argument. Starting from the premise that the religious activities of religious employers can permissibly be exempted under § 702, the court developed a three-part test to determine whether an activity is religious. Applying this test to Mayson’s situation, the court found: first, that the Gymnasium is intimately connected to the Church financially and in matter's of management; second, that there is no clear connection between the primary function which the Gymnasium performs and the religious beliefs and tenets of the Mormon Church or church administration; and third, that none of Mayson’s duties at the Gymnasium are “even tangentially related to any conceivable religious belief or ritual of the Mormon Church or church administration,” 594 F. Supp. 791, 802 (Utah 1984). The court concluded that Mayson’s case involves nonreligious activity.
The court next considered the plaintiffs’ constitutional challenge to § 702. Applying the three-part test set out in Lemon v. Kurtzman, 403 U. S. 602 (1971), the court first held that § 702 has the permissible secular purpose of “assuring that the government remains neutral and does not meddle in religious affairs by interfering with the decision-making process in religions . . . .” 594 F. Supp, at 812. The court concluded, however, that § 702 fails the second part of the Lemon test because the provision has the primary effect of advancing religion. Among the considerations mentioned by the court were: that § 702 singles out religious enti-ties for a benefit, rather than benefiting a broad grouping of which religious organizations are only a part; that §702 is not supported by long historical tradition; and that §702 burdens the free exercise rights of employees of religious institutions who work in nonreligious jobs. Finding that § 702 impermissibly sponsors religious organizations by granting them “an exclusive authorization to engage in conduct which can directly and immediately advance religious tenets and practices,” id., at 825, the court declared the statute unconstitutional as applied to secular activity. The court entered summary judgment in favor of Mayson pursuant to Federal Rule of Civil Procedure 54(b) and ordered him reinstated with backpay. Subsequently, the court vacated its judgment so that the United States could intervene to defend the constitutionality of § 702. After further briefing and argument the court affirmed its prior determination and reentered a final judgment for Mayson.
II
“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 144-145 (1987) (footnote omitted). It is well established, too, that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” Walz v. Tax Comm’n, 397 U. S. 664, 673 (1970). There is ample room under the Establishment Clause for “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id., at 669. At some point, accommodation may devolve into “an unlawful fostering of religion,” Hobbie, supra, at 145, but these are not such cases, in our view.
The private appellants contend that we should not apply the three-part Lemon approach, which is assertedly unsuited to judging the constitutionality of exemption statutes such as §702. Brief for Appellants in No. 86-179, pp. 24-26. The argument is that an exemption statute will always have the effect of advancing religion and hence be invalid under the second (effects) part of the Lemon test, a result claimed to be inconsistent with cases such as Walz v. Tax Comm’n, supra, which upheld property tax exemptions for religious organizations. The first two of the three Lemon factors, however, were directly taken from pre-Walz decisions, 403 U. S., at 612-613, and Walz did not purport to depart from prior Establishment Clause cases, except by adding a consideration that became the third element of the Lemon test. 403 U. S., at 613. In any event, we need not reexamine Lemon as applied in this context, for the exemption involved here is in no way questionable under the Lemon analysis.
Lemon requires first that the law at issue serve a “secular legislative purpose.” Id., at 612. This does not mean that the law’s purpose must be unrelated to religion — that would amount to a requirement “that the government show a callous indifference to religious groups,” Zorach v. Clauson, 343 U. S. 306, 314 (1952), and the Establishment Clause has never been so interpreted. Rather, Lemon’s “purpose” requirement aims at preventing the relevant governmental decisionmaker — in this case, Congress — from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.
Under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Appellees argue that there is no such purpose here because §702 provided adequate protection for religious employers prior to the 1972 amendment, when it exempted only the religious activities of such employers from the statutory ban on religious discrimination. We may assume for the sake of argument that the pre-1972 exemption was adequate in the sense that the Free Exercise Clause required no more. Nonetheless, it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.
After a detailed examination of the legislative history of the 1972 amendment, the District Court concluded that Congress’ purpose was to minimize governmental “interference] with the decision-making process in religions. ” 594 F. Supp., at 812. We agree with the District Court that this purpose does not violate the Establishment Clause.
The second requirement under Lemon is that the law in question have “a principal or primary effect. . . that neither advances nor inhibits religion.” 403 U. S., at 612. Undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702. But religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster: for example, the property tax exemption at issue in Walz v. Tax Comm’n, supra, or the loans of schoolbooks to schoolchildren, including parochial school students, upheld in Board of Education v. Allen, 392 U. S. 236 (1968). A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden “effects” under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. As the Court observed in Walz, “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” 397 U. S., at 668. Accord, Lemon, 403 U. S., at 612.
The District Court appeared to fear that sustaining the exemption would permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world. 594 F. Supp., at 825. The cases before us, however, involve a nonprofit activity instituted over 75 years ago in the hope that “all who assemble here, and who come for the benefit of their health, and for physical blessings, [may] feel that they are in a house dedicated to the Lord.” Dedicatory Prayer for the Gymnasium, quoted, 594 F. Supp., at 800-801, n. 15. These cases therefore do not implicate the apparent concerns of the District Court. Moreover, we find no persuasive evidence in the record before us that the Church’s ability to propagate its religious doctrine through the Gymnasium is any greater now than it was prior to the passage of the Civil Rights Act in 1964. In such circumstances, we do not see how any advancement of religion achieved by the Gymnasium can be fairly attributed to the Government, as opposed to the Church.
We find unpersuasive the District Court’s reliance on the fact that §702 singles out religious entities for a benefit. Although the Court has given weight to this consideration in its past decisions, see n. 11, supra, it has never indicated that statutes that give special consideration to religious groups are per se invalid. That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause. See supra, at 334-335. Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to secular entities.
We are also unpersuaded by the District Court’s reliance on the argument that § 702 is unsupported by long historical tradition. There was simply no need to consider the scope of the § 702 exemption until the 1964 Civil Rights Act was passed, and the fact that Congress concluded after eight years that the original exemption was unnecessarily narrow is a decision entitled to deference, not suspicion.
Appellees argue that § 702 offends equal protection principles by giving less protection to the employees of religious employers than to the employees of secular employers. Appellees rely on Larson v. Valente, 456 U. S. 228, 246 (1982), for the proposition that a law drawing distinctions on religious grounds must be strictly scrutinized. But Larson indicates that laws discriminating among religions are subject to strict scrutiny, ibid., and that laws “affording a uniform benefit to all religions” should be analyzed under Lemon, 456 U. S., at 252. In cases such as these, where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, we see no justification for applying strict scrutiny to a statute that passes the Lemon test. The proper inquiry is whether Congress has chosen a rational classification to further a legitimate end. We have already indicated that «Congress acted with a legitimate purpose in expanding the § 702 exemption to cover all activities of religious employers. Supra, at 336. To dispose of appellees’ equal protection argument, it suffices to hold — as we now do — that as applied to the nonprofit activities of religious employers, § 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.
It cannot be seriously contended that §702 impermissibly entangles church and state; the statute effectuates a more complete separation of the two and avoids the kind of intrusive inquiry into religious belief that the District Court engaged in in this case. The statute easily passes muster under the third part of the Lemon test.
The judgment of the District Court is reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Section 702 provides in relevant part:
“This subchapter [i. e., Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq.l shall not apply... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
Title 28 U. S. C. § 1252 permits any party to appeal to this Court from an interlocutory or final judgment, decree, or order of any court of the United States holding an Act of Congress unconstitutional in any civil action to which the United States is a party.
The CPB and the COP are “corporations sole” organized under Utah law to perform various activities on behalf of the Church. Both corporations are tax-exempt, nonprofit religious entities under § 501(c)(3) of the Internal Revenue Code. Appellees do not contest that the CPB and the COP are religious organizations for purposes of § 702.
Temple recommends are issued only to individuals who observe the Church’s standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.
The District Court did not certify a class. The other plaintiffs below, whose claims are not at issue in this appeal, initially included former employees of Beehive Clothing Mills, which manufactures garments with religious significance for Church members. The complaint was amended to add as plaintiff a former employee of Deseret Industries, a division of the Church’s Welfare Services Department. The District Court’s rulings on the other plaintiffs’ claims are described at n. 13, infra.
The District Court described the test as follows:
“First, the court must look at the tie between the religious organization and the activity at issue with regard to such areas as financial affairs, day-to-day operations and management. Second, whether or not there is a close and substantial tie between the two, the court next must examine the nexus between the primary function of the activity in question and the religious rituals or tenets of the religious organization or matters of church administration. If there is substantial connection between the activity in question and the religious organization’s religious tenets or matters of church administration and the tie under the first part of the test is close, the court does not need to proceed any further and may declare the activity religious. . . . However, where the tie between the religious entity and activity in question is either close or remote under the first prong of the test and the nexus between the primary function of the activity in question and the religious tenets or rituals of the religious organization or matters of church administration is tenuous or non-existent, the court must engage in a third inquiry. It must consider the relationship between the nature of the job the employee is performing and the religious rituals or tenets of the religious organization or matters of church administration. If there is a substantial relationship between the employee’s job and church administration or the religious organization’s rituals or tenets, the court must find that the activity in question is religious. If the relationship is not substantial, the activity is not religious.” 594 F. Supp. 791, 799 (Utah 1984).
The court found that “nothing in the running or purpose of [the Gymnasium] . . . suggests that it was intended to spread or teach the religious beliefs and doctrine and practices of sacred ritual of the Mormon Church or that it was intended to be an integral part of church administration.” Id., at 800. The court emphasized that no contention was made that the religious doctrines of the Mormon Church either require religious discrimination in employment or treat physical exercise as a religious ritual. Id., at 801.
The court also considered and rejected the possibility that §702 could be construed to exempt a religious organization only with respect to employment involving religious activities. Id., at 803-804.
The court examined in considerable detail the legislative history of the 1972 amendment of § 702. Id., at 805-812. Prior to that time, § 702 exempted only the religious activities of religious employers from the statutory proscription against religious discrimination in employment. The 1972 amendment extending the exemption to all activities of religious organizations was sponsored by Senators Allen and Ervin. Senator Ervin explained that the purpose of the amendment was to “take the political hands of Caesar off of the institutions of God, where they have no place to be.” 118 Cong. Rec. 4503 (1972).
The court rejected the defendants’ arguments that §702 is required both by the need to avoid excessive governmental entanglement with religion and by the Free Exercise Clause. 594 F. Supp., at 814-820.
Cf., e. g., Mueller v. Allen, 463 U. S. 388, 397 (1983) (provision of benefits to a broad spectrum of groups is an important index of secular effect); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 794 (1973) (narrowness of benefited class is an important factor in evaluating whether effect of a law violates the Establishment Clause).
Cf. Walz v. Tax Comm’n, 397 U. S. 664, 676-679 (1970) (relying in part, in upholding property tax exemption for religious groups, on long historical tradition for such exemptions).
The court declared that its determination regarding § 702 “applies with equal force to the [similar] state exemption as it relates to the facts of this case.” 594 F. Supp., at 798. It deferred ruling on the plaintiffs’ claim that § 702 violates the Due Process and Equal Protection Clauses of the United States Constitution, id., at 828, and rejected the plaintiffs’ state-law claims of wrongful discharge and intentional infliction of emotional distress, id., at 828-830.
Subsequently, the court concluded that disputed issues of material fact precluded summary judgment for the Beehive employees (see n. 5, supra). 618 F. Supp. 1013, 1016 (Utah 1985).
A plaintiff added by amendment of the complaint, Ralph Whitaker, claimed impermissible religious discrimination in his discharge from the position of truckdriver by Deseret Industries (Industries) based on his failure to qualify for a temple recommend. Industries, a division of the Church’s Welfare Services Department, runs a workshop program for the handicapped, retarded, and unemployed, who sort and assemble items and refurbish donated goods for sale in Industries’ thrift stores. Relying on the Church’s emphasis on charity and work, the court held that Industries is a religious activity because “there is an intimate connection between Industries and the defendants and the Mormon Church and between the primary function of Industries and the religious tenets of the Church. ” Id., at 1027. Finding no Establishment Clause violation in applying the § 702 exemption to Industries, the court granted summary judgment against Whitaker, who did not appeal.
The present cases are illustrative of the difficulties: the distinction between Deseret Industries, see n. 13, supra, and the Gymnasium is rather fine. Both activities are run on a nonprofit basis, and the CPB and the COP argue that the District Court failed to appreciate that the Gymnasium as well as Deseret Industries is expressive of the Church’s religious values. Brief for Appellants in No. 86-179, pp. 6-8, 19.
Undoubtedly, Mayson’s freedom of choice in religious matters was impinged upon, but it was the Church (through the COP and the CPB), and not the Government, who put him to the choice of changing his religious practices or losing his job. This is a very different case than Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985). In Caldor, the Court struck down a Connecticut statute prohibiting an employer from requiring an employee to work on a day designated by the employee as his Sabbath. In effect, Connecticut had given the force of law to the employee’s designation of a Sabbath day and required accommodation by the employer regardless of the burden which that constituted for the employer or other employees. See Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 145, n. 11 (1987). In the present cases, appellee Mayson was not legally obligated to take the steps necessary to qualify for a temple recommend, and his discharge was not required by statute. We find no merit in appellees’ contention that § 702 “impermissibly delegates governmental power to religious employees and conveys a message of governmental endorsement of religious discrimination.” Brief for Appellees 31.
Appellees also argue that § 702 violates equal protection principles by giving religious employers greater leeway to discriminate than secular employers. It is not clear why appellees should have standing to represent the interests of secular employers, but in any event this argument is, practically speaking, merely a restatement of the first point.
We have no occasion to pass on the argument of the COP and the CPB that the exemption to which they are entitled under § 702 is required by the Free Exercise Clause.
Appellees argue that § 702 creates danger of political divisiveness along political lines. As the Court stated in Lynch v. Donnelly, 465 U. S. 668, 684 (1984):
“[T]his Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other, religious institutions, and hence no inquiry into political divisiveness is even called for, Mueller v. Allen, 463 U. S. 388, 403-404, n. 11 (1983).”
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
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.
SOLESBEE v. BALKCOM, WARDEN.
No. 77.
Argued November 15, 1949.
Decided February 20, 1950.
Benjamin E. Pierce argued the cause and filed a brief for appellant.
Eugene Cook, Attorney General of Georgia, submitted on brief for appellee. With him on the brief were Claude Shaw, Deputy Assistant Attorney General, and J. B. Par-ham, Assistant Attorney General.
Mr. Justice Black
delivered the opinion of the Court.
Petitioner was convicted of murder in a Georgia state court. His sentence was death by electrocution. Subsequently he asked the Governor to postpone execution on the ground that after conviction and sentence he had become insane. Acting under authority granted by § 27-2602 of the Georgia Code the Governor appointed three physicians who examined petitioner and declared him sane. Petitioner then filed this habeas corpus proceeding again alleging his insanity. He contended that the due process clause of the Fourteenth Amendment required that his claim of insanity after sentence be originally determined by a judicial or administrative tribunal after notice and hearings in which he could be represented by counsel, cross-examine witnesses and offer evidence. He further contended that if the tribunal was administrative its findings must be subject to judicial review. The trial court sustained the constitutional validity of § 27-2602, holding that determination of petitioner’s sanity by the Governor supported by the report of physicians had met the standards of due process. The State Supreme Court affirmed, 205 Ga. 122, 52 S. E. 2d 433. The constitutional questions being substantial, see Phyle v. Duffy, 334 U. S. 431, 439, the case is here on appeal under 28 U. S. C. § 1257 (2).
In affirming, the State Supreme Court held that a person legally convicted and sentenced to death had no statutory or constitutional right to a judicially conducted or supervised “inquisition or trial” on the question of insanity subsequent to sentence. It viewed the Georgia statutory procedure for determination of this question as motivated solely by a sense of “public propriety and decency” — an “act of grace” which could be “bestowed or withheld by the State at will” and therefore not subject to due process requirements of notice and hearing. The court cited as authority, among others, our holding in Nobles v. Georgia, 168 U. S. 398. Compare Burns v. United States, 287 U. S. 216, 223.
In accordance with established policy we shall not go beyond the constitutional issues necessarily raised by this record. At the outset we lay aside the contention that execution of an insane person is a type of “cruel and unusual punishment” forbidden by the Fourteenth Amendment. See Francis v. Resweber, 329 U. S. 469. For the controlling Georgia statutes neither approve the practice of executing insane persons, nor is this petitioner about to be executed on such a premise. It is suggested that the reasoning of the Georgia Supreme Court in this case requires us to pass upon the state statute as though it had established a state practice designed to execute persons while insane. But we shall not measure the statute by some possible future application. Our holding is limited to the question of whether the method applied by Georgia here to determine the sanity of an already convicted defendant offends due process.
Postponement of execution because of insanity bears a close affinity not to trial for a crime but rather to reprieves of sentences in general. The power to reprieve has usually sprung from the same source as the power to pardon. Power of executive clemency in this country undoubtedly derived from the practice as it had existed in England. Such power has traditionally rested in governors or the President, although some of that power is often delegated to agencies such as pardon or parole boards. Seldom, if ever, has this power of executive clemency been subjected to review by the courts. See Ex parte United States, 242 U. S. 27, 42, and cases collected in Note, 38 L. R. A. 577, 587.
We are unable to say that it offends due process for a state to deem its Governor an “apt and special tribunal” to pass upon a question so closely related to powers that from the beginning have been entrusted to governors. And here the governor had the aid of physicians specially trained in appraising the elusive and often deceptive symptoms of insanity. It is true that gov'ernors and physicians might make errors of judgment. But the search for truth in this field is always beset by difficulties that may beget error. Even judicial determination of sanity might be wrong.
Recently we have pointed out the necessary and inherent differences between trial procedures and post-conviction procedures such as sentencing. Williams v. New York, 337 U. S. 241. In that case we emphasized that certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies even more forcefully to an effort to transplant every trial safeguard to a determination of sanity after conviction. As was pointed out in the Nobles case, supra, to require judicial review every time a convicted defendant suggested insanity would make the possibility of carrying out a sentence depend upon “fecundity in making suggestion after suggestion of insanity.” Nobles v. Georgia, supra, at 405-406. See also Phyle v. Duffy, supra. To protect itself society must have power to try, convict, and execute sentences. Our legal system demands that this governmental duty be performed with scrupulous fairness to an accused. We cannot say that it offends due process to leave the question of a convicted person’s sanity to the solemn responsibility of a state’s highest executive with authority to invoke the aid of the most skillful class of experts on the crucial questions involved.
This leaves the contention that the Georgia statutes do not make provisions for an adversary hearing in which a convicted defendant can be present by friends, attorneys, or in person, with the privilege of cross-examining witnesses and offering evidence. Whether this Governor declined to hear, any statements on petitioner’s behalf, this record does not show. We would suppose that most if not all governors, like most if not all judges, would welcome any information which might be suggested in cases where human lives depend upon their decision.
Both the Nobles and the Phyle cases stand for the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. This discretion has usually been held nonreviewable by appellate courts. The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence. We cannot say that the trust thus reposed in judges should be denied governors, traditionally charged with saying the last word that spells life or death. There is no indication that either the Governor or the physicians who acted on petitioner’s application violated the humanitarian policy of Georgia against execution of the insane. We hold that the Georgia statute as applied is not a denial of due process of law.
Affirmed.
Mr. Justice Douglas took no part in the consideration or decision of this case.
“Disposition of insane convicts. . . . Upon satisfactory evidence being offered to the Governor that the person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, within his discretion, have said person examined by such expert physicians as the Governor may choose; and said physicians shall report to the Governor the result of their investigation; and the Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored, as determined by laws now in force. . . .” Ga. Code Ann. § 27-2602 (1074 P. C.); Acts 1903, p. 77.
“No person who has been convicted of a capital offense shall be entitled to any inquisition or trial to determine his sanity.” Ga. Code Ann. § 27-2601 (1073 P. C.); Acts 1903, p. 77.
Nobles v. Georgia, 168 U. S. 398,409.
See eases collected in Notes, Ann. Cas. 1916E, 424 et seq.; 49 A. L. R. 801 et seq.; 38 L. R. A. 577 et seq.
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:
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songer_treat
|
G
|
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.
Patrick J. O’HANLON, individually and as Administrator of the Estate of Brian O’Hanlon, Plaintiff, Appellant/Cross-Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecticut corporation, Nationwide Mutual Insurance Company, an Ohio corporation, Defendants, and Insurance Company of North America, a Pennsylvania corporation, Defendant, Appellee/Cross-Appellant.
Nos. 80-1216, 80-1217.
United States Court of Appeals, Third Circuit.
Argued Oct. 9, 1980.
Decided Jan. 30, 1981.
David Roeberg (argued), Frederick T. Haase, Jr., Roeberg & Associates, P.A., Wilmington, Del., for appellant Patrick J. O’Hanlon, etc.
F. Alton Tybout (argued), Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for appellee/cross-appellant, Insurance Company of North America.
Before SEITZ, Chief Judge, HIGGIN-BOTHAM, Circuit Judge and MEANOR, District Judge.
Honorable H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
MEANOR, District Judge.
On September 12, 1974, plaintiff’s decedent, Brian O’Hanlon, was a passenger in an automobile being operated by a Michael Ryan. Ryan and the operator of a never identified vehicle engaged in a drag race. Ryan’s car, without making contact with the unidentified vehicle, was forced off the road where it collided with apparently immovable objects. Brian O’Hanlon suffered devastating personal injuries from which his death ensued on the second anniversary of the accident. These events gave rise to an automobile liability insurance controversy of considerable magnitude and complexity, only part of which has survived for appellate review here.
Suit was brought against Hartford Accident and Indemnity Company, Insurance Company of North America (INA), the appellant here, and Nationwide Mutual Insurance Company. Nationwide insured the Ryan car. Hartford covered in one policy four vehicles owned by Patrick J. O’Hanlon, father of Brian. INA had provided to Patrick J. O’Hanlon an “umbrella policy” which included automobile liability coverage and also a separate primary auto policy which covered a pick-up truck owned by O’Hanlon. In the latter policy, the named insured was designated as Coe Management Company, a trade name under which O’Hanlon conducted business.
Nationwide paid its liability limit, $25,-000. Recovery was sought under the Uninsured Motorist (UM) coverage of the Nationwide policy. UM recovery was also sought on the Hartford policy, the INA policy issued with Coe Management as named insured and the INA umbrella policy. The Hartford policy had $100,-000/$800,000 ($100/$300) liability limits and it was asserted that under Delaware law the insurer was required to offer UM coverage in this amount, but had failed in its legal duty to do so. Reformation of the Hartford policy to increase UM coverage to $100/$300 was sought. As to the INA Coe Management policy, it was contended that although Delaware law required that UM coverage be offered, INA did not make such coverage available. Reformation of that policy was sought to include UM coverage therein. The INA Coe Management policy had liability limits of $100/$300 and further reformation of this policy was claimed so as to provide UM coverage in that amount.
The INA umbrella policy provided UM coverage. Plaintiff asserted that this policy likewise was required by Delaware law to provide UM coverage, and consequently sought its reformation to UM limits of $300,000. This policy, as written, provided UM coverage up to $35,000 after deduction of a “retained limit”. INA contended that because of payments made by other insurers, it owed nothing. Plaintiff asserted, however, that in light of an ambiguity in the UM coverage provisions of this policy INA owed at least the full $35,000.
Proceedings in the district court produced two reported decisions. O’Hanlon v. Hartford Accident & Indem. Co., 439 F.Supp. 377 (D.Del.1977) (O’Hanlon I); O’Hanlon v. Hartford Accident & Indem. Co., 457 F.Supp. 961 (D.Del.1978) (O’Hanlon II). There was a clause in the Nationwide and Hartford policies attempting to restrict UM coverage where the identity of the owner or operator of the uninsured vehicle could not be ascertained, thereby making the accident one involving a “hit-and-run” vehicle, to instances where there was a physical contact with the “hit-and-run” vehicle. The same clause would have been in the INA Coe Management policy had UM coverage been provided therein, as INA conceded was required under Delaware law. The district court held this limitation of UM coverage invalid. O’Hanlon I, 439 F.Supp. at 381. Nationwide has not appealed this determination and has paid its UM coverage limit. The district court further held that the plaintiff was entitled to “stack” UM coverages and that Hartford, since its policy provided UM coverage on four separate vehicles for which four premiums were paid, was liable with respect to four separate UM coverages. Hartford paid these claims and settled by additional payment the claim that its policy should be reformed to provide UM coverage with limits of $100/$300. Hence, Hartford is not involved in this appeal.
With respect to the issues surrounding the INA policies that are brought here by appeal and cross-appeal, the district court first held that the INA Coe Management policy which, as written, did not provide UM coverage but which concededly should have so provided pursuant to Delaware law, was not a policy having UM coverage that inured to the benefit of Brian O’Hanlon. Following an evidentiary hearing, the district court also determined that the INA umbrella policy was not a policy required by 10 Del.Code tit. 18, § 3902 to provide UM coverage. This rendered moot plaintiff’s claim that that policy should be reformed to provide UM coverage with $300,000 limits. Thereafter in an unreported opinion, the court held that because of an ambiguity in the UM coverage provisions contained in the INA umbrella policy, INA was required to pay its full limit of $35,000 pursuant to the UM coverage contained in that policy.
Thus, the remaining issues before us may be defined as follows:
1. Whether INA policy CAL 15 38 48, covering a 1973 GMC pick-up truck and designating Coe Management Company as named insured was a policy whose statutorily mandated UM coverage inures to the benefit of Brian O’Hanlon.
2. Whether INA policy XIM 30 82 80, i.e., the INA umbrella policy, which in fact provides UM coverage, is a policy required by 10 Del.Code tit. 18, § 3902 to contain UM coverage.
3. Whether the “retained limit” as defined in INA’s umbrella policy should be deducted from INA’s maximum exposure of $35,000, as INA contends, or should be deducted from “all sums which the insured or his legal representative shall be legally entitled to recover from the owner or operator of an uninsured automobile” as the plaintiff contends. Subsidiary to this issue is the question whether the umbrella policy coverage language is ambiguous, with the result that any ambiguity must be resolved in favor of the insured.
I.
INA policy CAL 15 38 48 listed Coe Management Company as named insured and covered a 1973 GMC pick-up truck. INA concedes that it breached its statutory duty under 10 Del.Code tit. 18, § 3902 by not providing UM coverage in this policy and that the policy must be construed and enforced as though the mandated UM coverage had been contained in it. The endorsement that INA would have used to provide UM coverage within this policy is contained in the record, and there is no dispute that we are obligated to read this policy as though that endorsement had been present when the policy was issued.
Coe Management Company is a trade name under which Patrick J. O’Hanlon conducted business. The truck insured under INA policy CAL 15 38 48 was used by an employee of O’Hanlon who normally had the truck in his possession. He was under instructions to use the truck only in the course of his employment.
The Coe Management policy is a commercial automobile liability policy. It was written to cover a business vehicle as distinguished from a private passenger family automobile. It seems to have been designed to cover business entities rather than natural persons. For example, in defining “persons insured” the policy refers to the named insured and “any partner or executive officer thereof.” The use of the pickup truck described under the heading “owned automobiles” is listed as “business.” These considerations led the district court to conclude that O’Hanlon never intended to protect his family and personal interests under this policy, but rather intended the policy to cover only his business related risks. O’Hanlon I. 489 F.Supp. at 387-88.
On the other hand, the application for the policy, although listing Coe Management Company as named insured, also notes that the insured is an individual. The UM coverage endorsement which we must construe as part of this policy, reads as though it were designed for use with a policy that covered a natural person as named insured. The UM endorsement provided to us contains a blank space in which the name of the named insured is to be inserted. If this endorsement had been contained within the policy, obviously the name Coe Management Company would have been inserted as the named insured. There can be no question but that INA knew that this was a trade name synonymous with Patrick J. O’Hanlon. The UM endorsement defined “Persons Insured”, in part, as “the Named Insured ... and, while residents of the same household, the spouse and relatives of ... [the Named Insured.]”
The district court is undoubtedly correct in its conclusion that Policy No. CAL (commercial automobile liability) 15 38 48 issued to Coe Management Company was never intended by either O’Hanlon or INA to apply to other than business related risks. Under the liability features of this policy, Brian O’Hanlon did not qualify as a person insured thereunder by being a relative of the named insured living in the same household, as he did under UM coverage endorsement that should have been a part of this policy. Basically, if Brian were to achieve insured status under the Coe Management policy, that could only result from his operation of an owned or hired automobile with the permission of the named insured. However, if the description of named insured in the UM coverage endorsement of the policy as Coe Management Company is to be read as synonymous with Patrick J. O’Hanlon, then it is plain that Brian O’Hanlon did in fact achieve status as a person insured under the UM endorsement simply by being a relative of Patrick J. O’Hanlon residing in the same household.
We believe that we are obliged to read the designation of the named insured in the UM endorsement as a synonym for Patrick J. O’Hanlon, or at least as though the UM endorsement had identified the named insured as “Patrick J. O’Hanlon, trading as Coe Management Company.”
The issue whether a policy that insures an individual under a trade name insures the same person as would a policy issued to that person under his given name has arisen most frequently with respect to non-owned or temporary substitute automobile coverage.
In Samples v. Georgia Mutual Insurance Co., 138 S.E.2d 463, 464, 110 Ga.App. 297 (Ga.App.1964), the plaintiff was driving a vehicle purchased by her husband in the trade name under which he owned and operated a business. The plantiff had procured a policy from the defendant in her own name, and was driving the vehicle registered in her husband’s trade name at a time when her vehicle, which was covered by defendant’s policy, was temporarily out of commission. It is inferable that the vehicle registered in the trade name was not insured; while operating it, plaintiff was involved in an accident. After defending that suit, she brought an action against Georgia Mutual in an effort to recover attorneys fees and litigation expenses. In so doing, plaintiff relied on the temporary substitute automobile coverage of the Georgia Mutual policy, which defined a temporary substitute vehicle for which coverage would be provided as a vehicle “not owned by the named insured or [her] spouse.” If the vehicle registered in the trade name was not owned by the spouse of the plaintiff, then there was temporary substitute coverage available to plaintiff. Conversely, if that vehicle was, in fact, owned by plaintiff’s spouse, then there was no temporary substitute coverage.
The court denied coverage. It pointed out that a trade name “is merely a name assumed or used by a person recognized as a legal entity,” and that “a judgment against one in an assumed or trade name is a judgment against him as an individual.” Id. at 465. The court stated:
The fact that the plaintiff’s husband purchased this automobile in the name that he used in doing business does not contra-diet the fact that he owned the automobile as an individual.
Id
In Gabrelcik v. National Indemnity Co., 269 Minn. 445, 131 N.W.2d 534 (1964), the plaintiff insured her taxicab with defendant under a policy that defined a temporary substitute automobile as “an automobile not owned by the named insured or his spouse if a resident of the same household.” Id. at 535. The plaintiff’s husband was in the used-car business and had in stock a Ford automobile registered in the name of Frank’s Used Cars, a trade name under which plaintiff’s husband conducted his business. While the taxi was undergoing repair, plaintiff used the Ford in her taxi business. A passenger was injured and plaintiff sought coverage under the temporary substitute coverage of the policy issued to her by defendant. The court noted that an obvious purpose of excluding temporary substitute coverage as to vehicles owned by the spouse of the named insured residing in the same household “is to prevent the same policy from being used to provide coverage for vehicles other than those for which a premium was paid.” Id.
The court also considered whether the vehicle registered in the name of Frank’s Used Cars was owned by the plaintiff’s husband. It so held, stating:
We fail to see how the fact that plaintiff’s spouse is the owner of the vehicle in question is changed for insurance purposes by the manner in which it is registered with the state. Whether the vehicle is registered in the husband’s name or in the name of the business which he owns and operates as a sole proprietorship, the result is the same; namely, that this vehicle was owned by the insured’s spouse who resided in the same household.
Id. at 536.
INA argues that it would be error to apply the doctrine of reformation or to create an ambiguity where none exists in order to equate Coe Management and Patrick J. O’Hanlon. We agree that application of either theory to this case would be contrived. We are persuaded by the cases arising under non-owned and temporary substitute coverage which use neither reformation nor ambiguity in holding that an insured’s trade name and given name should be equated. We, therefore, hold, as do the cases cited and discussed above, that where an insured purchases a policy in a trade name, the policy will be viewed as if issued in his given name. To do otherwise would, as a general principle, frustrate the unambiguous underwriting intent underlying the usual definitions of non-owned and temporary substitute automobiles.
INA’s primary argument in denying UM coverage under the Coe Management policy is that Patrick J. O’Hanlon should not be considered the named insured thereunder. It also argues that under 10 Del. Code tit. 18, § 3902 the Coe Management policy was not required to afford UM coverage to Brian O’Hanlon. That section requires that any “policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle ...” shall include UM coverage “for the protection of persons insured thereunder ...” unless the UM coverage is rejected in writing by the insured. INA correctly reads the reference to “persons insured thereunder” to refer to those persons insured under the liability features of the policy. As we have stated above, Brian O’Hanlon was not a defined insured under the terms of the liability provisions in the Coe Management policy. It is quite true that there was no statutory obligation on the part of INA to include Brian O’Hanlon within the UM coverage of that policy. However, nothing in section 3902 prevents INA from providing UM coverage to persons outside the class of liability insureds as defined in the underlying policy. That is exactly what INA has done, for the UM endorsement that it was required to include within the Coe Management policy covers “the Named Insured .. . and, while residents of the same household, the ... relatives of [the Named Insured].” Once it is established that the named insured is Patrick J. O’Hanlon, the policy is unambiguous and plainly affords UM coverage to Brian O’Hanlon.
The judgment in favor of INA on plaintiff’s claim under the policy issued with Coe Management Company as named insured is reversed. Plaintiff is entitled to the statutory insurance of $10,000 in UM coverage on this policy and to further proceedings to resolve his claim that the UM limits on this policy should be reformed to provide UM coverage of $100/$300.
II.
In O’Hanlon II, 457 F.Supp. 961, supra, the district court held that INA’s umbrella policy was not a policy required by 10 Del. Code tit. 18, § 3902 to contain UM coverage. Hence, the court dismissed plaintiff’s claim that this policy should be reformed to increase UM coverage to limits of $300,000.
Plaintiff correctly notes that an objective of subsection (b) of section 3902 was to provide a purchaser of insurance with the opportunity to protect himself from the risk posed by an uninsured driver to the extent of his liability limits or $300,000, whichever is less.
There is no point in construing a statute to require that something be done superfluous to its objectives. Section 3902 expresses a legislative command that automobile liability policies issued in Delaware provide UM coverage as a matter of course with limits at least equal to those required “under the motorist financial responsibility laws” with the option on the part of the insured to reject UM coverage in writing, or to obtain increased UM coverage equal to liability limits, but not to exceed $300,000.
Policies such as the INA umbrella policy under consideration here, with respect to their automobile coverages, would not exist but for underlying primary auto policies to which they provide excess liability insurance. Primary insurance policies in Delaware, by their very existence, provide insureds with all of the benefits accorded under section 3902. To place umbrella policies within the ambit of section 3902 would be to apply that section to require UM coverage in addition to that provided by primary policies. We do not believe that section 3902 can be so read, and hold that it is not applicable to policies that provide excess liability insurance.
III.
There is no dispute that the UM coverage contained in the INA umbrella policy is applicable to Brian O’Hanlon. The UM coverage in that policy is entitled “Coverage B” and the pertinent portions of the coverage clause as well as of the definition of “retained limit” are set forth in note 3, supra.
The district court held, and it is not argued to the contrary here, that the amount of the retained limit in this case is $75,000. This sum is the aggregate of the $25,000 that Nationwide paid on its liability coverage, the $10,000 Nationwide paid under its UM coverage, and the liability limit of $10,-000 each on the four separate UM coverages contained in the Hartford policy.
INA’s interpretation of this language requires that the amount of the retained limit be ascertained, here $75,000, and that this amount be deducted from $35,000, with the result that the company is liable only for the difference. Such an application of the policy terms would result in no payment.
Plaintiff’s interpretation requires that, first the total loss or damage suffered by the insured be ascertained: Second, the amount of the retained limit is to be calculated. Following these steps, the amount of the retained limit is deducted from the total loss leaving INA to pay the difference up to $35,000.
We believe that the plaintiff’s construction of the UM coverage of the umbrella policy is the correct one. At least, the policy is ambiguous, and under well-settled doctrine the ambiguity must be resolved in favor of the insured. Transport Indemnity Co. v. Home Indemnity Co., 535 F.2d 232 (3d Cir. 1976); Novellino v. Life Insurance Co. of North America, 216 A.2d 420 (Del. 1966).
One cannot read the UM provisions of the umbrella policy without coming to the conclusion that INA is promising to pay, under some circumstances, up to $35,000 in UM coverage. Conversely, under INA’s view of the policy, it would never pay more than $25,000.
This is because the policy states two alternative sums as the retained limit. One is the gross amount of other UM and liability insurance payable to the insured. The other is “the minimum amount specified by the financial responsibility laws of the state in which the accident shall occur.” The latter amount as specified by Delaware law is $10,000. This sum is the minimum to be deducted and would be deducted even if not paid.
We doubt that there is any ambiguity with respect to the issues before us concerning INA’s UM umbrella policy coverage, and we think INA has misconstrued its own policy. It seems clear that the INA has agreed to pay, up to a maximum of $35,000, “all sums ... which the INSURED . .. shall be legally entitled to recover as damages from the owner or operation of an uninsured automobile” after the retained limit is deducted from the damages to which the insured is legally entitled. The retained limit is then defined as the total of other insurance payable or the minimum limit specified by the applicable financial responsibility laws, whichever is greater.
This, it seems to us, requires: first, that the total damages of the insured be ascertained; second, that the retained limit be calculated; and third, that the retained limit be deducted from the total damages leaving INA to pay the difference, if any, but not to exceed $35,000.
INA argues that application of basic grammatical rules of construction will support its version as the proper interpretation of its policy language “all sums up to $35,-000 less the retained limit.”
It is elementary that a limiting or modifying phrase refers to its immediate antecedent. Such an antecedent may be a noun, or a noun equivalent, such as a phrase. Here the limiting phrase is “less the amount of the retained limit.” INA would have it that this phrase refers only to the figure $35,000. However, we believe that proper construction would apply the limiting phrase to its antecedent phrase — “all sums up to $35,000.” To put it another way, we read $35,000 as a parenthetical description and, if this is done, it is clear that both the mention of the sum of $35,000 and the phrase “less the retained limit” modify the words “all sums”.
Even if we are incorrect, and the intent of the draftsman was as INA asserts, then we are clear that the policy is ambiguous and that ambiguity must be resolved against the insurer.
IV.
For the reasons set forth in this opinion, the judgment of the district court in favor of INA on plaintiff’s claim under policy No. CAL 15 38 48, designating Coe Management Company as named insured, is reversed and remanded for proceedings not inconsistent with this opinion. The district court is directed to enter a judgment in the amount of $10,000 in favor of plaintiff pursuant to this policy and to conduct further proceedings to resolve the question whether the UM limits of this policy should be reformed to provide UM coverage with a limit of $100/$300.
The judgment of the district court in the amount of $25,000 in favor of the plaintiff against INA on plaintiff’s claim under the UM coverage features of its Personal Catastrophe Policy No. XIM 30 82 80 is affirmed.
. We have called this policy an “umbrella policy” for want of a better brief description. INA entitles it a Personal Catastrophe Plan. To call it an excess policy would not be accurate, for it provides some primary coverage for liabilities not arising out of automobile accidents, e.g., libel and slander. With respect to automobile liability insurance it is primarily an excess policy, but does provide some primary auto insurance. For example, most primary auto policies carry a geographical limitation to the continental United States and Canada. The umbrella policy contains no such limitation and would provide primary auto coverage outside the continental United States and Canada.
. Delaware’s uninsured motorist statute, 10 Del.Code tit. 18, § 3902 as amended, provides, in pertinent part:
(a) No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the ownership, maintenance or use of such uninsured or hit-and-run motor vehicle. Except, that no such coverage shall be required in or supplemental to a policy where rejected in writing, on a form furnished by the insurer describing the coverage being rejected, by an insured named therein, or upon any renewal of such policy unless the coverage is then requested in writing by the named insured. The coverage herein required may be referred to as “uninsured vehicle coverage.”
(b) The amount of coverage to be so provided shall not be less than the minimum limits for bodily injury, death and property damage liability insurance provided for under the motorist financial responsibility laws of this State. [See n. 14, infra ] The coverage for property damage shall be subject to a $250 deductible for property damage arising out of any 1 accident unless the insurer and the insured agree in writing to a different deductible. Each insured shall be offered the option to purchase additional coverage for personal injury or death up to a limit of $300,000, but not to exceed the limits for personal injury set forth in the basic policy.
As used herein, the term “property damage” shall include the loss of use of a vehicle.
. The UM coverage provisions of INA’s umbrella policy provide in relevant part:
the Company agrees to pay all sums up to $35,000 less the amount of the RETAINED LIMIT which the INSURED or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile .... provided:
(1) the Company’s liability hereunder shall be only in excess of the RETAINED LIMIT,
The policy sets forth a definition of retained limit which in pertinent part states:
With respect to coverage B, the Company’s liability shall be only for loss in excess of the INSURED’S RETAINED LIMIT defined as the greater of:
(1) the total amount of insurance payable to the INSURED under other Uninsured Motorists, ... or Auto Liability insurance; or
(2) the minimum amount specified by the financial responsibility laws of the state in which the accident shall occur; and then up to an amount not exceeding $35,000 as the result of any one accident, provided, such liability shall be reduced by the amount of the RETAINED LIMIT.
. Other issues were decided by the district court. However, their recitation is not necessary to show the origination of the questions presented by the present appeals.
. If the plaintiff prevails on issues 1 or 2 as defined above, a remand will be necessary to resolve the reformation dispute.
. It is conceded that the UM endorsement supplied in the record is the one that INA would have used to provide the statutorily required UM coverage, for it is the only approved form INA had at the time. We do not know if a different form is now in use regarding UM coverage in connection with commercial vehicle policies.
. Actually, the application contained in the record was submitted in connection with a policy insuring the pick-up truck for the year preceding the policy in issue. We take it that the policy before us was a renewal of the policy that issued upon this application. We believe it proper to treat the application as one for the policy before us.
. There is an incongruity between the definition of the persons insured with respect to the liability coverages of this policy and the definition of persons insured under the UM endorsement. If this creates an ambiguity, it must, of course, be resolved in favor of the insured. We believe, however, that the UM endorsement must be construed in a manner uninfluenced by the definitions applicable to the liability coverages. A somewhat similar situation was confronted in Ohio Casualty Ins. Co. v. Fike, 304 So.2d 136 (Fla.App. 1975). There the policy was issued to “Russell C. Fike, Jr. and Robert D. Fike, d/b/a Orange State Painting Company”. The policy contained an endorsement that provided for the payment of medical expenses arising out of automobile accidents sustained by “the named insured, or any relative ... while a pedestrian through being struck by a motor vehicle.” Id., at 137 (emphasis in original). The daughter of Russell Fike was struck by an automobile while a pedestrian, and recovery was sought under the endorsement. The insurer contended that its insurance was issued to a partnership and was limited to that partnership. The court disagreed, holding that the policy covered individual partners as well as the partnership. The court said:
The fact that the defendant insurer issued an amendatory endorsement to the policy in question which provided personal injury protection to “the named insured or any relative” seems inapposite to the insured’s [sic; should read insurer’s] position that the policy in question was intended to be limited to a “partnership”; if anything, the amendatory endorsement is reflective of an intention to insure the individual as well as the partnership.
Id. at 137 (emphasis in original).
. Most automobile policies provide coverage on an excess basis for non-owned and temporary substitute vehicles. A non-owned automobile is usually defined as an automobile not owned by the named insured, his spouse or any relative living in the same household. Coverage for a temporary substitute automobile exists where the described vehicle is temporarily withdrawn from service and another is used in its place. This latter coverage normally defines a temporary substitute automobile as one not owned by the named insured, and in some policies this definition has been expanded to include a vehicle not owned by the named insured’s spouse or any relative if resident of the same household. The thrust of these provisions is to prevent one policy with one described automobile from being applicable to other vehicles owned by members of the same family unit, and, thus, to require a separate premium to be paid for each automobile owned by persons in that unit. For an example of the usual language as to non-owned coverage, see Cox v. Santoro, 94 N.J.Super. 319, 228 A.2d 101 (Law Div.), aff’d, 98 N.J.Super. 360, 237 A.2d 491 (App.Div.1967), and as to temporary substitute coverage, see Kelly v. Craig, 263 F.Supp. 570 (W.D.Mo.1967).
. To the same effect is Kelly v. Craig, 263 F.Supp. 570 (W.D.Mo.1967), which relied on Samples v. Georgia Mutual Ins. Co., supra.
. An insured may own or control a corporation which owns a vehicle or may be a member of a partnership that, as an entity, owns a vehicle. Under these circumstances, an insured might well be covered under the non-owned and temporary substitute coverages of a policy issued in his given name while operating a vehicle owned by the corporation or partnership. This is an underwriting risk, but a minimal one, for it is unlikely that such entities would be formed for the purpose of overloading an insurance policy. The danger of such overloading is much greater as to multiple vehicles owned within the same family unit. See, e.g., Saint Paul-Mercury Indem. Co. v. Heflin, 137 F.Supp. 520 (W.D.Ark. 1956).
We desire to add that the cases which we have discussed and cited, equating for insurance purposes, an insured’s given name and his trade name were not cited to the district court. Nor were they cited here. However, we have a duty to decide upon the application of what appears to us to be the controlling legal precepts.
. Under other circumstances, INA might be able to claim that the UM endorsement should be reformed to remove from its coverage the personal and family risks that, as written, it provides. It seems, however, that INA cannot do this for it has no approved substitute language with which the policy may be reformed. See n.6, supra.
. For aid in interpreting section 3902 on this issue the district court held an evidentiary hearing. See O’Hanlon II, 45 F.Supp. 961. Evidence was taken from a professor of law with expertise in the field of uninsured motorists’ coverage and an INA employee versed in the history and extent of coverage of umbrella policies. No attack has been made upon the propriety of holding such a hearing in order to obtain “legislative facts” and, while we imply no criticism of it, we find that we need not consider the evidence thus adduced in order to resolve the issue whether UM coverage was mandated in the umbrella policy by section 3902.
. Delaware’s Financial Responsibility Law, 21 Del.Code tit. 21, § 2902, as amended, provides in pertinent part:
(a) A “motor vehicle liability policy,” as said term is used in this chapter, shall mean an owner’s or an operator’s policy of liability insurance, certified, as provided in § 2948 or 2949 of this title, as proof of financial responsibility and issued, except as otherwise provided in § 2949 of this title, by an insurance carrier duly authorized to transact business in this State, to or for the benefit of the person named therein as insured.
(b) Such owner’s policy of liability insurance shall:
(1) Designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
(2) Insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United states of America or the dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $10,000, because of bodily injury to or death of 1 person in any 1 accident and, subject to said limit for 1 person, $20,000, because of bodily injury to or death of 2 or more persons in any 1 accident, and $5,000, because of injury to or destruction of property of others in any 1 accident.
. Our result is in accord with Trinity Universal Ins. Co. v. Metzger, 360 So.2d 960 (Ala. 1978). Contra, Aetna Cas. & Sur. Co. v. Green, 327 So.2d 65 (Fla.Dist.Ct.App.), cert. denied, 336 So.2d 1179 (Fla.1976).
. It is clear and not disputed that the vehicle with
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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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
CONNELLY v. COMMISSIONER OF INTERNAL REVENUE.
No. 7603.
Circuit Court of Appeals, Third Circuit.
June 23, 1941.
J. S. Seidman, of New York City, for petitioner.
Hubert L. Will, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Michael H. Cardozo, IV, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before MARIS, CLARK, and JONES, Circuit Judges.
JONES, Circuit Judge.
The petitioner deducted in his income tax return for 1934 a loss on account of certain bank stock which he alleges became worthless during the taxable year. The Commissioner disallowed the deduction and assessed a deficiency tax accordingly. The Commissioner’s notice of the assessment assigned, as the basis for his action, that the bank stock could not “be considered worthless as long as the assets held by the trustee are in process of liquidation and no identifiable event has occurred to show that the trust certificates received by the stockholders * * * are worthless” and that, as a consequence, any loss sustained by the stockholders upon final settlement by the liquidators “is not an allowable deduction in the year 1934”. In short, the Commissioner disallowed the deduction for the year 1934 on the ground that the stock continued to have potential value throughout that year.
After hearing before the Board of Tax Appeals on the taxpayer’s petition for a redetermination of the assessment, the Commissioner in a brief filed with the Board contended that the disallowance of the deduction for 1934 was correct because the loss had actually occurred in the year 1933, as shown by the evidence adduced at the hearing. The Board so found and sustained the assessment.
The taxpayer alleges (1) that the Board erred in concluding that the identifiable event which determined the worthlessness of the stock occurred in 1933 rather than in 1934 and (2) that, in any event, the Board could not properly sustain the assessment for a reason other than that assigned by the Commissioner when the assessment was made.
The Board’s express finding that the stock “became worthless during 1933” is conclusive as to that fact if there is substantial evidence to support it. See Foster v. Commissioner, 1 Cir., 112 F.2d 109, 113; Lauriston Investment Co. v. Commissioner, 9 Cir., 89 F.2d 327, 328; Avery v. Commissioner, 5 Cir., 22 F.2d 6, 7, 55 A.L.R. 1277. The only question of law before us in respect of the finding is whether the evidence in support of it is substantial. Rhodes v. Commissioner, 6 Cir., 100 F.2d 966, 969.
It is indisputable that, on the basis of a fair appraisal of the bank’s assets, it was insolvent from April, 1933, onward. Being a state bank (Pennsylvania), it had been permitted under a local statute (Sordoni Act) to reopen following the bank holiday on a restricted basis for periods of ninety days. The bank was not authorized, however, by the Pennsylvania statute to do business in the usual and ordinary course. Its activities were limited to a liquidation of its assets and to the receipt of new deposits, subject to their being segregated from the funds of the bank and secured one hundred per cent, by cash or United States Government bonds. By December 15, 1933, it had become clear to the bank’s board of directors, one of whom was the petitioner, that all hope of reopening the bank as a going concern had vanished and that liquidation, with no prospect of return to the stockholders, was inescapable.' Accordingly, on that day the board of directors, including the petitioner (who was well acquainted with the bank’s affairs and its situation), adopted a plan of liquidation which was to become effective upon acceptance thereof by the holders of seventy-five per cent, of the bank’s outstanding stock. The plan was sent out to the stockholders on December 22, 1933. By December 31 the holders of fifty per cent, of the bank’s stock had approved the plan, and by January 9, 1934, the requisite seventy-five per cent, had approved. Under the plan of liquidation, remotely junior certificates of interest in the bank’s assets were given to the stockholders. But, the Board found, and the evidence supports the finding, that it was known to the directors (including the petitioner) on December 15, when they adopted the plan, as well as later when the certificates were issued, that no salvage would materialize for the stockholders by reason of their ownership of the bank’s stock.
The Board of Tax Appeals concluded that the action taken on December 15, 1933, to wind up the bank with complete loss to the stockholders was the identifiable event which gave open expression to the then evident fact that the bank stock was worthless. This permissible inference, as well as the direct facts, was for the Board. Palmer v. Commissioner, 302 U.S. 63, 70, 58 S.Ct. 67, 82 L.Ed. 50. Nor does the petitioner cite any rule of law from which it can be said that the Board’s conclusion was error. It is true, as the petitioner argues, that it is the actuality rather than the imminence of loss which is the determinant (citing Burdan v. Commissioner, 3 Cir., 106 F.2d 207). But the loss in the instant case, after having been imminent from April 1933, became a recognized actuality on December 15, 1933, when it was so determined by formal action of the bank’s board of directors. Thenceforth, the interests of the stockholders were neither to be enhanced nor diminished by whatever they did in respect of the plan of liquidation. The formal adoption of the plan by the stockholders took away from them nothing that was not already gone.
The petitioner urges that a taxpayer’s determination, in the first instance, of the date of his loss should be accepted by the Commissioner “unless it appears from the facts that the taxpayer was clearly unreasonable and unfair at the time he was compelled to make his decision” (citing Rhodes v. Commissioner, 6 Cir., 100 F.2d 966, 969). But, the integrity of that very rule should have prompted the petitioner to claim the loss for the year 1933. And, the case of Olds & Whipple v. Commissioner, 2 Cir., 75 F.2d 272, from which the petitioner quotes, in reality supports the Board’s decision. There the loss was held deductible for the year in which those in charge of the company’s affairs no longer believed that they could work out the company’s financial difficulties and the company’s assets were then less than its liabilities. Such was the precise situation in 1933 with respect to the bank in the present' case. Furthermore, in the Whipple case, the loss was held to be deductible for the year in which the interested parties decided to liquidate the company although the actual dissolution was not consummated until the following year when the board of directors voted on and approved the proposal to dissolve. In the instant case, the Board’s finding that the bank stock became worthless in 1933 is supported by substantial evidence. Cf. Thompson v. Commissioner, 2 Cir., 115 F.2d 661.
There is no merit in the taxpayer’s further contention that the Board of Tax Appeals may not sustain the disallowance of a deduction upon a basis of fact different from that asserted by the Commissioner in disallowing the deduction and assessing a deficiency tax. The contention entirely disregards the real issue which the taxpayer’s petition placed before the Board and the attendant burden upon the taxpayer to establish a deductible loss Reinecke v. Spalding, 280 U.S. 227, 232, 233, 50 S.Ct. 96, 74 L.Ed. 385; Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; Brown v. Helvering, 291 U.S. 193, 199, 54 S.Ct. 356, 78 L.Ed. 725. Specifically, the burden of proving that a loss on stock occurred in a particular year is upon the taxpayer. Foster v. Commissioner, 1 Cir., 112 F.2d 109, 113; Morton v. Commissioner, 7 Cir., 112 F.2d 320, 322; Eagleton v. Commissioner, 8 Cir., 97 F.2d 62, 64. Here, the taxpayer asserted a loss by reason of the determined worthlessness of his bank stock for the year 1934, and the inquiry before the Board was whether or not the loss had occurred in that year. The thing of fundamental importance is not what the Commissioner had originally asserted or later proved or contended, but what did the taxpayer do to meet his burden. It was for him to prove that the loss for which he claimed a deduction had occurred in 1934. This he failed to do. And, whether the loss occurred after 1934, as the Commissioner had originally asserted, or in 1933, as he later contended before the Board and as the Board properly found from the evidence before it, is immaterial to the question of' the validity of the assessment. Certain it is that the loss did not occur in 1934. The Board therefore rightly sustained the deficiency assessment. Crowell v. Commissioner, 6 Cir., 62 F.2d 51, 53.
The decision of the Board of Tax Appeals is affirmed.
The applicable statutory provision is Sec. 23 (e) (2) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 26 Ü.S.C.A. Int.Rev.Acts pages 671, 672, and the pertinent Treasury Regulation is Art. 23 (e)-l, Treasury Regulation 86, promulgated under the Revenue Act of 1934.
Pennsylvania Act of March 8, 1933, P.L. 9, expired September 8, 1937, 7 P.S. §§ 284r-288 note.
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_appel2_1_4
|
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.
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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellees. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellants, v. Roy A. OAKLEY et al., Appellees. Roy A. OAKLEY et al., Appellants, v. Arthur E. SUMMERFIELD, Postmaster General of the United States et al., Appellees.
Nos. 12918, 12971, 13033.
United States Court of Appeals District of Columbia Circuit
Argued Jan. 31, 1956.
Decided March 29, 1956.
Mr. Josiah Lyman, Washington, D. C., for appellants in Nos. 12,918 and 13,023, and appellees in No. 12,971.
Mr. William F. Becker, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief, for appellees in Nos. 12,918 and 13,023 and appellants in No. 12,971.
Mr. Oliver Gasch, Principal Asst. U. S. Atty., also entered an appearance for appellants in No. 12,971.
Before EDGERTON, Chief Judge, and WASHINGTON and BASTIAN, Circuit Judges.
PER CURIAM.
This litigation is similar to the Tour-lanes cases (Tourlanes Publishing Co. v. Summerfield), 97 U.S.App.D.C. -, 231 F.2d 773. Oakley is a photographer and not a publisher. However, he sells numerous admittedly innocuous books and publications, in addition to the photographs found by the Post Office Department to be obscene. The judgment of the District Court, which was similar to its order in Tourlanes, will likewise be affirmed (No. 12,971). During oral argument, counsel for Oakley made the same statement concerning his cross-appeal as was made by counsel for Tour-lanes. On a like basis, the appeals by Oakley will be dismissed (Nos. 12,918 and 13,023).
So ordered.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_respond1_1_4
|
I
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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 "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
HEYWOOD-WAKEFIELD CO. v. SMALL et al.
No. 3312.
Circuit Court of Appeals, First Circuit.
April 14, 1938.
Herbert A. Baker, of Boston, Mass. (Alan B. Bagley, of Boston, Mass., on the brief), for appellant.
Herbert W. Kenway, of Boston, Mass. (James H. Baldwin and Paul K. Connolly, both of Boston, Mass., on the brief), for appellee Small.
Edgar H. Kent, of Boston, Mass. (Harrison F. Lyman and Fish, Richardson & Neave, all of Boston, Mass., on the brief), for appellee Coach & Car Equipment Corporation.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge
(after stating the facts as above),
The principal question raised by the defendant’s motion to vacate the interlocutory injunction and to dismiss the case is whether the plaintiff, Small, and the Coach & Car Equipment ■ Corporation, the intervening plaintiff, can maintain this suit for infringement. The determination of this question depends upon at least two of three subsidiary questions: (1) Whether the Coach & Car Equipment Corporation acquired a valid title to the patent under the so-called license contract of December 15, 1935, so that it would be entitled to damages for the defendant’s infringement of the patent after that date; and, if it did, (2) whether Small-acquired title to the patent when it issued to him on October 6, 1931, and can maintain this suit for damages for the defendant’s infringement of the patent after that date and down to December 15, 1935, when the Coach & Car Equipment Corporation acquired title to the patent; and (3) if the Coach & Car Equipment Corporation did not acquire title to the patent, then whether he can maintain the suit for damages for the entire period of the defendant’s infringement.
As to the question whether the Coach & Car Equipment Corporation acquired a valid title under the so-called license contract, it appears that on December 15, 1935, the date of that contract, Small had, at least, the apparent legal title to the patent; that it had issued to him from the Patent Office in his name; that the records in the Patent Office disclosed no record of an assignment of the patent from him; and that the Coach & Car Equipment Corporation paid him a substantial consideration, in good faith and without knowledge or notice, constructive or otherwise, of any defect in his title. Burck v. Taylor, 152 U.S. 634, 653, 14 S.Ct. 696, 38 L.Ed. 578; In re Atlantic Beach Corp., D.C., 244 Fed. 828; Dunn v. New York, 205 N.Y. 342, 98 N.E. 495; United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 333, 26 S.Ct. 282, 50 L.Ed. 499; 46 C.J. p. 550, § 46; 20 Ruling Case Law, p. 342, § 3. These facts being established, and we think they are, the legal title to the patent became vested in the Coach & Car Equipment Corporation, if the so-called license contract was an assignment within the meaning of the patent law.
In that contract Small granted to the Coach & Car Equipment Corporation the exclusive right under the patent to make, use, and vend the invention during the entire term of the patent; and, as the grant to the patentee was the right to make, use, and vend the invention throughout the United States and the territories thereof, the exclusive right under the patent not being limited in the grant to any particular portion of the United States, and the grant being of the entire monopoly, the so-called license contract was an assignment and not a license, and vested the title to the entire patent in the Coach & Car Equipment Corporation. This being so, the corporation, having been allowed to intervene as a party plaintiff, may recover of the defendant such damages as it sustained from the date of its acquisition of the title to the patent (December 15, 1935) until the defendant ceased its infringement, sub j ect to payments to Small as hereafter defined. Waterman v. Mackenzie, 138 U.S. 252, 255, 11 S.Ct. 334, 34 L.Ed. 923; Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 37, 38, 43 S.Ct. 254, 257, 67 L.Ed. 516; Krentler-Arnold Hinge Last Co. v. Leman, 1 Cir., 13 F.2d 796, 799, 802; Littlefield v. Perry, 21 Wall. 205, 220, 22 L.Ed. 577. In the last two cases the consideration for the license or assignment was an agreement to pay royalties.
As to whether Small acquired such a title to the patent when it issued to him on October 6, 1931, that he can maintain this suit for damages for the defendant’s infringement from that date to December 15, when the Coach & Car Equipment Corporation acquired title, it appears that Small was the inventor of the car-seat base; that he duly applied for a patent for his invention; and that the records in the Patent Office disclose no record of an assignment of his application before the patent issued to him or at any time. Under such circumstances, the statutes regulating the issuing of patents, Rev.St. §§ 4883, 4884, 4895, 4896, 4898 and 4897, as amended, 35 U.S.C.A. §§ 39, 40, 44, 46, 47, and § 38, are held to require that the patent issue to the inventor, the patentee, and that he takes the legal title to the patent when issued. But that, where the inventor assigns his application in writing and records the same, and the patent later issues to the patentee, the title to the patent vests in the assignee, without a further assignment. Gayler v. Wilder, 10 How. 477, 481, 491, 492, 493, 13 L.Ed. 504. And that, if no record of the assignment is made until after the patent issues, the title to the patent does not vest in the assignee until after the assignment is recorded. United States Stamping Co. v. Jewett, C.C., 7 F. 869, 877, 878.
In Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, at page 40, 43 S.Ct. 254, 258, 67 L.Ed. 516, Chief Justice Taft, in delivering the opinion of the court, said:
“Patent property is the creature of statute law and its incidents are equally so and depend upon the construction to be given to the statutes creating it and them, in view of the policy of Congress in their enactment. This is shown by the opinion of this Court in Waterman v. Mackenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923, already cited, and in the line of authorities followed therein. It is not safe, therefore, in dealing with a transfer of rights under the patent law to follow implicitly the rules governing a transfer of rights in a chose in action at common law. As Chief Justice Taney said in Gayler v. Wilder, 10 How. 477, 494 (13 L.Ed. 504) : ‘The monopoly did not exist at common law, and the rights, therefore, which may be exercised under it cannot be regulated by the rules of the common law. It is created by the act of Congress; and no rights can be acquired in it unless authorized by statute, and in the manner the statute prescribes.’ ”
In Gayler v. Wilder, 10 How. 477, 481, 491, 492, 493, 13 L.Ed. 504, a written assignment was made and recorded in the Patent Office before the patent issued and contained a request that the patent issue to the assignee. It was issued to the patentee. The defendant contended that the. assignment did not convey to the assignee the legal title to the monopoly subsequently conferred by the patent. The court, in that case, among other things, said:
“The act of 1836 declares that every patent shall be assignable in law, and that the assignment must be in writing, and recorded within the time specified. But the thing to be assigned * * * is the monopoly which the grant [the patent] confers: the right of property which it creates. And when the party has acquired an inchoate right to it, and the power to make that right perfect and absolute' at his pleasure, the assignment of his whole interest, whether executed before or after the patent issued, is equally within the provisions of the act of Congress.”
And held: “that, when the patent issued to him [the patentee], the legal right to the monopoly and property it created was, by operation of the assignment then on record, vested in Enos Wilder [the assignee].”
. In United States Stamping Co. v. Jewett, C.C., 7 F. 869, 877, 878, it appeared that the inventor filed his application for a patent June 3, 1871; that on July 20, 1871, he made an assignment of it to Heath & Smith Manufacturing Company; that the patent issued October 10, 1871, but the assignment was not recorded until November 18, 1871. And Judge Blatchford, then a circuit judge, but later a justice of the Supreme Court, held that the title to the patent did not vest in the assignee, the Heath & Smith Manufacturing Company, on the issuing of the patent, but only after the assignment had been recorded.
These cases demonstrate that, under the patent statutes regulating the assignment of an application for a patent, the recording of the assignment in the Patent Office is made one of the essential requirements of the assignment to vest the title to the patent in the assignee.
When the patent issued to Small, there being no record in the Patent Office of his voluntary assignment in bankruptcy, the estate being closed and no trustee in existence in whom the title to the patent could vest, Small took the legal title and ownership of the patent, charged with an equitable lien, or in trust, by virtue of section 70 of the Bankruptcy Act, as amended, by Act May 27, 1926, 11 U.S.C.A. § 110, and otherwise, to satisfy the claims of creditors who had proved them and to pay the expenses of administering the bankruptcy estate, with the right to hold any balance, for himself. He did not take the title as a mere conduit to pass it on to the trustee in bankruptcy, for there was no trustee in existence. Furthermore, if the recording of the voluntary assignment be regarded as nonessential to the vesting of the title in an assignee, as there was here no assignee or trustee in existence when the patent issued in whom the legal'title could vest, and the bankrupt estate was closed, equity, like nature, abhorring a vacuum, leaves the legal title in Small where it finds it, charged with an equitable lien, or in trust, for the purposes above stated.
In Mills Novelty Co. v. Monarch Tool & Mfg. Co., 6 Cir., 49 F.2d 28, the situation was much the same as in the case now before us, so far as concerns the transfer of title to an application for a patent by an assignment in bankruptcy, except that the assignment in that case was an involuntary and not a voluntary one. There it appeared that Schoen and Lesley had made an invention and filed a joint application for a patent on December 16, 1910; that on April 14, 1915, and before the patent issued, Schoen was adjudged an involuntary bankrupt, and filed his schedule of personal property assets, in which, under the heading “Patents, Copyrights and Trademarks, etc.,” he said: “None”; that within a year after adjudication (before April 14, 1916), the bankruptcy proceedings were closed, and the court assumed as a fact that at about the same ■time the trustee was discharged; that, thereafter, on September 19, 1916, the patent issued jointly to Schoen and Lesley; that in 1926, the patentees brought suit against the defendant' for infringement; "that in 1929, and after the suit had been pending for three years, Schoen and Lesley ■sold the patent to the plaintiff, the Mills Novelty Company, presumably with all their rights to damages; and that this company became the plaintiff in the suit by supplemental bill.
It was held that the plaintiff, which had purchased the title of Schoen and Lesley to the patent for a valuable consideration, in good faith, and without notice of any defect, had acquired a good title and could maintain the suit for infringement and accounting. It is there pointed out that if the title to Schoen’s one-half undivided interest in the patent application was in the trustee without his knowledge, upon the closing of the estate and his discharge it could not remain in him for “he is dead,” and it did not remain in the bankruptcy court; that the theory most reasonable for solving the situation was “that the failure to schedule or otherwise give notice to the trustee would extend the reasonable time within which he or those entitled to do so might elect whether the title should be taken over for the benefit of the bankrupt estate”; that if the right of election survived, the creditors might, within a reasonable time, apply to reopen the estate and demand the property; that such reasonable time would start to run when they were chargeable with notice that the patent application existed at the time of the bankruptcy proceedings; that the record made in the Patent Office, at the time the'patent issued, showing that, during the bankruptcy proceedings there was a pending application, was notice to the whole public, including the creditors; that if the creditors, within a reasonable time after such notice, failed to proceed to get control of the patent, the title would remain where it was, that is, in Schoen and Lesley, the copatentees; that a delay of thirteen years, if unexplained, would be unreasonable; and that “the suggestion that there might .be some possible outside interest is one which a court of equity ought not to accept from a mere trespasser for the sake of enabling the trespasser to avoid the results of his unlawful action.” In other words, that the defendant’s suggestion of the possible existence of an enforcible right in the creditors, equitable or otherwise, he being a trespasser, was not sufficient to interrupt the prosecution of a suit at his request and for his benefit.
Although that case arose prior to the amendment of section 70 in 1926, 11 U.S.C. A. § 110 and note, the assumption upon which the decision was based — that the title to Schoen’s one-half common interest in the application was in the trustee without his knowledge up until the closing of the estate — is as broad and comprehensive, as any right or title would be that is conferred upon a trustee by the amendment of 1926. The amendment of section 70, 11 U.S.C.A. § 110, vesting in the trustee the title of the bankrupt to an application for a patent, is but a restatement of the law as it existed prior to the amendment, for at common law the inventor had a property right in his invention and, on filing an application, he had, under the patent statutes, the inchoate right to the monopoly to be granted; and there can be little if any doubt but that a property right in an application passed to the trustee in bankruptcy prior to the amendment of 1926.
Without further discussion of this branch of the case we are of the opinion that the title to the patent, from its issuance to the patentee down to the assignment to the Coach & Car Equipment Corporation, was in Small, charged with an equitable lien or held in trust for the benefit of creditors who had proved their claims, provided they asserted their rights within a reasonable time after being charged with notice of the pendency of the application.
It necessarily follows from what has been said that Small not only had the right, but that it was his duty to protect the property in the patent, the legal title to which was in him, by bringing this suit for damages and injunction against the defendant. The Coach & Car Equipment Corporation, however, having acquired the legal title to the patent in 1935, was properly allowed to intervene as a plaintiff in the case and recover the damages occasioned by the defendant’s infringement, since it acquired title to the patent, free from any claim of the creditors; but having intervened in and availed itself of the benefits arising from Small’s prosecution of the suit, it is subject to certain rights of his hereafter mentioned. And Small, being the owner of the title down to that time, during which period the defendant also infringed the patent, may recover the damages thus occasioned (Moore v. Marsh, 7 Wall. 515, 19 L.Ed. 37; Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, at pages 41, 42, 43 S.Ct. 254, 258, 67 L.Ed. 516; Krentler-Arnold Hinge Last Co. v. Leman, 1 Cir., 13 F.2d 796, at page 803), subject to the right of a legally appointed new trustee (6 Remington on Bankruptcy, p. 448, § 2980; 1 Collier on Bankruptcy, p. 172, 1923 Ed.), to appear in the cause and establish whatever rights creditors, who have duly proved their claims (6 Remington, § 2984), may have in the fund recovered by Small, provided he can show that such creditors, by their delay for more than six years after they were charged with notice of the Patent Office record, have not unreasonably delayed in the assertion of their claims. Their right to intervene in this case is, under the facts here disclosed, necessarily limited to the satisfaction of their claims out of those damages, the title to the patent being now in the Coach & Car Equipment Corporation. We think it is clear that the reopening of a closed case in bankruptcy rests in the sound judicial discretion of the District Judge and an application for that purpose should be made to him and not to the referee to whom the case was originally re-, ferred; that the latter’s authority under the original order of reference ceased after he made his report and the case was closed; and that if the District Judge orders the case reopened, he should also enter an order re-referring the case.to a referee, who should call a new meeting of the creditors for the appointment of a new trustee. In re Rochester Sanitarium & Baths Co., 2 Cir., 222 F. 22, 23, 26, 27; In re Newton, 8 Cir., 107 F. 429, 431; 6 Remington, § 2980; 1 Collier, p. 172.
It is contended by the defendant that section 70 of the Bankruptcy Act, as amended in 1926, 11 U.S.C.A. § 110, required Small to include his application for a patent as an asset in his list of assets. But that section neither before nor after its amendment required the inclusion of an application as an asset in the list of assets, and the forms prescribed by the Supreme Court for listing assets, neither befóte, nor after the amendment, contained a designation calling for the listing of an application as an asset. But section 7, subd. 8, as amended, 11 U.S. C.A. § 25(8), required the bankrupt to file a.schedule of his property, and if an application for a patent is property, which we think it is, it being capable of being assigned and will survive to the applicant’s executor or administrator, the forms, for listing assets properly should be changed to- in-' elude such an asset. If this were done it would avoid misleading.
The defendant further contends that Small was guilty of fraud in not listing the application as an asset, although the forms did not require it. It is difficult to see how the defendant can raise the question; and if a legally appointed new trustee might do so, we think that, under the facts here existing, it could avail him nothing over and above what he is otherwise authorized to assert, for the legal title to the patent is the property of the Coach & Car Equipment Corporation, and the only assets involved in this suit in which he could assert a right by being allowed to intervene are the damages Small may recover. If the omission to list was fraudulent as to his creditors, it can avail the defendant nothing. Being such it would not confer upon the defendant the right to damage property the title to which was in Small, nor to defeat an action brought against it for damages, in which Small’s creditors have an equity, if they have not lost it through unreasonable delay.
We think, however, that the permanent injunction issued in this case went too far; that under the so-called license or assignment, granting the exclusive right to manufacture, use, and sell, the Coach & Car Equipment Corporation may employ anyone it sees fit to manufacture the patented article or to use or sell it, and that, while it could not, under a nontransferable contract, such as exists here, grant a sublicense to anyone, it had a right to employ the defendant to manufacture the revolving car-seat bases under the Small patent and to sell them, the Coach & Car Equipment Corporation to account to the assignor for all royalties, whether the articles were manufactured, sold, or used by it or by its agent. The injunction issued by the 'District Court must be modified in this respect.
Equity requires that the suit against the defendant should be retained for the assessment of damages; that the so-called license or assignment to the Coach & Car Equipment Corporation should stand as valid and binding; that any damages recovered against the defendant since the date of the execution of the assignment or license contract, after adjustment between the assignor and assignee of the expenses of the suit, be for the benefit of the Coach & Car Equipment Corporation; and that the damages resulting from the infringement of the patent prior to the assignment to the Coach & Car Equipment Corporation be Small’s, subject to any claim a legally appointed new trustee may be able to establish in this suit for the benefit of the creditors, if he desires to intervene and establish a right in them.
The denial of the District Court of the motion of the defendant to vacate the interlocutory decree is affirmed, but the permanent injunction must be modified to conform to this opinion.
The case is remanded to the District Court for further proceedings not inconsistent with this opinion, with costs to the plaintiffs-appellees in this court.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
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.
Ramona RIVERA-FIGUEROA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 88-1461.
United States Court of Appeals, First Circuit.
Submitted Sept. 16, 1988.
Decided Oct. 7, 1988.
William Dominguez Torres, Rio Piedras, P.R., and Juan A. Hernandez Rivera, Bayamon, P.R., on brief for plaintiff, appellant.
Tami T. Martin, Office of Gen. Counsel, Social Sec. Div., Dept, of Health and Human Services, Washington, D.C., Daniel F. Lopez Romo, U.S. Atty., Jose Blanco, Asst. U.S. Atty., Hato Rey, P.R., Donald A. Gon-ya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec. Litigation, and A. George Lowe, Chief, Disability Litigation Branch, Baltimore, Md., on brief for defendant, appellee.
Before BOWNES, BREYER and TORRUELLA, Circuit Judges.
PER CURIAM.
Claimant sought disability benefits on the basis of vertigo and a mental impairment. The Secretary concluded claimant could not return to her past medium exer-tional level work as a cook’s helper because of dizziness but could perform “a full range of medium work.” Applying grid rules 203.11 (advanced age, limited education, unskilled past work, RFC for medium work) and 203.12 (advanced age, limited educational, past semi-skilled work-skills not transferable, RFC for medium work) which direct a finding of not disabled, the Secretary denied benefits.
Claimant was born on July 3, 1929. She was educated up to first year high school. She worked for many years as a cook’s helper, a job which required her to stand or walk eight hours per day and lift up to 50 pounds. The vocational expert at the first hearing classified this job as unskilled, while the VE at the second hearing said it was “semi-skilled, low level, which means that the skills of that type of job do not give [claimant] any advantage over those people who have performed unskilled work all their life.” In 1974, claimant was injured at work when some boxes fell on her head. She received a 75% disability rating from the State Insurance Fund (SIF) with diagnoses of depressive neurosis class III (moderate severe) and trauma to left ear. She filed for disability in 1983, claiming to have been totally disabled since November 8, 1979.
On June 30, 1984 when claimant last met the insured status requirement, claimant was 54, a person closely approaching advanced age as defined in 20 C.F.R. § 404.1563(c). Indeed, within a few days she turned 55, which is classified as advanced age. If claimant were functionally restricted to light work (instead of medium as the Secretary found) and if her past cook’s helper job were unskilled (as the first YE testified), then the relevant grid rule would be rule 202.09 (closely approaching advanced age, illiterate in English, unskilled past work), which would have directed a finding of disabled. If, instead, claimant had been four days older when insured status expired and she were limited to light work, then grid rule 202.02 (advanced age, limited education, skilled or semi-skilled past work-skills not transferable) would direct a finding of disabled even if the cook’s helper job qualified as semi-skilled work. If claimant were functionally restricted to sedentary work, grid rule 201.10 (closely approaching advanced age, limited education, skilled or semi-skilled past work-skills not transferable) also would have directed a finding of disabled. And, of course, if claimant has a significant mental impairment or some other nonexertional impairment, the grid could not be used to direct a finding of not disabled. Burgos Lopez v. Secretary, 747 F.2d 37, 41-42 (1st Cir.1984) (error to apply grid where claimant had a nonexertional mental impairment). We highlight these rules to illustrate the borderline situation presented.
We turn to the evidence. Claimant testified she has pains in her back, hands, head, and legs, her hands swell, and she experiences dizzy spells during which she loses consciousness and falls down. She was seeing Dr. Gonzalez Pimental monthly and taking the medications he prescribed. She did not visit people, but got along with family and neighbors.
State Insurance Fund records indicated as follows. Following her work accident, claimant developed an emotional condition, diagnosed in January 1979 as depressive neurosis with features of anxiety. She began treatment in March 1979 with Dr. Gonzalez Pimental. At that time, claimant complained of irritability, headaches, nervousness. She was logical, coherent, and realistic. Hygiene was fair. Affect was appropriate. Intellectual capacity, judgment, and insight were impaired. Chronic invalidism was noted. In April 1979, Dr. Gonzalez Pimental recommended continued psychotherapy. In February 1980, claimant was referred to Dr. Hoyos to determine the need for additional treatment. Claimant at that time reported arthritis, stomach pain, headaches, swollen legs, chest pain, and inability to go out alone. She said she spent her day sitting, did not watch television because the noise bothered her, did not do household chores, got along well with everyone, and was able to care for her personal needs. Dr. Hoyos found her to be alert, cooperative, logical, coherent, but somewhat anxious and depressed. Claimant spoke a lot. Memory was conserved, thought organized, and concentration and judgment fair. Claimant was not oriented in time. Dr. Hoyos diagnosed anxiety neurosis moderate to severe. He recommended further psychiatric treatment. As a result, five more treatment sessions with Dr. Gonzalez Pimental were authorized. In his June 15, 1981 report at the conclusion of these sessions, Dr. Gonzalez Pimental said claimant at the first session had appeared tranquil and had been logical, realistic, relevant, coherent, oriented, and somewhat verbose. Judgment and insight were adequate. Mood was depressed. As the sessions progressed, claimant showed a tendency toward marked invalidism and insecurity. She complained much of insomnia, headaches, shortness of breath, and anxiety. She claimed to see shadows and hear voices. She started to isolate, seemed to deepen in her depression, and frequently mentioned suicide as a solution. Dr. Gonzalez Pimental noted claimant had “little motivation and interest to rehabilitate herself and overcome her conflicts.” He felt claimant had improved very little during the treatment and had “few resources to function adequately at present.” He diagnosed depressive neurosis moderate severe and prescribed vistaril and limbitrol. Neither Dr. Gonzalez Pimental nor any other SIF doctor described in lay terms how, employment wise, claimant was restricted or what types of jobs she could handle despite her mental condition.
From June 15, 1981, the date of Dr. Gonzalez Pimental’s final report, until November 1983, when three doctors responded to questionnaires sent by the Secretary, there are no contemporaneous medical records. Dr. Vazquez, the first questionnaire respondent, indicated that he had first seen claimant in May 1976 at which time claimant had a urinary tract infection and shoulder pain. Since 1978, he said, claimant had been limited by bursitis, urinary tract infections, and generalized complaints of joint pain. Dizzy spells, spastic reflexes, diminished pulse, edema, and severe tension headaches were noted. He said claimant had an emotional disorder secondary to long term arthritis. She had been treated with tranquilizers, anti-depressants, analgesics, and anti-inflammatory drugs. Claimant’s last visit had been on August 8, 1983. How often Dr. Vazquez had treated claimant or how he felt she was restricted functionally were not indicated.
Dr. Cabrera, the second respondent, indicated she had seen claimant on three occasions in 1981 and then again on November 19, 1983. She noted no dizzy spells, but inflammation of wrists and knees, edema, severely limited cervical motion, and thora-co-lumbar scoliosis. Claimant was described as slow of speech, forgetful, disoriented at times, and very anxious and depressed. Dr. Cabrera diagnosed severe cervical and lumbar spasm, migraine, severe anxiety neurosis with severe depression, and arthritis. She wrote that claimant’s prognosis was “very poor” and that claimant was totally and permanently disabled.
The third doctor to complete a questionnaire in November 1983 was Dr. Gonzalez Pimental, who had first treated claimant in 1979 through the SIF. He had last seen claimant on November 7, 1983. Claimant had been anxious, talkative, mostly logical, and coherent. Content of thought showed tendency toward invalidism and occasional delusions. Immediate and recent memory were impaired and remote memory was spotty. Intellectual capacities for calculation, abstraction, and comprehension were “affected.” Judgment, insight, capacity to care for basic needs, rapport with friends, and ability to interact with strangers were all fair. Dr. Gonzalez Pimental had treated claimant with desyrel, xanax, and halcion. Dysthymic disorder was diagnosed. Prognosis was guarded to poor. Dr. Gonzalez Pimental wrote that claimant had been unable to work since January 1979. Whether this was his opinion or a statement of claimant’s history is not entirely clear. Dr. Gonzalez Pimental updated his report in April 1984. Rapport with friends had gradually become impaired, ability to interact with strangers was now poor, and claimant had great difficulty handling family situations.
On December 7, 1983, a few weeks after Dr. Gonzalez Pimental’s report, Dr. Pinero Rivera evaluated claimant. Claimant complained of anxiety, insomnia, headaches, and pain in the lower extremities. Her daily activities were nil. Affect was appropriate and adequate, mood was neither depressed nor elated, attention span and concentration span were intact, memory was preserved, and claimant was oriented. Atypical anxiety disorder with conversion features was diagnosed. Dr. Pinero did not complete an RFC or expressly state whether, from an emotional standpoint, he felt claimant had any restrictions on ability to interact and work.
The next day claimant was evaluated by Dr. Marrero Bonilla, an orthopedic surgeon. Claimant reported pain in the neck, wrist, hand, and lower back. Mild nodules were noted in the fingers. Range of motion was good except that lumbar flexion was limited to 70 degrees (out of 90 degrees), lumbar lateral flexion to 15 degrees (out of 20 degrees), and cervical motions were also somewhat restricted. Dr. Marre-ro concluded as follows: “This patient suffers fibromyositis with no joint effusion. She also suffers of psychiatric condition that needs to be evaluated by psychiatrist for competence to work.” Dr. Marrero did not complete an RFC rating claimant’s ability to sit, stand, lift, or do other basic work activities.
In an April 1984 update, Dr. Vazquez classified claimant’s arthritis as severe, and in August 1984 Dr. Vazquez wrote that since May claimant had had several episodes of vascultitis, fever, and rupture of small capillaries in both legs. In November 1984, he said claimant had had frequent checkups, frequent secondary infections and colds, and was unable to work.
There are further medical reports, but they postdate the expiration of insured status and do not purport to describe claimant’s pre-June 1984 condition, so we will not discuss them.
Missing from the medical evidence is any residual functional capacity assessment performed by a treating physician. There are several forms completed by nonexam-ining psychiatrists asserting that claimant’s mental condition is not severe, but as these naked opinions predate the Secretary’s ruling restricting the nonsevere label to truly de minimis conditions, see McDonald v. Secretary, 795 F.2d 1118, 1124-25 (1st Cir.1986), and do not indicate the basis of the opinion or whether the severity regulation was being properly applied, they are not useful. Rivera-Torres v. Secretary, 837 F.2d 4, 6 (1st Cir.1988) (concluso-ry statement that impairment not severe not helpful where it is not apparent whether nonexamining doctor properly limited nonsevere label to de minimis conditions); Fernandez v. Secretary, 826 F.2d 164, 167 (1st Cir.1987).
As the case stands, the AU appears to have interpreted the medical data himself to conclude that, despite the reports of bursitis, arthritis, and fibromyositis, claimant nevertheless had the physical capacity to perform a full range of medium work, that is, she could lift up to 50 pounds, frequently lift or carry up to 25 pounds, and be on her feet most of the work day. Especially here where the grid might well direct a finding of disabled were claimant able to perform only light work, we question the AU’s ability to assess claimant’s physical capacity unaided even by an RFC assessment from a nonexamining doctor. See Rivera-Torres v. Secretary, 837 F.2d 4, 7 (1st Cir.1988); Berrios v. Secretary, 796 F.2d 574, 576 (1st Cir.1986) (lay fact finders not competent to interpret and apply raw medical data). Furthermore, the AU’s opinion appears internally inconsistent. The AU concluded that in view of claimant's dizziness, she could not perform her past work as a cook’s helper “because it would be very difficult for her to be cooking or serving and experience dizziness.” The AU then applied grid rules which are based on an ability to perform a full range of medium work. Why the dizziness which precludes being a cook’s helper would not be a significant impediment to much other medium level work was not explained.
Moreover, we think reliance on the grid was precluded in view of claimant’s history of treatment for a significant mental disorder. Absent a residual functional capacity assessment from an examining psychiatrist, we do not think the AU was equipped to conclude that claimant’s condition was so trivial as to impose no significant limitation on ability to work. Burgos Lopez v. Secretary, 747 F.2d 37, 41-42 (1st Cir.1984).
In short, we do not find substantial evidence to support the Secretary’s conclusion that claimant can do a full range of medium work. If claimant is limited to light work, then it must be determined whether claimant’s past relevant work as a cook’s helper was unskilled or semi-skilled. If it was unskilled, then grid rule 202.09 would appear to direct a finding of disabled.
The judgment of the district court is vacated and the case is remanded with directions to remand to the Secretary for further proceedings consistent with this opinion.
. Fibromyositis is a "chronic inflammation of a muscle associated with an overgrowth of connective tissue.” 2 J.E. Schmidt, Attorneys’ Dictionary of Medicine F-55 (1988).
. It is true that a vocational expert described a number of light, unskilled jobs not requiring frequent contact with others, and the AU mentioned in his opinion that claimant could do these jobs. But if that is so, we think that, at a minimum, the AU must explain on what basis he reached a conclusion apparently at odds with grid rule 202.09. See Vazquez v. Secretary, 683 F.2d 1, 4-5 (1st Cir.1982).
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_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.
STEWART PAINT MFG. CO., a corporation, Appellant, v. UNITED HARDWARE DISTRIBUTING CO., a corporation, Appellee.
No. 15712.
United States Court of Appeals Eighth Circuit.
March 25, 1958.
Sanborn, Circuit Judge, dissented.
Arthur S. Caine, Minneapolis, Minn., for appellant.
Wright W. Brooks, Minneapolis, Minn., (Faegre & Benson, Minneapolis, Minn., with him on the brief) for appellee.
Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.
JOHNSEN, Circuit Judge.
The suit is one for an injunction against trademark infringement and unfair competition. Jurisdiction is without •diversity basis, and so rests entirely on 28 U.S.C.A. § 1388 and 15 U.S.C.A. § 1121. The trial court, on opinion reported in 141 F.Supp. 638, denied appellant any relief.
Appellee says here that the case involves no issue as to the validity of appellant’s trademark. It further states that no question exists as to the court’s power to deal with appellant’s claim of unfair competition, thus conceding that the claim of infringement is substantial •enough and sufficiently related to the cir■cumstances of the claim of unfair competition to support federal jurisdiction •as to the latter. See 28 U.S.C.A. § 1138; Hurn v. Ousler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148.
From our examination of the record, we agree with and accept these viewpoints. The two questions therefore call for no discussion, and the expressions of doubt engaged in by the trial court with respect to them shall be without significance or effect in the litigation or otherwise.
Appellant is a manufacturer of paints, enamels and varnishes. It sells its products to retail dealers and, for its highest grade thereof, uses as an identification the trademark “Flint-Top”. This mark had been long employed and advertised by it, and in 1951 registration was made thereof as a trademark under the Lanham Act, 15 U.S.C.A. §§ 1051-1127.
Appellee is a distributor at wholesale of numerous items of hardware stock, including paints, enamels and varnishes. It operates in the nature of a cooperative, in that it sells its goods only to dealers who are stockholders in it. It has all of its goods manufactured for it by others but uses for them its own general brand of “Hank’s”. Thus, the labels on its paint carry the words “Hank’s Paint”.
Before the present suit, however, ap-pellee had also been placing upon the labels of its paints, enamels and varnishes, as an intended mark therefor, the term “Agate-Top”. Relatedly, it made use too of the exact shades of color which appellant employed for its “Flint-Top” products. These shades are shown by the record to have been arrived at by appellant on substantial expenditure and experimentation in searching for customer appeal. Appellee had thereafter copied them. In addition, appellee placed upon its labels the artificial names or designations which appellant had devised for these shades. It further set out on its labels the serial or code number which appellant had ascribed to each particular paint and shade, except that it prefixed the numbers with the digit “1”.
To give a concrete illustration — appellant used, on the label for a specific type and particular shade of paint, its registered mark “Flint-Top”, the color designation “Flame”, and the serial or code number “676”; and appellee used, on its label for the same composition and shade of paint (appellee admitted that the formula and color were identical with, and had been copied from, appellant’s paint), the indicating mark “Agate-Top”, the color designation “Flame”, and the serial or code number “1676”.
It is true that these elements were not made to appear in exactly the same position on the labels; nor were the labels of the same color or design. Also, of course, appellee’s labels contained the words “Hank’s Paint” for general branding purposes. On-appellee’s color charts, however, which it supplied to its dealers to enable customers to make selection, comparison, or verification of their paint desires, the three elements referred to appeared in the same relative position, with the same relative prominence, and in similar relationship to the (identical) color chips used, as on the charts of appellant.
All of these factors are contended by appellant — and properly so, we think — to be entitled to a closer scrutiny and consideration for purposes of the specific situation, both on the question of trademark infringement and unfair competition, than it might perhaps be necessary to accord them generally, because of the privity which had existed between appellant and appellee prior to the acts complained of, and the special significance which appellee’s conduct could have in the light of this relationship.
Prior to 1952, appellee had not carried paints, enamels and varnishes as part of its “Hank’s” line of goods. That year, after negotiation, first with another paint manufacturer and then with appellant, appellee entered into an oral agreement with appellant for the supplying to it by appellant of the latter’s regular paints, enamels and varnishes, with the right to distribute them under its “Hank’s” brand and label. Appellee thus came to have available for distribution in the “Hank’s” system the same paints and the same color shades therefor, which appellant was engaged in distributing to other retail dealers. As incidents in this supplying of its regular- paints, appellant allowed the same designations or names for .the shades- to be used on appellee’s label, as well as its code numbers therefor, except that it requested that the numbers should be prefixed with the digit “1”.
As to its trademark “Flint-Top”, however, appellant chose not to allow appellee to use the identical term, but coined and suggested the term “Agate-Top” as a substitute therefor. On the trial, appellant claimed that, in making suggestion of the term “Agate-Top”, it was intending to provide appellee with a mark of corresponding psychological impact to its trademark “Flint-Top”, and of such similarity as to constitute a part of the general chain of relation and indication which it felt inhered in its supplying of its regular paints and shades, with a consent to the use of its devised color names and code numbers therefor — ail of which it was willing to have exist on this controlled basis, but only on such basis.
It was shown, by undisputed testimony and by color charts collected generally throughout the industry (several hundred such charts being produced in court and use being allowed by the court of a representative selection therefrom), that paint manufacturers did not engage in the using of each other’s color shades for their products but instead devised shades, names and code numbering systems therefor of their own. The evidence did not, however, compel the conclusion that this was done because of any ethical recognitions which had come to have the status of a competitive principle in the industry. The trial court was entitled to believe that the practice rather had the basis simply that each manufacturer desired to have his own distinct shades as a means of creating customer appeal and attempting to gain competitive advantage.
But the testimony does appear to leave no question as to the fact that, by reason of paint manufacturers’ non-use of each other’s shades, names and numbers, with the identification capable of arising therefrom, professional painters, at least in some measure, would make purchases and call for the paints they desired by the manufacturer’s shade names and code numbers. Relatedly, it also is clear beyond question that appellee’s dealers had all been informed, at the time it added paints to its line of “Hank’s” goods, that the paints were being manufactured by appellant and were the same as appellant’s regular products. Thus, appellee’s dealers were provided with the means, in conjunction with the color •charts furnished them, of advising or -persuading the professional trade, as well as other customers who might be interested in the fact, where this would be advantageous, that they were selling appellant’s products, under the “Hank’s” label, with the same shades, color names and code numbers (prefixed by the digit “1”), which appellant used for its products. However, this situation could properly be regarded as necessarily having been contemplated by appellant, as an incident of the elements of relationship which it had seen fit to create between ap-pellee and itself, so long at least as such privity existed.
But when, after the expiration of approximately two years, appellee notified -appellant that it was terminating the contractual relationship between them, it then entered into an arrangement with another paint manufacturer (Minnesota Paints, Inc.) to supply it with paints, not of such manufacturer’s regular products, shades, color names and code numbers, but with paints which were to be prepar ed on an analysis and duplication of appellant’s formulas, and with a using for such paints of the same shades, color names, code numbers, and the “Agate-Top” mark, as appellee had been having the benefit of under its relationship with appellant. The reason for thus changing manufacturer, appellee said, was that it was able to obtain a better price from Minnesota Paints, Inc. than that at which appellant was willing to continue to supply its paint products.
When the switch to Minnesota as a manufacturing source was made, appellee notified its dealers of this fact, and apparently also sought to give the assurance that this would not involve any change in the paint itself. Thus, in a bulletin to its dealers, it commented on the “tremendous job” which had been done in selling “Hank’s Paint” and added the statement that the paint was being “made under our own formula which is as good as any top grade paint in the market”. It urged that the dealers should thereafter undertake to “sell Hank’s Paint on its own merit” and “not go into a long drawn out explanation — who makes it — • and that it is similar, to some other nationally known brand on the market that sells for a lot more”. It suggested that they “not bring Minnesota into any of our talks” or “into the deal in any form whatsoever”; that Minnesota was, of course, continuing to market its own line of paints, and “in a way we’re competing — but as long as we’re working together, let’s be friendly competitors”; and that the question of who made ap-pellee’s paints should be regarded as “irrelevant to the consumer”, since “Hank’s Paint can stand on its own feet”.
At the time of trial, appellee’s paints were being sold in 251 stores, through the same general trade area where appellant had dealers. Twenty-five of such stores were located in identical cities or towns with appellant’s dealers. Nine of appellant’s dealers had been induced or had seen fit to cease their handling of appellant’s paints, and to take on the “Hank’s” line. The record further suggests that other such dealers similarly were being made the subject of solicitation for appellee’s benefit. All of this had occurred after appellee’s termination of its contractual relations with appellant.
There is nothing, however, to indicate objectively how much of a factor it had been, in causing such dealers to take on “Hank’s” paints in place of appellant’s, that appellee was retaining the use of appellant’s formulas, shades, color names, and code numbers, as well as the mark “Agate-Top”. But the record does show that dealers of appellee had, in at least 11 proved instances, after appellee’s switch to another manufacturer, made use of the fact that these things had been retained, to palm off appellee’s paints on purchasers who made requests for appellant’s products.
In each of these instances, request had been made by the purchaser for a “Flint-Top” paint, of a particular shade name and code number, and the dealer in response to the request had produced a can of “Agate-Top” paint, of the same shade name and code number (prefixed by the digit “1”). In some cases, the dealer had told the purchaser, “This is what you want”. In others, on remark by the purchasers that the cans produced bore the mark “Agate-Top” instead of “Flint-Top”, the dealers had stated that the paints were “the same” or “exactly the same”. One or two had specifically declared that the paint was appellant’s product.
While all of these purchases had been inspired by appellant, that fact would not prevent the transactions from serving as probative demonstrations that palming off had been and would be likely to be engaged in, by virtue of the things which appellee had appropriated from appellant on termination of their relationship, if a suitable occasion and an apparent need so to do arose. Cf. J. C. Penney Co. v. H. D. Lee Mercantile Co., 8 Cir., 120 F.2d 949, 957.
The elements and circumstances which have been detailed seem to us plainly to demand the holding, as a matter of law, that both trademark infringement and unfair competition had existed in the situation.
Trademark infringement is, of course, a question which reaches beyond mere facial comparison of the marks and labels involved. Sometimes the deceptive tendencies of an alleged infringing mark will come into convincing focus only against the background of the conditions and incidents which have attended its use in the specific situation. See Walgreen Drug Stores v. Obear-Nester Glass Co., 8 Cir., 113 F.2d 956, 963; Coca-Cola Co. v. Carlisle Bottling Works, 6 Cir., 43 F.2d 119, 121; Hemmeter Cigar Co. v. Congress Cigar Co., 6 Cir., 118 F.2d 64, 69; La Touraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115, 117.
Thus, identicalness or close similarity between the aspects of use of a registered trademark and another mark may serve to point up infringing conflict as to the situation involved, where under other conditions and incidents of use this might perhaps not be so. Such a using of perspective for purposes of the question of registered trademark infringement is,, however, concerned only with the matter of obtaining viewing light and not with, any appraising of, or leaning on, the significance of these aspects as matters of unfair competition otherwise.
Here, on the part which the record' shows that individual color shades played' in customer appeal, some of such value-as the trademark “Flint-Top” could possess in commercial identification would necessarily, we believe, come to have association to the special and artificial color names which appellant used as to its¡ “Flint-Top” paints. Especially does this-' impress as being true, because of the-trade fact that paint manufacturers had not been engaging in the use of each other’s paint shades and color names therefor but had always sought to establish such an individuality of their own..
A similar associational aspect in the-use of appellant’s trademark “Flint-Top”' would also be capable of arising from the-numbering system adopted by it for its. paints, in that, as mentioned, professional, painters were shown to some times call for paints by their code numbers. We-should think it realistically incapable of dispute that in so doing the interest of this particular class had extended to-brand or manufacturing source of the-paint they were purchasing, and that, their use of the code numbers rested on the associationship which they attached thereto.
In thus bringing the use of the terms “Flint-Top” and “Agate-Top” into relief for infringement appraisal, it is not necessary that the elements and incidents discussed should have attained the technical stature of secondary meaning for appellant’s mark. Circumstances of use are, of course, capable of creating secondary meaning and so adding to the scope and value of a trademark. But even without such a status, they may, as here, provide perspective for viewing the commercial significance and competitive reality of a trademark as it stands.
In the perspective of appellee’s appropriation of the identical composition of appellant’s paints, the identical shades thereof, the identifieal artificial names therefor, and the identical system of code numbering except for a prefixing of the digit “1”, instrumented by its providing of similar general color charts containing identical color chips and having the color names and code numbers correspondingly positioned thereon, it would seem to us that the contribution which appellant’s trademark “Flint-Top” would be capable of serving, and which appellant was legally entitled to have it serve, in identification or suggestiveness for customer purpose, could be but little different, and hardly casually distinguishable, from the contribution which the term “Agate-Top” was expected to add in this same com-binational situation as a competitive factor.
Both “Flint-Top” and “Agate-Top” are terms that have a conjuration beyond the natural ingredients or the general characteristics of paint. Their appeal is to the qualities of an outside substance. They therefore constitute primarily suggestive terms. Cf. Dietene Company v. Dietrim Company, 8 Cir., 225 F.2d 239, 243. And the suggestiveness which they are both intended to convey is of the same general quality of outside substance. Also, this artificial quality is in both marks attempted to be slid into immediate and corresponding paint association by the conjoining of the word “Top”, so that a casual customer’s attention would not be likely to linger in differentiating halt between the words “Flint” and “Agate”.
We think that, from the nature of the mark and the setting of its use, appellee’s employment of the term “Agate-Top” constituted in the situation an infringement of appellant’s registered trademark “Flint-Top”, in that it could have the capacity to mislead or confuse the public, within the domain in which a registered trademark has the right to operate. The Lanham Act crystallizes this general ground into more specific language and forbids any “colorable imitation” of a registered mark, except with the consent of the registrant (which here existed until appellee’s termination of the contractual relationship). See 15 U.S.C.A. §§. 1127 and 1114.
Appellant is entitled to an injunction against the infringement in which ap-pellee has been engaging by its use of the mark “Agate-Top”.
Beyond this, as we have said above, we think that unfair competition also has been committed against appellant, extending beyond the infringement of its. trademark, which too properly is subject to an injunction against appellee.
Appellee had, of course, an abstract right to use whatever composition, shades, names and numbers it desired for its paints, as a matter of arms-length competition, where no secondary meaning could be said to be involved as to these elements. Possibly as to unpatentable compositions and as to colors, in the paint field, no secondary meaning could come to exist which the law would recognize.
As to artificial shade names and co-numbering system, a secondary meaning might come to exist and would probably be given legal recognition under sufficiently compelling circumstances. A possibility of this aspect is suggested, but not fully developed, by the showing in the record, referred to above, that shade names and code numbers were some times used by professional painters in making their purchases.
Without regard to this, however, and treating appellant’s shade names and code numbers as not having acquired any general secondary meaning, we think it still constituted enjoinable unfair competition in the circumstances, for appellee, after terminating appellant’s supplier relationship with it, to have assumed to hold onto the merchandising advantage, which it had consentedly been permitted to enjoy in that relationship, of having its shades and types of paints identified and sold under appellant’s artificial color names and code numbers.
If this advantage were one which served merely an internal business purpose, such as a personal convenience or facilitation to appellee in the handling of its paint stock or in the distribution thereof to its dealers, it would not be of such a nature as to entitle appellant to an injunction. Any such general, non-custom■er benefit to appellee, which appellant wanted to deprive it of on the termination of the parties’ privity,' Should have been made the subject of an obligational requirement in the agreement. Appellant did not see fit so to protect itself. Nor was the agreement sufficiently definite to constitute one of a franchising or licensing nature, with such implications for total relinquishment as might be ■capable of inhering in that relationship.
But the parties did intend to create a ■situation in which both appellee and its dealers should be privileged to herald that what was being sold was appellant’s regular products or “the same thing”, and were to have the right to make use of appellant’s shade names and code numbers to so identificatorily prove or for any other competitive purpose. Appellant’s paint, in its quality and with these marketing incidents, had apparently so ■satisfied appellee’s dealers that, as the bulletin sent out to them indicated, ap-pellee thought that, by claiming appellant’s formulas as its own and retaining all of appellant’s adjuncts in relation ■thereto, “Hank’s Paint can stand on its own feet”.
This left appellee’s dealers with the same means and opportunity as previously, for asserting tie to appellant’s paint and for so identifying what they were selling. And the palming-off instances which have been referred to sufficiently «demonstrate that appellee’s dealers were aware of this fact and had and would thus use it, whenever need to do so arose.
In these circumstances it seems to us proper and necessary that appellee should be enjoined from the using of appellant’s color names and code numbers on its paints and color charts, in the marketing by its dealers of its unrelated products.
Appellee contends, however, and the trial court was of that opinion, that no such general reach could be made against it and that appellant’s relief must be sought against offending dealers individually.
This is not a situation where appellee’s dealers are arms-length buyers and purveyors of its paints. They are organizationally members of appellee, and not on a naked stockholder basis, but for the specific purpose and as an essential requirement of using appellee’s services, in the nature of a purchasing organization and privitous distributor for their mutual advantage. Increases in the sales of paint made by any dealer or dealers, by unfair means of competition, are of no less benefit to them in their group relationship and of no less furtherance of the competitive power of the “Hank’s” system generally than are other increases in such sales. Moreover, the unfair competition shown to have been engaged in had a sufficient probative base to suggest the tendency and likelihood thereof generally and to indicate more than a maverick act emanating out of a wholly individual situation.
Beyond this, as we have stated, appel-lee’s use of these things cannot rationally be regarded, we think, as having been done solely for internal business reasons, and without an eye on preservation for its dealers of all the elements of selling advantage which could have contributed to the “tremendous job” of merchandising which appellee acknowledged had occurred in its venture into the field of “Hank’s Paint”, with appellant’s products. It is in any event plain that ap-pellee had not wanted to take the risk of changing appellant’s composition and shades of paint. In not changing anything else, it also seems convincing that appellee further had been desirous of leaving the dealers with every other element of advantage which could have accrued to them out of its previous relationship with appellant.
The character of the relationship existing between appellee and its dealers and the object which it had of serving the advantage of the group are in our opinion sufficient as a basis for enjoining it from putting into the hands of the group such goods and means as were capable of being used by these dealers, and were likely to be so employed, to carry on unfair competition against the products of someone else.
But apart from such a special relationship as exists in the situation, we have held generally that anyone who puts goods into the hands of dealers for sale to the public, which contain the means for deceiving purchasers, and which he can reasonably anticipate may be so used, is subject to injunction against the further providing of these means, to eliminate unfair competition against the goods of another, which has been or is likely to be engaged in by the dealers on this basis. Reid, Murdoch & Co. v. H. P. Coffee Co., 8 Cir., 48 F.2d 817, 819-820.
The conclusions reached make unnecessary any consideration of the parties’ other contentions. This includes a disregarding of appellant’s attempt to have us declare that it is entitled to an accounting of profits and to damages, which relief appellant admits it did not request in its complaint nor otherwise seek to have made an issue in the trial court.
Reversed and remanded.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_concur
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
James H. ELLIS, Jr., Appellant, v. UNITED STATES of America, Appellee. Alfred M. WATKINS, Appellant, v. UNITED STATES of America, Appellee.
Nos. 21918, 21919.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 13, 1968.
Decided April 30, 1969.
Mr. Charles E. Kern, II (appointed by this court), for appellants, and Mr. Richard J. Hopkins, Washington, D. C., for appellant in No. 21,919. Mr. George W. Mitchell, Washington, D. C., also entered an appearance for appellant in No. 21,-919.
Mr. Frederick G. Watts, Atty., Department of Justice, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. James A. Treanor, III, Asst. U. S. Atty., also entered an appearance for appellee in No. 21,919.
Before Danaher, Wright and Leventhal, Circuit Judges.
Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969.
LEVENTHAL, Circuit Judge:
These appellants were convicted of arson and of carrying a dangerous weapon. They seek reversal on the ground that the trial judge erred in compelling the testimony of one Izzard who had been their companion in crime.
The prosecution called Izzard to testify at trial, whereupon the trial judge advised the witness of his privilege against self-incrimination, and asked him if he wished to take the stand. The witness responded in the negative. The prosecuting attorney asked that counsel be appointed to advise the witness. Counsel was appointed; he consulted the witness, and reviewed the transcript of the grand jury proceedings at which the witness had already testified, and he advised the witness to claim his privilege.
Thereafter a long colloquy ensued among court and counsel. The prosecutor urged that the witness should be compelled to testify based on his prior waiver of the privilege at the grand jury proceedings. He argued that there could be no prejudice if the witness merely reiterated what he had already said for the record, and that the standard for waiver under the Supreme Court decisions was that there had to be an actual, realistic possibility of harm.
Government counsel also urged that the defendants had no standing to object to the ruling on the claim of privilege of a witness, and that there could be no prejudice to the witness, if the court erroneously compelled the testimony, in view of Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and other Supreme Court decisions. In opposition counsel for witness Izzard contended that there was some doubt in Izzard’s mind as to whether he was being charged or under investigation, etc. at the time he testified before the grand jury, and thus he had not waived his privilege there, and that in any event he had not been given immunity and thus could reclaim the privilege at the subsequent proceeding.
The trial judge rejected outright the Government’s contention that the waiver of privilege before the grand jury carried through to a subsequent proceeding, and subscribed to the rule announced in other circuits, even though there was no binding precedent from this court. He concluded, however, that there was no reason not to compel the testimony, since, under his reading of Murphy v. Waterfront Comm’n, swpra, the witness would be protected from its subsequent use against him.
On appeal Government counsel invoke the doctrine that a party may not appeal because of the court’s alleged error in overruling the claim of privilege of a witness who is not a party. We hold that while this doctrine has vitality, it does not bar review of the action complained of here. For convenience we defer development of this ruling upholding appellants’ standing to Part B of this opinion, since it will involve consideration of the material presented in Part A.
As to the merits, we hold (in Part A) that the trial judge erred when he required the witness to testify on the ground that the witness was protected against prejudice by virtue of Murphy v. Waterfront Comm’n. We further hold (in Part C) that there was validity in the prosecutor’s contention that the claim of privilege asserted at trial should be overruled in view of the witness’s voluntary testimony before the grand jury, and that the judge erred in rejecting this contention, and accordingly affirm since we see no valid basis for Izzard’s disavowal of his waiver before the grand jury.
A. The trial judge’s ruling compelling the witness to testify was based on an approach beyond his judicial authority.
1. As to the merits, we begin by saying we agree with the assumption of the trial judge that a witness compelled by a judge to testify over a claim of privilege will be protected under the doctrine of Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594 (1964). While the matter is not free from doubt, the thrust of Murphy and other recent Supreme Court decisions serves to protect the witness.
Appellant Murphy had been held in civil contempt for his refusal to answer questions before a state investigating commission. Murphy argued that the immunity conferred by the state immunity statute was not coextensive with his privilege, since the answers might incriminate him under federal law and lead to federal prosecution. All the Justices agreed that the threat of prosecution by a coordinate sovereign whittled away at the policy underlying the privilege and concurred in holding, on different doctrinal grounds, that federal officials would not be permitted to use the testimony or initiate prosecution based on the disclosure or its fruits.
In Murphy the order to testify was preceded by a grant of immunity pursuant to statute. What of a case where there is compulsion by a judge in the absence of an immunity statute, by an order that erroneously overrules the witness’s claim of privilege? We think the witness is protected by the approach and principle underlying Murphy. See also Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), both the majority opinion of Justice Whittaker (p. 355, 78 S.Ct. 311) and Justice Harlan’s dissent (p. 363, 78 S.Ct. 311); and Adams v. Maryland, 347 U.S. 179, 181, 74 S.Ct. 442 (1954). The Wigmore text also expresses the view that such a court ruling protects the witness.
2. A trial judge cannot reject a witness’s claim of privilege merely on the ground that the ruling cannot hurt the witness because it will establish an immunity from subsequent prosecution.
We are not here concerned with a case where a judge has made a mistake in applying legal rules, like a case where he erroneously rules that a witness has waived his privilege. In the case before us the judge did not purport to deny that the witness had correctly presented a claim of privilege. He merely asserted that the witness would nevertheless be protected, by Murphy, against prosecution based on his testimony.
The ruling was made by an able and conscientious trial judge. We are confident it was made in good faith, and can even discern how the judge may have come to a mis-reading of Murphy. Nevertheless, his ruling was in the nature of a circular, self-fulfilling prophecy that in substance can only be viewed as a grant of immunity. That ruling was outside the scope of judicial authority.
This is an area that has been considered by Congress and where it has acted with care and particularity, limiting the power to grant immunity — in the presence of a valid claim of privilege — to a limited group of federal officials. We need not consider what would be the legal situation in the absence of such a statute. With that statute on the books, the power to grant immunity is plainly outside the judicial province.
This conclusion, once stated, seems obvious. But if authority is also desired, it appears, at least implicitly, in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Justice Frankfurter, writing for seven Justices, rejected appellant’s contentions that the federal immunity statute required the court to participate in the decision as to whether immunity should be granted in a particular situation. The Court approved the approach of the district court, in construing the statute to avoid a serious constitutional question as to the role of the judiciary under the doctrine of separation of powers, and found a limited judicial role under the statute, 18 U.S.C. § 3486 (1964). See 350 U.S. at 434, 76 S.Ct. at 504:
Since the Court’s duty under § (c) is only to ascertain whether the statutory requirements are complied with by the grand jury, the United States Attorney, and the Attorney General, we have no difficulty in concluding that the district court is confined within the scope of “judicial power.” (Emphasis added)
The lack of judicial authority to grant immunity from prosecution to a witness whose claim of privilege is recognized also appears in opinions of this court. See Earl v. United States, 124 U.S.App.D.C. 77, 80, 361 F.2d 531, 534 (1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967); In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (1962) (by implication).
B. Appellants have standing to object to the judge’s usurpation of prerogative.
We do not entertain this appeal merely to review an erroneous ruling on a claim of testimonial privilege. Here there was a usurpation of a prerogative that Congress has withheld from the courts.
We must look to the substance and not the form of the ruling. What appears to be a mere ruling on a claim of privilege is, “in reality and effect,” an action tantamount to exchanging immunity for the witness’s testimony. If the trial court had been ruling that the witness erred in presenting a claim of privilege the question would simply be whether the judge was correct. But by “resolving [the issue] in terms of the Murphy ease,” the trial court agreed that the witness was quite right in raising the claim of privilege, that he would be deprived of protection to which he was entitled if he testified without asserting the claim of privilege. And then the court in effect asserted the authority of the judiciary to compel testimony simply because the witness would be protected in the future by virtue of the court’s compulsion.
The propriety of such an action by a judge raises serious questions concerning the power of courts and the limitations on their proper role in the administration of justice. The issue raised by the District Court’s ruling goes to the distribution of power among the three coordinate branches of Government. This is the kind of issue that is so fundamental that appellate courts are constrained to consider and grant extraordinary writs, if necessary, in order to obviate the extra-judicial encroachment. The appellate function embraces a correction in the particular case and deterrence against future repetition.
The need for a stern restraint on judges to stay within the judicial province is a proper basis for extraordinary appellate consideration- — in some cases, as already noted by mandamus; and in the case before us by recognizing a limited exception to a general rule on standing to raise questions. In this area there is a particular call for undertaking the task of clarification of the law that is part of the “expository and supervisory functions of an appellate court.” See Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 280, 19 L.Ed.2d 308 (1967); Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175, 1969. We must not hesitate to exercise this delicate function, provided our action is consistent with the constitutional limitations embodied in the “ease or controversy” clause and rules prescribed by Congress.
Ordinarily a defendant does not have standing to complain of an erroneous ruling on the scope of the privilege of a witness. That principle most recently announced by this court in Long, is not modified by our opinion today. But a defendant does have standing, we hold, to complain that his conviction was obtained in a case where the trial judge went outside his judicial province to grant immunity to a witness. We sustain his standing on the basis of the principle recognized in such cases as Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also, Berger v. New York, 388 U.S. 41, 55, 104, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
In Barrows v. Jackson, the Supreme Court recognized that the principle disclaiming standing to raise the rights of third persons who were non-parties was subject to important exceptions, stating (346 U.S. at 257, 73 S.Ct. at 1035) :
Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting * * * the action to be maintained. * * *
In * * * unique situations which have arisen in the past, broad constitutional policy has led the Court to proceed without regard to its usual rule.
On this point Barrows is in good standing.
In the case before us that principle leads to according standing to present the constitutional issues — focused as they are in the paramount need for adherence to limitations of judicial power— when presented through the only meaningful channel available. Although the “peculiar circumstances” of Barrows are different on the facts, the essential principle is the same. Barrows is not distinguishable simply because the questions presented here could have been raised by Izzard had he chosen to risk contempt and appeal from the resulting order. We must focus on realities, not formalities. Cf. Mills v. Alabama, 384 U.S. 214, 217, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). The reality is that the self-fulfilling nature of the District Court’s ruling effectively eliminated Izzard from the action below. It would be unrealistic to project that an appeal could or might have been lodged by a witness who was wronged, since the ruling gives him de facto protection and resistance would expose him to possible punishment for contempt, at a minimum, and to the risk of antagonizing the prosecutor. As in Barrows the issue on this appeal would likely be effectively foreclosed from review if we do not “proceed without regard to [the] usual rule.”
We repeat that this opinion does not modify the rule of Long for the broad areas of issues, where what is involved is an alleged error on an evidentiary question, or in definition whether the witness properly raised a claim to protection. But in this case, where the trial judge did not disagree with the witness’s claim of right to protection, but proceeded by an action that was tantamount to granting immunity, we conclude that a defendant adversely affected in fact has standing to bring such departure from the judicial province to the appellate court for review and correction.
C. The privilege against self-incrimination cannot be claimed at trial by a witness who has voluntarily testified, before the grand fury which returned the indictment, without invoking the privilege.
In our view a witness who voluntarily testifies before a grand jury without invoking the privilege against self-incrimination, of which he has been advised, waives the privilege and may not thereafter claim it when he is called to testify as a witness at the trial on the indictment returned by the grand jury, where the witness is not the defendant, or under indictment.
While the prevailing rule is that a waiver of Fifth Amendment privilege at one proceeding does not carry through to another proceeding, there appears to be no controlling authority in this circuit. We think that rule unsound, at least for the circumstance before us, and decline to adopt it.
L10] Although numerous policies have been advanced to explain and support the privilege against self-incrimination, the paramount interest that is protected is the right to remain silent rather than make disclosures that may in fact lead to prosecution. When prosecution is barred for some reason, no privilege exists. Witnesses are compelled to speak when jeopardy has attached, the statute of limitations has run, a pardon has been granted, or adequate immunity conferred. The rationale for these holdings is that the witness’s disclosure cannot prejudice him since he is no longer subject to prosecution.
Once a witness has voluntarily spoken out, we do not see how his protected interest is jeopardized by testifying in a subsequent proceeding, provided he is not required to disclose matters of substance which are unknown to the Government. We see “no real danger of legal detriment” arising out of a second disclosure. Compare Rogers v. United States, 340 U.S. 367 at 373, 71 S.Ct. 438, 95 L.Ed. 744. In short we agree with Professor McCormick’s criticism of the prevailing rule:
A mechanical rule has been placed upon the application of [the] doctrine of waiver. * * * Consequently, a witness * * * who freely testifies before the Grand Jury * * * when called as a witness at the trial * * * may claim the privilege. * * * The rule * * * protects chiefly the person accused of crime, and gives very little protection to the witness. If he has already given material evidence of his own guilt, such evidence, in the form of a transcript of his testimony, or of a signed affidavit, can readily be proved against him if he is tried for the crime. The present testimony [i. e. second disclosure] will not add to his hazard except as additional facts or details are brought out.
The rule we think sound is like the rule put forward in the Restatement and the proposed Uniform Rules of Evidence.
The community’s interest in law enforcement is a fundamental basic concern of our country, for freedom and security are intertwined. That interest cannot be used to justify trampling on the Constitution. The need for “intelligent and effective law enforcement” is, however, rightly taken into account in defining the scope of constitutional protections. Those protections are not to be extended by “mechanical rules” that serve no meaningful freedom, but interfere with and hamper sound law enforcement.
It would impede sound law enforcement if an implicated but cooperating witness can decide, after he has made disclosure to the grand jury, that he will refuse to testify at trial. The Government may have structured its case around this witness, and be unable at a late hour, often after jeopardy has attached, to recast an investigation. Leads that might have been explored in the past, with expenditure of much money and time, and were put aside with this witness’s cooperation, may now be lost beyond retrieval. The witness may have obtained an effective immunity for himself, especially if the investigation ripened just before the expiration of the statute of limitations, and then be able to balk all prosecution. And even a cooperative witness may be made vulnerable, by a doctrine that gives him choice, to the threats and blandishments of the defendant. There are doubtless other considerations of like import, but these suffice to establish the interest of law enforcement.
What of the other side of the coin? Is there a Fifth Amendment policy that would be furthered by restricting a witness’s waiver before the grand jury so as to give him a mint-new privilege at trial? We can discern none. As Professor McCormick notes, such restriction “gives very little protection to the witness” once he has already disclosed incriminating facts. Although it has been suggested that the privilege protects a privacy interest, reflection makes it clear that this is not the crucial interest, for it does not survive to protect the privilege once the fear of prosecution is gone, as in case of granted immunity.
We turn to the precedents, to see if they require us to shrink from the reach of reason. Appellants have cited no Supreme Court decisions. To the extent that the Supreme Court’s opinions offer guidance on the question before us, we think that they support a realistic rather than mechanical approach to the application of waiver. While the Court’s decisions manifest extreme concern for safeguarding the privilege against self-incrimination and implementing its policies, the Court has consistently refused to uphold refusals to testify when there is no “real” and substantial “hazard of incrimination.” See Marchetti v. United States, 390 U.S. 39, 48, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Hoffman v. United States, supra, 341 U.S. at 486, 71 S.Ct. 814. In Rogers v. United States, supra, 340 U.S. 367, 71 S.Ct. 438, cited in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964), the Court emphasized that “the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure * * * ” 340 U.S. at 372-373, 71 S.Ct. at 442. Accordingly the Court held that a witness who volunteered incriminating answers to the Grand Jury could not invoke the privilege as to details which “would not further incriminate.” 340 U.S. at 373, 71 S.Ct. at 442. The issue is “whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures, * * * whether the answer * * * would subject the witness to a ‘real danger’ of further crimination.” 340 U.S. at 374, 71 S.Ct. at 442.
The privilege of course remains as to matters that would subject the witness to a “real danger” of further crimination, and that the witness need not demonstrate that danger “in the sense in which a claim is usually * * * demonstrated in court.” Hoffman v. United States, supra, 341 U.S. at 486, 71 S.Ct. at 818. The witness is not required to run the risk if the answers may have a tendency to incriminate. Malloy v. Hogan, supra at 12, 84 S.Ct. 1489.
The Supreme Court has plainly tried to strike a balance between the policy of the privilege and the requirement for information. Generally the balance weighs heavily in favor of the privilege, but the witness’s latitude in invoking his right requires at least an arguable contention of a real danger of legal detriment. Since it is our clear conviction that a finding of waiver in the case before us exposes the witness to no real danger of legal harm, the principles applied by the Supreme Court stand against the privileges claimed at the trial of appellants.
Various grounds have been advanced in the cases that refuse to find a waiver. In United States v. Miranti, 253 F.2d 135 (2d Cir. 1958), the court sustained Miranti’s refusal to answer questions before a grand jury investigation even though he had previously testified before a grand jury and been tried and convicted. The court focused on the period that elapsed between the two investigations. It noted that the eases drew a distinction between two appearances in the same proceeding and appearances in different proceedings, saying as to the latter group:
[The] prior disclosures were held not to constitute a waiver in the subsequent proceedings for the reason that during the period between successive proceedings conditions might have changed creating new grounds for apprehension (e. g., the passage of new criminal laws) or that the witness might be subject to different interrogation for different purposes at the subsequent proceeding. 253 F.2d at 140.
It may be that in some situations the passage of time, and change in purpose of an investigation, may open up new real dangers. The question must be faced realistically, however, and not mechanically. In the case before us involving a grand jury presentation and then a trial without unusual delay, this danger does not have substance.
In Miranti the court also said that reiteration constituted a danger because
[R]eiteration adds to the credibility of the statement, * * * and if construed as a waiver could lead to additional questions requiring answers which further implicate the witness. 253 F.2d at 139-140.
If reiteration alone is sufficient for realistic new incrimination that would also prohibit a subsequent appearance before the same tribunal, and that plainly is not the law. Rogers v. United States, supra.
There may be a problem if a witness is asked questions that go beyond his previous disclosure. The Miranti court may have been sensitive to this problem because the witness was before a grand jury, which might run rough shod over subtle questions that might arise. Unlike Miranti the case before us involves a second disclosure at trial, in the presence of a judge, and for the same offenses considered by the Grand Jury. Compare United States v. Steffan, supra note 31 (“cases different”).
To the extent that defense counsel’s cross examination might probe matters of substance as yet unrevealed, the witness must retain his privilege, and the Government runs the risk of a mistrial or reversal, since the defendant cannot be deprived of his Sixth Amendment right to confrontation. The Government is not being exposed to an unreasonable burden, since it can control the scope of cross examination by its presentation on direct.
But it does assume some risk in presenting a nonrecalcitrant witness if he can successfully assert his privilege in response to probing that lies within the latitude to which a defendant is entitled on cross examination of a witness. A realistic approach to the privilege, and possibility of “real danger,” does present more problems to counsel and courts than a mechanical rule. Simple solutions cannot always be found in a complex society. The call of the law lies, however, in a diligent effort to give just weight to the various interests of individuals and their society, and to harmonize them with maximum attention to reality.
We now turn to In re Neff, 206 F.2d 149 (3d Cir. 1953), for a fuller discussion of the precedent that seems to have launched the doctrine invoked by the witness and the trial judge. Sylvia Neff was convicted of contempt for refusing to answer questions put to her as a subpoenaed witness at the trial of Anthony Valentino. Valentino had been under investigation by the grand jury and the witness Neff had been called to testify during the hearings. Between the grand jury investigation and Valentino’s trial appellant had been convicted for perjury, with her appeal pending before the circuit court. At trial the prosecution sought to put questions that had already been answered before the grand jury. Neff had been in contact with her counsel, and she requested a recess which was denied by the trial judge. The court in discussing the waiver question relied on the “settled” rule that “a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding.” 206 F.2d at 152. The only Supreme Court decision cited for the proposition is Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920). That case does not, however, speak to the question of waiver. In Arndstein the eontemnor had filed certain schedules during the course of a bankruptcy proceeding. It appears that during the course of the same proceeding appellant was interrogated as to the schedule and set up his privilege. In the Court’s words:
The writ [of habeas corpus seeking release for the contempt conviction] was refused upon the theory that by filing schedules without objection the bankrupt waived his constitutional privilege and could not thereafter refuse to reply when questioned in respect to them. This view of the law we think is erroneous. The schedules alone did not amount to an admission of guilt or furnish clear proof of crime and the mere filing of them did not com stitute a waiver of the right to stop short whenever the bankrupt could fairly claim that to answer might tend to incriminate him. 254 U.S. at 72, 41 S.Ct. at 26. (Emphasis added.)
The holding of Arndstein is consistent with the view later espoused in Rogers, Hoffman and Marchetti. The witness in Arndstein was not asked merely to repeat incriminating statements that he had already made, but was interrogated as to new matter of substance. See Rogers v. United States, supra, 340 U.S. at 374, 71 S.Ct. 438. It is evident that a real danger of legal detriment existed.
Neff relies also on the point that a trial is a separate proceeding from the grand jury investigation and not a mere continuation of the same proceeding. We think, however, that this is a “mechanical limitation” that fails to focus on the underlying interests: whether the witness’s privilege is jeopardized, and the interest of the community in obtaining full disclosure at criminal trials.
However sound the result in Neff on its facts, we decline to adopt its broad language as controlling for all circumstances. We think the better rule is to hold that the waiver carries through unless there is new material, or possibly new conditions, that may give rise to further incrimination. To the extent that the Neff court apprehended prejudice from the mere fact of repetition of the earlier testimony we reject its holding.
We hold that where a non-indicted witness has waived his Fifth Amendment privilege by testifying before a grand jury voluntarily and with knowledge of his privilege, his waiver extends to a subsequent trial based on an indictment returned by the grand jury that heard his testimony. We repeat, for emphasis, that our holding does not apply when the witness is himself accused or under indictment. We also hold that the witness is entitled to counsel, either his own or court appointed, and may object to any question that would require disclosure of new matter of substance.
In our view this approach accommodates both the policies underlying the Fifth Amendment’s privilege and the interest of obtaining full disclosure whenever possible in criminal trials.
D. Disposition of the case before us.
Our disposition is shaped by the scope of appellants’ standing, cf. Smuck v. Hobson, supra, which is limited to the propriety of the trial judge’s granting immunity to Izzard. While we disagree with the theory of the District Court, reversal does not follow since his ruling is sustainable on other grounds, which we have set forth in Part C.
As there noted we hold that a witness’s voluntary testimony before a grand jury is a waiver for purposes of trial. This still leaves room for consideration of whether under the facts of any particular case the witness’s pre-trial statement constitutes a waiver.
If the trial judge had considered the question and ruled there was a waiver, the defendant would not have standing to attack the ruling, even if erroneous, as a ground of reversal. In this case the trial judge did not make a ruling but we feel the record before us is clear enough to indicate that the interest of justice does not justify a remand. The transcript shows (Tr. 42-44) that Izzard expressly stated to the grand jury that he had consulted a lawyer prior to going before the grand jury; that he wished to cooperate with the Government though he understood he did not have to; that this cooperation was voluntary, and that he knew anything he said could be used against him. Izzard’s counsel at trial pointed out that before the grand jury Izzard said he did not think he was presently charged for the offense. We think this of no significance. Izzard subsequently and expressly testified to the grand jury that he did understand, and his attorney had explained that anything he said could be used against him; and understanding that it was his wish to tell what he knew about the case.
The judgment is
Affirmed.
. The Court: Well, with respect to the witness having testified before the Grand Jury, at that time there was a valid waiver of his privilege that he exercised in testifying before the Grand Jury.
That, however, does not carry over to any waiver pertaining to any subsequent testimony, as, for example, the testimony that would be given in the course of this trial.
The law is clear at present that testimony by a witness to the Grand Jury is not a waiver that carries over to testimony as the trial of the action.
The Court is of the opinion that this matter, however, should be resolved in terms of the holding of the Supreme Court in the Murphy case, Murphy against the Waterfront Commission, and although the testimony of the witness before the Grand Jury does not work a waiver insofar as his testimony in the course of this trial, all threat of prosecution as a result of his testimony in the course of this trial has been removed by virtue of * * * the Murphy case, which very clearly states that exercising either a supervisory function over the Federal courts or by the Court’s interpretation of the Constitution, his testimony or any of the fruits thereof given in the course of this trial could not be used in a subsequent prosecution for any offense connected with the matter presently on trial.
Therefore, under those circumstances the witness will be required to take the stand and he will be required to testify in the course of this action under the threat of criminal contempt. Tr. 68-70.
. Long v. United States, 124 U.S.App.D.C. 14, 19, 360 F.2d 829, 934 (1966); Bowman v. United States, 350 F.2d 913, 916 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966).
. Settled Fifth Amendment doctrine is that immunity conferred by statute must be “coextensive” with the privilege it seeks to displace. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). Protection under an immunity statute must extend to any prosecution based on the testimony, as well as its actual use at trial. See, id. It must extend to all possible indictments, and not merely to one for an offense under investigation. See, id. at 562, 563-564, 585-586, 12 S.Ct. 195.
Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594 (1964), protected the witness against the use of testimony or its fruits. In Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724 (1966), both Justice Douglas and Justice Harlan noted that it was an open question whether the witness’ immunity might not also preclude prosecution based on “independent” evidence. (See pp. 244, 250, 86 S.Ct. 788.)
. The analogous problem does not seem to arise under the basic federal immunity statute, 18 U.S.C. § 3486 (Supp. III, 1968), which authorizes grants of immunity to obtain information about matters involving the national security. Subsection (a) provides:
* * * No * * * witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction,
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
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songer_casetyp1_2-3-2
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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 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 "civil rights - voting rights, race discrimination, sex discrimination".
Willie S. GRIGGS et al., Appellants, v. DUKE POWER COMPANY, a corporation, Appellee.
No. 13013.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 6, 1974.
Decided April 2, 1975.
Robert Belton, Charlotte, N. C. (J. Le-Vonne Chambers, Charlotte, N. C., Jack Greenberg, Morris J. Bailer, New York City, and Chambers, Stein, Ferguson and Lanning, Charlotte, N. C., on brief), for appellants.
George W. Ferguson, Jr., Charlotte, N. C. (Philip M. Van Hoy, Charlotte, N. G, on brief), for appellee.
Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, District Judge.
Senior Judge, United States District Court, District of Maryland, sitting by designation.
PER CURIAM:
Appeal is taken herein by appellants-plaintiffs from a denial by the district court of a motion for entry of appropriate relief. The essential questions are whether or not the district court complied with the mandate of this court, and whether an adverse decision of this court not reversed by the Supreme Court is res judicata.
The original action, which was a class action brought under Title VII of the Civil Rights Act of 1964, involved 13 named individual plaintiffs. The district court dismissed the complaint, Griggs v. Duke Power Company, 292 F.Supp. 243 (M.D.N.C.1968).
Plaintiffs appealed and we reversed the decision in part, 420 F.2d 1225 (4th Cir. 1970). On appeal here the plaintiffs were divided into three groups: (1) Group A, four plaintiffs without a high school education who were hired by the defendant company after adoption of the education-test requirement; (2) Group B, three plaintiffs who had met the high school education requirement; and (3) Group C, six plaintiffs without a high school education who were hired prior to the adoption of the education-test requirement.
This court reversed the district court as to the Group C plaintiffs and required injunctive relief, denied relief to the Group A plaintiffs, and held that the claims of the Group B plaintiffs were moot.
On December 23, 1970, the district court entered an order effectuating the relief granted to the Group C plaintiffs by this court. In that order the district court noted that members of Group B had urged the court to consider allegations of discrimination which were purported to have occurred subsequent to the decision of this court. The district court stated that the proper course for the Group B plaintiffs was to file their complaints with the Equal Employment Opportunity Commission (EEOC). The district court reasoned that, since it and this court had determined that the members of Group B were entitled to no relief, their allegations were not properly before the district court.
On March 8, 1971, the Supreme Court granted relief to the Group A plaintiffs, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, but not to Group B plaintiffs.
Plaintiffs returned to the district court on September 8, 1971, with a motion for entry of appropriate relief. In this motion plaintiffs: (1) sought injunctive relief for the Group A plaintiffs pursuant to the decision of the Supreme Court; (2) raised new allegations of Title VII violations against the Group C plaintiffs after the decision of this court; and (3) made allegation of Title VII violations against the Group B plaintiffs.
On September 25, 1972, an order was entered by the district court granting injunctive relief pursuant to the decision of the Supreme Court as to the Group A plaintiffs.
Due to the new factual allegations of discrimination against Groups B and C, the district court held evidentiary hearings to determine if further relief should be given the Group C plaintiffs and whether relief should be granted to the Group B plaintiffs.
On January 10, 1974, the district court reaffirmed its order of December 23, 1970, as to the Group B plaintiffs, concluding that their allegations were not properly before the court and stated that they should file their complaints with the EEOC.
As to the Group C plaintiffs, the district court, after examining the evidence presented at the evidentiary hearings, made findings of fact that the company was complying with the mandate of this court and that no further relief was in order.
The appellants raise two issues: (1) whether the district court erred in refusing to grant relief to the Group C plaintiffs as requested in their motion for further relief; and (2) whether the district court erred in refusing to grant relief for the Group B plaintiffs.
As to the Group C plaintiffs, there is no error by the district court in its refusal to grant further relief. The court considered the extensive evidence presented by both sides and made a factual determination that the defendant company was complying with the mandate of this court and that no further relief was in order. On review of the record we find no error in the decision of the district court and affirm. Its findings are not clearly erroneous. FRCP 52(a).
As to the Group B plaintiffs, appellants challenge the determination of the district court that they must file their complaint with the EEOC, see 42 U.S.C. § 2000e-5, before commencing any litigation on their allegations of discrimination and that accordingly their present allegations are not properly before the district court. We do not decide this precise question, but affirm on other grounds. Riley Inv. Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 85 L.Ed. 36 (1940).
The appellants state in their brief that the Group B plaintiffs joined with the other plaintiffs in filing a charge with the EEOC on March 15, 1969. However, on examining the charge filed with the EEOC as so referred to, it appears that it was filed on March 15, 1966. Thus the complaint was filed before this case commenced, and before the first decision of the district court appealed from and not afterwards. We do not attribute this to any intentional act of the attorneys.
As noted, having filed this EEOC complaint in 1966, the Group B plaintiffs were dismissed by the district court in 1968. The dismissal was affirmed by this court, which stated that the claims of Group B were moot. The Supreme Court did not consider these determinations as to the Group B plaintiffs and thus they stood dismissed by an order which was final. The 1968 decision is res judicata.
Since the Group B plaintiffs were no longer parties to this action, their allegations in the 1971 motion for entry of appropriate relief were not properly before the district court.
This ruling necessarily forecloses their cause of action as to the allegedly discriminatory acts which were “ . matters actually in issue or points controverted, upon the determination of which the judgment or decree was rendered.” Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927). Should they desire to pursue another action based on discriminatory conduct after that time, that matter is not before us. The question of whether their 1966 complaint with the EEOC would be sufficient in a new action if brought is not now before us and we express no opinion as to that question.
Affirmed.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
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. Ken GATTAS, Defendant-Appellant.
No. 87-2193.
United States Court of Appeals, Tenth Circuit.
Dec. 12, 1988.
Alan Ellis, Philadelphia, Pa. (Peter G-old-berger, Philadelphia, Pa., and Randi McGinn, Albuquerque, N.M., with him on the briefs), for defendant-appellant.
David N. Williams, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-ap-pellee.
Before HOLLOWAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
This is an appeal from an order by the United States District Court for the District of New Mexico denying petitioner’s motion to have his sentence vacated pursuant to 28 U.S.C. § 2255.
In 1985, the district court convicted petitioner, Ken Gattas, of conspiracy to possess cocaine with intent to distribute, on his plea of guilty. Before sentencing, petitioner’s trial counsel objected to certain statements in the Presentence Investigation Report (PSI). The district judge orally disclaimed any reliance on those disputed statements and sentenced petitioner to ten years in prison.
Petitioner subsequently filed a notice of direct appeal with this court claiming, among other things, that the district court had failed to comply with Rule 32 of the Federal Rules of Criminal Procedure in considering alleged errors in the PSI. About two months later, petitioner, represented by counsel, moved to withdraw that appeal, and we granted the motion.
Almost two years after being sentenced, petitioner, with new counsel, filed with the district court a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. He claimed that the district court had failed to comply with the second sentence of Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure, which requires a sentencing court to make a written record of its resolution of contested matters concerning the presentence report and to attach the record to the report. The district court denied the motion and petitioner has appealed to this court.
The government concedes, and we agree, that the district court failed to comply with the requirements in the second sentence of Rule 32(c)(3)(D). Although the district judge orally announced, in compliance with the first part of Rule 32(c)(3)(D), that he would not rely on any of the disputed factual statements contained in the PSI, he failed to make a written statement of such nonreliance and to attach it to the PSI, as required by the second sentence of Rule 32(c)(3)(D). The central question in this appeal is the appropriate remedy for this violation.
Initially, we must decide whether we have jurisdiction to remedy the violation. Petitioner challenges the district court’s failure to comply with Rule 32(c)(3)(D) under 28 U.S.C. § 2255. Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a court ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
We agree with petitioner that Section 2255 is a proper vehicle for remedying the violation of Rule 32(c)(3)(D) in this case. In order for petitioner to maintain a collateral attack on his sentence under Section 2255, he must show either “a fundamental defect which inherently results in a complete miscarriage of justice” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (Section 2255 relief was not appropriate where the petitioner alleged a violation of the formal requirements of Rule 32(a) of the Federal Rules of Criminal Procedure as a result of the sentencing court’s failure affirmatively to invite the defendant to make a statement and present information of mitigation before imposing sentence). Mere “technical” violations of rules of procedure will not support a claim under Section 2255. United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); United States v. Shepherd, 618 F.2d 702 (10th Cir.1980).
Although the requirement in the second part of Rule 32(c)(3)(D) that the sentencing court attach a record of its resolution of contested matters concerning the presen-tence report is ministerial in nature, we believe that the requirement is a significant enough part of the sentencing process to support an action under Section 2255. The Advisory Committee’s comments to Rule 32(c)(3)(D) recognize that “the Bureau of Prisons and Parole Commission make substantial use of the presentence report.” 97 F.R.D. 245, 308. In fact, after a defendant is sentenced, the presentence report becomes “the central document in the correctional process.” Fennel & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Pre-sentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1628 (1980). For example, the report may have an important influence on a defendant’s classification in a prison, his ability to obtain furloughs, the treatment programs provided to him, and his parole determinations. Id. at 1679-80. Thus, transmission of an accurate presen-tence report, which includes a written record of the sentencing judge’s resolution of contested matters in the report, is vitally important to the post-sentencing lives of criminal defendants.
Several cases in other circuits have held or suggested that a violation of the first sentence of Rule 32(c)(3)(D) is sufficiently fundamental to support an action under Section 2255. See United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.1988); United States v. Fischer, 821 F.2d 557, 558-9 (11th Cir.1987); Poor Thunder v. United States, 810 F.2d 817, 821-23 (8th Cir.1987). But see Johnson v. United States, 805 F.2d 1284 (7th Cir.1986). We see no reason to allow jurisdiction for violations of the first sentence of Rule 32(c)(3)(D) and not to allow jurisdiction for violations of the second sentence of the rule. As the Advisory Committee’s comments on Rule 32(c)(3)(D) emphasize, the two parts of Rule 32(c)(3)(D) are bound together — the first part of the rule is designed to protect defendants’ due process rights by ensuring that they are sentenced based on accurate information while the second part of the rule is designed to ensure that a clear record of the resolution of controverted facts is provided to those who may rely on the report. 97 F.R.D. at 308. The second part of the rule thus serves as an important supplement to the first part of the rule by protecting defendants against post-sentencing prejudice because of errors in the PSI. See United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986); United States v. Petitto, 767 F.2d 607, 610 (9th Cir.1985). Therefore, we conclude that jurisdiction under Section 2255 is appropriate to correct violations of the second part, as well as the first part, of Rule 32(c)(3)(D).
The government argues that petitioner waived his right to collaterally attack the Rule 32(c)(3)(D) violation because he failed to appeal the issue directly. We disagree. The government is correct in contending that the failure by a defendant to raise a nonconstitutional issue on direct appeal when he was able to do so ordinarily will bar collateral review of that issue under Section 2255. See United States v. Smith, 844 F.2d 203, 207 (5th Cir.1988); United States v. Craig, 827 F.2d 393, 394 (8th Cir.1987). But here, petitioner contends that he did not know, and could not reasonably have known, of the violation until long after sentencing. We agree with petitioner because, unlike violations of the first part of Rule 32(c)(3)(D) which are obvious at the time of sentencing, violations of the second part of the rule, which requires attachment of the judge’s determination to the PSI, may not reasonably be discovered until long after sentencing, such as when the defendant has a parole hearing. Therefore, we conclude, as the Seventh Circuit did in response to a similar waiver argument, that petitioner had “good cause” for failing to appeal the violation directly. See Kramer v. United States, 788 F.2d 1229, 1231 (7th Cir.1986).
We now turn to the appropriate remedy for a violation of the second sentence of Rule 32(c)(3)(D). Petitioner claims that he is entitled to resentencing. We disagree. Resentencing is an appropriate remedy for a violation of Rule 32(c)(3)(D) only when the sentencing judge may in fact have relied on disputed facts in the PSI without conducting a hearing on the truth of such facts. See United States v. Peterman, 841 F.2d 1474, 1483 (10th Cir.1988), where, on direct appeal, this court remanded for resentencing because the sentencing court had not made any findings or determination of nonreliance on disputed facts in the PSI as required by Rule 32(c)(3)(D). When the record reveals that the sentencing court did not rely on the disputed facts or that the sentencing court resolved the dispute against the defendant, and when the alleged violation of Rule 32(c)(3)(D) relates only to the failure of the sentencing court to attach the proper record to the PSI documenting its resolution or its disregard of the disputed facts, then the proper remedy is merely to remand for attachment of the proper record to the PSI. United States v. Golightly, 811 F.2d 1366, 1368 (10th Cir.1987) (remanded “for production of an adequate written record that comports with the requirements of Rule 32(c)(3)(D)”).
We previously have addressed this distinction between the first and second sentences of Rule 32(c)(3)(D) in United States v. Corral, 823 F.2d 1389 (10th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 2820, 100 L.Ed.2d 921 (1988). In that case the defendant argued that because the trial judge had not fully complied with Rule 32(c)(3)(D), resentencing was required. This court rejected that argument. We noted that the trial judge, as in the instant case, had stated on the record that he was not considering the disputed matters in making his sentencing determination. Nevertheless, this court found that the judge had not totally complied with the rule because he had not appended to the PSI a written record of his determination. We held that the appropriate remedy for that violation was a “remand with directions that the trial court cause its determination that it did not consider the challenged allegations in imposing sentence to be appended, in a written order, to the pre-sentence investigation report.” Id. at 1394.
Accordingly, we REVERSE the district court’s decision that petitioner does not have a valid Section 2255 claim, and we REMAND to the district court for it to prepare a written record of its nonreliance on the disputed matters in the PSI and to send the record to the appropriate authorities for attachment to the PSI.
REVERSED AND REMANDED.
. At the time of sentencing the district court stated to defense counsel: "[T]he matters that you’ve alluded to in that particular motion and memorandum are not considered by the Court in reaching its sentence in this case.”
. Rule 32(c)(3)(D) provides:
If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.
Fed.R.Crim.P. 32(c)(3)(D) (emphasis added).
.A number of courts have held that violations of Rule 32(c)(3)(D) may be raised pursuant to the pre-1987 version of Rule 35 of the Federal Rules of Criminal Procedure, which provided for challenges to sentences "imposed in an illegal manner.” See, e.g., United States v. Katzin, 824 F.2d 234, 237-38 (3d Cir.1987); United States v. Santamaria, 788 F.2d 824, 828-29 (1st Cir.1986); United States v. Castillo-Roman, 774 F.2d 1280, 1284-85 (5th Cir.1985). Petitioner here may not rely on that rule because until 1987 it required any challenges based upon an allegation that the sentence was imposed in an illegal manner to be raised within 120 days after the sentence was imposed. That deadline long passed before petitioner raised his current claim.
. See also United States v. Smith, 844 F.2d 203 (5th Cir.1988), which suggests that a violation of Rule 32(c)(3)(D) which could be raised on direct appeal or pursuant to Rule 35 may not be raised under Section 2255. That case is distinguishable because there the district court had failed to make any findings or a determination that it would not rely on disputed information in the presentence report. Therefore, the error should have been apparent to the defendant in that case at the time of sentencing and, thus, he could have raised it on direct appeal or within the time limitation of Rule 35. Here, however, the sentencing judge explicitly stated that he would not rely on the disputed information. The error, which consists of the judge’s failure to attach this statement to the presentence report and forward it to the appropriate authorities, was not reasonably discoverable by petitioner until long after the time for a direct appeal or a Rule 35 motion had expired.
. See also United States v. Bradley, 812 F.2d 774, 782 (2d Cir.1987) ("no more is required than a remand”); United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986) (a remand for attachment of the determination to the report is sufficient); United States v. Eschweiler, 782 F.2d 1385, 1390 (7th Cir.1986) ("requiring resentenc-ing when the record is clear that the sentencing judge did not rely on a contested matter does not further the purpose of Rule 32(c)(3)(D)”); United States v. Castillo-Roman, 774 F.2d 1280, 1285 (5th Cir.1985). But cf. United States v. Petitto, 767 F.2d 607 (9th Cir.1985), which suggests that resentencing may be required for any violation of Rule 32(c)(3)(D). However, in Pet-itto, unlike in the instant case, the sentencing court did not explicitly state whether it was relying on the disputed information. Id. at 609. Therefore, the court in Petitto could not determine from the record whether there had been compliance with the first sentence of Rule 32(c)(3)(D). Id. at 611.
. Petitioner also appeals from the refusal of the court below to hold a hearing on his claim that his trial counsel was ineffective in failing to challenge and appeal the failure of the sentencing judge to attach a written finding to the PSI. We need not reach that issue because, even if defendant's counsel was ineffective in this regard, the Rule 32 violation will be corrected on remand.
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_numresp
|
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.
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.
AMERICAN AIRLINES, INC., Petitioner, and Allied Pilots Association, Intervenor-Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, and Master Executive Council of the Pilots of Trans Caribbean Airways, Intervenor-Respondent.
No. 1083, Docket 71-1610.
United States Court of Appeals, Second Circuit.
Argued July 14, 1971.
Decided July 23, 1971.
Joseph Barbash, Debevoise, Plimpton, Lyons & Gates, New York City (Gene E. Overbeck, New York City, of counsel), for petitioner.
Martin C. Seham, Surrey, Karasik, Greene & Seham, New York City (Fred C. Klein, New York City, of counsel), for intervenor-petitioner.
O. D. Ozment, Deputy Gen. Counsel (Richard W. McLaren, Asst. Atty. Gen., Howard E. Shapiro, Atty., Dept. of Justice, R. Tenney Johnson, Gen. Counsel, Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, Robert L. Toomey and Alan R. Demby, Attys., C.A.B., of counsel), for respondent.
Ronald B. Natalie, Verner, Liipfert, Bernhard & McPherson, Washington, D. C. (James M. Verner, John H. Wanner, Harry C. McPherson, Washington, D. C., of counsel), for intervenor-re-spondent.
Before FRIENDLY, Chief Judge, and LUMBARD and OAKES, Circuit Judges.
FRIENDLY, Chief Judge:
Every airline merger presents difficult human and financial problems of the relative privileges of the employees of the two carriers. Knowing that such problems would arise in the merger of Trans Caribbean Airways, Inc., (TCA) into American Airlines, Inc., which, indeed, had already been aired at the hearings, the Civil Aeronautics Board in its order of approval, effective December 31, 1970, announced that it would impose the labor protective provisions adopted in the United-Capital Merger Case, 33 CAB 307 (1961), which it had uniformly applied in every subsequent merger and route transfer case. Among these conditions, 33 CAB at 342-47, were the following:
Section 3. Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with section 13.
******
Section 13. In the event that any dispute or controversy (except as to matters arising under sec. 9) arises with respect to the protection provided herein, which cannot be settled by the carrier and the employee, or his authorized representative, within 30 days after the controversy arises, it may be referred, by either party, to an arbitration committee for consideration and determination, the formation of which committee, its duties, procedure, expenses, etc., shall be agreed upon by the carriers and the employees, or the duly authorized representatives of the employees.
The merger was consummated on March 8, 1971.
Prior to that date the Master Executive Council of the pilots of TCA (TOA-ME C) filed a petition asking the Board to direct American, Allied Pilots Association (APA) (the bargaining agent for American’s pilots), and itself to submit the integration of the pilot seniority list to final and binding arbitration. Answers were filed by American, APA, and the Flight Engineers International Association (FEIA) representing American’s flight engineers. Later submissions revealed that on February 4, 1971, American and APA had entered into a memorandum of understanding on seniority list integration, which provided for signature on behalf of the TCA pilots but had not been signed by them. The TCA pilots considered unacceptable certain aspects of the proposed integration of the pilots still in service on a date-of-hire basis and, even more so, a provision with respect to the recall of furloughed pilots on the basis of “last furloughed, first recalled.” TCA-MEC claimed that the practical effect of the latter provision would be that all American’s pilots furloughed as of the date of the merger would be recalled before any of TCA’s furloughed pilots. It contended also that the proposed method of integration was simply an adoption by American of proposals made by APA and that the latter had “resolutely refused to adopt any procedures leading to a fixed period of negotiation, to be followed by arbitration failing a negotiated settlement.” APA and American opposed the petition, asserting that integration had already been accomplished “on a fair and equitable basis.” In an order dated May 7, 1971, the Board noted its “long standing policy” that matters encompassed in labor protective conditions of a merger “should be resolved by voluntary agreement between the carrier and the labor groups or employees involved, or, failing agreement, by arbitration”; judicial recognition “that the Board lacks expertise in labor matters and that seniority is basically a matter for negotiation or arbitration,” see Outland v. CAB, 109 U.S.App.D.C. 90, 284 F.2d 224, 228 (1960) (Burger, J.); and other judicial statements that, under the Interstate Commerce Commission’s labor protective provisions similar to those here imposed, either party has “ ‘the absolute right to select arbitration as a means for settling the dispute and when such selection [is] made then arbitration [is] mandatory upon the other party,’ ” quoting from New Orleans & N. E. Ry. v. Bozeman, 312 F.2d 264, 267 (5 Cir. 1963); Brotherhood of Locomotive Engineers v. Chicago & Nw. Ry., 314 F.2d 424, 433 (8 Cir.), cert. denied, 375 U.S. 819, 84 S.Ct. 55, 11 L.Ed.2d 53 (1963)’. Accordingly, it directed “[t]hat American shall within 30 days submit all pending disputes with respect to the seniority list integration of the American and TCA pilots and flight engineers to a neutral arbitrator or committee of arbitrators.”
On May 28, 1971, American filed with the Board a petition for reconsideration. It annexed to this a letter from APA advising American of the union’s position that no arbitration could change or vary the agreements already reached between American and APA and asking American to “[b]e assured that the pilots in the employ of American Airlines, as represented by the Allied Pilots Association, will use every means available to protect and insure the Company’s compliance with our Collective Bargaining Agreement.” Pointing to the dangers of labor strife implicit in the APA letter and alleging various difficulties in proceeding with the arbitration in the face of APA’s announced refusal to participate, American asked that the Board “appoint a hearing examiner to determine whether the Memorandum of Understanding dated February 4, 1971 between American and the Allied Pilots Association provides a fair and equitable method of seniority integration and, if not, to prescribe the manner in which disputes concerning the method of integration should be resolved.” In support of this proposal, it cited the Board’s attempt to resolve a seniority dispute by itself establishing a list in the North Atlantic Route Transfer Case, 12 CAB 422 (1951), aff’d sub nom. Kent v. CAB, 204 F.2d 263 (2 Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 46, 98 L.Ed. 351 (1953).
TCA-MEC responded that while it saw no reason justifying reconsideration, “as still another good faith effort at accommodating the dispute, it had no objection to the appointment of a hearing examiner for the same purpose as in the Kent case — namely, the creation of an integrated seniority list.” On the other hand, it vigorously objected to proceeding as American had proposed, namely, first considering whether the arrangement already worked out between American and APA was fair and equitable and, if and only to the extent that this was decided in the negative, prescribing still further procedures for resolving remaining issues.
APA also filed an answer which was labeled as in “support” of American’s petition for reconsideration. It conceded the Board’s power to determine whether the existing arrangement was “fair and equitable,” but challenged the Board’s authority to permit an arbitrator to order a departure from an agreement between a surviving carrier and the collective bargaining representative of its employees, and was conspicuously silent on whether the Board itself could do this — as distinguished from merely directing the dominant carrier and its union to try again.
On June 11, 1971, the Board denied reconsideration. It reiterated that it did “not consider it appropriate to entertain this dispute beyond directing compliance with the labor protective conditions imposed as a condition to our approval of the merger.” It found “no basis for assuming that the legal effect of an integration of the seniority lists by arbitration would be any different from that which would result from integration by the Board after what would undoubtedly be protracted evidentiary and other proceedings.” Further, while the Board expressed the “hope” that APA would take part in the arbitration proceeding, it concluded that “[i]f [APA] chooses not to do so, and the decision of the arbitral tribunal should be considered by it to be adverse to its interests, it would have no basis for complaint.” Also, it rejected American’s claims with respect to the difficulties of the arbitration, and emphasized that the question was not whether the American-APA plan fell within the range of what was “fair and equitable” but rather, since full agreement had not been reached, what plan of integration the arbitral tribunal determined to be most appropriate. It directed American to proceed to arbitration within ten days. American promptly filed this petition to review. Upon its representation that the Board was steering a collision course which entailed a serious risk of a strike on a major air carrier, we granted a stay, conditioned on an expedited appeal —a procedure which we are being compelled to employ with alarming frequency.
At first blush it would seem indeed, as it did to the panel that granted the stay, that for an administrative agency to decline to follow a procedure, admittedly fair and within its power, which was affirmatively urged by a carrier, reluctantly acquiesced in by the labor organization that might have been expected to object, and not opposed by its rival, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordanee with law.” 5 U.S.C. § 706(2) (A). However, that would be too much of a keyhole view. Congress has vested the Board with the power to approve airline mergers “upon such terms and conditions as it shall find to be just and reasonable * * 49 U.S.C. § 1378 (b). The broad scope of a similar provision in the Interstate Commerce Act was recognized by the Supreme Court many years ago. United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208 (1939). If the Board’s experience convinced it that the integration of seniority lists of employees of merging carriers was a function which it was not well suited to perform and which, in the absence of agreement, had best be left to arbitration, that was a judgment it was competent to make. The Board, like other agencies, operates on a limited budget, both of money and of time; it may properly decide that these scarce resources should be husbanded for the tasks for which it considers itself to be expert, rather than frittered away in an area more suitable for an experienced labor arbitrator. It is no matter that the policy announced in the United-Capital case represented a change from the course pursued in the North Atlantic Route Transfer case. As Judge Prettyman so wisely said, an agency’s “view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes.” Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, 206 (D.C. Cir.), cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956). It is far too late after the many decisions, including the two cited by the Board, that have recognized the validity of arbitrators’ decisions on seniority issues under the standard protective provisions imposed both by the Board and by the I.C.C., to argue successfully that prescribing an arbitration procedure for integrating seniority lists if negotiation fails is a delegation outlawed by 5 U.S.C. § 555(b). In any event, the time for challenging the legality of that provision in the order of December 31, 1970, had expired before the filing of this action. 49 U.S.C. § 1486(a).
Once the Board had made the determination that arbitration was the appropriate method of integrating seniority lists in cases in which the parties could not reach an agreement by negotiation, it was for it to decide, within the range of reason, whether the circumstances of this case dictated an exception to the general rule. Surely it was not irrational for the Board to rule that the dissatisfaction of and threats by an intransigent union and the acquiescence of a fearful employer were not a sufficient ground. To yield in one such case would be to invite repetition and thereby undermine a policy the Board had a right to establish. Moreover, we agree with the Board that American’s fears with respect to the conduct of the arbitration are exaggerated. The airline refers to the difficulties it will have in finding an arbitrator when one of the most important parties refuses — or at least says it will refuse — to participate in the selection. The Board answers that the National Mediation Board, whose duties under the Railway Labor Act have made it familiar with airline labor disputes, can supply one whose fairness and qualifications could hardly be challenged. American claims to be worried over the lack of standards the arbitrator is to follow. He must apply the same standard, “the integration of seniority lists in a fair and equitable manner,” by which an examiner of the Board would be bound. American professes concern with respect to the number of employee groups the arbitrator may have to hear; the same problem would occur before a hearing examiner. The contention that the arbitrator cannot lawfully alter the contract between American and APA is answered by what Judge Chase wrote for this court in Kent, supra,, 204 F.2d at 266:
A private contract must yield to the paramount power of the Board to perform its duties under the statute creating it to approve mergers and transfers of certificates, such as are here involved, only upon such terms as it determines to be just and reasonable in the public interest.
What the Board can do, an arbitrator appointed pursuant to its order can likewise do.
American’s real fear is that, despite all this, APA will refuse to recognize the decision of an arbitrator which it does not like. But APA could do this only at serious peril. Paragraph 5 of the Board’s order of May 7, 1971, prescribes
[t]hat the determination of the arbi-tral tribunal shall be final and binding upon all pilots and flight engineers of American Airlines as to which there exists a dispute with respect to seniority list integration, which has been the subject of the arbitration provisions provided for herein.
Refusal by APA to abide by the arbitral determination, in this case unless it has been challenged on a recognized ground, cf. 9 U.S.C. § 10, would be as much a contempt as refusal to abide by an integration of the seniority lists made by the Board itself. As already indicated, the Board has broad powers under 49 U.S.C. 1378(b) to deal with labor relation problems growing out of airline mergers. See Kent v. CAB, supra. No argument has been made to us that suggests that while the Board has power to order arbitration of unresolved seniority lists integration questions, it cannot bind all relevant parties by the determination of the arbitral tribunal. To say that the Board could direct an arbitral resolution but not make that resolution binding on all concerned parties would leave the Board with powers that would be more apparent than real. However, we need not here depend on so general a principle, for APA — as well as all other concerned parties — took an active part in the proceedings which resulted in the issuance of the Board’s order of May 7, 1971. As said in the ALI Restatement of Judgments, § 79, p. 356 (1942), “A person who intervenes as a contestant in a proceeding is a party to the judgment whether or not the court originally had jurisdiction over him, provided that before the judgment is finally rendered he appears as a party.” Cf. Rudolph v. City Manager of Cambridge, 341 Mass. 31, 167 N.E.2d 151, 157 (1960). The same principle applies to one who has become a party to a proceeding before an administrative agency. Cf. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401-04, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Safir v. Gibson, 432 F.2d 137, 142-43 (2 Cir.), cert. denied, 400 U.S. 850, 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970). The mere possibility of unlawful conduct by APA is surely not enough to make the Board’s adherence to its established policy “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A).
The petitions for review are denied. The stay will be vacated on a date five days after the entry of this opinion.
. The International Brotherhood of Teamsters also submitted a pleading in support of Board action to ensure the propriety of seniority integration procedures.
. In many such cases, although not in this one, the briefs on such expedited appeals are inadequate. And the need for speedy decision tends against the “ample time and freshness of mind for private study and reflection in preparation for discussion” and the writing of helpful opinions, about which Mr. Justice Frankfurter spoke so eloquently in his dissent in Dick v. New York Life Ins. Co., 359 U.S. 437, 458-59, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959).
. APA’s statement at argument that the country possesses only one labor arbitrator competent to integrate airline seniority lists and that APA cannot accept him because of his relations with the Air Line Pilots Association — of which it believes TCA-MEC to be a sub-division— verges on the absurd. While we entertain the highest respect for this gentleman, we are sure he would be the last to make any such assertion of indispensability.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_treat
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B
|
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.
Adam Frederick CHAPMAN, Plaintiff-Appellant, v. POWERMATIC, INC., Defendant-Appellee.
No. 91-7164.
United States Court of Appeals, Fifth Circuit.
Aug. 26, 1992.
Rehearing and Rehearing En Banc Denied Sept. 21, 1992.
Charles W. McGarry, Kim R. Thorne, Grand Prairie, Tex., for plaintiff-appellant.
Mark A. Shank, William L. Davis, Clark West Keller Butler & Ellis, Dallas, Tex., for defendant-appellee.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Adam Frederick Chapman (Chapman), a student at Duncanville High School in Dun-canville, Texas, was injured when his right hand came into contact with a wood planer in the wood-working shop of the high school. Shortly thereafter, on March 27, 1990, Chapman’s attorney sent a letter to Powermatic, Inc., (Powermatic), the manufacturer of the wood planer, advising Pow-ermatic that it was a potential defendant and that Chapman had incurred medical expenses in the amount of $67,196.48. Additionally, in April 1990, Chapman provided the investigative service hired by Power-matic with copies of Chapman’s medical bills.
On June 28, 1990, Chapman sued Power-matic in state court alleging numerous causes of action. The petition was served on Powermatic on July 10, and Powermatic filed its answer on July 26. The petition revealed that there was complete diversity of citizenship between the two parties, but it did not plead for a specific amount of damages. On August 17, 1990, Chapman answered the first set of interrogatories that Powermatic had served on him in which Chapman stated that he had suffered damages in excess of $800,000. On August 27, Powermatic filed a notice of removal in the United States District Court for the Northern District of Texas (the “USDC). In response, Chapman moved to have the case remanded to state court contending that Powermatic did not timely remove the case. The USDC denied Chapman’s motion to remand holding that the “[djefendant removed this case within 30 days from the time it received answers to interrogatories stating that the amount in controversy was over $50,000. This case was timely removed pursuant to 28 U.S.C. § 1446(b).” The case proceeded to trial before a jury; and at the conclusion of the trial, the jury found that Powermatic did not cause Chapman’s injuries. The USDC entered a take nothing judgment on the jury’s verdict. Chapman appeals the USDC’s denial of his motion to remand.
DISCUSSION
Both parties agree that the requirements for diversity jurisdiction exist in this case: the “matter in controversy exceeds the sum or value of $50,000,” and the parties are “citizens of different states.” 28 U.S.C. § 1332(a). What the parties do not agree on, however, and what Chapman’s appeal concerns, is whether Powermatic timely removed the case to federal court pursuant to 28 U.S.C. § 1446(b). Section 1446(b) provides in pertinent part that:
[the] notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based_
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable....
In essence, when read as a whole, § 1446(b) provides a two-step test for determining whether a defendant timely removed a case. The first paragraph provides that if the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant; and the second paragraph provides, if the case stated by the initial pleading is not removable, then notice of removal must be filed within thirty days from the receipt of an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable.
A. Initial Pleading
Relying on the first paragraph of § 1446(b), Chapman contends that the district court erred in not remanding the case to state court because Powermatic did not remove the case within thirty days from its receipt of the initial pleading. To support his contention that the district court erred Chapman argues that all pleadings fall into one of three categories: (1) removable, (2) nonremovable, and (3) indeterminate as to removability. The initial pleading in this case was indeterminate as to removability, Chapman contends, because it revealed that there was complete diversity of citizenship between the parties, but it pled for an indeterminate amount of damages. When a pleading is indeterminate as to removability, Chapman contends, a defendant is under a duty to exercise due diligence in determining whether the case is in fact removable. Applying that duty of due diligence to the facts of the present case, Chapman contends that Powermatic was required under the first paragraph of § 1446(b) to remove the case within 30 days from its receipt of the initial, pleading, because the initial pleading revealed that there was complete diversity of citizenship between the parties, and Powermatic knew or in the exercise of due diligence should have known that the amount in controversy exceeded $50,000.
We have found no circuit court opinions that address whether a defendant is under a duty to exercise due diligence in determining the amount in controversy when the initial pleading does not reveal such an amount, and the district court opinions addressing this question are in disagreement. In large part, Chapman bases his contention that Powermatic did not timely remove the case on the district court opinion of Mielke v. Allstate Insurance Company, 472 F.Supp. 851 (E.D.Mich.1979). In Mielke, the initial pleading of the plaintiff did not contain a specific demand for damages, however, before the defendant had received the initial pleading, the plaintiff had sent the defendant copies of medical bills and expenses that revealed that he was seeking damages in excess of the minimum jurisdictional amount of the federal court. Additionally, the defendant admitted that it had actual knowledge that the plaintiff was seeking damages in excess of the jurisdictional minimum. Forty-five days after receiving the initial pleading, but only thirty days after receiving an amended pleading revealing that the amount in controversy was in excess of five million dollars, the defendant removed the case. After removal, the district court remanded the case to state court holding that removal of the case was untimely because the defendant should have ascertained from the circumstance and the initial pleading that the defendant was seeking damages in excess of the minimum jurisdictional amount. The court stated that “there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguous in light of the defendant’s knowledge and the claims made in the initial complaint.” Id. at 853.
We disagree with the opinion of the district court in Mielke, and conclude that for the purposes of the first paragraph of § 1446(b), the thirty day time period in which a defendant must remove a case starts to run from defendant’s receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court. We adopt this rule because we conclude that it promotes certainty and judicial efficiency by not requiring courts to inquire into what a particular defendant may or may not subjectively know. The rule announced in Mielke, which Chapman proposes that we adopt, in contrast, would needlessly inject uncertainty into a court’s inquiry as to whether a defendant has timely removed a case, and as a result would require courts to expend needlessly their resources trying to determine what the defendant knew at the time it received the initial pleading and what the defendant would have known had it exercised due diligence. Moreover, the rule in Mielke would encourage defendants to remove prematurely cases in which the initial pleading does not affirmatively reveal that the amount in controversy is in excess of $50,000 so as to be sure that they do not accidentally waive their right to have the case tried in a federal court. We believe the better policy is to focus the parties’ and the court’s attention on what the initial pleading sets forth, by adopting a bright line rule requiring the plaintiff, if he wishes the thirty-day time period to run from the defendant’s receipt of the initial pleading, to place in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount.
B. Other Paper
Chapman’s second contention is that even if the initial pleading did not state a case that was removable pursuant to the first paragraph of § 1446(b), Power-matic’s removal was still untimely pursuant to the second paragraph of § 1446(b). The medical bills and demand letter delivered by Chapman to Powermatic before it was sued revealing that Chapman was seeking damages in excess of $50,000, Chapman contends, were “other paper” within the meaning of the second paragraph of § 1446(b). Therefore, Chapman contends, Powermatic’s receipt of that “other paper” (medical bills and demand letter) before it was sued, revealing that the amount in controversy exceeded $50,-000, coupled with Powermatic’s receipt of the initial pleading revealing complete diversity of citizenship between the parties, triggered the thirty-day time limit of the second paragraph of § 1446(b). In other words, Chapman contends that “other paper” for purposes of the second paragraph of § 1446(b) may come prior to the defendant’s receipt of the initial pleading. And if this occurs, Chapman contends, that the thirty-day time period begins to run from the time that the defendant received the initial pleading.
Chapman bases his contention on the opinion of the district court in Central Iowa Agri-Systems v. Old Heritage Advertisers and Publishers, Inc., 727 F.Supp. 1304 (S.D. Iowa 1989). In Central Iowa, the plaintiffs initial pleading did not allege a specific amount of damages, but the plaintiff had sent the defendant a demand letter before he sued in which the plaintiff stated that he conservatively estimated his damages to be in excess of $40,000. That pre-suit demand letter, the court held, was an “other paper” for purposes of the second paragraph of § 1446(b) from which the defendant could ascertain that the case was removable. Therefore, the court held that the defendant’s removal of the case was untimely because the defendant did not remove within thirty days from its receipt of the initial pleading.
We decline to follow the district court’s opinion in Central Iowa and consequently reject Chapman’s contention, because we conclude that both are in conflict with the plain language of the removal statute. The plain language of the second paragraph of § 1446(b) requires that if an “other paper” is to start the thirty-day time period, a defendant must receive the “other paper” after receiving the initial pleading. The second paragraph of § 1446(b) applies by its terms only “if the case stated by the initial pleading is not removable.... ” 28 U.S.C. § 1446(b). More important, the second paragraph of § 1446(b) requires that the defendant remove the case, if at all, within 30 days after receipt of an “other paper” from which the defendant may first ascertain that the case is removable. Logic dictates that a defendant can “first” ascertain whether a case is removable from an “other paper” only after receipt of both the initial pleading and that “other paper”; and therefore the thirty-day time period begins to run, not from the receipt of the initial pleading, but rather from the receipt of the “other paper” revealing that the case is removable. Chapman would have us adopt a rule which would be clearly inconsistent with the plain language of the second paragraph of § 1446(b), which states that “a notice of removal may be filed within thirty days after receipt by the defendant ... [of an] other paper from which it may first be ascertained that the case is one which is or has become removable.... ” By its plain terms the statute requires that if an “other paper” is to trigger the thirty-day time period of the second paragraph of § 1446(b), the defendant must receive the “other paper” only after it receives the initial pleading. Finally, we believe that our holding that the “other paper” must be received after the filing of the initial pleading is supported by the recitation in the second paragraph of § 1446(b) of the words “amended pleading, motion, order” before the words “or other paper,” which clearly refer to actions normally and logically occurring after the filing of the initial pleading. Clearly the answer to interrogatory which triggered the filing of the notice of removal in this case is such an “other paper.”
We find the plain language of the statute to be clear in this regard and as such we are bound to follow it. “[I]n any case requiring statutory construction, the High Court has instructed us to adhere to the plain language of the law unless ‘literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” In re Meyerland Co., 960 F.2d 512, 516 (5th Cir.1992), (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). We conclude that adhering to the plain language of the second paragraph of § 1446(b) by requiring that an “other paper,” in order to trigger the thirty-day time period, be received by a defendant only after that defendant has received the initial pleading does not “produce a result demonstrably at odds with the intentions of its drafters,” but, instead, produces a result that is entirely consistent with the intentions of its drafters. Id.
In summation, we hold that Powermatic timely removed this case because: (1) the initial pleading was not removable pursuant to the first paragraph of § 1446(b), since it did not reveal on its face that the amount in controversy was in excess of $50,000; and (2) the medical bills and demand letter received by Powermatic did not begin the running of the thirty-day time period of the second paragraph of § 1446(b), since Powermatic received the medical bills and demand letter before it received the initial pleading.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Before Chapman sued Powermatic the investigative service interviewed Chapman, took photographs of his injuries, obtained a copy of a report from his surgeon describing his injuries, and obtained copies of witnesses’ statements.
. Chapman sued Powermatic under the theories of negligence, strict liability, breach of warranty, and the Deceptive Trade Practices Act.
. Chapman’s initial petition stated that he had "suffered damages in excess of the minimum jurisdictional limits of the court.” A question exists whether there is a minimum jurisdictional limit in Texas district court, which is where the suit was initially filed, although one commentator has opined that the jurisdictional minimum is five hundred dollars. See W. Dorsa-neo, 1 Tex.Lit.Guide § 2.01 [3][b][ii] (1989); See also City of Mesquite v. Moore, 800 S.W.2d 617, 621 n. 1 (Tex.App. — Dallas 1990, no writ).
Texas Rule of Civil Procedure 47(b) states that “an original pleading ... shall contain (b) in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court, ... ”; See also La.Code Civ.Proc.Ann.Art. 893(A)(1) ("No specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises. If a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is sufficient.”) In our opinion, neither T.R.C.P. 47(b) nor La.Code Civ.Proc.Ann. art. 893(A)(1) prohibit a plaintiff from alleging in his initial pleading that the damages exceed the minimum jurisdictional amount of the federal court.
. Powermatic tacitly concedes that it knew that the amount in controversy exceeded the $50,000 minimum jurisdictional limit of the federal court when it received the initial pleading.
.See e.g. Mielke v. Allstate Insur. Comp., 472 F.Supp. 851 (E.D.Mich.1979); Turner v. Wilson Foods Corp., 711 F.Supp. 624, 626 (N.D.Ga.1989) (initial pleading was held to put the defendant on notice that the amount in controversy exceeded $10,000 when the initial pleading alleged severe burns, permanent scarring, pain and suffering, and lifelong medical expenses, but did not specify an amount of damages); Rickman v. Zimmer, Inc., 644 F.Supp. 540, 542 (S.D.Fla.1986) (initial pleading that alleged serious personal injuries was held to place the defendant on notice that the case was removable, even though the plaintiff merely alleged that his damages exceeded the state court’s minimum jurisdictional amount); Lee v. Altamil Corp., 457 F.Supp. 979, 981 (M.D.Fla.1978) (initial pleading merely alleging that the plaintiff’s damages exceeded the state jurisdictional minimum of $2,500 was held to adequately place the defendant on notice of the substantial damages involved); But see contra Rowe v. Marder, 750 F.Supp. 718, 721 (W.D.Pa.1990), aff'd 935 F.2d 1282 (3rd Cir.1991) (court held that “initial pleading” did not begin the running of the thirty day time period for removal when it did not allege a specific amount of damages, even though the defendant probably knew that the damages would exceed $50,000).
. Should a defendant choose to remove a case within thirty days from its receipt of an initial pleading that does not reveal on its face that the plaintiff is seeking damages in excess of the jurisdictional minimum, the federal court may either: (1) look to the petition for removal, (2) make an independent appraisal of the amount of the claim, or suggest that the defendant is free to do so, or (3) remand the action. Rollwitz v. Burlington Northern R.R., 507 F.Supp. 582, 585 (D.Mont.1981); Coleman v. Southern Norfolk, 734 F.Supp. 719 (E.D.La.1990); See also Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3725 at 423, 426-27.
. The minimum jurisdictional limit of the federal court applicable at this time was $10,000.
. We express no opinion as to whether the medical bills and demand letter would otherwise be adequate as "other paper" for purposes of the second paragraph of § 1446(b).
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:
|
songer_district
|
A
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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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. REGIS PAPER COMPANY, Respondent.
No. 81-1498.
United States Court of Appeals, First Circuit.
Argued Jan. 6, 1982.
Decided March 23, 1982.
Diana Orantes Ceresi, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for petitioner.
S. Mason Pratt, Jr., Portland, Maine, with whom Donald W. Perkins, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Maine, and Robert E. Jackson, West Nyack, N. Y., were on brief, for respondent.
Before COFFIN, Chief Judge, and CAMPBELL and BOWNES, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
The National Labor Relations Board (the Board) petitions for enforcement, and St. Regis Paper Company (the Company) cross-petitions for review, of the Board’s decision and order finding that the Company had violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), (5), and ordering the Company to cease and desist from repeating its violations of the Act, to take certain affirmative action, and to post an appropriate notice. The Board found that a maintenance garage at First Machias Lake, Maine (First Lake) constituted an accretion to an existing bargaining unit at the Company’s Bucksport, Maine garage. It therefore found that the Company violated sections 8(a)(5) and (1) by refusing to bargain over conditions at First Lake and refusing to apply the terms of the Bucksport contract to First Lake. It also found that two employees were discriminatorily transferred from First Lake to Bucksport because of their union membership, in violation of sections 8(a)(3) and (1), and that another employee was coerced into resigning from the union to avoid transfer, in violation of section 8(a)(1). The Board ordered the Company, upon request, to bargain with the union with respect to First Lake, to apply the Bucksport contract retroactively to First Lake, and to make the employees whole for any losses they may have suffered by the Company’s failure to apply the contract to First Lake in the past. It also ordered the Company, upon request, to return the transferred employees to First Lake.
I.
St. Regis is engaged in the manufacture and sale of pulp, paper, packaging, and other products. Its “Woodlands” division, headquartered at Bucksport, includes Maine and several other states. Logging operations in Maine supply wood to the Company’s mill at Bucksport. In 1958, following a Board-conducted election, the union was certified as the exclusive bargaining representative of a unit consisting of “all automobile mechanics located at the Woodlands garage, Bucksport, Maine.” At that time, all mechanics in the Woodlands division were based at the Bucksport garage. They serviced the Company’s trucks and log haulers, travelling as needed to logging sites in various parts of Maine. The collective bargaining agreement has always provided in its recognition clause that it covers “the employees in the Woodlands garage located at Bucksport, Maine.”
In 1967, the Company opened a garage at Colson Field, Maine. Two mechanics, Alton Norton and Ervin Googins, were assigned to work at Colson Field. Norton had originally worked at Bucksport; Googins may have as well. They were both union members. Other mechanics from Bucksport were also assigned to work at Colson Field from time to time. In 1974, the Company opened its First Lake garage and closed down the one at Colson Field. It transferred Norton and Googins to First Lake. By June 1975, Alfred Wood was also working as a mechanic at First Lake. He, too, was a union member, who may have worked at Bucks-port earlier. All these men were on dues checkoff. Colson Field and First Lake are each approximately 75 miles from Bucks-port; they are approximately 11 miles from each other. At various times, the Company also operated other garages distant from Bucksport and closer to its logging sites.
The union unsuccessfully attempted to expand the Bucksport contract’s recognition clause to include First Lake during the 1975 negotiations. On June 13, 1975, however, the Company did advise the union by letter that it “recognize[d] that the following three timberlands employees are represented by Lodge No. 1821: Ervin Googins, Alton Norton, Alfred Wood.” At that time, these were the only mechanics at First Lake.
Wayne Haslam, another union mechanic who had worked at Bucksport, was assigned to First Lake later that June. Subsequently, non-union mechanics were hired to work at First Lake. By November 1976, First Lake was staffed by four union and four non-union mechanics. The union again tried to amend the recognition clause to include First Lake during the 1976 Bucks-port negotiations. Again, it was unsuccessful, although the Company stated that the June 1975 letter was still in effect. As of the time of these negotiations, however, there were at least two non-union mechanics at First Lake.
The new 1976 Bucksport wage package was applied to First Lake; a paid lunch break included in the Bucksport agreement, however, was not. Norton and Wood filed a grievance over the matter, but the Company refused to arbitrate on the ground that the Bucksport contract did not apply to First Lake. The Board found that this refusal to apply the terms of the Bucksport contract to First Lake, and subsequent refusals to bargain over conditions at First Lake, violated sections 8(a)(5) and (1) because First Lake had become part of the Bucksport unit by operation of the doctrine of “accretion.”
In September 1976, two vacancies developed at the Bucksport garage. The Company chose the least senior union mechanics at First Lake for transfer to Bucksport. It did not consider transferring less senior non-union mechanics. In February 1977, another Bucksport vacancy appeared. Norton was informed that he would be transferred because he was the only union mechanic left at First Lake. He stated that he did not want to transfer and, indeed, did not want to continue as a mechanic at all for health reasons. He resigned from the union and was not transferred out of First Lake until he was assigned to a truck driver position in June 1977. The Board found that the transfers of Googins and Haslam violated sections 8(a)(3) and (1), and that Norton was coerced into resigning his union membership in violation of section 8(aXl).
More than five years have passed since the facts underlying the challenged decision took place and more than three years have passed since the Board first rendered the decision under review. Since that time, we have been informed by affidavits of the Company, which are not contested by the Board, that many changes have occurred. The Bucksport garage was closed in April 1980. First Lake was closed in February 1981. Some of its personnel and materials were transferred to Colson Field, which was reopened. There are currently three hourly mechanics assigned to Colson Field. None of them has ever been a member of the union or on dues checkoff while with the Company.
II.
The Board agreed with the ALJ that First Lake constituted an accretion to the Bucksport bargaining unit and that the Company therefore had a statutory duty to bargain with the union as representative of all mechanics at First Lake as well as at Bucksport. The accretion ruling is now disputed by the Company.
A group of employees is properly accreted to an existing bargaining unit when they have such a close community of interests with the existing unit that they have no true identity distinct from it. E.g., Universal Security Instruments, Inc. v. NLRB, 649 F.2d 247, 253 (4th Cir.), cert. denied, - U.S. -, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981). A number of factors should be considered, such as similarity of working conditions, centralized management, collective bargaining history, employee interchange, and geographic distánce. See NLRB v. R. L. Sweet Lumber Co., 515 F.2d 785, 794 (10th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 302 (1975). The ALJ concluded, on all the facts, that accretion was proper here. He supportably found that the work performed at First Lake was identical to that performed at Bucksport; that First Lake and Bucksport mechanics often worked together at various locations in the woods; that they were all under the supervision of the same person, whose office was at Bucksport; and that hiring and firing at First Lake were controlled from Bucksport. While other reasons mentioned by the ALJ seem more questionable, and the question seems close, we are satisfied that in light of the factors just stated, there was no abuse of discretion in the accretion determination. See NLRB v. R. L. Sweet Lumber Co., 515 F.2d at 794.
III.
A more troubling contention of the Company is that the Board’s order directing it to bargain with the union as representative of mechanics at First Lake is now so outdated as to be moot and incapable of enforcement. The Company has filed affidavits indicating that Bucksport and First Lake were closed in 1980 and 1981 respectively, and that the only garage still operating anywhere is at Colson Field, staffed by three hourly non-union mechanics, one salaried mechanic, and a working foreman. While courts of appeals, when reviewing Board proceedings, do not normally take into account changes in circumstances since the date of the Board proceedings under review, see, e.g., NLRB v. Cott Corp., 578 F.2d 892 (1st Cir. 1978), the changes here are so fundamental that they are not easily ignored. We realize, as the Board reminds us, that a bargaining obligation is not normally ended simply by relocation of the employer’s facilities. See NLRB v. Die Supply Corp., 393 F.2d 462, 467 (1st Cir. 1968). If we were to command enforcement of the order directing bargaining at First Lake, the Board says it will construe it so as to direct the Company to bargain with the union on behalf of the three hourly mechanics, not now members of the union, at Colson Field. But this would seem to require the Company to bargain in a unit at which there is little or no basis for assuming the-union today enjoys the support of any of the employees. Cf. NLRB v. Massachusetts Machine and Stamping, Inc., 578 F.2d 15, 18-19 (1st Cir. 1978); International Association of Machinists and Aerospace Workers v. NLRB, 498 F.2d 680, 683 (D.C.Cir.1974); NLRB v. Mid-dleboro Fire Apparatus, Inc., 590 F.2d 4, 8 (1st Cir. 1978). In such unusual circumstances, we think it proper to remand so that the Board may reconsider its order in light of present realities. Such an approach is consistent with that we have used in the past to avoid “immediately locking the parties into a lengthy [bargaining] relationship on the basis of ancient events.” NLRB v. H. P. Hood, Inc., 496 F.2d 515, 520 (1st Cir. 1974). On remand, the Board should consider whether circumstances justify the application of the bargaining order, now addressed to the defunct First Lake, to any location other than First Lake, and indeed, whether any purpose remains to be served by enforcing such an order at this time. If so, the Board should reword its order so as to make its scope and effect clear, identifying the location or locations to which it now applies. While lesser changes in orders are customarily made by the Board after a court of appeals has “enforced” an order, we are reluctant to issue the process of this court to enforce an order such as this whose current applicability and scope are so entirely in doubt, and whose obsolescence is a real possibility.
IV.
Turning to the section 8(a)(3) and (1) findings, related to the transfer of Goo-gins and Haslam, and the resignation from the union of Norton, we believe the Board was justified in its conclusions. The Company admitted that it chose the mechanics to transfer on the basis of their union membership. The Board was entitled to infer a discriminatory motive from this admission, and to discredit such reasons as the Company offered for its actions. The Board therefore committed no error in finding that the transfer of Googins and Haslam violated the Act. The evidence also supports the Board’s conclusion that Norton was coerced into resigning in order to avoid transfer back to Bucksport. We therefore uphold this conclusion as well.
The Board’s order will be enforced, except insofar as it orders, or may be interpreted to order, the Company to recognize or bargain with the union as representative of mechanics at First Lake or elsewhere, or to apply the terms and conditions of the collective bargaining agreement to such locations. With respect to these parts of the order, the case is remanded to the Board for further proceedings consistent with this opinion.
So ordered.
. District 99, Lodge No. 1821, International Association of Machinist and Aerospace Workers, AFL-CIO.
. These were Wood and Googins. Haslam, however, volunteered to transfer with Googins because they travelled together and he feared Wood would resign rather than transfer. Ha-slam was therefore transferred in Wood’s stead.
. The hearing before the ALJ was held in mid-1977, the ALJ’s report being issued a year later, July 10, 1978. The Board’s initial decision, which upheld the ALJ’s recommendations with minor changes, was issued December 11, 1978, 239 NLRB 688 (1978). It then reconsidered the section 8(a)(3) charge, and reaffirmed its original decision, on April 2, 1981, 255 NLRB 72 (1981).
. The Board adopted the ALJ’s conclusion on the First Lake accretion issue without analysis of its own. It also modified the ALJ’s findings to include non-supervisory mechanics on a newly created mechanical harvesting crew within the bargaining unit. The Company has not shown that it presented any arguments to the Board against this modification, either initially or via a motion for reconsideration. It is therefore foreclosed from challenging this finding at this time. See NLRA § 10(e), 29 U.S.C. § 160(e); NLRB v. Sambo’s Restaurant, Inc., 641 F.2d 794, 795-96 (9th Cir. 1981). In light of our remand for reconsideration of the bargaining order with respect to Colson Field, see infra, however, we think it appropriate for the Board to reconsider the order with respect to the mechanical harvesting crew as well, so that it may properly be assessed in light of present realities.
. The Company argues with some force that the First Lake mechanics were included in a 1975 election unit comprised of employees working at a number of different jobs throughout the Maine Woodlands area. The election, held in October 1975, was lost by the union. The Company argues that to accrete the First Lake mechanics to Bucksport would negate their freedom of choice, an important factor recognized by the Board in accretion situations, see, e.g., Melbet Jewelry Co., 180 NLRB 107 (1969). We are not, however, persuaded by this argument, for two reasons. First, there is no evidence that the First Lake mechanics were actually included in the Woodlands unit. Indeed, since at the time of the election all of the First Lake mechanics were transferees from Bucksport still on dues checkoff dating from their union membership there, it is not unreasonable to doubt whether anyone intended that they take part in the election. Second, the Melbet Jewelry principle is applicable to situations where the accreted unit could by itself constitute an election unit, rather than merely be part of another unit. There is thus no reason to suppose the freedom of choice of the First Lake mechanics would be better protected if they were part of the Woodlands unit than part of the Bucksport unit. In either case, they would be but a small part of a much larger group.
. We are informed that Googins is now deceased, so that part of the order requiring the Company to offer him reinstatement at First Lake is of course moot.
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_geniss
|
F
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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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL WAREHOUSE CORPORATION, Respondent.
No. 80-1472.
United States Court of Appeals, Third Circuit.
Argued Dec. 1, 1980.
Decided March 10, 1981.
Joseph Schwachter (argued), Elliott Moore, Paul J. Spielberg, William A. Lubbers, John E. Higgins, Jr., Robert E. Allen, Washington, D.C., for petitioner.
Herbert New (argued), Brenner, New & Brenner, Livingston, N.J., for respondent.
Before ALDISERT, HUNTER and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
The National Labor Relations Board (hereinafter the “Board”) petitions this court for enforcement of its February 14, 1980 order against General Warehouse Corporation (hereinafter the “Company”). The Board found General Warehouse in violation of sections 8(a)(1) and (3) of the National Labor Relations Act (hereinafter the “Act”) for retaliating against its employee, John Coon, for engaging in protected union activities. It therefore ordered respondent, General Warehouse, to cease and desist from its unfair labor practices and to reinstate Coon with back pay. Respondent contends that the Board’s order should not be enforced because the Board failed to defer to an arbitrator’s award that ruled that there was “just cause” for Coon’s dismissal; alternatively, respondent argues that there is insufficient evidence on the record to support the Board’s findings. We hold that because the arbitrator’s decision addressed only the contractual questions in the dispute and not the statutory issues brought before the Board, it was not an abuse of discretion for the Board to refuse to defer to the arbitrator. We also conclude that there is substantial evidence on the record to support the Board’s unfair labor practices findings. Accordingly, we will enforce the Board’s order.
FACTS
The events leading to the unfair labor practices in this case began in January, 1978. At that time, General Warehouse’s Executive Vice-President, Philip Fine, held a meeting with the Company’s employees. He asked the employees to waive their contractual right to bid on work to be performed in a new warehouse. John Coon, a warehouseman for General Warehouse, attended the meeting but did not participate in the discussion. After the meeting, Fine approached Coon and asked him to “speak to the men and try to get across to them how important it was that [they] agree to [give] up the bid.” Coon declined. He had battled with the Company before in a 1976 campaign to collect contractual wage increases that the employees had been persuaded to waive. When he told Fine that he would again oppose the Company, Fine informed Coon that the Company considered him to be a “troublemaker” and “instigator.”
Soon thereafter, in March, 1978, the President of General Warehouse, Michael Goldfarb, called another meeting of the warehouse employees. He told them that due to the high cost of energy and the Company’s poor financial condition, he could not afford to pay the 38-cent-an-hour cost of living increase provided for under the collective bargaining agreement. He asked the employees to waive the increase due to take effect on April 1, 1978. Goldfarb said he had owned a company in the past where he had labor trouble, that he had closed the business, and that he could do it again. He also told the employees that if they did not waive the cost of living increase due to them, he would close down the Company and open elsewhere.
At least five employees, including Coon, spoke out against waiving the increase. Coon said that the employees were also suffering from inflation and that they were not to be blamed for the Company’s unfavorable position with its competitors. He insisted that Goldfarb live up to the contract he had signed.
Coon continued to voice his opposition to a waiver of the cost of living increase through the end of March. On March 30 or 31, the Company polled the employee units on their position. The waiver proposal was defeated.
Immediately upon the defeat of the waiver issue, General Warehouse changed its work assignment policy. Ordinarily, General Warehouse would assign employees to unload Wrigley freight cars, an arduous job described as the “least desirable assignment at the plant,” on a rotational basis. After its waiver issue was defeated, the Company arbitrarily selected the employees for the job. It assigned Coon to the Wrigley work on April 3,1978 and April 4,1978. On April 5, 1978, Coon called in sick. He was discharged that same day for excessive absenteeism.
The evidence shows that Coon did not have a model attendance record. At one time, he had been absent 18% of his working days; at another, he was sent a warning that his absence five Fridays out of seven was unsatisfactory. The ALJ in his opinion carefully details Coon’s attendance record. We agree with his conclusion that “[the fact that Coon] was absent a considerable number of times is amply supported by the record.” AU’s Decision at 7, reprinted in Appendix at 224. We also agree, however, and will discuss below, that merely “because justifiable grounds for discharge existed, it does not necessarily follow [that] such was the motivating reason [for the dismissal].” Id.
PROCEDURAL HISTORY
The Union filed a grievance with General Warehouse on behalf of Coon, alleging that his discharge had been in retaliation for his union activities and did not constitute “just cause” under the collective bargaining agreement. In accordance with the collective bargaining agreement, the parties submitted their dispute to arbitration. The arbitrator heard argument on the possible motives for Coon’s discharge, but made no finding on whether the discharge was based, even in part, on General Warehouse’s hostility toward Coon’s union activities. Rather, the arbitrator focused only on Coon’s behavior and found that his excessive absenteeism was “just cause” under the collective bargaining agreement for his dismissal.
After the arbitrator’s decision, Coon filed a complaint with the Board alleging that respondent interfered with the exercise of his section 7 rights (a section 8(a)(1) violation) and discriminated against him in his tenure and condition of employment (a section 8(a)(3) violation). A hearing was held before an Administrative Law Judge (hereinafter “AU”) on February 21, 1979. The ALJ, declining to defer to the arbitrator’s decision, concluded that Respondent had engaged in the alleged unfair labor practices. Accordingly, he recommended that General Warehouse be ordered to cease and desist from its discriminatory acts and reinstate Coon with backpay. The Board summarily adopted the ALJ’s order.
DISCUSSION
Our decision on whether to enforce the Board’s order turns on two important issues. First, we must decide whether the Board properly refused to defer to the arbitrator’s decision in this case. Second, if we hold that the Board did not abuse its discretion in refusing to defer, NLRB v. Pincus Bros., Inc.—Maxwell, 620 F.2d 367, 372 (3d Cir. 1980), we must determine whether there is substantial evidence on the record to support the Board’s finding that respondent violated sections 8(a)(1) and (3) of the Act. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 491, 492-96, 71 S.Ct. 456, 464, 466, 467-68, 95 L.Ed. 456 (1951).
I.
In Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board set forth its standards for deferring to arbitrators’ awards. It stated that it would defer to an arbitrator’s award if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not “clearly rfepugnant” to the purposes and policies of the Act. Spielberg, 112 N.L.R.B. at 1082. The parties have stipulated to the first two of these requirements. The Board refused to defer because it found that the third requirement had not been met. Although we agree with the Board’s conclusion that it was not required to defer in this case, we choose to base our decision on a fourth requirement — a prerequisite to the Spielberg standards — articulated by the Board in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964).
In Raytheon Co., the Board held that it would not defer to an arbitrator’s decision if the arbitrator failed to consider .and rule on the unfair labor practice issue. See also Max Factor & Co., 239 N.L.R.B. 804 n.3 (1978) (noting that both the Board and the courts have taken the position that the Board should not defer when the arbitrator has not considered the statutory issues). The Board found that
It manifestly could not encourage the voluntary settlement of disputes or effectuate the policies and purposes of the Act to give binding effect in an unfair labor practice proceeding to an arbitration award which does not purport to resolve the unfair labor practice issue which was before the arbitrator and which is the very issue the Board is called upon to decide in the proceeding before it.
Raytheon, 140 N.L.R.B. at 884, quoting Monsanto Chemical, 130 N.L.R.B. 1097, 1099 (1961). We agree with the Ninth Circuit that
It is illogical for the Board, which is responsible for resolving the unfair labor practice issue, to defer to a decision by an arbitrator, who is under no duty and indeed may not be particularly predisposed to consider the statutory issue, solely on the basis of a factually unfounded presumption that the arbitrator had considered the issue.
Stephenson v. NLRB, 550 F.2d 535, 540 (9th Cir. 1977). Rather, in order for the Board’s deferral policy riot to be one of abdication, the Board must be presented with some evidence that the statutory issue has actually been decided.
In applying the fourth deferral requirement — that the arbitrator consider the statutory issue and rule on it or all the facts required to decide it — to the facts of the instant case, we find that the Board refused to defer to the arbitrator’s decision, not because it disagreed with the arbitrator’s finding that excessive absenteeism constituted “just cause” under the collective bargaining agreement for discharge, but because the arbitrator did not rule on whether there may have been other grounds for the discharge. The arbitrator’s decision only discussed Coon’s poor attendance record and whether his excessive absenteeism constituted “just cause” under the collective bargaining agreement for his discharge. The arbitrator could, and apparently did, make his decision without considering the Company’s other possible motives for discharging Coon. These other motives, if found to be discriminatory and the “real cause” of Coon’s dismissal, could form the basis of an unfair labor practices charge.
Therefore, we cannot find that the Board abused its discretion by refusing to defer to the arbitrator’s award. Since the Board did not have the aid of an arbitrator's decision addressing the alleged discriminatory motive, it was required to make a determination itself. We now examine its decision.
II.
The Board found that General Warehouse violated sections 8(a)(1) and (3) of the Act by assigning Coon to the “Wrigley work” in retaliation for his protests against the Company’s waiver proposal. Coon’s protests at the March, 1978 meeting were protected as concerted activity, see Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1348 (3d Cir.), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1969), under section 7 of the Act. Section 8(a)(1), 29 U.S.C. § 158(a)(1) (1976), of the Act safeguards Section 7’s guarantee by providing that “It shall be an unfair labor practice for an employer — to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7] of this title.. .. ” Section 8(a)(3) adds to this protection by holding that: “It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to ... discourage membership in any labor organization.. .. ” 29 U.S.C. § 158(a)(3) (1976). The Board found General Warehouse in violation of both of these provisions.
We are limited in our review of National Labor Relations Board decisions. If the Board’s findings are supported by substantial evidence on the record, we are obliged to enforce them. Universal Camera, 340 U.S. at 488, 491, 492-96, 71 S.Ct. at 464, 466, 467-68. We are also bound to respect the Board’s conclusions on credibility and conflicting evidence if they take into account all relevant factors and are sufficiently explained. NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); NLRB v. New York — Keansburgh Long Branch Bus Co., Inc., 578 F.2d 472, 478 n.15 (3d Cir. 1978). Bound by this standard, and based upon our independent review of the record, we conclude that there is substantial evidence to support the Board’s order.
The record shows that in January, 1978 a Company representative warned Coon that he was considered to be an “instigator” and “troublemaker” because of his 1976 efforts to secure employee benefits. In March, 1978, when Coon had an opportunity to redeem himself with the Company, he instead chose to fight its cost of living increase waiver proposal. On March 30, immediately after its waiver proposal had been defeated, the Company announced that employees would no longer be granted working time to cash paychecks and that the rotation system for “Wrigley work” assignments would be changed to one in which the employer could arbitrarily pick employees to be saddled with the unpleasant task.
Considering this setting, the Board found that the mood and timing of Coon’s assignment to “Wrigley work” supported the charges of discrimination. The ALJ wrote:
[Coon] had been a vociferous opponent to waiving the cost of living increase at the meeting conducted by Goldfarb in early March. The Respondent also was aware he had been instrumental in retaining an attorney about 2 years before to attempt to collect wages due to the employees under the collective bargaining contract. Although not exempt from Wrigley assignments, I am of the view the assignment of the Wrigley work to Coon on the heels of the employees’ rejection of the Respondent’s request they waive the cost of living increase was in retaliation for such rejection.
ALJ’s Decision at 6-7, reprinted in Appendix at 223-224.
Although we might make a different decision if we were to decide the case de novo, as stated earlier, we must defer to the Board’s decision if it is substantially supported by the record. Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464. As described above, there is such support. The ALJ could reasonably infer from the evidence that Coon was assigned to the Wrigley work, three days in a row, because of his opposition to the Company’s waiver proposal. He was further justified in finding that the Company’s action was designed to coerce Coon and the other employees into accepting future waiver proposals. Accordingly, we hold that there is substantial evidence on the record to find that Coon’s assignment to the Wrigley work was a violation of sections 8(a)(1) and 8(a)(3) of the Act.
The Board also found that General Warehouse violated section 8(a)(1) and 8(a)(3) of the Act by discharging Coon in retaliation for his opposition to the waiver proposal. As this Court wrote in Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978): “Whether the employer’s discharge of an employee violates section 8(a)(1) and 8(a)(3) of the Act depends on the employer’s motive. N. L. R. B. v. Brown, 380 U.S. 278, 283, 85 S.Ct. 980 [983] 13 L.Ed.2d 839 (1965); N. L. R. B. v. Eagle Material Handling, Inc., 558 F.2d 160, 169 (3d Cir. 1977).”
General Warehouse contends that Coon was discharged because of his excessive absenteeism. The Board takes the position that Coon was discharged because of his opposition to the Company’s waiver proposal.
Our goal is to find the “real motive,” NLRB v. Brown, 380 U.S. at 287, 85 S.Ct. at 985; NLRB v. Gentithes, 463 F.2d 557, 560 (3d Cir. 1972) or “real cause,” NLRB v. Rubber Rolls, Inc., 388 F.2d 71, 74 (3d Cir. 1967) for Coon’s dismissal. In Edgewood Nursing, we were faced with a similar problem. The Board contended that the employee had been unlawfully discharged because of her union activities. The employer, on the other hand, alleged that its nurse had been dismissed because she had made serious medication errors. In deciding which explanation to accept, this court proposed the following test for dealing with “dual-motive” cases:
If two or more motives are behind a discharge, the action is an unfair labor practice if it is partly motivated by reactions to the employee’s protected activity.... On the other hand, if the employee would have been fired for cause irrespective of the employer’s attitude toward the union, the real reason for the discharge is non-discriminatory. In that circumstance there is no causal connection of any anti-union bias and the loss of the job.... Thus, if the employer puts forward a justifiable cause for discharge of the employee, the Board must find that the reason was a pretext, and that anti-union sentiment played a part in the decision to terminate the employee’s job.
Edgewood Nursing, 581 F.2d at 368 (citations omitted).
The Edgewood standard is designed to be applied on a case-by-case basis. While in several of our recent cases we have applied this standard and found that there is not substantial evidence to support the unfair labor charge, we cannot come to the same conclusion here. In the case before us, the ALJ details why he found Coon’s excessive absenteeism to be a mere pretext for his dismissal. Although the pressure against Coon to improve his attendance record had been mounting for a while, General Warehouse chose to dismiss Coon at the very moment when his discharge would have the maximum coercive and punitive effect. The Company took absences that had previously been condoned and used them as a reason for dismissing Coon. When General Warehouse finally “lowered the boom” on Coon, it did not give him a chance to explain his absences. If it had, it would have found evidence of a possible legitimate excuse for his absence on the day he was discharged.
Once again, although we might have decided the case differently de novo, there is substantial evidence on the record to support the Board’s finding that the Company’s hostility towards Coon’s protected activities was the “real cause” for his dismissal. The timing of Coon’s discharge, the Company’s previous attitude toward him and his union efforts, and the almost reflexive resort by the Company to Coon’s past attendance record all support the Board’s conclusion.
There will necessarily be “close calls” in cases involving a discharge alleged to be in violation of section 8(a)(1) and 8(a)(3). This case is one of them. However, in light of the extensive record compiled by the Board, its credibility findings and our own reading of the evidence, we find that General Warehouse would not have discharged Coon when it did if it were not for his opposition to their waiver proposal.
Accordingly, we will enforce the Board’s decision ordering General Warehouse to cease and desist from its unfair labor practices and to reinstate John Coon with back pay.
. The Board’s order is reported at 247 NLRB No. 142 (1980), reprinted in Appellant’s Appendix at 231-33.
. 29 U.S.C. § 158(a)(1), (3) (1976).
. Under a collective bargaining agreement between General Warehouse and the warehouse employees, employees were entitled to bid for transfers to different warehouses according to their seniority. At the January, 1978 meeting Fine informed the employees that a prospective customer wanted to “hand pick” his warehouse workers and would be more likely to lease the warehouse from General Warehouse if the Company were to release him, with the approval of the employees, from the terms of the collective bargaining agreement.
. The ALJ was unclear on whether the stewards’ poll was conducted on March 30 or 31. See ALJ’s Decision at 6 n. 14, reprinted in Appendix at 223.
. ALJ’s Decision at 6, reprinted in Appendix at 223. See also Transcript of ALJ proceedings, reprinted in Appendix at 101-02. Prior to 1976, the Company had used this assignment as a form of punishment for employees who, for one reason or another, had fallen into disfavor with the Company. Transcript of ALJ proceedings, reprinted in Appendix at 41, 78. In 1976, upon the Union’s request, the Company agreed to rotate this work among the ware-housemen. See ALJ’s Decision at 6, reprinted in Appendix at 223.
. ALJ’s Decision at 7-8, reprinted in Appendix at 224-25.
. See Arbitrator’s decision, reprinted in Appendix at 181(b)-181(e) & note 19 infra.
. 29 U.S.C. § 157 (1976). See note 22 infra.
. See also Hawaiian Hauling Service, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir.), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1976) (“abuse of discretion” standard of review).
. These standards bind the Board and this court. Although the Board’s policy of deferral is a “discretionary administrative doctrine,” see Pincus, 620 F.2d at 372 n.8, once the Board “announce(s) a policy regarding deference to arbitration, (it cannot) blithely ignore it, thereby leading astray litigants who depended on it.” NLRB v. Horn & Hardart Co., 439 F.2d 674, 679 (2d Cir. 1971). Accordingly, we believe it proper to use the Board’s own standards to gauge whether it abused its discretion in refusing to defer. See Hawaiian Hauling, 545 F.2d at 676.
. The Spielberg requirements were designed to achieve the “desirable objective of encouraging the voluntary settlement of labor disputes....” Spielberg, 112 N.L.R.B. at 1082. Since its introduction, arbitration has served to promote industrial peace and stability by encouraging the private resolution of disputes. See generally. International Harvester, 138 N.L. R.B. 923 (1962); Murphy & Sterlacci, A Review of the National Labor Relations Board’s Deferral Policy, 42 Ford L.Rev. 291 (19.73). Correspondingly, the courts continue to support the Board’s deferral policy. See Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1963); NLRB v. Pincus Bros., Inc.—Maxwell, 620 F.2d 367, 372-74 (3d Cir. 1980).
. Several courts have chosen to integrate this fourth requirement from Raytheon into their analysis of whether the third Spielberg requirement has been met. These courts hold that the arbitrator’s failure to consider and rule on the statutory issue actually leads to a decision clearly repugnant to the Act and thus a failure to meet the third Spielberg requirement. See, e. g., Bloom v. NLRB, 603 F.2d 1015 (D.C.Cir. 1979); Dreis & Krump Mfg. Co., Inc., 544 F.2d 320 (7th Cir. 1976); Banyard v. NLRB, 505 F.2d 342 (D.C.Cir. 1974). We decline to follow this mode of analysis both because we want to emphasize the importance of this separate requirement, see Pincus, 620 F.2d at 372 n.7 (Raytheon requirement noted as an added requirement to those in Spielberg) and because the history of the third Spielberg requirement suggests that it was intended to cover the more specific situation where the arbitrator’s decision, on its face, conflicts with the Act. See generally R. Gorman, Basic Text On Labor Law 736-37 (1976).
. The Board has recently reaffirmed this requirement in Suburban Motor Freight, Inc., 247 N.L.R.B. No. 2 (Jan. 8, 1980), eliminating any doubt that a finding of just cause does not automatically dispose of a claim of discriminatory motive.
. See note 16 infra.
. Regardless of its deferral policy, the Board retains the primary responsibility and power to adjudge unfair labor practices. Section 10(a) of the Act, 29 U.S.C. § 160(a) (1976). See also Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964).
. The Board’s fourth requirement will be deemed met “[i]f there is substantial and definite proof that the unfair labor practice issue and evidence were expressly presented to the arbitrator and [that] the arbitrator’s decision indisputably resolve[d] the [unfair labor practice] issue....” Stephenson, 550 F.2d at 538 n.4 (emphasis added). If “the arbitrator’s decision is ambiguous as to the resolution of the statutory issue, [we must hold that] the ‘clearly decided requirement has not been met.’ ” Id.
. See Pincus, 620 F.2d at 372 n.7. See also St. Luke’s Memorial Hospital, Inc. v. NLRB, 623 F.2d 1173, 1178-79 (7th Cir. 1980) (finding of “just cause” for discharge does not dispose of issue of discriminatory motive); Bloom v. NLRB, 603 F.2d 1015, 1020 (D.C.Cir. 1979) (“pT]he record must yield clear indication that the arbitration panel specifically dealt with the issues underlying the unfair labor charge.... ”); Stephenson, 550 F.2d at 538 ([B]efore deferral can be held proper ... the arbitral tribunal must have clearly decided the unfair labor practice issue which the Board is later urged to give deference.... ”).
. The arbitrator wrote:
ISSUE SUBMITTED
Was there just cause under the terms and conditions of the collective bargaining agreement for the discharge of John Coon? If not, what shall the remedy be?
NATURE OF THE CASE
. The grievant was terminated by the Company on the grounds of excessive absenteeism following a progression of discipline which included a written warning and a suspension for absenteeism. The Union grieved the termination, and the parties being unable to resolve their dispute, the Union sought arbitration.
DISCUSSION
Among the primary obligations of an employee is the duty to present himself for work on a reliable, dependable basis. Although every worker falls prey to illnesses which make occasional absences unavoidable, excessive absenteeism disrupts the ability of the Company to function effectively and thereby reduces the job security of all employees. Although it is unfortunate indeed that the grievant experienced debilitating back problems after a few difficult assignments, his record reflects many more absences than could reasonably be tolerated. The impact of this level of absenteeism was compounded by the failure of the grievant on many occasions to reach the proper Company official in order to report his absence in a timely manner.
The Company had alerted the grievant to its dissatisfaction with his attendance record through a series of increasingly severe disciplinary sanctions in keeping with the well-accepted tenets of progressive discipline which endeavor to make employees more secure in their jobs by alerting them to their employer’s dissatisfaction in time to correct their behavior and avoid being discharged.
Several warning letters followed by a suspension served without appeal after it had been reduced in length through Union intervention gave the grievant ample warning of the imminence, of termination unless his attendance record improved. There is no record of such improvement. Therefore, based on the clear thrust of the facts in evidence and the credible testimony, there was just cause for the discharge of John Coon. The grievance is denied.
. We are also concerned that even if the arbitrator did implicitly decide the statutory issue, . he did so by using the wrong legal standard. “Just cause” is to be determined by the terms of the collective bargaining agreement. The arbitrator may or may not take into account all motives for the discharge. Section 8(a)(1) and (3) violations, on the other hand, are to be adjudged in accordance with judicial standards and must take into account both the employer’s justifiable cause to discharge the employee and its possible discriminatory motive. See text accompanying notes 24-27 infra. See also Banyard v. NLRB, 505 F.2d 342, 348 (D.C.Cir. 1974); Note, 88 Harv.L.Rev. 804, 808 (1975). Without a specific mention in the arbitrator’s decision to the other possible motives for Coon’s discharge, this court must assume, as did the Board, that the arbitrator’s decision was based on the narrow, one-sided focus of the contract’s “just cause” standard. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-57, 94 S.Ct. 1011, 1023-24, 39 L.Ed.2d 147 (1974) (The court noted that the arbitrator’s primary duty is to effectuate the intent of the parties to the contract rather than the requirements of law).
. Our decision in the instant case is consistent with this court’s recent holding in NLRB v. Pincus, 620 F.2d 367 (3d Cir. 1980). In Pincus, this court held that the Board was required to defer because the arbitrator’s decision was arguably consistent with the Act. In that case, the statutory issues were whether an employee was terminated for writing and distributing a leaflet and whether that activity was protected under the Act. The arbitrator discussed all the facts relevant to these issues, found that the leaflet activity was one cause of the employee’s discharge, but found that the conduct fell outside the limits of the Act’s protection; he therefore upheld the discharge. The Board, relying on the same facts as did the arbitrator, concluded that the employee’s leaflet activity was protected and thus refused to defer.
By contrast, in the instant case there was neither a ruling on the unfair labor practice issue nor any indication in the arbitrator’s decision that he even considered the statutory issue. Rather, it appears from the arbitrator’s opinion that his decision on the contractual issue was based solely on Coon’s conduct, without reference to the employer’s other possible motives for the discharge.
Furthermore, contrary to respondent’s suggestion, our decision does not conflict with the Ninth Circuit’s judgment in Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979). As distinguished from the arbitrator’s decision in Douglas, the arbitrator’s decision in the instant case did not refer to all of the employer’s possible motives for the discharge. Consequently, there is no reasonable basis for holding that the arbitrator must have implicitly found them to be the “real cause” and not pretexts for Coon’s dismissal.
. Section 7 of the Act, 29 U.S.C. § 157 (1976) provides, “Employees shall have the right ... to engage in other concerted activities for the purposes of collective bargaining or [their] other mutual aid or protection. .. . ”
. Coon was assigned to the “Wrigley work” just two working days after the steward’s poll.
. See, e.g., Stein Seal Co. v. NLRB, 605 F.2d 703, 709 (3d Cir. 1979); Edgewood, 581 F.2d at 366-71.
. ALJ’s Decision at 7, reprinted in Appendix at 225. Although the ALJ does not use the term “pretext,” his statement, “I am convinced Coon was discharged, not for his absences, but in retaliation for the opposition by the employees to waive the cost of living increase and Coon’s known participation in such rejection” may be considered an equivalent statement.
. See ALJ’s Decision at 7, reprinted in Appendix at 224.
. See ALJ Decision at 8, reprinted in Appendix at 225 (ALJ, crediting Mrs. Coon’s credibility over that of respondent’s warehouse manager, found that the Company had been informed of Coon’s medical excuse for being absent on the day he was discharged). See also General Counsel Exhibit 11, reprinted in Appendix at 214. Respondent’s January 4, 1977
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_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).
Larry CHAMBERS, Appellant, v. Philip KAPLAN, Appellee.
No. 80-2050.
United States Court of Appeals, Eighth Circuit.
Submitted May 14, 1981.
Decided May 20, 1981.
Larry Chambers, pro se.
Philip E. Kaplan, John M. Bilheimer, Kaplan, Brewer & Bilheimer, P. A., Little Rock, Ark., for appellee.
Before ROSS, Circuit Judge, GIBSON, Senior Circuit Judge, and STEPHENSON, Circuit Judge.
PER CURIAM.
On October 9, 1980, Larry Chambers, an inmate of the Cummins Unit of the Arkansas Department of Corrections, filed a 42 U.S.C. § 1983 complaint which named Philip E. Kaplan as sole defendant. Kaplan is an attorney in private legal practice in Little Rock who was appointed by the federal district court (then Chief District Judge Henley) to represent a class of inmates in a civil prison conditions lawsuit brought against the Arkansas Department of Corrections, Finney v. Mabry, PB-69-C-24. Chambers’ complaint expresses dissatisfaction with Kaplan’s representation and details a variety of objectionable prison conditions which Kaplan allegedly failed to take any action upon. The complaint asked that the district court: (1) dismiss Kaplan and replace him with another attorney, and (2) award Chambers $50,000 in damages against defendant Kaplan.
The district court dismissed the complaint for failure to state a claim, citing Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980), for the proposition that “there is no constitutional or statutory right to effective assistance of counsel in a civil case.”
In this appeal Kaplan contends that the district court’s dismissal of Chambers’ section 1983 suit was proper because (1) Kaplan took no actions under color of state law and (2) Chambers failed to allege specific actions by Kaplan which had the effect of violating Chambers’ constitutional rights.
Although this court recently held that an attorney in a county-or state-funded public defender’s office acts under color of state law in representing indigent defendants, it adhered to the “often-stated rule that a private attorney appointed by a state court to represent an indigent defendant does not act under color of state law.” Dodson v. Polk County, 628 F.2d 1104, 1106 n.2 (8th Cir. 1980), cert. granted sub. nom., - U.S. -, 101 S.Ct. 1478, 67 L.Ed.2d 612 (1981) The “dispositive point” for Dodson’s holding that county or state public defenders act under color of state law was that the attorneys involved there were employees of the county, and the county, in turn, is merely a creature of the state. Id. at 1106.
Here, Kaplan is a private attorney who was appointed by a federal district court to represent Arkansas inmates against the Arkansas Department of Corrections. Kaplan concedes that state funds pay his fees, but this fact alone does not transform Kaplan’s actions taken on behalf of the inmates into state action. We are persuaded that defendant Kaplan did not act under color of state law. The dismissal of Chambers’ section 1983 action is affirmed.
Affirmed.
. The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas.
. The district court further ordered that the complaint be filed in Finney v. Mabry, PB-69C-24, a consolidated class action lawsuit which challenged prison conditions in the institutions within the Arkansas Department of Corrections. A formal consent decree was entered on October 5, 1978, and is reported at Finney v. Mabry, 458 F.Supp. 720 (E.D.Ark.1978).
. See also McCord v. Bailey, 636 F.2d 606, 613 (D.C.Cir.1980); Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980).
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_state
|
56
|
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".
ABACOA RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 19627.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 27, 1966.
Decided Feb. 17, 1966.
Mr. Joseph F. Hennessey, Washington, D. C., with whom Mr. Robert M. Booth, Jr., Washington, D. C., was on the brief, for appellant.
Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, and Mrs. Lenore G. Ehrig, Counsel, F.C.C., were on the brief, for appel-lee.
Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges.
PER CURIAM:
This appeal is from a Decision and Order of the Federal Communications Commission denying appellant’s application to increase the power of its radio station WMIA in Puerto Rico. The principal theory advanced for reversal is that since the Commission rested its decision, under 73.35(a) of the Commission’s Rules, upon applicant’s ownership, operation or control of three other stations serving substantially the same area, if one of the three stations is not under such control reversal must follow. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L. Ed. 626. It is contended that one of the three stations, namely, WISO, was in fact not in such common control because appellant’s principals owned only 49.7% of the stock of the licensee of WISO, and only two of appellant’s three principals, the two being brothers, are among the four directors of WISO. They are also officers of the corporation.
The Commission refused to review the decision of the Review Board adverse to appellant. Before the Hearing Examiner and the Review Board appellant raised no objection to the finding of ownership, operation or control of WISO. The finding under Section 73.35(a) was not there contested, appellant contending that the public interest, convenience and necessity nevertheless would be served through the multiple ownership situation. Objection to the finding of control was first raised in appellant’s application for review by the Commission.
In the circumstances of this case we think it was not open to appellant to insist that the Commission itself should reopen the issue of multiple ownership. The Commission rules provide for waiver of an objection by failing to file an exception in the manner provided by the rules. 47 CFR § 1.277(a). And the rules specifically provide that “[No] application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass.” 47 CFR § 1.115(c). The designated authority in this case was the Review Board. The policy expressed in these rules, with which appellant failed to conform, leads us to affirm, especially in the absence of a clear showing of a well-founded contention that the Commission’s decision under Section 73.35(a) of its rules was erroneous.
We have considered other questions raised and find in them no adequate basis for the court to decide, contrary to the Commission, that the application should have been granted.
Affirmed.
. Section 73.35 — Multiple Ownership
No license for a standard broadcast station shall be granted to any party (including all parties under common control) if:
(a) Such party directly or indirectly owns, operates or controls another standard broadcast station, a substantial portion of whose primary service area would receive primary service from the station in question, except upon a showing that public interest, convenience and necessity will be served through such multiple ownership situation; * * *
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:
|
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.
O’CALLAHAN v. PARKER, WARDEN.
No. 646.
Argued January 23, 1969.
Decided June 2, 1969.
Victor Rabinowitz argued the cause and filed briefs for petitioner.
James vanR. Springer argued the cause for respondent. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner, then a sergeant in the United States Army, was stationed in July 1956, at Fort Shafter, Oahu, in the Territory of Hawaii. On the night of July 20, while on an evening pass, petitioner and a friend left the post dressed in civilian clothes and went into Honolulu. After a few beers in the bar of a hotel, petitioner entered the residential part of the hotel where he broke into the room of a young girl and assaulted and attempted to rape her. While fleeing from her room onto Waikiki Beach, he was apprehended by a hotel security officer who delivered him to the Honolulu city police for questioning. After determining that he was a member of the Armed Forces, the city police delivered petitioner to the military police. After extensive interrogation, petitioner confessed and was placed in military confinement.
Petitioner was charged with attempted rape, housebreaking, and assault with intent to rape, in violation of Articles 80, 130, and 134 of the Uniform Code of Military Justice. He was tried by court-martial, convicted on all counts, and given a sentence of 10 years' imprisonment at hard labor, forfeiture of all pay and allowances, and dishonorable discharge. His conviction was affirmed by the Army Board of Review and, subsequently, by the United States Court of Military Appeals.
Under confinement at the United States Penitentiary at Lewisburg, Pennsylvania, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging, inter alia, that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass. The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed. This Court granted certiorari limited to the question:
“Does a court-martial, held under the Articles of War, Tit. 10, U. S. C. § 801 et seg., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?” 393 U. S. 822.
The Constitution gives Congress power to “make Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14, and it recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. Ill trials need apply. The Fifth Amendment specifically exempts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury. (Emphasis supplied.) See Ex parte Quirin, 317 U. S. 1, 40. The result has been the estab-
lishment and development of a system of military justice with fundamental differences from the practices in the civilian courts.
If the case does not arise “in the land or naval forces,” then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. Ill, § 2, of the Constitution which provides in part:
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
Those civil rights are the constitutional stakes in the present litigation. What we wrote in Toth v. Quarles, 350 U. S. 11, 17-18, is worth emphasis:
“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
“Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.”
A court-martial is tried, not by a jury of the defendant’s peers which must decide unanimously, but by a panel of officers empowered to act by a two-thirds vote. The presiding officer at a court-martial is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition, but is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart from those differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.
A court-martial is not yet an independent instrument of justice but remains to a significant degree a specialized part of the overall mechanism by which military discipline is preserved.
That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants, is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mindful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere, e. g., Burns v. Wilson, 346 U. S. 137, but in examining the reach of their jurisdiction, it has recognized that
“There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .
“Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’ ” Toth v. Quarles, 350 U. S. 11, 22-23.
While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Article 134, already quoted, punishes as a crime “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” Does this satisfy the standards of vagueness as developed by the civil courts? It is not enough to say that a court-martial may be reversed on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding or otherwise. See Dombrowski v. Pfister, 380 U. S. 479. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice.
As recently stated: “None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.” Glasser, Justice and Captain Levy, 12 Columbia Forum 46, 49 (1969).
The mere fact that petitioner was at the time of his offense and of his court-martial on active duty in the Armed Forces does not automatically dispose of this case under our prior decisions.
We have held in á series of decisions that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged soldiers cannot be court-martialed for offenses committed while in service. Toth v. Quarles, 350 U. S. 11. Similarly, neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U. S. 281; Grisham v. Hagan, 361 U. S. 278; nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U. S. 234; Reid v. Covert, 354 U. S. 1, may be tried by court-martial.
These cases decide that courts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the connection between their offense and the concerns of military discipline. From these cases, the Government invites us to draw the conclusion that once it is established that the accused is a member of the Armed Forces, lack of relationship between the offense and identifiable military interests is irrelevant to the jurisdiction of a court-martial.
The fact that courts-martial have no jurisdiction over nonsoldiers, whatever their offense, does not necessarily imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the offenses charged. Nor do the cases of this Court suggest any such interpretation. The Government emphasizes that these decisions — especially Kinsella v. Singleton — establish that liability to trial by court-martial is a question of “status” — “whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ ” 361 U. S., at 241. But that is merely the beginning of the inquiry, not its end. “Status” is necessary for jurisdiction; but it does not follow that ascertainment of “status” completes the inquiry, regardless of the nature, time, and place of the offense.
Both in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion. Abuses of the court-martial power were an important grievance of the parliamentary forces in the English constitutional crises of the 17th century. The resolution of that conflict came with the acceptance by William and Mary of the Bill of Rights in 1689 which established that in the future, Parliament, not the Crown, would have the power to define the jurisdiction of courts-martial. 1 W. & M., Sess. 2, c. 2. The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes.
Parliament, possessed at last of final power in the matter, was quick to authorize, subject to annual renewal, maintenance of a standing army and to give authority for trial by court-martial of certain crimes closely related to military discipline. But Parliament’s new power over courts-martial was exercised only very sparingly to ordain military jurisdiction over acts which were also offenses at common law. The first of the annual mutiny acts, 1 W. & M., c. 5, set the tone. It established the general rule that
“noe Man may be forejudged of Life or Limbe, or subjected to any kinde of punishment by Martiall Law or in any other manner than by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme.”
And it proceeded to grant courts-martial jurisdiction only over mutiny, sedition, and desertion. In all other respects, military personnel were to be subject to the “Ordinary Processe of Law.”
The jurisdiction of British courts-martial over military offenses which were also common-law felonies was from time to time extended, but, with the exception of one year, there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles. It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court. Evasion and erosion of the principle that crimes committed by soldiers should be tried according to regular judicial procedure in civil, not military, courts, if any were available, were among the grievances protested by the American Colonists.
Early American practice followed the British model. The Continental Congress, in enacting articles of war in 1776, emphasized the importance of military authority cooperating to insure that soldiers who committed crimes were brought to justice. But it is clear from the context of the provision it enacted that it expected the trials would be in civil courts. The “general article,” which punished “[a] 11 crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,” was interpreted to embrace only crimes the commission of which had some direct impact on military discipline. Winthrop *1123. While practice was not altogether consistent, during the 19th century court-martial convictions for ordinary civil crimes were from time to time set aside by the reviewing authority on the ground that the charges recited only a violation of the general criminal law and failed to state a military offense. Id., *1124, nn. 82, 88.
During the Civil War, Congress provided for military trial of certain civil offenses without regard to their effect on order and discipline, but the act applied only “in time of war, insurrection, or rebellion.” Act of Mar. 3, 1863, c. 75, § 30, 12 Stat. 736; Rev. Stat. § 1342, Art. 58 (1874). In 1916, on the eve of World War I, the Articles of War were revised, 39 Stat. 650, to provide for military trial, even in peacetime, of certain specific civilian crimes committed by persons “subject to military law” and the general article, Art. 96, was modified to provide for military trial of “all crimes or offenses not capital.” In 1950, the Uniform Code of Military Justice extended military jurisdiction to capital crimes as well.
We have concluded that the crime to be under military jurisdiction must be service connected, lest “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,” as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers. The power of Congress to make “Rules for the Government and Regulation of the land and naval Forces,” Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights. We were advised on oral argument that Art. 134 is construed by the military to give it power to try a member of the armed services for income tax evasion. This article has been called “a catch-all” that “incorporates almost every Federal penal statute into the Uniform Code.” R. Everett, Military Justice in the Armed Forces of the United States 68-69 (1956). The catalogue of cases put within reach of the military is indeed long; and we see no way of saving to servicemen and servicewomen in any case the benefits of indictment and of trial by jury, if we conclude that this petitioner was properly tried by court-martial.
In the present case petitioner was properly absent from his military base when he committed the crimes with which he is charged. There was no connection— not even the remotest one — between his military duties and the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an armed camp under military control, as are some of our far-flung outposts.
Finally, we deal with peacetime offenses, not with authority stemming from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the occupied zone of a foreign country. The offenses did not involve any question of the flouting of military authority, the security of a military post, or the integrity of military property.
We have accordingly decided that since petitioner’s crimes were not service connected, he could not be tried by court-martial but rather was entitled to trial by the civilian courts.
Reversed.
Article 80 of the Uniform Code of Military Justice (10 U. S. C. § 880) provides in part:
“(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
“(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.”
Article 130 (10 U. S. C. § 930) provides:
“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”
Article 134 (10 U. S. C. § 934) provides:
“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”
Under Art. 25 (c) of the Uniform. Code of Military Justice, 10 U. S. C. § 825 (c), at least one-third of the members of the court-martial trying an enlisted man are required to be enlisted men if the accused requests that enlisted personnel be included in the court-martial. In practice usually only senior enlisted personnel, i. e., noncommissioned officers, are selected. See United States v. Crawford, 15 U. S. C. M. A. 31, 35 C. M. R. 3, motion for leave to file petition for certiorari denied, 380 U. S. 970. See generally Schiesser, Trial by Peers: Enlisted Members on Courts-Martial, 15 Catholic ü. L. Rev. 171 (1966).
At the time petitioner was tried, a general court-martial was presided over by a “law officer,” who was required to be a member of the bar and certified by the Judge Advocate General for duty as a law officer. U. C. M. J. Art. 26 (a). The “law officer” could be a direct subordinate of the convening authority. Manual for Courts-Martial, United States, 1951, ¶4g (1). The Military Justice Act of 1968, 82 Stat. 1335, establishes a system of “military judges” intended to insure that where possible the presiding officer of a court-martial will be a professional military judge, not directly subordinate to the convening authority.
For example, in a court-martial, the access of the defense to compulsory process for obtaining evidence and witnesses is, to a significant extent, dependent on the approval of the prosecution. United States v. Harvey, 8 U. S. C. M. A. 538, 25 C. M. R. 42, approving Manual for Courts-Martial, United States, 1951, ¶ 115a. See Melnick, The Defendant’s Right to Obtain Evidence: An Examination of the Military Viewpoint, 29 Mil. L. Rev. 1 (1965).
See, e. g., the cases listed in Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S. Res. No. 260, 87th Cong., 2d Sess., 780-781 (1962), in each of which the Court of Military Appeals reversed court-martial convictions on the ground of excessive command influence.
See Reid v. Covert, 354 U. S. 1, 36.
For sobering accounts of the impact of so-called military justice on civil rights of members of the Armed Services see Hearings on Constitutional Rights of Military Personnel before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary pursuant to S. Res. No. 260, 87th Cong., 2d Sess., Feb. 20 and 21, March 1, 2, 6, 9, and 12, 1962; Joint Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary and a Special Subcommittee of the Senate Armed Services Committee, 89th Cong., 2d Sess., on S. 745 et al., Pt. 1, Jan. 18, 19, 25, and 26, March 1, 2, and 3, 1966, and Pt. 2. For a newly enacted Military Justice Act see 82 Stat. 1335. And see Summary-Report of Hearings on Constitutional Rights of Military Personnel, by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, pursuant to S. Res. No. 58, 88th Cong., 1st Sess. (1963) (Comm. Print).
The record of historical concern over the scope of court-martial jurisdiction is extensively reviewed in Mr. Justice Black’s opinion for a plurality of the Court in Reid v. Covert, 354 U. S. 1, 23-30. See also, Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 441-449 (1960); F. Wiener, Civilians Under Military Justice (1967) (hereinafter cited as Wiener).
See Reid v. Covert, 354 U. S. 1, 23-26.
See Wiener c. 1.
The Mutiny Act of 1720, 7 Geo. 1, c. 6, provided that a soldier could be court-martialed for “any Capital Crime, or . . . any Violence or Offence against the Person, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land” unless the civil authorities within eight days of the offense demanded that the accused soldier be turned over to them for trial. In November 1720, the law officers of the Army relied on this new provision of the Mutiny Act to give an opinion that it was proper to try a soldier in Scotland — where ordinary civil courts were functioning — by court-martial for an offense which would have been murder if prosecuted in the civil courts. See Wiener 245-246. The very next year — perhaps in response to that ruling, Wiener 14— the provision was eliminated and did not reappear. The 1721 Act and its successors provided for military trial of common-law crimes only where ordinary civil courts were unavailable. See Prichard, The Army Act and Murder Abroad, 1954 Camb. L. J. 232; Wiener 14, 24r-2S.
Failure to produce a soldier for civil trial was a military offense by the officer concerned. E. g., British Articles of War of 1765, § 11, Art. 1, reprinted in W. Winthrop, Military Law and Precedents *1448, *1456 (2d ed. 1896, 1920 reprint) (hereinafter cited as Winthrop).
See Reid v. Covert, 354 U. S. 1, 27-28 and n. 49.
In its brief the Government lists a large number of courts-martial in the very early days of the Nation which it claims indicate that military trial for civil offenses was common in that period. The facts of the cases, as reflected in the brief summaries which are available to us, suggest no such conclusion. In almost every case summarized, it appears that some special military interest existed. Many are peculiarly military crimes — desertions, assaults on and thefts from other soldiers, and stealing government property. While those acts might also be felonies, by the time of the Revolutionary War offenses such as these long had been defined as distinctively military crimes in the Mutiny Acts. Many of the remainder are identifiably prosecutions for abusing military position by plundering the civil population or abusing its women while on duty. Many of the other cases in which the offense is stealing or assault on an individual were perhaps of this sort also, especially where the victim is referred to as “inhabitant.” Most of the rest simply recite the offender and the offense and give no basis for judging the relationship of the offense to military discipline. Those few which do appear to involve civilian crimes in clearly civilian settings appear also to have been committed by officers. In the 18th century at least the “honor” of an officer was thought to give a specific military connection to a crime otherwise without military significance. Moreover, all those courts-martial held between 1773 and 1783 were for the trial of acts committed in wartime and, given the pattern of fighting in those days, in the immediate theater of operations.
1776 Articles of War, § 10, Art. 1, reprinted in Winthrop *1494.
Cf. Ex parte Mason, 105 U. S. 696, 698, in which the Court, sustaining a court-martial conviction, under the general article, of a military guard who killed a prisoner, said, “[s] hooting with intent to kill is a civil crime, but shooting by a soldier of the army standing guard over a prison, with intent to kill a prisoner confined therein, is not only a crime against society, but an atrocious breach of military discipline.”
Larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, or assault and battery with an intent to commit rape. Rev. Stat. § 1342, Art. 58 (1874).
It has been suggested, at various times, that the phrase “when in actual service in time of War or public danger” should be read to require a grand jury indictment in all cases “arising in the land or naval forces, or in the Militia,” except when the defendant is in “service in time of War or public danger.” It was decided at a very early date, however, that the above clause modifies only “Militia.” Thus, the generally accepted rule is that indictment by grand jury is never necessary “in cases arising in the land or naval forces” but is necessary for members of the militia, except when they have been “called into the actual Service of the United States” (Art. II, §2, U. S. Const.) “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Art. I, §8, U. S. Const.
“The limitation as to 'actual service in time of war or public danger’ relates only to the militia.” Ex parte Mason, 105 U. S. 696, 701. See also Smith v. Whitney, 116 U. S. 167, 186; Kurtz v. Moffitt, 115 U. S. 487, 500; Dynes v. Hoover, 20 How. 65.
Johnson v. Sayre, 158 U. S. 109, was a case in which a Navy paymaster sought habeas corpus from his court-martial conviction for embezzlement in time of peace by arguing that he was entitled to indictment by grand jury:
“The decision below is based upon the construction that the words 'when in actual service in time of war or public danger’ refer, not merely to the last antecedent, ‘or in the militia,’ but also to the previous clause, 'in the land or naval forces.’ That construction is grammatically possible. But it is opposed to the evident meaning of the provision, taken by itself, and still more so, when it is considered together with the other provisions of the Constitution.” Id., at 114. And see Thompson v. Willingham, 217 F. Supp. 901 (D. C. M. D. Pa.), aff’d, 318 F. 2d 657 (C. A. 3d Cir.).
Winthrop in commenting on the phrase “to the prejudice of good order and military discipline” in a predecessor article to Article 134 said:
“A crime, therefore, to be cognizable by a court-martial under this Article, must have been committed under such circumstances as to have directly offended against the government and discipline of the military state. Thus such crimes as theft from or robbery of an officer, soldier, post trader, or camp-follower; forgery of the name of an officer, and manslaughter, assault with intent to kill, mayhem, or battery, committed upon a military person; inasmuch as they directly affect military relations and prejudice military discipline, may properly be — as they frequently have been — the subject of charges under the present Article. On the other hand, where such crimes are committed upon or against civilians, and not at or near a military camp or post, or in breach or violation of a military duty or order, they are not in general to be regarded as within the description of the Article, but are to be treated as civil rather than military offenses.” Pp. *1124-*1125.
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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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
KOVACS v. COOPER, JUDGE.
No. 9.
Submitted October 11, 1948.
Decided January 31, 1949.
George Pellettieri submitted on brief for appellant.
Louis Josephson submitted on brief for appellee.
Briefs of amici curiae urging reversal were filed by Osmond K. Fraenkel and Samuel Rothbard for the American Civil Liberties Union; and Lee Pressman, Frank Donner, M. H. Goldstein, Isadore Katz, Irving J. Levy, David Rein and Benjamin C. Sigal for the Congress of Industrial Organizations et al.
Mr. Justice Reed
announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice Burton join.
This appeal involves the validity of a provision of Ordinance No. 430 of the City of Trenton, New Jersey. It reads as follows:
“4. That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.”
The appellant was found guilty of violating this ordinance by the appellee, a police judge of the City of Trenton. His conviction was upheld by the New Jersey Supreme Court, Kovacs v. Cooper, 135 N. J. L. 64, 50 A. 2d 451, and the judgment was affirmed without a majority opinion by the New Jersey Court of Errors and Appeals in an equally divided court. The dissents are printed. 135 N. J. L. 584, 52 A. 2d 806.
We took jurisdiction to consider the challenge made to the constitutionality of the section on its face and as applied on the ground that § 1 of the Fourteenth Amendment of the United States Constitution was violated because the section and the conviction are in contravention of rights of freedom of speech, freedom of assemblage and freedom to communicate information and opinions to others. The ordinance is also challenged as violative of the Due Process Clause of the Fourteenth Amendment on the ground that it is So obscure, vague, and indefinite as to be impossible of reasonably accurate interpretation. No question was raised as to the sufficiency of the complaint.
At the trial in the Trenton police court, a city patrolman testified that while on his post he heard a sound truck broadcasting music. Upon going in the direction of said sound, he located the truck on a public street near the municipal building. As he approached the truck, the music stopped and he heard a man’s voice broadcasting from the truck. The appellant admitted that he operated the mechanism for the music and spoke into the amplifier. The record from the police court does not show the purpose of the broadcasting but the opinion in the Supreme Court suggests that the appellant was using the sound apparatus to comment on a labor dispute then in progress in Trenton.
The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words “loud and raucous.” While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden. Last term, after thorough consideration of the problem of vagueness in legislation affecting liberty of speech, this Court invalidated a' conviction under a New York statute construed and applied to punish the distribution of magazines “principally made up of criminal news or stories of deeds of bloodshed or lust, so massed as to become vehicles for inciting violent and depraved crimes against the person.” Winters v. New York, 333 U. S. 507, 518. As thus construed we said that the statute was so vague that an honest distributor of tales of war horrors could not know whether he was violating the statute. P. 520. But in the Winters case we pointed out that prosecutions might be brought under statutes punishing the distribution of “obscene, lewd, lascivious, filthy, indecent or disgusting” magazines. P. 511. We said, p. 518:
“The impossibility of defining the precise line between permissible uncertainty in statutes caused by describing crimes by words well understood through long use in the criminal law — obscene, lewd, lascivious, filthy, indecent or disgusting — and the unconstitutional vagueness that leaves a person uncertain as to the kind of prohibited conduct — massing stories to incite crime — has resulted in three arguments of this case in this Court.”
We used the words quoted above from page 511 as examples of permissible standards of statutes for criminal prosecution. P. 520. There we said:
“To say that a state may not punish by such a vague statute carries no implication that it may not punish circulation of objectionable printed matter, assuming that it is not protected by the principles of the First Amendment, by the use of apt words to describe the prohibited publications. ... Neither the states nor Congress are prevented by the requirement of specificity from carrying out their duty of eliminating evils to which, in their judgment, such publications give rise.”
We think the words of § 4 of this Trenton ordinance comply with the requirements of definiteness and clarity, set out above.
The scope of the protection afforded by the Fourteenth Amendment, for the right of a citizen to play music and express his views on matters which he considers to be of interest to himself and others on a public street through sound amplification devices mounted on vehicles, must be considered. Freedom of speech, freedom of assembly and freedom to communicate information and opinion to others are all comprehended on this appeal in the claimed right of free speech. They will be so treated in this opinion.
The use of sound trucks and other peripatetic or stationary broadcasting devices for advertising, for religious exercises and for discussion of issues or controversies has brought forth numerous municipal ordinances. The avowed and obvious purpose of these ordinances is to prohibit or minimize such sounds on or near the streets since some citizens find the noise objectionable and to some degree an interference with the business or social activities in which they are engaged or the quiet that they would like to enjoy. A satisfactory adjustment of the conflicting interests is difficult as those who desire to broadcast can hardly acquiesce in a requirement to modulate their sounds to a pitch that would not rise above other street noises nor would they deem a restriction to sparsely used localities or to hours after work and before sleep — say 6 to 9 p. m. — sufficient for the exercise of their claimed privilege. Municipalities are seeking actively a solution. National Institute of Municipal Law Officers, Report No. 123, 1948. Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable. Absolute prohibition within municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities.
We have had recently before us an ordinance of the City of Lockport, New York, prohibiting sound amplification whereby the sound was cast on public places so as to attract the attention of the passing public to the annoyance of those within the radius of the sounds. The ordinance contained this exception:
“Section 3. Exception. Public dissemination, through radio loudspeakers, of items of news and matters of public concern and athletic activities shall not be deemed a violation of this section provided that the same be done under permission obtained from the Chief of Police.”
This Court held the ordinance “unconstitutional on its face,” Saia v. New York, 334 U. S. 558, because the quoted section established a “previous restraint” on free speech with “no standards prescribed for the exercise” of discretion by the Chief of Police. When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement. The Court said in the Saia case at 560-61:
“The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine.”
This ordinance is not of that character. It contains nothing comparable to the above-quoted § 3 of the ordinance in the Saia case. It is an exercise of the authority-granted to the city by New Jersey “to prevent disturbing noises,” N. J. Stat. Ann., tit. 40, § 48-1 (8), nuisances well within the municipality’s power to control. The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community. A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people.
In this case, New Jersey necessarily has construed this very ordinance as applied to sound amplification. The Supreme Court said, 135 N. J. L. 64, 66, 50 A. 2d 451, 452:
“The relevant provisions of the ordinance apply only to (1) vehicles (2) containing an instrument in the nature of a sound amplifier or any other instrument emitting loud and raucous noises and (3) such vehicle operated or standing upon the public streets, alleys or thoroughfares of the city.”
If that means that only amplifiers that emit, in the language of the ordinance, “loud and raucous noises” are barred from the streets, we have a problem of regulation. The dissents accept that view. So did the appellant in his Statement as to Jurisdiction and his brief. Although this Court must decide for itself whether federal questions are presented and decided, we must accept the state courts’ conclusion as to the scope of the ordinance. We accept the determination of New Jersey that § 4 applies only to vehicles with sound amplifiers emitting loud and raucous noises. Courts are inclined to adopt that reasonable interpretation of a statute which removes it farthest from possible constitutional infirmity. Cox v. New Hampshire, 312 U. S. 569, 575-76; cf. United States v. C. I. O., 335 U. S. 106, 120. We need not determine whether this ordinance so construed is regulatory or prohibitory. All regulatory enactments are prohibitory so far as their restrictions are concerned, and the prohibition of this ordinance as to a use of streets is merely regulatory. Sound trucks may be utilized in places such as parks or other open spaces off the streets. The constitutionality of the challenged ordinance as violative of appellant’s right of free speech does not depend upon so narrow an issue as to whether its provisions are cast in the words of prohibition or regulation. The question is whether or not there is a real abridgment of the rights of free speech.
Of course, even the fundamental rights of the Bill of Rights are not absolute. The Saia case recognized that in this field by stating “The hours and place of public discussion can be controlled.” It was said decades ago in an opinion of this Court delivered by Mr. Justice Holmes, Schenck v. United States, 249 U. S. 47, 52, that:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”
Hecklers may be expelled from assemblies and religious worship may not be disturbed by those anxious to preach a doctrine of atheism. The right to speak one’s mind would often be an empty privilege in a place and at a time beyond the protecting hand of the guardians of public order.
While this Court, in enforcing the broad protection the Constitution gives to the dissemination of ideas, has invalidated an ordinance forbidding a distributor of pamphlets or handbills from summoning householders to their doors to receive the distributor’s writings, this was on the ground that the home owner could protect himself from such intrusion by an appropriate sign “that he is unwilling to be disturbed.” The Court never intimated that the visitor could insert a foot in the door and insist on a hearing. Martin v. Struthers, 319 U. S. 141, 143, 148. We do not think that the Struthers case requires us to expand this interdiction of legislation to include ordinances against obtaining an audience for the broadcaster’s ideas by way of sound trucks with loud and raucous noises on city streets. The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality.
City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities. On the business streets of cities like Trenton, with its more than 125,000 people, such distractions would be dangerous to trafile at all hours useful for the dissemination of information, and in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would likewise be at the mercy of advocates of particular religious, social or political persuasions. We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets.
The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. This is the phase of freedom of speech that is involved here. We do not think the Trenton ordinance abridges that freedom. It is an extravagant extension of due process to say that because of it a city cannot forbid talking on the streets through a loud speaker in a loud and raucous tone. Surely such an ordinance does not violate our people’s “concept of ordered liberty” so as to require federal intervention to protect a citizen from the action of his own local government. Cf. Palko v. Connecticut, 302 U. S. 319, 325. Opportunity to gain the public’s ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets. The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself. That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open. Section 4 of the ordinance bars sound trucks from broadcasting in a loud and raucous manner on the streets. There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers. We think that the need for reasonable protection in the homes or business houses from the distracting noises of vehicles equipped with such sound amplifying devices justifies the ordinance.
Affirmed.
Mr. Justice Murphy dissents.
See Judicial Code § 237 (a), 28 U. S. C. § 344 (a), now 28 U. S. C. § 1257 (2); Lovell v. City of Griffin, 303 U. S. 444; New Orleans Water Works Co. v. New Orleans, 164 U. S. 471.
Ordinances regulating or prohibiting sound devices were upheld in People v. Phillips, 147 N. Y. Misc. 11, 263 N. Y. Supp. 158; Maupin v. City of Louisville, 284 Ky. 195, 144 S. W. 2d 237; Hamilton v. City of Montrose, 109 Colo. 228, 124 P. 2d 757.
Injunctions have also dealt with nuisances from the playing of mechanical music for advertising purposes. Weber v. Mann, 42 S. W. 2d 492 (Tex. Ct. of Civ. App.); Stodder v. Rosen Talking Machine Co., 241 Mass. 245, 135 N. E. 251; 247 Mass. 60, 141 N. E. 569.
Lovell v. City of Griffin, 303 U. S. 444; Hague v. C. I. O., 307 U. S. 496; Cantwell v. Connecticut, 310 U. S. 296.
Chicago, B. & Q. R. Co. v. Drainage Comm’rs, 200 U. S. 561, 592; Nebbia v. New York, 291 U. S. 502, 525; Queenside Hills Realty Co. v. Saxl, 328 U. S. 80, 82.
The Court of Errors and Appeals was cognizant of the difficulties. Evening Times Printing Co. v. American Newspaper Guild, 124 N. J. Eq. 71, 78, 199 A. 598, 602-603.
135 N. J. L. 584, 52 A. 2d 809:
“Colie, J. (For reversal.) I am of the opinion that the judgment under review should be reversed but I do not agree that section 4 of the ordinance is an unconstitutional exercise of the police power. The privilege of a citizen to use the streets for the communication of ideas is not absolute but must be exercised in subordination to the general comfort and convenience. Most assuredly the prohibition against making ‘loud and raucous’ noises is a reasonable regulation.”
Id,., at 585: “There is not a scintilla of evidence that the music or voice was loud or raucous, and under the wording of section 4 such proof is an essential prerequisite to a finding of guilt of a violation.”
The New Jersey courts may have concluded that the necessity of search by the patrolman to locate the sound truck on a street was sufficient evidence of loudness and raucousness.
135 N. J. L. 584, 52 A. 2d 808, Eastwood, J., for reversal, speaking for himself and three other members, said, pp. 588-89: “It appears to us, and we so hold, that the primary aim of section 4 of the ordinance, under review, is to prohibit ‘loud and raucous noises,’ at all times and in all places in the City of Trenton, emanating from sound trucks, loud speakers, sound amplifiers, radios or phonographs, equipped with loud speakers or sound amplifiers, or other similar instruments. It is thus clear that section 4 of the ordinance is not regulatory within a proper exercise of the police power of the municipality.”
Id., at 590: “We conclude that section 4 of the ordinance under attack represents an attempt by the municipality under the guise of regulation, to prohibit and outlaw, under all circumstances and conditions, the use of sound amplifying systems.”
Perhaps the last-quoted paragraph assumes that all sound trucks emit loud and raucous noises.
He wrote: “Section 4 of the Ordinance, under which appellant was charged, prohibits any person from using for any purpose whatsoever, a loud speaker or sound amplifier which emits therefrom ‘loud and raucous noises’ and is attached to any vehicle operated or standing upon the streets of the City of Trenton.”
In the brief this appears:
“This ordinance does not purport to prohibit loud and raucous noises. It attempts to prohibit sound devices which emit therefrom loud and raucous noises. This does not validate the ordinance or save it. In order to be a valid regulation the law must deal with the abuse and not with the use of the thing.”
Lovell v. City of Griffin, 303 U. S. 444, 450.
Saia v. New York, 334 U. S. 558; Cox v. New Hampshire, 312 U. S. 569, 574; Winters v. New York, 333 U. S. 507, 514.
In the exercise of the police power acts or things which could not be barred completely from use may be prohibited under some conditions and circumstances when they interfere with the rights of others. Cox v. New Hampshire, 312 U. S. 569, 574; Chaplinsky v. New Hampshire, 315 U. S. 568; Sage Stores Co. v. Kansas, 323 U. S. 32, 36; Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 159, compare 160; Powell v. Pennsylvania, 127 U. S. 678, 682-83; Mugler v. Kansas, 123 U. S. 623, 657-663. For examples of federal prohibitions, see Carolene Products Co. v. United States, 323 U. S. 18, 27, Third; United States v. Darby, 312 U. S. 100, 113, 116; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334, 348; Buttfield v. Stranahan, 192 U. S. 470, 492-93.
Saia v. New York, 334 U. S. 558, 562; Prince v. Massachusetts, 321 U. S. 158, 166; Murdock v. Pennsylvania, 319 U. S. 105, 109; Cox v. New Hampshire, 312 U. S. 569; Cantwell v. Connecticut, 310 U. S. 296, 303; Whitney v. California, 274 U. S. 357, 371, 373; Reynolds v. United States,
Question: What is the court whose decision the Supreme Court reviewed?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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sc_partywinning
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
WILLIAMS v. UNITED STATES
No. 80-2116.
Argued April 20, 1982
Decided June 29, 1982
Blackmun, J., delivered the opinion of the Court, in which Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 291. Marshall, J., filed a dissenting opinion, in which Burger, C. J., and Brennan and White, JJ., joined, post, p. 292.
Nicholas P. Chilivis argued the cause and filed briefs for petitioner.
Richard G. Wilhins argued the cause pro hac vice for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Shapiro, William, C. Bryson, Douglas S. Wood, and Jams H. Kochritz.
Justice Blackmun
delivered the opinion of the Court.
In this case we must decide whether the deposit of a “bad check” in a federally insured bank is proscribed by 18 U. S. C. §1014.
I
In 1975, petitioner William Archie Williams purchased a controlling interest in the Pelican State Bank in Pelican, La., and appointed himself president. The bank’s deposits were insured by the Federal Deposit Insurance Corporation.
Among the services the bank provided its customers at the time of petitioner’s purchase was access to a “dummy account,” used to cover checks drawn by depositors who had insufficient funds in their individual accounts. Any such check was processed through the dummy account and paid from the bank’s general assets. The check was then held until the customer covered it by a deposit to his own account, at which time the held check was posted to the customer’s account and the dummy account was credited accordingly. As president of the bank, petitioner enjoyed virtually unlimited use of the dummy account, and by May 2, 1978, his personal overdrafts amounted to $58,055.44, approximately half the total then covered by the account.
On May 8, 1978, federal and state examiners arrived at the Pelican Bank to conduct an audit. That same day, petitioner embarked on a series of transactions that seemingly amounted to a case of “check kiting.” He began by opening a checking account with a deposit of $4,649.97 at the federally insured Winn State Bank and Trust Company in Winnfield, La. The next day, petitioner drew a check on his new Winn account for $58,500 — a sum far in excess of the amount actually on deposit at the Winn Bank — and deposited it in his Pelican account. Pelican credited his account with the face value of the check, at the same time deducting from petitioner’s account the $58,055.44 total of his checks that previously had been cleared through the dummy account. At the close of business on May 9, then, petitioner had a balance of $452.89 at the Pelican Bank.
On May 10, petitioner wrote a'$60,000 check on his Pelican account — again, a sum far in excess of the account balance— and deposited it in his Winn account. The Winn Bank immediately credited the $60,000 to petitioner’s account there, and Pelican cleared the check through its dummy account when it was presented for payment on May 11. The Winn Bank routinely paid petitioner’s May 9 check for $58,500 when it cleared on May 12.
Petitioner next attempted to balance his Pelican account by depositing a $65,000 check drawn on his account at yet another institution, the Sabine State Bank in Many, La. Unfortunately, the balance in petitioner’s Sabine account at the time was only $1,204.81. The Sabine Bank therefore refused payment when Pelican presented the check on May 17. On May 23, petitioner settled his Pelican account by depositing at the Pelican Bank a $65,000 money order obtained with the proceeds from a real estate mortgage loan.
The bank examiners, meanwhile, had been following petitioner’s activities with considerable interest. Their scrutiny ultimately led to petitioner’s indictment, in the United States District Court for the Western District of Louisiana, on two counts of violating 18 U. S. C. § 1014. That provision makes it a crime to
“knowingly mak[e] any false statement or report, or willfully overvalue] any land, property or security, for the purpose of influencing in any way the action of [certain enumerated financial institutions, among them banks whose deposits are insured by the Federal Deposit Insurance Corporation], upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan . . . .”
The first of the counts under § 1014 was directed at the May 9,1978, check drawn on the Winn Bank, and charged that petitioner “did knowingly and willfully overvalue ... a security, that is a check ... for the purpose of influencing the Pelican State Bank, ... a bank the deposits of which are insured by the Federal Deposit Insurance Corporation, upon an advance of money and extension of credit.” The other § 1014 count used virtually identical language to indict petitioner for depositing in his Winn account the May 10 check drawn on the Pelican Bank. App. 3-4.
At petitioner’s trial the court charged the jury that “[a] check is a security for purposes of Section 1014.” The court then explained that “[t]he Government charges that Mr. Williams was involved in check-kiting — a scheme whereby false credit is obtained by the exchange and passing of worthless checks between two or more banks.” Id., at 36. To convict petitioner, the court continued, the jury had to find as to each count that “the defendant ... did knowingly and willfully make a false statement of a material fact,” that the statement “influence^] the decision of the [bank] officers or employees,” and that “the defendant made the false statement with fraudulent intent to influence the [bank] to extend credit to the defendant.” Id., at 37-38. “The crucial question in check-kiting,” the court concluded, “is whether the defendant intended to write checks which he could not reasonably expect to cover and thereby defraud the bank, or whether he was genuinely involved in the process of depositing funds and then making legitimate withdrawals against them.” Id., at 38. The jury convicted petitioner on both counts, and he was sentenced to six months’ incarceration on the second § 1014 count. For the first § 1014 count he was placed on five years’ probation, to begin upon his release from confinement. App. 39.
Among other things, petitioner argued on appeal that the indictment did not state a violation of § 1014. The Court of Appeals rejected this contention, however, concluding that petitioner’s actions “constitute classic incidents of check kiting.” 639 F. 2d 1311, 1319 (CA5 1981). In line with its earlier decision in United States v. Payne, 602 F. 2d 1215 (CA5 1979), cert. denied, 445 U. S. 903 (1980), the court found such action proscribed by the statute.
We granted certiorari, limited to Questions 3 and 4 presented by the petition, in order to resolve a conflict concerning the reach of § 1014. 454 U. S. 1030 and 1096 (1981).
II
To obtain a conviction under § 1014, the Government must establish two propositions: it must demonstrate (1) that the defendant made a “false statement or report,” or “willfully overvalue^] any land, property or security,” and (2) that he did so “for the purpose of influencing in any way the action of [a described financial institution] upon any application, advance, . . . commitment, or loan.” We conclude that petitioner’s convictions under § 1014 cannot stand, because the Government has failed to meet the first of these burdens.
A
Although petitioner deposited several checks that were not supported by sufficient funds, that course of conduct did not involve the making of a “false statement,” for a simple reason: technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as “true” or “false.” Petitioner’s bank checks served only to direct the drawee banks to pay the face amounts to the bearer, while committing petitioner to make good the obligations if the banks dishonored the drafts. Each check did not, in terms, make any representation as to the state of petitioner’s bank balance. As defined in the Uniform Commercial Code, 2 U. L. A. 17 (1977), a check is simply “a draft drawn on a bank and payable on demand,” § 3-104(2)(b), which “contain[s] an unconditional promise or order to pay a sum certain in money,” § 3-104(l)(b). As such, “[t]he drawer engages that upon dishonor of the draft and any necessary notice of dishonor or protest he will pay the amount of the draft to the holder.” §3-413(2), 2 U. L. A. 424 (1977). The Code also makes clear, however, that “[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.” §3-409(1), 2 U. L. A. 408 (1977). Louisiana, the site of petitioner’s unfortunate banking career, embraces verbatim each of these definitions. See La. Rev. Stat. Ann. §§ 10:3-104, 10:3-409, 10:3-413 (West Supp. 1982).
For similar reasons, we conclude that petitioner’s actions cannot be regarded as “overvalu[ing]” property or a security. Even assuming that petitioner’s checks were property or a security as defined by § 1014, the value legally placed upon them was the value of petitioner’s obligation; as defined by Louisiana law, that is the only meaning actually attributable to a bank check. See La. Rev. Stat. Ann. §§ 10:3-409(1), 10:3-413(2) (West Supp. 1982). In a literal sense, then, the face amounts of the checks were their “values.”
The foregoing description of bank checks is concededly a technical one, and the Government therefore argues with some force that a drawer is generally understood to represent that he “currently has funds on deposit sufficient to cover the face value of the check.” Brief for United States 19. See United States v. Payne, 602 F. 2d, at 1218. If the drawer has insufficient funds in his account at the moment the check is presented, the Government continues, he effectively has made a “false statement” to the recipient. While this broader reading of § 1014 is plausible, we are not persuaded that it is the preferable or intended one. It “slights the wording of the statute,” United States v. Enmons, 410 U. S. 396, 399 (1973), for, as we have noted, a check is literally not a “statement” at all. In any event, whatever the general understanding of a check’s function, “false statement” is not a term that, in common usage, is often applied to characterize “bad checks.” And, when interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable “understandings.”
Equally as important, the Government’s interpretation of § 1014 would make a surprisingly broad range of unremarkable conduct a violation of federal law. While the Court of Appeals addressed itself only to check kiting, its ruling has wider implications: it means that any check, knowingly supported by insufficient funds, deposited in a federally insured bank could give rise to criminal liability, whether or not the drawer had an intent to defraud. Under the Court of Appeals’ approach, the violation of § 1014 is not the scheme to pass a number of bad checks; it is the presentation of one false statement — that is, one check that at the moment of deposit is not supported by sufficient funds — to a federally insured bank. The United States acknowledged as much at oral argument. Tr. of Oral Arg. 40. Indeed, each individual count of the indictment in this case stated only that petitioner knowingly had deposited a single check that was supported by insufficient funds, not that he had engaged in an extended scheme to obtain credit fraudulently.
Yet, if Congress really set out to enact a national bad check law in § 1014, it did so with a peculiar choice of language and in an unusually backhanded manner. Federal action was not necessary to interdict the deposit of bad checks, for, as Congress surely knew, fraudulent checking activities already were addressed in comprehensive fashion by state law. See Comment, Insufficient Funds Checks in the Criminal Area: Elements, Issues, and Proposals, 38 Mo. L. Rev. 432 (1973). Absent support in the legislative history for the proposition that § 1014 was “designed to have general application to the passing of worthless checks,” United States v. Krown, 675 F. 2d 46, 50 (CA2 1982), we are not prepared to hold petitioner’s conduct proscribed by that particular statute.
B
In the 1948 codification of Title 18 of the United States Code, 62 Stat. 683, § 1014 reduced 13 existing statutes, which criminalized fraudulent practices directed at a variety of financial and credit institutions, to a single section. See 18 U. S. C. §1014, Historical and Revision Notes. Of the originally enumerated institutions, only two — the Reconstruction Finance Corporation, see 15 U. S. C. § 616(a) (1946 ed.), and the Federal Reserve Banks, see 12 U. S. C. §596 (1946 ed.) — performed duties other than the making of farm and home loans, and neither of those two organizations accepted checks for deposit from private customers. See United States v. Sabatino, 485 F. 2d 540, 548 (CA2 1973), cert. denied, 415 U. S. 948 (1974); United States v. Edwards, 455 F. Supp. 1354, 1357 (MD Pa. 1978). It is evident, then, that bad checks were not among the “false statements” or “overvalued property” originally addressed by the statute. While Congress has added and subtracted certain institutions to and from the list covered by § 1014 over the intervening years, no changes have been made in the type of transactions proscribed by the provision.
The legislative history does not demand a broader reading of the statute. The amendments adding institutions to § 1014’s list attracted little attention in Congress and were dealt with summarily; at no point was it suggested that the statute should be applicable to anything other than representations made in connection with conventional loan or related transactions. In 1964, for example, when Congress, by Pub. L. 88-353, § 5, 78 Stat. 269, added Federal Credit Unions to the statutory list, §1014 was described as barring “false statements or willful overvaluations in connection with applications, loans, and the like.” S. Rep. No. 1078, 88th Cong., 2d Sess., 1 (1964). Thus, the Senate Committee on Banking and Currency declared that § 1014 “is designed primarily to apply to borrowers from Federal agencies or federally chartered organizations.” Id., at 4. Similarly, the first of two 1970 amendments, which added state-chartered credit unions to the statutory list, Pub. L. 91-468, § 7, 84 Stat. 1017, was characterized simply as “relating to false statements in loan and credit applications.” H. R. Rep. No. 91-1457, p. 21 (1970).
A second 1970 amendment, Pub. L. 91-609, § 915, 84 Stat. 1815, added banks insured by the Federal Deposit Insurance Corporation, Federal Home Loan Banks, and institutions insured by the Federal Savings and Loan Insurance Corporation, for the first time listing institutions that engaged in commercial checking. But there was no contemporaneous congressional recognition of the substantial expansion of federal criminal jurisdiction that would attend the proscription of bad checks. To the contrary, the Reports accompanying the amendment stated simply that the addition “would describe more explicitly the institutions which are covered by 18 U. S. C. § 1014, which provides penalties for making false statements or reports in connection with loans or other similar transactions.” H. R. Rep. No. 91-1556, p. 35 (1970). See H. R. Conf. Rep. No. 91-1784, p. 66 (1970). Congressional debate was directed only at the addition of federally insured savings and loan institutions, which was said to “mak[e] it a Federal crime to submit false data to an insured savings and loan on the true value of a property on which a mortgage is to be granted.” 116 Cong. Rec. 42633 (1970) (remarks of Rep. Sullivan).
Given this background — a statute that is not unambiguous in its terms and that if applied here would render a wide range of conduct violative of federal law, a legislative history that fails to evidence congressional awareness of the statute’s claimed scope, and a subject matter that traditionally has been regulated by state law — we believe that a narrow interpretation of §1014 would be consistent with our usual approach to the construction of criminal statutes. The Court has emphasized that “'when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’” United States v. Bass, 404 U. S. 336, 347 (1971), quoting United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952). To be sure, the rule of lenity does not give courts license to disregard otherwise applicable enactments. But in a case such as this one, where both readings of § 1014 are plausible, “it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the” deposit of bad checks. United States v. Enmons, 410 U. S., at 411.
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.
As the Government explains, a check-kiting scheme typically works as follows: “The check kiter opens an account at Bank A with a nominal deposit. He then writes a check on that account for a large sum, such as $50,000. The check kiter then opens an account at Bank B and deposits the $50,000 check from Bank A in that account. At the time of deposit, the cheek is not supported by sufficient funds in the account at Bank A. However, Bank B, unaware of this fact, gives the check kiter immediate credit on his account at Bank B. During the several-day period that the check on Bank A is being processed for collection from that bank, the check kiter writes a $50,000 cheek on his account at Bank B and deposits it into his account at Bank A. At the time of the deposit of that check, Bank A gives the check kiter immediate credit on his account there, and on the basis of that grant of credit pays the original $50,000 check when it is presented for collection.
“By repeating this scheme, or some variation of it, the check kiter can use the $50,000 credit originally given by Bank B as an interest-free loan for an extended period of time. In effect, the check kiter can take advantage of the several-day period required for the transmittal, processing, and payment of checks from accounts in different banks . . . .” Brief for United States 12-13.
Petitioner also was charged with — and thereafter convicted of — one count of misapplying bank funds, in violation of 18 U. S. C. § 656. The validity of that conviction, which was affirmed on appeal, is not before us.
Neither of the § 1014 counts of the indictment expressly charged petitioner with making a “false statement.” The first count, however, did allege that he “presented said check for deposit at Pelican State Bank . . . and represented and caused to be represented to said bank that said check was of a value equal to the face amount of the check, when in truth and fact, as the [petitioner] then well knew, there were no sufficient funds in the account of W. A. Williams at the Winn State Bank and Trust Company, to cover said check.” App. 3. Similar language was employed in the second § 1014 count. Id., at 4.
The sentence of probation also applied to petitioner’s conviction for misapplication of bank funds. See n. 2, supra.
See United States v. Sher, 657 F. 2d 28 (CA3 1981), cert. pending, No. 81-1047 (holding that § 1014 does not proscribe check kiting). Cf. United States v. Krown, 675 F. 2d 46, 50 (CA2 1982) (noting the conflict).
Unlike many state statutes that do proscribe conduct such as that engaged in by petitioner, the federal scheme obviously does not in terms reach the deposit of checks that are supported by insufficient funds. See Comment, Insufficient Funds Checks in the Criminal Area: Elements, Issues, and Proposals, 38 Mo. L. Rev. 432 (1973).
That is particularly true where, as here, it is not immediately clear what “common understanding” would recognize as the implied representation of the act of depositing one’s own check. The United States suggests that one who deposits a check represents that he “currently has funds on deposit sufficient to cover the face value.” Brief for United States 19. But it would be equally plausible to suggest that many people understand a check to represent that the drawer will have sufficient funds deposited in his account by the time the check clears, or that the drawer will make good the face value of the draft if it is dishonored by the bank. We therefore find “common understanding” a particularly fragile foundation upon which to base an interpretation of § 1014.
Justice Marshall’s dissent does not fully respond to this point. That opinion, like the Government’s brief, emphasizes that petitioner’s “conduct was wrongful,” post, at 293, and deals only with § 1014’s application to check kiting. See also post, at 294, 295, 299, 300, and 301. Indeed, the dissent seems to suggest that that statute would not reach the conduct of a defendant who “wrote a check on an account containing insufficient funds with the good-faith intention to deposit in that account an amount that would cover the check before it cleared in the normal course of business.” Post, at 292. Accepting Justice Marshall’s theory, however, would bring such conduct within the literal language of the statute, for a “false statement” would have been submitted with the hope of inducing a bank to “advance” funds. While the dissent attempts to avoid this by suggesting that there would be no violation of § 1014 absent an intent “to defraud,” post, at 301, n. 4, the language of the statute imposes no such intent requirement. And as we emphasize above, we believe that the wording of § 1014 would be a peculiar choice of terms if Congress wished to proscribe such conduct.
Justice Marshall’s dissent rests entirely on the proposition that petitioner’s conduct falls within the “plain language” of § 1014. Post, at 293. See also post, at 301, 302, and 305-306. In our view, that literally is not true. And even if one looks to the “common understanding” so emphasized by Justice Marshall, post, at 296-298, the statute is at best ambiguous, for we doubt that the public typically describes bad checks as “false statements.”
These included the Farmers’ Home Corporation, the Federal Crop Insurance Corporation, Federal Reserve Banks, the Farm Credit Administration, Federal Credit Banks, the Federal Farm Mortgage Corporation, the National Agricultural Credit Corporation, Federal Home Loan Banks, the Home Owners’ Loan Corporation, the Reconstruction Finance Corporation, and related institutions. See 7 U. S. C. §§ 1026(a), 1514(a) (1946 ed.); 12 U. S. C. §§ 596, 981, 1122, 1123, 1138d(a), 1248, 1312, 1313, 1441(a), 1467(a) (1946 ed.); 15 U. S. C. § 616(a) (1946 ed.).
The Committee added ambiguously that the statute “is not, however, limited by its terms to borrowers and would seem also to apply to others, including for example, officers and employees of the agencies and institutions named.” S. Rep. No. 1078, 88th Cong., 2d Sess., 4 (1964).
Also added to the list in 1970 were the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation themselves, as well as the Administrator of the National Credit Union Administration. Pub. L. 91-609, § 915, 84 Stat. 1815.
We therefore find it somewhat surprising that Justice Marshall’s dissenting opinion takes us to task for noting the applicability of the rule of lenity to the interpretation of what we believe to be an ambiguous statute.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_juryinst
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A
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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 court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. Kim Randolph LUCAS, Appellant. UNITED STATES of America, Appellee, v. Keith TYLER, Appellant. UNITED STATES of America, Appellee, v. Larry TYLER, Appellant. UNITED STATES of America, Appellee, v. Bahiya Hiba SHAKUR, a/k/a Joyce Tyler, Appellant. UNITED STATES of America, Appellee, v. Abdul Nur SHAKUR, a/k/a Herman Tyler, Jr., Appellant. UNITED STATES of America, Appellee, v. Terry L. TYLER, a/k/a Jamal H. Shakur, Appellant.
Nos. 90-1197, 90-1229 through 90-1231, 90-1445, 90-1866.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1990.
Decided April 26, 1991.
Rehearing and Rehearing En Banc Denied in No. 90-1230 June 21, 1991.
Rehearing and Rehearing En Banc Denied in No. 90-1231 June 24, 1991.
Susan Hunt, Kansas City, Mo., for Abdul Shakur.
Robert Best, Jr., Kansas City, Mo., for Larry Tyler.
Charles Atwell, Kansas City, Mo., for Bahiya Shakur.
Chris Harlan, Kansas City, Mo., for Keith Tyler.
Bruce Houdek, Kansas City, Mo., for Kim Lucas.
Claudia York, Kansas City, Mo., for Terry Tyler.
Kathryn Geller, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HANSON, Senior District Judge.
The Honorable William C. Hanson, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
BOWMAN, Circuit Judge.
This is yet another case involving illegal drug activity in Kansas City, Missouri. The appeal is from the judgment of the District Court convicting and its order sentencing defendants Abdul Nur Shakur, Bahiya Hiba Shakur, Jamal H. Shakur, Kim Randolph Lucas, Larry Tyler, and Keith Tyler. Jurisdiction is based upon 28 U.S.C. § 1291 (1988) and 18 U.S.C. § 3742 (1988). Defendants were tried by jury on a twenty-one count indictment. The indictment charged the defendants with conspiring to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982) (count I), distributing, and possessing with intent to distribute, crack in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A-C) (1982) and 18 U.S.C. § 2 (1982) (counts II-VII, IX, X, and XIII), using a firearm in relation to drug trafficking, in violation of 18 U.S.C. §§ 2 and 924(c) (1982 & Supp. V 1987) (counts VIH, XI, XII, and XIV), possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Supp. V 1987) (count XV), possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987) (count XVI), laundering money in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)®, (C) (1982 & Supp. V 1987) (counts XVII, XIX, and XXI), and structuring cash transactions in order to avoid reporting requirements, in violation of 31 U.S.C. §§ 5322(b), 5324(3) (Supp. V 1987), and 18 U.S.C. § 2 (counts XVIII and XX). Abdul Shakur was named in every count in the indictment. His wife Bahiya Shakur was named in counts I, X, XII, XVII through XIX, and XXI. The remaining defendants all were charged in count I, and in addition, Larry and Keith Tyler were charged in count VIII, Jamal Shakur was charged in count XIX, and Kim Lucas was charged in counts XIX and XX.
At the conclusion of the nine-week trial, the jury deliberated for twelve hours and found the defendants guilty on all counts. Judgment was entered accordingly. The trial court sentenced Abdul Shakur to a prison term of seventy-five years, Bahiya Shakur to 211 months, Keith Tyler to 331 months, Larry Tyler to 195 months, Jamal Shakur to 200 months, and Kim Lucas to 262 months. All defendants also were sentenced to terms of supervised release, each was charged a special assessment, and Jamal Shakur was fined. Finally, Abdul Shakur, Keith Tyler, and Larry Tyler were ordered to pay restitution to Edward G. Robinson, who was shot, beaten, and burned during the course of the conspiracy.
On appeal all the defendants challenge their sentences and convictions, raising numerous arguments. Only the following merit discussion: (1) Abdul and Bahiya Shakur argue that their fourth amendment rights were violated by the trial court’s refusal to exclude from evidence two tape-recorded conversations; (2) Except for Keith Tyler, all the defendants argue that the trial court violated their right to a public trial by permitting Detective Mary Brown to testify behind a partial screen; (3) Abdul and Bahiya Shakur, Larry Tyler, and Kim Lucas argue that their right to a fair trial was violated by the trial court’s refusal to exclude from evidence testimony and records of telephone calls between Kansas City and Miami; (4) Abdul, Bahiya, and Jamal Shakur, and Kim Lucas argue that the trial court erred by refusing to dismiss the money laundering counts for failure to state an offense; (5) Abdul Sha-kur and Keith and Larry Tyler argue that the trial court improperly instructed the jury on the Pinkerton theory of co-conspirator liability; (6) Keith and Larry Tyler argue that the trial court violated their right to be convicted only upon a unanimous verdict of the jury by submitting count VIII to the jury on the alternative theories of vicarious liability and liability as an aider and abettor; (7) Abdul Shakur challenges his consecutive sentences on counts XI and XII on the grounds that these consecutive sentences violate his right to be free from double jeopardy; (8) Bahiya Shakur argues there is insufficient evidence to support her conviction on the firearm charge in count XII; and (9) Abdul Shakur challenges his sentences on counts II, III, IV, and XIII as having been enhanced without the notice required by 21 U.S.C. § 851 (1982). For the reasons that follow, we affirm on all grounds with the exception of Abdul Shakur’s sentences on counts II, III, IV, and XIII. We vacate those sentences and remand for resentenc-ing on those counts.
I.
In the early part of 1988 the government, suspecting that Abdul Shakur was involved in narcotics trafficking, began investigating his activities. The investigation focused initially upon the gathering of documents related to Shakur’s financial and business transactions. It then was discovered that Shakur owned a shoe shine parlor at 4448 Troost, and that early in 1987 that same location became the address for Squire Park General Contractors (Squire Park), a company formed by Abdul Shakur and Charles Gates. It also was discovered that Abdul Shakur and his wife Bahiya previously had formed an investment corporation called Business People, Inc., which early in 1987 purchased a $60,000 parcel of land at 1330 Brush Creek. The Shakurs’ payments for this land consisted of a $5,000 down payment and, later, a $55,000 lump sum payment composed of fourteen cashiers checks, purchased in cash or drawn against accounts opened with cash, from seven different banks. In addition, the investigators found that the majority of Squire Park’s business consisted of the construction of a shopping mall, called the Manheim Project, at the 1330 Brush Creek location. The investigation revealed that Squire Park’s expenditures on this project exceeded by a wide margin the amount of Squire Park’s legitimate revenues.
In July 1988, Dwight Ward contacted the Kansas City, Missouri Police Department, stating that he had information concerning Abdul Shakur’s involvement in narcotics distribution. He told the police that he had worked for Shakur at the shoe shine parlor until May 1987, at which time he began working for Squire Park; that every Friday until May 1987 he purchased crack from Shakur at a house at 4111 East 26th Street; that after he began working for Squire Park he received two “rocks” of crack as part of his pay each week; that Abdul Shakur later moved his drug operation to an apartment located at 1301 East Armour; and that Kim Lucas and Jamal Shakur were present at both the 26th Street house and the East Armour apartment during narcotics sales. Ward also assisted the police by introducing undercover officer Don Birdwell to Abdul Shakur, which ultimately resulted in the officer’s making five purchases of crack from Abdul Shakur. During all five of these transactions the conversations between Birdwell and Abdul Shakur were recorded.
Armed with the foregoing information, the government obtained warrants to search both of the residences in which the drug sales occurred (4111 East 26th Street and 1301 East Armour), Abdul Shakur’s personal residence (1217 East Armour), and the office of Squire Park (4448 Troost). These warrants were executed simultaneously on September 21, 1988.
The search of the residences at 4111 East 26th Street and 1301 East Armour disclosed crack as well as numerous documents and receipts bearing the names of Abdul Shakur, Keith Tyler, and Jamal Sha-kur. In addition, a firearm was discovered at the 1301 East Armour apartment. The search of the Shakur residence led to the discovery of over $25,000 in cash, a crack laboratory in the basement, over 700 grams of crack, over 30 grams of cocaine, records of drug sales, an automatic pistol and thirteen other firearms, utility and cable bills for the East 26th Street and 1301 East Armour drug houses, and a telephone answering machine tape with approximately 45 calls recorded upon it. Finally, the search of the Squire Park offices revealed numerous documents and records the government found useful in presenting its case.
On October 24, 1988, a federal grand jury returned the aforementioned indictment, and the defendants’ trial began April 3, 1989. At trial the government produced, inter alia, evidence establishing the facts previously described. From the answering machine tape the court admitted, over objection, two conversations between Abdul and Bahiya Shakur relating to the operation of the charged drug conspiracy. The court also admitted, over objection, evidence of telephone conversations between the Shakurs’ residence and a number in Miami, between the two drug houses and the same number in Miami, and between the office of Squire Park and the same number in Miami. The Miami telephone number was listed in the name of Luis Martinez, who was not named in the indictment.
The government also produced Edward G. Robinson as a witness. He testified that Keith Tyler had accused him of stealing drugs, money, and a gun, and that he then was bound and gagged, beaten into unconsciousness, doused with gasoline and set on fire, beaten again, and finally shot in the chest. He further testified that both Keith and Larry Tyler were involved in this series of assaults, as were at least three other unindicted co-conspirators, and that shortly before the shooting Keith Tyler took Robinson’s identification and his new tennis shoes, saying that Robinson would not need them any more.
Based upon the testimony of the government’s witnesses, the hundreds of pages of financial documents and business records, and the physical evidence seized pursuant to the search warrants, the jury returned guilty verdicts against all defendants on all counts, and the defendants appeal.
II.
Abdul and Bahiya Shakur initially raise several arguments challenging the admission into evidence of two conversations recorded on the tape in their answering machine. Only one merits discussion, and that is the argument that seizure of the answering machine and its tape exceeded the scope of the search warrant. The relevant portion of the warrant in question provided for the search and seizure of “[bjooks, records, receipts, notes, ledgers and other papers relating specifically to the transportation, ordering, purchase and distribution of controlled substances.... ” Abdul Shakur’s Brief at A-16. The Shakurs insist that the warrant did not support the search or seizure of the answering machine or its tape since it does not mention specifically that it covers these items. The government interprets the warrant more broadly, arguing that the paragraph relating to the seizure of records refers to the “generic class of records” and that, consequently, the warrant “is sufficiently particular to include cassette tapes.” Government’s Brief at 109. We agree with the government.
In United States v. Gomez-Soto, 723 F.2d 649, 654-55 (9th Cir.), cert. denied 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984), the Ninth Circuit faced exactly the same question with regard to the seizure of a microcassette and a locked briefcase. The seizures, as well as the “searches” of both containers, were effected pursuant to a warrant, which like the warrant in this case did not specifically refer to the items searched although it did contain a paragraph, similar to the one implicated here, which provided for the search for, and seizure of, records. Gomez-Soto, 723 F.2d at 651-52 n. **. In upholding the admission of evidence obtained by listening to the microcassette and searching the briefcase, the court stated that,
[i]t is axiomatic that if a warrant sufficiently describes the premises to be searched, this will justify a search of personal effects therein belonging to the person occupying the premises if those effects might contain the items described in the warrant.
The briefcase would be a logical container for any of the many things specifically described in the warrant. A micro-cassette is by its very nature a device for recording information in general whether it be statistical information, conversations, past events, future plans, all of which come clearly within the specific authority of the warrant. The failure of the warrant to anticipate the precise container in which the material sought might be found is not fatal.
Gomez-Soto, 723 F.2d at 654-55 (citations omitted). We find this reasoning persuasive here. We therefore hold that the District Court’s admission of the tape recorded conversations into evidence was proper.
III.
All the defendants except Keith Tyler also argue that the District Court violated their rights to a public trial and to confront the witnesses against them by permitting Detective Mary Brown to testify from behind a screen, so that she could not be seen by the members of the public who were in the courtroom to watch the trial. Only the public trial argument merits discussion.
At trial, the government sought to protect Detective Brown’s identity, arguing that use of a screen was necessary to protect her personal safety and to avoid jeopardizing the extensive drug investigations in which she was involved at the time of the trial. The government supported its request with testimony from Captain David Barton of the Drug Enforcement Unit of the Kansas City Police Department’s Special Investigations Division. He testified that Detective Brown was one of only a small number of black female detectives in the Division, and that at the time of trial she was involved in “very extensive [drug] investigations ... of major importance to the community,” Transcript III at 186; that undercover officers’ lives are jeopardized if their identities are revealed; and that within the month prior to trial a friend of Detective Brown’s family and two other confidential informants had notified Captain Barton’s office that attempts were being made to identify Detective Brown and to determine when she was going to testify. In addition, he testified that his department had received a number of offers from people volunteering to be informants, but only if they could work with black female undercover officers. He interpreted these to be attempts to identify the small number of black female undercover officers in his Division.
Based upon this testimony, and after hearing extensive arguments by the various counsel, the court found that Detective Brown was, at the time of trial, involved in unrelated narcotics investigations and that if her identity was revealed her life would be in danger. It also found that people “engaged in unlawful activity in the Kansas City area” might attempt to use the Shakur trial to identify Detective Brown, Transcript III at 196, who was one of a very small number of black female undercover officers in the Kansas City Police force. Consequently, it concluded that the government had established two “overriding interest^]” likely to be prejudiced if Detective Brown’s identity was not concealed: the ability of the police to conduct effectively law enforcement operations, and the physical welfare of the officers involved. It then considered the use of a disguise, the use of a screen, and full closure of the courtroom as means of concealing her identity. It concluded that, in order most effectively to protect Detective Brown as well as the right to a public trial and the right to confrontation, a screen should be used during her testimony in such a way as to permit spectators to hear but not see her, while not interfering with the ability of the defendants, the court, or the jury to see her when she testified.
We review the District Court’s ruling under the abuse of discretion standard. United States v. Rios Ruiz, 579 F.2d 670, 674 (1st Cir.1978); United States v. Eisner, 533 F.2d 987, 994 (6th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). The defendants argue that the record is insufficient to support the District Court’s ruling because Captain Barton did not communicate directly with the informants and because he had not received any threats against Detective Brown’s life. Although we agree that these are considerations relevant to the question of whether the screen should have been used, they are by no means dispositive. Considering the record before the District Court, we find no abuse of discretion in its conclusion that a screen should be used during Detective Brown’s testimony.
IV.
Abdul Shakur, Bahiya Shakur, Kim Lucas, and Larry Tyler all challenge the trial court’s decision to admit into evidence records of long-distance telephone calls made to and received from the telephone number in Miami. They insist that, for a variety of reasons, these records were not relevant to the proceedings or, even if they were, that their probative value was substantially outweighed by the unfair prejudice they engendered. See generally Fed. R.Evid. 401 & 403. We disagree.
It is well settled that “[t]he trial court has broad discretion in determining the relevancy and admissibility of evidence,” United States v. Wallace, 722 F.2d 415, 416 (8th Cir.1983) (citations omitted), which will be disturbed upon appeal only where there is abuse of that discretion. See Wallace, 722 F.2d at 416-17 (upholding admission of testimony over relevancy objection since no abuse of discretion). Likewise, the trial court’s determination that the danger of unfair prejudice does not substantially outweigh the probative value of the evidence is entitled to “great deference,” and “will not be reversed ‘absent a clear prejudicial abuse of discretion.’ ” United States v. Abodeely, 801 F.2d 1020, 1025-26 (8th Cir.1986) (quoting Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom., Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)).
The defendants would have us examine the relevance of these telephone records in a vacuum, ignoring the wealth of evidence in the trial record supportive of the District Court’s ruling. This we decline to do. See United States v. Marks, 816 F.2d 1207, 1212 (7th Cir.1987) (“the probative value of evidence often depends upon its being part of a mosaic”). Here there is ample evidence which, together with these phone records, tends to link the conspiracy to Miami. For example, Detective Birdwell testified that Abdul Shakur had said his drug source was in Miami; Kim Lucas made a cash purchase for Shakur of a same-day, one-way airline ticket to Miami; and Shakur’s address book included the Miami telephone number involved in these calls. All this, in addition to the large number of calls to and from this number, considered with the fact that they all were made to or received at the residences of four of the defendants, one of the defendants’ businesses, and two drug houses linked to the defendants, lends support to the District Court’s determination that the records were relevant. We see no abuse of discretion in either the District Court’s ruling on the relevancy of these records or its related determination that the probative value of this evidence was not outweighed by the danger of unfair prejudice.
V.
Abdul Shakur, Bahiya Shakur, Jamal Shakur, and Kim Lucas argue that all of the money laundering charges in counts XVII, XIX, and XXI fail to state an offense in that they fail to allege any nexus between the defendants conduct and interstate commerce. They maintain that such an allegation is essential to a charge of money laundering under 18 U.S.C. § 1956, as it is only by virtue of the commerce clause that Congress may make such conduct criminal. They further contend that because these charges fail to refer to interstate commerce, they therefore omit an essential element of the crimes charged, and consequently are fatally defective. See United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir.), cert. denied, 488 U.S. 849, 109 S.Ct. 130, 102 L.Ed.2d 103 (1988) (“An indictment is fatally insufficient when an essential element ‘of substance’ is omitted ...”). We find this argument unpersuasive.
Initially we note that the defendants did not make this challenge to the indictment until after the close of the government’s case-in-chief, and after jeopardy had attached. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977) (“jeopardy attaches when a jury is empaneled and sworn”). Although a defendant may raise at any time the argument that the indictment fails to state an offense, see United States v. Clark, 646 F.2d 1259, 1262 (8th Cir.1981), “indictments which are tardily challenged are liberally construed in favor of validity.” United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977). Furthermore, we have held that “[wjhere the sufficiency of the indictment is questioned for the first time on appeal, it will be found sufficient unless so defective that by no reasonable construction can it be said to charge the offense for which the defendants were convicted.” United States v. Czeck, 671 F.2d 1195, 1197 (8th Cir.1982). Although Kim Lucas did raise this issue with respect to count XIX following the close of the government’s evidence, we can see no reason to apply a different standard here. Jeopardy still had attached by the time she made her argument, the government and the court already had committed a great deal of resources towards the trial of this case, and the defendants do not even maintain the pretense that they were prejudiced in preparing their defenses. Therefore, we will find these counts sufficient unless they are so defective that “by no reasonable construction can [they] be said to charge the offense[s] for which the defendants were convicted.” Czeck, 671 F.2d at 1197.
We find that counts XVII, XIX, and XXI, reasonably construed, do allege a nexus with interstate commerce. We therefore do not reach the question of whether an allegation of a “nexus with interstate commerce” is an essential element in a charge under 18 U.S.C. § 1956 for laundering money. All three counts refer to specific acts of money laundering that gave rise to the charges in each of those counts. Counts XIX and XXI refer to conduct that is related expressly to the construction of a shopping mall at 1330 Brush Creek in Kansas City, Missouri. Likewise, count XVII refers to the purchase of the real estate at 1330 Brush Creek, and although it does not expressly state that it is to be used in the construction of the mall, the inference that it is to be put to such a use is, in the circumstances of this case, quite reasonable.
Furthermore, although counts XVII, XIX, and XXI do not expressly mention the words “interstate commerce,” it seems apparent that an effect upon interstate commerce is an inevitable incident of the construction of a shopping mall. Consequently, we believe that allegations that reasonably implicate the construction of a such an establishment are sufficient to constitute allegations of an effect upon interstate commerce. Defendants’ attack on the legal sufficiency of counts XVII, XIX, and XXI therefore must fail.
VI.
Abdul Shakur, Keith Tyler, and Larry Tyler challenge the instructions given to the jury with regard to count VIII. This count charges these defendants with violations of 18 U.S.C. § 924(c) in connection with the torture and shooting of Edward G. Robinson. The jury was instructed that Shakur could be guilty only vicariously for the use of the gun, but that the Tylers could be guilty either vicariously or as aiders and abettors. The instruction given with respect to Keith and Larry Tyler included both theories of liability, which were presented as alternatives. The jury also was given a general unanimity instruction, but no specific instruction was given addressing unanimity as to the alternate theories under which the Tylers could be found guilty of the section 924(c) charge. The defendants raise a number of arguments with regard to these instructions, two of which merit discussion.
A.
First, all three defendants argue that the instructions incorrectly set forth the law of vicarious liability. The relevant portion of each instruction provides that each defendant could be found vicariously liable if he “could reasonably have foreseen that a firearm would be used to assault someone as a necessary or natural consequence of the conspiracy.” Addendum to Government’s Brief at F-l, F-4, & F-7. The defendants contend that the instructions should have permitted a finding of vicarious liability only where the jury found the defendant could “specifically” foresee the “actual offense committed by [his] co-conspirator.” Abdul Shakur’s Brief at 69. Each defendant maintains that the relevant portion of his jury instruction was too general with respect to foreseeability, and thus each insists that his conviction under count VIII should be reversed. We find that the challenged instructions correctly set forth the relevant law regarding vicarious liability, and we therefore reject the defendants’ arguments.
The law on the issue of vicarious liability for crimes committed by one’s co-conspirator is set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). We recently have observed that
[ujnder Pinkerton, each member of a conspiracy may be held criminally liable for any substantive crime committed by a co-conspirator in the course and furtherance of the conspiracy, even though those members did not participate in or agree to the specific criminal act.
United States v. Golter, 880 F.2d 91, 93 (8th Cir.1989) (citations omitted). As Pinkerton establishes, this type of criminal liability may not be imposed
if the substantive offense ... was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or ... could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.
Pinkerton, 328 U.S. at 647-48, 66 S.Ct. at 1184. Here the jury was instructed that it could hold a defendant vicariously liable only if it found that a conspiracy existed, that the defendant was a member of it, that a conspirator used a firearm to assault Robinson, and that the defendant could “reasonably have foreseen” that a firearm would be used to assault someone “as a necessary or natural consequence of the conspiracy.” Addendum to Government’s Brief at F-1, F-4, and F-7. These instructions fully comply with Pinkerton’s requirements. We therefore reject the defendant’s arguments with regard to the vicarious liability instructions.
B.
The second challenge to these instructions is made by Keith and Larry Tyler who argue that their convictions on count VIII should be reversed since they could have been based upon non-unanimous verdicts. They argue that this could have occurred because both theories — vicarious liability and aider and abetter liability— were presented to the jury in the same jury instruction as alternative grounds for conviction and, although the jury was given a general unanimity instruction, they were not given a specific unanimity instruction for count VIII. At trial, however, neither defendant requested a specific unanimity instruction. See Keith Tyler’s Brief at 25; Larry Tyler’s Brief at 24. The issue therefore has not been preserved for appellate review, and we can reach it only under the plain error doctrine. See e.g., United States v. Hiland, 909 F.2d 1114, 1135 (8th Cir.1990) (where defendant neglected to object at trial, appellate review of improper prosecutorial comments is limited to plain error). Under this standard, the failure to give a specific unanimity instruction will be grounds for reversal only if that failure “was ‘such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.’ ” Hiland, 909 F.2d at 1135-36 (quoting United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985)). Defendants’ showing falls short of this exacting standard.
In general, “[t]he mere fact ... that an instruction could conceivably permit a jury to reach a non-unanimous verdict is not sufficient to require reversal when the jury has been instructed that it must reach a unanimous verdict.” Fryer v. Nix, 775 F.2d 979, 992 (8th Cir.1985). Here, although no specific unanimity instructions were given, in both of the Tylers’ cases the count VIII instructions clearly distinguish the two different theories of guilt. In both cases they completely instruct on the issue of aider and abetter liability before addressing the issue of vicarious guilt. Furthermore, in both cases the count VIII instructions preface the vicarious guilt portion of the instruction with the phrase, “[i]n the alternative.” Addendum to Government’s Brief at F-3 to F-7. Considering the language of these instructions along with the fact that the jury was given a general unanimity instruction, we cannot conclude that the District Court’s failure to provide sua sponte specific unanimity instructions for count VIII “ ‘[undermined] the fundamental fairness of the trial and [contributed] to a miscarriage of justice.’ ” Hiland, 909 F.2d at 1135-36. We therefore reject the Tylers’ claims.
VII.
Abdul Shakur challenges his consecutive sentences under counts XI and XII, arguing that they subject him to double jeopardy in violation of the Fifth Amendment. Both counts charge him with using firearms in relation to the drug trafficking charge in count X — possessing crack with intent to distribute — and both stem from the discovery of firearms found at the Sha-kur residence during the execution of the search warrant. The District Court found that the firearms charged in count XII were used for a different purpose than the firearm charged in count XI, specifically to protect Shakur, his family, and drug money as opposed to the drug lab and its contents; consequently these counts charge separate offenses under section 924(c), and consecutive sentences are therefore appropriate.
Shakur does not argue that the firearms were not used for different purposes, and he does not challenge the District Court’s finding in that regard. Rather, Shakur contends that counts XI and XII both charge him with the same offense because: first, all the firearms in question were possessed simultaneously by him, and simultaneous possession, he reasons, may support only one offense under section 924(c); and second, both counts refer to the same predicate offense, and according to Shakur, any single predicate offense may support only one offense under section 924(c). We are not persuaded.
Shakur’s first argument, that simultaneous possession of more than one firearm can give rise to only one section 924(c) offense, merits little discussion. Offenses under section 924(c) are defined in terms of using or carrying firearms in relation to a drug trafficking crime or a crime of violence, not in terms of when the firearms were possessed. See 18 U.S.C. § 924(c) (1988); cf., United States v. Jones, 841 F.2d 1022, 1023-25 (10th Cir.1988) (addressing statutes which define weapon offenses in terms of “receipt” and “possession”). We can find nothing, in the case law or in the language of section 924(c), that would warrant adoption of the argument Shakur makes here.
Shakur’s second argument is that one predicate offense may give rise to only one section 924(c) offense, regardless of the number of separate firearm uses that relate to that predicate offense.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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.
Robert Louis PORTER, Appellant, v. UNITED STATES of America, Appellee.
No. 18917.
United States Court of Appeals Fifth Circuit.
Jan. 12, 1962.
Rehearing Denied March 14, 1962.
Charles W. Tessmer, Dallas, Tex., for appellant.
Robert S. Travis, Asst. U. S. Atty., W. B. West, III, U. S. Atty., Fort Worth, Tex., for appellee.
Before BROWN, WISDOM and BELL, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
This is an appeal from a summary dismissal of a § 2255 petition for post-conviction relief from a 20-year sentence for violation of the narcotics laws by the sale of marihuana, 26 U.S.C.A. § 4742(a). The sentencing court dismissed it outright without any hearing on the ground that it appeared that the petitioner’s contentions “are frivolous and without merit, not in good faith, and state no valid ground upon which the relief sought might be granted.” Presumably the Court meant this as a paraphrase of the statute that “ * * * the files and records of the case conclusively show that [petitioner] is entitled to no relief * * 28 U.S.C.A. § 2255. The energetic efforts of Court-appointed counsel who had aided this Court by a brief, reply brief, and supplemental brief of the highest professional quality followed by oral arguments of like caliber, demonstrates to us just as conclusively that this was a case demanding a hearing. We accordingly reverse. As our reasoning requires that we discuss some phases of what might be brought out on a hearing, we would sound a special caveat: there are no prejudgments of the case and nothing said or unsaid, expressed or implied, is to be taken as a holding, or even an intimation, that upon such a hearing any particular action should or should not be taken. We order a hearing. What such a hearing compels is to be determined in the first instance by the District Court on that hearing. The propriety of any such order is for another day.
On the trial of the case leading to his conviction by a jury verdict of guilty, petitioner’s main defense was that of entrapment. This bears heavily on the matters set forth in the § 2255 motion for without all of the refinements which that concept unavoidably involves, the question is whether the accused did the act or whether police-enforcement officers got him to do the act.
In his § 2255 motion, elaborated on in his annexed affidavit, petitioner made these serious charges. He asserted that he did not have effective representation of counsel and because of this, evidence, vital and helpful to his defense, was withheld from the jury. The combination of these was such as to deprive him of the constitutionally guaranteed fair trial. These charges did not stand in mere broad conclusory terms. The operative facts were as detailed as the charges were emphatic. He set forth facts showing that on the trial of the criminal case, he was represented by counsel of his own choice whom we will call Mr. Barrister. But unknown to petitioner, Barrister was at that very time also the attorney for Glass, an officer on the Fort Worth Police Department assigned to duty on narcotics cases. At the very time of the criminal trial, Glass was the respondent in a Police Department proceeding concerning alleged improper use, handling, or disposition of narcotics by that officer. And subsequently, so petitioner stated, Glass was removed from the Police Force because of his illegal narcotic activities.
Demonstrating that the attack was not the sterile one of a defendant claiming that his lawyer could not give unfettered loyalty to his interests merely because he represented other people, good or bad, the motion went on to connect Glass up with petitioner’s case. In the plainest of words petitioner reviewed in great detail Glass’ conduct toward him. These included specific alleged incidents of Glass undertaking to extort money from petitioner by threats of baseless criminal charges; an approach by Glass in petitioner’s home, subsequent to the marihuana indictment but prior to trial, suggesting that if $500 was paid, Glass could persuade Meeks, the Government informer, not to testify. Moreover, petitioner, so he asserted, told Barrister about this and requested that Glass be called as a witness. Despite this, no effort was made by the attorney to bring this out or to call Glass on the trial.
In addition to these positive allegations of sufficiently detailed facts, the record of testimony of the criminal trial (which is properly available to trial and appellate courts in testing a § 2255 proceeding) demonstrated that Glass, though not called as a witness by either prosecution or defense, was a moving figure in the case against petitioner. The case as to each “buy” was “made” by Meeks, euphemistically referred to as a special employee, although ordinarily described as an informer. Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565. The principal Federal Narcotics Agent, Gabrys, acknowledged that the initial contact with Meeks was through Glass who “arranged the introduction between [the Agent] and Meeks.” Again, when petitioner’s home was searched the Federal Agent and Glass supervised the search. Similarly, Police Officer Hardin acknowledged that Glass was in on the initial conversations among the Agents and the Officers. Questioned concerning the dropping of charges against Meeks, the informer, Officer Hardin stated that the discussions with Meeks were by Glass who had earlier introduced the Agents to Meeks, the prospective informer-witness. Hardin’s description of the search of petitioner’s home also named Gabrys and Glass.
The story told by these accumulated court papers is this bold and startling one. A lawyer, undertaking to represent an accused, finds that the best weapon to establish entrapment is to implicate another. Unfortunately, he cannot implicate such person because that person is also a client. Stated in these terms, it does not really matter whether Glass was, or was not, called as a witness, or whether, for that matter, as one analogous to a hostile witness in civil proceedings, he could have been called. Nor is it important that Glass, if called, may not have testified to things establishing petitioner’s innocence. Cf. Weaver v. United States, 8 Cir., 1959, 263 F.2d 577, 579, cert. denied, 359 U.S. 1014, 79 S.Ct. 1154, 3 L.Ed.2d 1038.
What was involved was the more basic thing. The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others. Glasser v. United States, 1942, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680; Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593; MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592, affirmed on rehearing en banc, 289 F.2d 928; Birchfield v. United States, 5 Cir., 1961, 296 F.2d 120 [No. 18892, Nov. 17, 1961], Lott v. United States, 5 Cir., 1955, 218 F.2d 675; Craig v. United States, 6 Cir., 1954, 217 F.2d 355, 358, 359; Tucker v. United States, 9 Cir., 1956, 235 F.2d 238; United States v. Harris, S.D.Calif.1957, 155 F.Supp. 17; Berry v. Gray, W.D.Ky., 1957, 155 F.Supp. 494; Johns v. Smyth, E.D.Va., 1959, 176 F.Supp. 949.
Of course such things as this should never happen, and the place to stop it is the professional conscience of the advocate involved. A Court may not countenance it and must, on the contrary, take effective action just as we are certain the careful Judge below would have done had the facts been, known at or before the commencement of the criminal trial. But where this has been allowed to occur, either through a calloused conscience of the attorney, or ignorance of the true facts by the Judge, the trial is not the fair one demanded by the Constitution. And this is so without regard to the presence or absence of any action of a strictly governmental nature which can be ascribed to the prosecution as the transgressing agency or imputed to the trial court on traditional notions of error on the Judge's part.
The charges made in the § 2255 motion were both serious and legally significant. Could the Judge reject them without a hearing ? The answer to that is found in the words of the statute and the uniform decisions of this Court. The statute prescribes that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *,” the Court after notice shall hold “a prompt hearing thereon” and “determine the issues * * * of fact * * * ” 28 U.S.C.A. § 2255.
Here no controversion of any kind was filed by the Government. The record— encompassing everything which the statute describes as the “files and records of the case” — simply did not touch one way or the other upon these charges made for the first time in the § 2255 papers. The Court, thus, had no means by which to say that the records conclusively showed such facts to be untrue. And we are certain that the Judge did not mean to imply that apart from the court records he knew them to be untrue. What the Judge did was somehow to reverse the demands of the statute which requires a hearing unless, to declare in effect that a hearing would not be held unless. He was perhaps led into this erroneous view by a failure to distinguish carefully between the new and serious matters asserted in the § 2255 motion and those previously urged and rejected by the same Judge in denying bail on the appeal from the original conviction and by this Court in dismissing that appeal as frivolous. Porter v. United States, 5 Cir., 1959, 272 F.2d 695.
Whether these serious assertions are or are not true, no one yet knows. But since the record does not demonstrate conclusively that they are not so, the trial Court, as we have many times held, was obligated to hold a hearing to ascertain the truth of these charges set forth with adequate factual particularity. Because this fundamental principle seems so often to be overlooked by busy, conscientious trial Judges as they do their level best to make sense out of so many of these informal, sometimes illegible, prisoner-composed papers, we set out this list of cases, in addition to others in this opinion, of the past decade. Callahan v. United States, 5 Cir., 1961, 297 F.2d 79 [No. 19015, Dec. 13, 1961]; Corbett v. United States, 5 Cir., 1961, 296 F.2d 131 [No. 18939, Nov. 29, 1961]; Alexander v. United States, 5 Cir., 1961, 290 F.2d 252; Meadows v. United States, 5 Cir., 1960, 282 F.2d 942, 943; Brown v. United States, 5 Cir., 1959, 267 F.2d 42; Steinberg v. United States, 5 Cir., 1958, 256 F.2d 143; Kennedy v. United States, 5 Cir., 1957, 249 F.2d 257; Gregori v. United States, 5 Cir., 1957, 243 F.2d 48; Parks v. United States, 5 Cir., 1956, 233 F.2d 321; Motley v. United States, 5 Cir., 1956, 230 F.2d 110; Williams v. United States, 5 Cir., 1955, 227 F.2d 48; Smith v. United States, 5 Cir., 1955, 223 F.2d 750; Sanders v. United States, 5 Cir., 1953, 205 F.2d 399; Ziebart v. United States, 5 Cir., 1950, 185 F.2d 124; James v. United States, 5 Cir., 1949, 175 F.2d 769.
It follows, therefore, that the cause must be remanded for a hearing and judicial determination of these charges involving knowledge and actions of petitioner, Glass, Barrister and perhaps others. Without undertaking to bluprint the hearing, it is obviously one which reasonably requires the presence of petitioner.
Reversed and remanded.
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_usc1
|
42
|
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.
Victor Rosario CARTAGENA, Plaintiff, Appellant, v. SECRETARY OF the NAVY of the United States, Defendant, Appellee.
No. 79-1501.
United States Court of Appeals, First Circuit.
Argued Feb. 6, 1980.
Decided March 6, 1980.
Norman Torres Vidal, San Juan, P. R., on brief for appellant.
Vilma J. Vila Selles, Asst. U. S. Atty., San Juan, P. R., argued, with whom Jose A. Quiles, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, WISDOM, Senior Circuit Judge, CAMPBELL, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
PER CURIAM:
We affirm the district court’s decision and adopt its opinion. See Appendix.
APPENDIX
United States District Court
D. Puerto Rico.
Victor Rosario Cartagena,
Plaintiff,
v.
The Secretary of the Navy,
Defendant.
Civ. No. 78-195.
DECISION AND ORDER
TORRUELLA, District Judge.
Plaintiff is a native born Puerto Rican who sought promotion to position of Fire Chief, Naval Security "Group Activity, Sabana Seca, Puerto Rico. Plaintiff was not promoted and instead a former Fire Chief, a continental born American, was repromoted to this vacant position. Plaintiff claims the action in not promoting him was discriminatory in nature and grounded solely on the basis of national origin. This action is brought pursuant to Title VII of the Civil Rights Act of 1964 at 42 U.S.C. §§ 2000e-2000e-17, as amended by the Equal Employment Opportunity Act of 1972, Pub.L. No.92-261, 86 Stat. 103. Jurisdiction is founded on 42 U.S.C. § 2000e-5(f)(3) and § 2000e-5. It is now before us on Defendant’s Motion for Summary Judgment. Plaintiff’s opposition also prays for Summary Judgment in its favor.
Plaintiff’s cause of action is predicated on the theory that he was denied appointment to the position of fire chief solely because he is a native born Puerto Rican. The thrust of his argument, and indeed the basic premise of his cause of action, is that he was in fact the better qualified candidate but that the appointment was conferred on someone else taking into consideration factors other than qualification and ability. The Defendant counters that Plaintiff initially failed to establish his qualifications. Even accepting that Plaintiff was fully qualified, the Defendant contends that applicable federal statutes and regulations mandated that another applicant be accorded priority consideration and it is on this basis that Plaintiff was not appointed. Defendant emphatically denies that its action in not promoting Plaintiff was in any way tainted with a discriminatory animus. Our inquiry turns to whether Plaintiff’s allegations or proffered evidence can sustain a Motion for Summary Judgment.
Section 2000e-2(a)(l), 42 U.S.C., provides that it shall be unlawful:
“(1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;”
In similar fashion Section 2000e-16(a) states that:
“(a) All personnel actions affecting employees or applicants for employment in military departments as defined in Section 102 of Title 5, . shall be made free from any discrimination based on race, color, religion, sex, or national origin.”
When faced with a claim of employment discrimination a Court’s inquiry into the merits of a claim, i. e., the order and nature of proof required for relief, must necessarily be scrutinized under the guidelines established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas a plaintiff bears an initial burden of establishing at the outset a prima facie case of illegal discrimination. To do so he must in general terms first demonstrate:
(1) that he belongs to a protected class (here national origin)
(2) that he applied and was qualified for the promotion for which the vacancy was announced.
(3) that despite these qualifications he was rejected.
(4) that after his rejection the position remained open; or in our particular setting, that a lesser qualified person was hired before him. (See: McDonnell Douglas, supra, p. 802, 93 S.Ct., p. 1824.
Once a Plaintiff meets this initial burden the inference is presented that an illegal discrimination has occurred. See: Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). But a prima facie showing is not the end but the beginning of the inquiry. “A prima facie under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction, supra, at p. 577, 98 S.Ct., at p. 2949.
The second step of a McDonnell Douglas analysis is activated after a prima facie case has been presented. At this point the burden shifts to the employer and he must then “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at p. 802, 93 S.Ct. at p. 1824. It is vital to note that the burden resting on the employer is not that of proving a total absence of discriminatory motive in not hiring or promoting, see: Bd. of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216, vacating Sweeney v. Bd. of Trustees of Keene State College, 569 F.2d 169 (C.A. 1, 1978), “. . . rather it is a burden of production”, Loeb v. Textron, Inc., 600 F.2d 1003, 1011 (1st Cir. 1979). “[U]nder Furnco and McDonnell Douglas the employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘produc[es] evidence of legitimate nondiscriminatory reasons.” Sweeney, supra, 439 U.S. at 25 n.2, 99 S.Ct. at 296; see also: Loeb v. Textron, Inc., supra, at p. 1011.
The third step of the McDonnell analysis affords the Plaintiff a “fair opportunity to show that [the employer’s] stated reason for [plaintiff’s] rejection was in fact pretext.” McDonnell Douglas, 411 U.S. at p. 804, 93 S.Ct. at 1825. With respect to final adjudication of relief: “The ultimate burden of persuasion on the issue of discrimination remains with the Plaintiff, who must convince the Court by a preponderance of the evidence that he or she has been the victim of discrimination.” Sweeney, 569 F.2d at 177. See: Loeb, supra; Blizard v. Fielding, 572 F.2d 13, 15 (C.A. 1, 1978). Against this background of shifting burdens and order of proof we proceed to analyze the pending Motions.
We first examine those material facts not generally in dispute. On February 6, 1976 Vacancy Announcement Number 76-008 was issued on the position of Fire Chief, Naval Security Group Activity, Sabanea Seca. Certain qualification requirements were listed, which included: general experience — 1 year, firefighting experience — 2V2 years, supervising experience — V2 year. This position was classified as Fire Chief GS-081-07. Plaintiff, who at the time was a firefighter, believed he met these requirements and applied for the promotion. Three other persons also filed applications under this vacancy announcement. Of these applicants three were continental born Americans and one, Plaintiff, was a native born Puerto Rican. Three of the applicants were found disqualified because they did not meet the specialized qualification requirements, to wit, six months of supervisory experience. See Exhibit C, pgs. ■ 7-17. On this vacancy John Q. Massey was selected because of the ineligibility of the other applicants. Thereafter Plaintiff filed a request that John Q. Massey’s promotion be revoked because he did not meet the physical requirements for the job and because Plaintiff felt himself to be the superi- or candidate. No action was taken on this request because immediately thereafter the original announcement was cancelled and a new Vacancy Announcement issued which eliminated the requirement for supervisory experience. On this second vacancy the Personnel Office of the Roosevelt Roads Naval Station certified John Q. Massey’s name as a priority referral. The basis for this priority was because John Q. Massey had served as Fire Chief during 1960-1973. In accordance with the Federal Personnel Manual, Subchapter 4-3-c(2) such demotion without personal cause entitled Mr. Massey for special consideration for repromotion. See: Appendix to Answers to Defendant’s Interrogatory. Defendant states that Mr. Massey was selected in observance of this directive.
On the basis of the record before us it is difficult to find that Plaintiff has established a prima facie case of illegal discrimination under McDonnell Douglas. There is no dispute that Plaintiff is a native born Puerto Rican and as such this is distinguishable from other ethnic nationalities, so as to constitute a definable class. But this is the only requirement that Plaintiff has fully met. The second McDonnell requirement compels a Plaintiff to show that he was qualified for the position sought. Plaintiff’s first application for the promotion failed to state the requisite supervisory experience. Insomuch as he failed to show he was qualified he has, a fortiori, failed to show that he was rejected despite being qualified.
Assuming, arguendo, that Plaintiff had in fact presented a prima facie case of discrimination, Defendant’s explanations for the rejection and the promotion of John Q. Massey present a sufficient rebuttal under the second step of a McDonnell Douglas analysis.
First, John Q. Massey was promoted under a facially neutral seniority system: Subchapter 4-3 c(2) of the Federal Personnel Manual. Title VII exempts such systems from constituting discrimination. Under 42 U.S.C. § 2000e-2(h) “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . provided that such differences are not the result of an intention to discriminate . . . ” Nowhere has Plaintiff presented or argued that there is any discriminatory animus in the federal government’s policy of according special priority in repromoting those who were initially demoted for such reasons as a reduction in force. This is a neutral seniority objective. Cf. Watkins v. United Steelworkers of Amer. Local No. 2369, 516 F.2d 41, 45-49 (C.A. 5, 1975). Defendant Navy was therefore justified in utilizing it in filling vacancies. See gen.: Teamsters v. United States, supra.
Once the Defendant has justified or explained his actions, a Plaintiff must show that the “reason so articulated or stated is a mere pretext or ‘cover up’ for what was in truth a discriminatory purpose.” Loeb v. Textron, Inc., supra, p. 1012. On a Motion for Summary Judgment this justification would best be placed in issue by an adequate offer of proof that the justification was in fact pretext. In the case at bar Plaintiff makes no mention of a McDonnell analysis. There is, however, lengthy argument on the qualifications of the applicant promoted instead of Plaintiff. It is presented that John Q. Massey is a disabled veteran with a 30% disability pension from the Veterans Administration. The record contains a Medical Report dated July 18, 1962, Dr. Luis Pagan, that found John Q. Massey physically disqualified for a fire fighter position. The record further contains an accident report by Dr. Rodriguez Taveras, June 11, 1974, which reveals that Massey suffered a hand fracture which has caused a ten percent disability in its use. Plaintiff’s Exhibit 10-A. Lastly, Plaintiff draws the Court’s attention to the United States Civil Service Commission Regulations on the physical requirements for firefighting personnel. These read thus:
“The duties of these positions require arduous physical exertion under rigorous and unusual conditions. Persons appointed will be subject to extreme physical danger and to irregular and protracted hours of work. Any structural or functional limitation or defect which tends to interfere materially with a high degree of physical activity will disqualify.
“Except where there is clear medical evidence of complete recovery, current receipt of disability retirement compensation from any source, or of a Veterans Administration non-service pension, for any physical condition which is disqualifying in the physical requirement statement will be considered prima facie evidence of failure to meet the physical standards for these positions.” Plaintiff’s Exhibit 6.
From these factors Plaintiff would purport to show that pursuant to Subchapter 4-3 c(2) of the Federal Personnel Manual Defendant could, and should, have rejected Massey because these were “persuasive reasons for doing so.” Plaintiff would attribute a discriminatory animus in not so rejecting Massey.
Contrary to Plaintiff’s position, and irrespective of the excerpts from the record which Plaintiff highlights, the record does not establish that John Q. Massey was unfit to perform the duties of fire chief. The most recent medical report of record, Dr. Payne, April 12, 1977 found Massey’s impairments “not sufficient to interfere with normal performance of duties as fire chief.” See: Appendix to Interrogatories, Exhibit A, p. 7. The Report recommended that Massey be accepted as fit for duty. With respect to Dr. Pagan’s report on disability Plaintiff has conveniently overlooked the fact that the Bureau of Retirement and Insurance of the United States Civil Service Commission ruled that Massey was not disabled for his position. This was reaffirmed by a Report dated June 21, 1963. It should further be noted that when Massey did retire it was for having reached the mandatory retirement age and not for any physical disabilities. The conclusions of Dr. Pagan were thus rejected and overruled by the Commission and therefore do not reflect the true meaning of Massey’s medical record. We are reminded that the present action is a claim of illegal discrimination not a judicial review of an administrative finding on Massey’s disability.
With respect to the other arguments raised by Plaintiff two factors are worth noting. First, insofar as the medical reports of record reveal Massey to be “fit for duty” they rebut any presumption of disability created by the Civil Service Manual. Second, since John Q. Massey was a veteran these requirements are generally waived, see: 5 U.S.C. §§ 3312, 3351, 3363, cf. also: Massachusetts v. Feeney, 434 U.S. 884, 98 S.Ct. 252, 54 L.Ed.2d 169 (1979).
We make one last observation. Defendant has presented evidence to show what amounts to a prima facie case of nondiscrimination within this agency. The “Manpower Listing and Analysis of National Origin of All Civilian Employees at Naval Security Group Activity, Sabana Seca,” reveals that of 60 civilian employees 56 or over 93% are Puerto Rican, 3 or 5% are Continental born American and 1 is of a different national origin. In Teamsters v. United States, supra, the Court stated: . . it is unmistakably clear that ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” Id., 431 U.S. at 339, 97 S.Ct. at 1856 (citations omitted). And while statistics are “not irrefutable”, id. at 340, 97 S.Ct. at 1856, Plaintiff has presented nothing along these lines which would allow the Court to question their validity, accurateness, or relevance to a claim of discrimination in this agency.
For all the above cited reasons we find that Plaintiff has failed to meet the McDonnell Douglas test at two junctures. First, Plaintiff has not proved, nor presented evidence to establish a genuine issue of material fact, to establish that he presented himself as qualified when he first applied for the promotion. At another level, when Defendant set forth a legitimate nondiscriminatory reason for the nonpromotion, Plaintiff failed to adduce sufficient facts that would put in factual issue the question of “pretext or coverup.” In reaching the above conclusions we are not unmindful that summary judgment is affordable only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with.the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56, Fed.R.Civ.P. See gen.: Thyssen Plastik Anger KG v. Induplas, Inc., 576 F.2d 400 (C.A. 1, 1978); Hahn v. Sargent, 523 F.2d 461 (C.A. 1, 1975); Redman v. Warrener, 516 F.2d 766 (C.A. 1, 1975). When a Plaintiff has failed to present sufficient evidence “to permit a trier of fact to draw an inference of [racial] discrimination” summary judgment is appropriate. See e. g.: Mosley v. United States, 425 F.Supp. 50, 60 (N.D. Cal.1977).
Defendant’s Motion for Summary Judgment is Granted. The Clerk of the Court shall enter Judgment accordingly.
It Is So Ordered.
In San Juan, Puerto Rico, this 22nd day of July, 1979.
. Plaintiff’s employer, the Department of the Navy is a military department listed under 5 U.S.C. § 102.
. The wording of the McDonnell Douglas test has been slightly altered to better reflect the factual setting before us. McDonnell dealt with racial discrimination. The present action deals with alleged discrimination based on national origin. The McDonnell Douglas test is not an “inflexible formulation.” Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1976). It will necessarily vary according to the factual situation presented. McDonnell. Douglas, 411 U.S. p. 802, 93 S.Ct. p. 1824. The McDonnell Douglas analysis “is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).
. Defendant, in its Motion for Summary Judgment, explains this cancellation as an attempt by the Navy Agency to widen the area of consideration and include more names in the list of eligibles. The second Announcement was for appointment at a lower level, with promotion to the higher level to come within twelve months upon demonstrating ability to perform at this higher level.
. Said section reads thus: “(2) Special consideration for repromotion. An employee demoted without personal cause is entitled to special consideration for repromotion in the agency in which he was demoted. Although he is not guaranteed repromotion, ordinarily he should be repromoted when a vacancy occurs in a position at his former grade (or any intervening grade) for which he has demonstrated that he is well-qualified, unless there are persuasive reasons for not doing so. Consideration of an employee entitled to special consideration for repromotion must precede efforts to fill the vacancy by other means . ”
. As stated before the Announcement called for six months of supervisory experience. Plaintiff’s resume states only that: “In 1961 I was promoted in grade, and in my new position occasionally I assume higher responsibilities including Acting Fire Chief.” Defendant’s Exhibit C, p. 11.
. That is accepting his contention that a properly presented resume would have shown him to have the required experience. We further examine Plaintiff’s claims in light of the second announcement which required no supervisory experience.
. We find that even if a prima facie case existed it has been successfully rebutted under the second step of a McDonnell analysis. This does not, however, mean that the first step could have been bypassed. See: Blizard v. Fielding, 572 F.2d 13 (C.A. 1, 1978).
. The Report lists John Q. Massey as suffering from Chronic Sinusitis, multiple sclerosis, infantile paralysis in childhood, ulcer. This disability determination was successfully appealed by Massey.
. For reasons discussed above we find that they are not sufficient to raise an issue of fact on disability.
. Massey retired on January 31, 1978. See: Def’s Exh. A. Num. 3.
. The extreme weakness of Plaintiff’s argument is also manifested by the fact that he purports to show John Q. Massey’s disqualification for promotion in 1976 with Medical reports over fourteen years old and after having done so reaches the wrong conclusion with them.
. In reversing Dr. Pagan’s findings the Bureau of Retirement and Insurance relied in part on the reports of: Dr. Diaz Cruz, October 13, 1962 which concluded: “Mr. Massey enjoys very good health and has always been able to do ordinary work, including jobs that require considerable physical effort"; Dr. Vicens, September 9, 1962, which stated: “. . .1 find no active disease in the system. It is my opinion that he can perform his present duties at full capacity”; Dr. Quilichini, September 7, 1962, which states: “He has enjoyed very good health and has always been able to do ordinary work, including jobs that require considerable physical effort.” Also of relevance is the report of Massey’s superior officer during this period of time: “Mr. Massey has capably performed these duties and I am anxious to have him continue in this capacity.” See: Copy of John Q. Massey’s Civil Service Retirement File as filed with the Clerk of the Court pursuant to 5 C.F.R. § 831.106(2)(8).
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_respond1_1_4
|
J
|
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)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
SUN-MAID RAISIN GROWERS OF CALIFORNIA, a Corporation, Appellant, v. CALIFORNIA PACKING CORPORATION, a Corporation, Appellee.
No. 16223.
United States Court of Appeals Ninth Circuit.
Dec. 14, 1959.
Boyken, Mohler & Wood, Gordon Wood, San Francisco, Cal., for appellant.
Pillsbury, Madison & Sutro, George A. Sears, James Michael, Marshall P. Madison, San Francisco, Cal., for appel-lee.
Before BARNES and MERRILL, Circuit Judges, and ROSS, District Judge.
MERRILL, Circuit Judge.
Sun-Maid seeks relief from an injunction issued by the District Court on June 15, 1936, enjoining it from using the trademark “Sun-Maid” otherwise than upon packages containing raisins or raisin products. It has taken this appeal from an order of the District Court denying its motion to dissolve the injunction. The motion was opposed by appellee. Appellant contends that appellee has parted with all interest in the subject matter of the suit; that it had no standing to oppose the motion to dissolve; that under these circumstances denial of the motion was error.
On June 15, 1915, the predecessor of appellee instituted an action in the United States District Court for the Southern District of New York against the predecessor of appellant, complaining that the mark “Sun-Maid” was an infringement of its mark “Sun-Kist.” The action was settled by an agreement by which the predecessor of appellant covenanted to limit the use of the mark “Sun-Maid” to raisins and raisin products.
In 1929, appellee instituted an action in the District Court below, claiming that appellant had violated the agreement by which the former suit had been settled. This action culminated in the injunction now sought to be dissolved.
On September 20, 1950, appellee sold all of its right, title and interest in its trademark “Sun-Kist” to California Fruit Growers Exchange, now called Sunkist Growers, Inc.
Appellant contends that the purpose of the injunction was to protect the trademark “Sun-Kist”; that, since appellee has parted with that trademark, it has no right to continue to enforce the injunction; that to permit such enforcement would amount to an illegal restraint on trade. Its motion to the District Court was in the alternative: to dissolve the injunction or to join Sunkist Growers as a party.
The District Court ruled that no grounds for dissolution had been shown; that it would be inequitable, in the absence of valid grounds for dissolution, to relieve appellant from the restraint of the injunction; that it would not be fair to substitute a new party plaintiff and expose that new party to the possible necessity for re-litigation of a judgment which had stood as final for over twenty years.
We find no error or abuse of discretion in this ruling.
The assignment of the trademark did not in and of itself cause all rights under the contract and injunction to vanish magically as in a puff of smoke. Cf. Griffith v. Bronaugh, 1829, 1 Bland, Md., 547; Hawley v. Bennett, 1833, 4 Paige, N.Y., 163; Collier v. Newbern Bank, 1836, 21 N.C. 328. Unless some further ground for dissolution be shown to exist, those rights remain somewhere: either in appellee or in Sunkist Growers or in both. No matter where they may be, denial of the motion to dissolve the injunction upon this sole ground was proper.
As to the motion for joinder, we are again faced with the proposition that no ground for dissolution other than the mere fact of assignment has been asserted.
Substitution or joinder is not mandatory where a transfer of interest has occurred. Rule 25(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Virginia Land Co. v. Miami Shipbuilding Co., 5 Cir., 1953, 201 F.2d 506, 508; cf. Liberty Broadcasting System v. Albertson, D.C.W.D.N.Y.1953, 15 F.R.D. 121. Since appellant has failed to state facts showing any basis for a dissolution of the injunction as against Sunkist Growers, we find no error or abuse of discretion in the refusal of the District Court to grant substitution or joinder.
While it is required (Rule 17(a), Federal Rules of Civil Procedure) that every action be prosecuted in the name of the real party in interest, this action has already proceeded to final judgment. Until valid grounds for dissolution are asserted, appellant’s attack upon the finality of the judgment must fail, no unresolved dispute can be said to exist, and the necessity for substitution or joinder has not been established.
Affirmed.
. Issued pursuant to opinion of this Court in California Packing Corporation v. Sun-Maid Raisin Growers of California, 9 Cir., 81 F.2d 674.
. Permission to proceed in a matter affecting a final judgment having been granted by this Court in Sun-Maid Raisin Growers of California v. California Packing Corporation, 9 Cir., 244 F.2d 895.
. 165 F.Supp. 245, 255-256.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
songer_geniss
|
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. 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".
JOGGER MFG. CORPORATION v. ROQUEMORE.
No. 7274.
Circuit Court of Appeals, Seventh Circuit.
March 6, 1941.
Rehearing Denied April 14, 1941.
Philip M. Aitken, of Lincoln, Neb., and J. Rex Allen, of Chicago, 111., for appellant.
Thorley von Holst, of Chicago, 111., for appellee.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
EVANS, Circuit Judge.
Defendant denied infringement of plaintiff’s two patents, Nos. 1,694,638 and 1,-863,465, which cover a jogger, which is a device attached to a multigraph or a print ing press and which stacks the papers coming through in even piles. Mechanical joggers have been used in connection with printing machines for many years, and one patent set out in the record goes back to 1879. When these patents were issued, plaintiff was engaged in the manufacture of joggers for its customers, among whom was American Multigraph Company, whose successor was Addressograph Multigraph Corporation. Both are hereinafter referred to as M Company.
Plaintiff sold its business to M Company, and executed an exclusive license, for the life of the patents, to make two types of joggers. M Company sold joggers with its machines. One was sold to defendant, who contends that this j ogger which it later sold was within the scope of the license from plaintiff to M Company.
The defense of infringement is double-barreled. It is argued: (a) "The M Co. was licensed by plaintiff to make the machine such as was sold. If so there was obviously no infringement, (b) The machine sold did not, in fact, infringe either patent.
There was an additional defense, partial or complete, — plaintiff’s laches.
The court found against defendant on both infringement contentions, and entered the usual decree of accounting and injunction.
The first argument on infringement turns on the scope of the language in the license contract of August 10, 1931:
“To make, use, and sell joggers known as Models 112 and 1121 and embodying the invention of said patent or any reissue thereof.”
What was meant by the words “Models 112 and 1121”?
The aforesaid agreement was executed after negotiations wherein plaintiff sought to sell its business to M Company, which was built around the two patents.
In addition to granting an exclusive license for the life of the patent, plaintiff sold
“its drawings * * * parts, castings, jigs, tools and dies now existing and either used or usable in the manufacture of Models 112 and 1121 joggers.”
Plaintiff seeks to hold M Company and its customers to joggers whose size corresponds exactly with Models 112 and 1121, whereas M Company contends that joggers were of two classes, one for use in the office equipment field and the other for the commercial printing field. Its license covered the first named' field (the office equipment) with two exceptions provided in the last clause of paragraph one. M Company was engaged in the office equipment field only, and it had ordered joggers from the plaintiff for its multigraphs, to which the joggers were attached. It sold two multigraphs principally, Nos. 66 and 86, and joggers 112 and 1121 were the proper size and width to be attached to these machines. M Company also made a third multigraph model known by it as 57, but its sales were so small that the joggers which plaintiff made for it had not yet been given a number.
Plaintiff’s argument of infringement is based on difference in sizes only. All the joggers are the same, but the dimensions differ. The one sold by defendant differed from jogger models 112 and 1121. It was made by M Company for a different multigraph.
Three paragraphs of the agreement are herewith set forth:
“Whereas, Multigraph is desirous of obtaining a license to manufacture certain devices or joggers known as Models No. 112 and 1121, and covered by the aforesaid patent and application for Letters Patent, to be applied to their products as from time to time manufactured.
“Whereas, The said jogger is desirous of licensing the said Multigraph to manufacture, use and sell two types of joggers known as Models No. 112 and 1121 for attachment to the products from time to time manufactured and sold by Multigraph; and
* * * * * *
“1. Jogger hereby grants unto Multigraph the exclusive license to make, use and sell joggers known as models 112 and 1121 and embodying the invention of this patent or any re-issue thereof, and of any patent that may be issued on said application or any division, renewal or reissue thereof, and of any patents that may hereafter be owned by Jogger on any improvements thereof, or substitutions therefor, throughout the United States and foreign countries, and to the full end of the term of each of said patents, provided, however, that Multigraph shall have no right to manufacture said Joggers for M-24 and Multicolor type presses
M Company emphasizes the language “to be applied to their products as from time to time manufactured.”
Still more significant is the last clause of paragraph 1,
“provided, however, that Multigraph shall have no right to manufacture said Joggers for M-24 and Multicolor type presses.”
We feel justified in finding (from a reading of the entire contract), as well as from the purpose and object of the agreement, that plaintiff was selling its business and granting an exclusive license to the defendant to make and sell joggers known as Models 112 and 1121, to be used by M Company “to be applied to their products as from time to time manufactured.” In other words, M Company was not restricted to its so-called models 66 and 86, but, as and- when the trade demanded different sizes, it could and would produce such multigraphs, and it was licensed by plaintiff to make, use, and sell models to be attached to such multigraphs in the office equipment field. It is' significant that instead of specific joggers, the license to make which was granted, the parties used the terms “models,” “types,” and “known as models.”
Most significant is the fact that after granting to M Company the exclusive license to make joggers in paragraph 1, it excepted therefrom, in the same paragraph, <<j°gg'ers f°r M-24 and Multicolor type presses.” If M Company were restricted to a jogger of the exact sizes and dimensions of 112 and 1121, why except joggers which were not identical therewith? Yet joggers for M-24 and Multicolor type presses were excepted. If said grant were limited to the exact structures of 112 and 1121, the parties would not except two other known makes, neither of which was of the dimensions of 112 or 1121. Then, too, it approaches the absurd to assume the parties restricted M Company to machines of the exact dimensions it used as attachments to its multigraph models 66 and 86, when, at the time, M Company had an additional model 57 and was preparing for the trade two or three other models which were not of the same dimensions and which were by it later numbered 206, 296, and 300.
These different models called for different sized attachments. The frame in which the jogger was situated, which was the distinctive type of multigraph 66 and 86 for joggers 112 and 1121, was unpatented and unpatentable. The jogger operated the same in all models, but the attachment looked better and probably spaced better when its dimensions were like those of the multigraph.
There is a fatal inconsistency between the provision which followed the word “provided” and a construction of the contract which limited M Company to joggers of the exact dimensions of 112 and 1121. In other words, joggers for M-24 could not be used with the specific joggers known as 112 and 1121. Therefore, there could be no possible explanation for excepting “joggers for M-24,” if it were not intended that M Company might make joggers of the kind like 112 and 1121, but differing in size from them. Strongly supporting this view is the action of plaintiff. M Company began making different sized frames for its joggers immediately after the sale and license contract was executed. This was in 1931. It continued to make and sell these various models (different sizes) with plaintiff’s knowledge. Not until 1939 did plaintiff bring this suit.
Other strong and persuasive reasons, there are, for supporting the conclusion that the jogger in question was within the protection of the license grant to M Company, but we feel they need not be set forth.
We are not satisfied that infringement of Claim 2 of Patent No. 1,694,638 is established.
Claim 2, with each element separately stated, reads:
“(1) a frame,
“(2) movable bars supported by the frame,
“(3) plates carried by said bars, having angularly disposed slots therein, .
“(4) brackets on the frame,
“(5) longitudinal plates supported by the brackets each having down-turned apertured ends
“(6) jogger plates, having arms passed through the apertured ends,
“(7) blocks carried by the arms,
“(8) and rollers carried by the blocks and movable in the slots.”
Defendant contends that it has neither element 4 nor 5. We think it is clear that it does not have element 5. The plaintiff states that said element “is functionally present.” This is not sufficient. The combination may produce the same results, yet by a different element. The test of infringement of a product patent is presence of each element or its equivalent. It is clear that “longitudinal plates supported by the brackets, each having turned down apertured ends” is not met by, and plaintiff’s president concedes it was not met by, the accused structure which had but one turned down apertured end.
Defendant’s structure did not have a. bracket attached to the frame nor was its frame attached to the bracket. It did not have downward turned apertured ends.
It is fairly inferable from the prior art that plaintiff was required to narrow its claim and limit it to the disclosed and described invention which included elements 4 and 5. This made it easier for an infringer to avoid infringement, but without its insertion plaintiff was confronted by a charge of invalidity.
Claim 2 of Patent No. 1,694,638 was not infringed by defendant’s accused jogger.
The asserted infringement oí the second patent, No. 1,863,465, is met by the same objection and the same argument. The claims are extremely narrow and in the nature of improvement claims. One is herewith set forth:
“1. The combination with a sheet stacking apparatus having a stack-supporting table and jogging means for successively aligning the edges of sheets being stacked, of a table lowering mechanism comprising a rotatable shaft operatively connected to and for vertically moving said table, manual means for directly engaging said shaft, a second rotatable shaft geared to said first mentioned shaft, means for automatically disengaging said first and second shafts upon rotation of said manual means in one direction, a pivotally mounted actuating arm, a pawl mounted thereupon, a ratchet wheel fixedly mounted on said second shaft, a shroud adjustable on said ratchet wheel to predetermine the number of teeth thereof which are engageable by said pawl, and a reciprocating arm for direct connection with said actuating arm and said jogging means.”
In it there are eleven elements, and each is specific and detailed. The defendant says it uses a cam instead of a shroud; that its cam is adjustable on a shaft and not on the ratchet wheel. Counsel for appellant asserts another difference which we have been unable to refute. We therefore must accept it. It is this:
“There is in the accused structure no such reciprocating arm directly connecting the jogger means and the pawl actuating arm * * * but, on the contrary, the reciprocating arm, which in defendant’s device actuates the jogger means, is quite far removed from the means that operates the pawl actuating arm and is actuated by something else, the shaft 4 and arm 4a. Even though they may owe their movement to the same means, one part of the device directly actuates the jogger means, and a separate and distinct means, separated quite a distance laterally from the jogger actuating means, actuates the pawl actuating arm.”
Without going into the details of each claim we content ourselves with saying that plaintiff’s patent is extremely narrow and its infringement is not shown. Plaintiff’s counsel has rather adroitly interchanged the functions and the elements of the accused devise, thereby creating some confusion as to their equivalency. Functions may well be investigated and examined to ascertain the range of mechanical equivalents. But there is no basis for asserting infringement because of similarity of functions. There must be similarity of elements which perform the desired functions before infringement is shown. We find there was no infringement of the second patent.
The decree is reversed with costs, with directions to dismiss the complaint.
This opinion is written for the parties and their attorneys. Others seeking a complete copy of the two patents, the patents of the prior art, the drawings and the testimony, may find them in the office of the Clerk.
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_stpolicy
|
D
|
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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" 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".
Gordon L. ANDERSON, Appellant, v. UNITED STATES of America, Appellee.
No. 18306.
United States Court of Appeals Eighth Circuit.
Dec. 2, 1966.
Rehearing Denied Dec. 19, 1966.
Ronald L. Haskvitz, Minneapolis, Minn., for appellant.
Sidney P. Abramson, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Patrick J. Foley, U. S. Atty., was with him on brief.
Before VOGEL, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.
VOGEL, Chief Judge.
Defendant-appellant, Gordon L. Anderson, was charged in a 5-count indictment with mail fraud in violation of 18 U.S.C.A. § 1341. At the conclusion of a jury trial he was found guilty on all five counts of the indictment and was given a general sentence of five years in prison. The trial court denied motions to dismiss and for a new trial. Defendant appeals from the judgment of conviction, claiming six grounds of error entitle him to reversal: (1) Insufficiency of evidence ; (2) the denial of defendant’s motion to dismiss Count No. 5; (3) the denial of due process through the prosecutor’s improper reference to a prior indictment; (4) the improper exclusion of evidence; (5) the trial court’s improper comment upon some evidence; and (6) the denial of a motion for new trial based upon newly discovered evidence. We affirm.
I. Insufficiency of the evidence. The general rule must again be recognized that all evidence is to be viewed in a light most favorable to the government as the prevailing party and all reasonable inferences must similarly be resolved in its favor. Koolish v. United States, 8 Cir., 1965, 340 F.2d 513, 519, cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724; Smith v. United States, 8 Cir., 1964, 331 F.2d 265, 278, cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34, rehearing denied, 379 U.S. 940, 85 S.Ct. 321, 13 L.Ed.2d 350. Appellant’s argument that the evidence was insufficient to sustain the verdict is essentially two-pronged in scope. In the first place, he insists that it was necessary for the government to prove beyond a reasonable doubt that National Tobacco Company, hereinafter referred to as National, was owned and controlled by appellant. The second claim is that the government must prove beyond a reasonable doubt that appellant intended to devise a scheme to defraud. From an examination of the evidence and a thorough review of an extensive transcript it is clear that the jury could and did reasonably find (a) that National was controlled by appellant and (b) that appellant intended to devise a scheme to defraud.
Gordon L. Anderson had, in the years immediately preceding his involvement with National, organized and directed numerous “sales” companies which marketed “business opportunities” and various related products. Prior to the formation of National appellant was doing business as the Allied Tobacco Company, hereinafter referred to as Allied, a company which sold cigar vending machines and furnished cigars on a commission basis to the purchasers of such machines. Allied was dissolved soon after the creation of National. National was formed early in September 1959 to distribute cigar vending machines to people throughout the United States. This business continued in operation until sometime late in 1961. The names of prospective customers were obtained by National through advertisements in local newspapers all over the country. After a prospect’s initial response by mail and the completion of a confidential credit form, salesmen were sent out from the Minneapolis office to sell the cigar vending machines and arrange for locations where these machines could be installed. From the evidence it appears that the salesmen were taught by appellant and encouraged to use “high-pressure” sales tactics. They were also told to get certified checks from the purchasers for the total cost of the machines at the time of the original sale so the checks could not be stopped prior to payment. Salesmen received a commission of from 30% to 40% on these sales. From the record it is clear that the sales campaign was directed at persons who had no prior experience in selling through or servicing vending machines.-
Also involved in the management of National was one Wilbert A. Schnabel, who by certain of his actions and representations appeared to be president and sole owner of National but who, as the jury determined, was simply the front man for appellant. Because appellant had previously been involved in many “business opportunity” schemes similar to the one involved in the instant case which had gained for him a rather unsavory reputation, he evidently concluded that National would have a greater possibility of success if he was not its titular head.
The five counts of the indictment in the instant case are based upon letters sent concerning the sale of vending machines to two men, Elmer Bender and Raymond Mosbrueker, in the Bismarck-Mandan, North Dakota area. Both of these men were sold cigar vending machines by one Frank Cooke, a salesman for National who had been trained by appellant and who the jury determined to be under the control of appellant at the time of the sales. The fraudulent misrepresentations upon which the indictment is grounded were made by the salesman and involved false representations concerning exclusive territories for the machine purchasers, time of delivery for the vending machines, potential profits that the vending machine purchasers could reasonably expect, repurchase agreement under which National would repurchase the machines or find another vender to take over the machines if the purchaser wanted out of the business, and finally the procurement by National of good locations to place the machines. The indictment was based upon the totality of the scheme to defraud.
Appellant contended throughout the course of the trial that he owned a company known as Commercial Distributors which was a wholesaler of cigar vending machines and cigars. It was appellant’s claim that he and Schnabel had decided that Schnabel would form a retail distributing company, National, which would obtain its vending machines and cigars from Commercial. For this service National would pay appellant, doing business as Commercial, a royalty on the machines and cigars sold. In addition, National was to receive technical assistance from appellant. Appellant claims that pursuant to this agreement National was formed and that at no time did he have a direct financial interest in or exert control over National. Testimony and evidence in the record indicate that:
1. Prior to Schnabel’s “formation” of National he was an employee of appellant’s company, Allied.
2. Appellant instructed Schnabel that he wanted him to act as president of a company and that he wanted him to register the company name, National Tobacco Company, with the Minneapolis Better Business Bureau.
3. Several salesmen who had worked for Allied immediately began working for National upon its formation.
4. Appellant supplied the funds with which National’s first bank account was opened.
5. Appellant’s control of National’s office routine did not differ markedly from the office decisional control he exercised in the Allied company.
6. Appellant trained all the National salesmen and National salesmen were hired subject to his approval.
7. Appellant received weekly payments from National in the sum of $250 as compared to $150 weekly for Schnabel. Two of the company checkbooks indicated that this was an amount payable for salary.
The record is replete with other pertinent testimony but these significant examples suffice to show appellant’s involvement in and control over National. There is, of course, substantial conflict of evidence in the instant case but it is well established that conflicts of evidence are to be resolved by the trier of facts. See, Black v. United States, 8 Cir., 1962, 309 F.2d 331, 341; Cwach v. United States, 8 Cir., 1954, 212 F.2d 520, 527. This the jury did when it convicted appellant upon all five counts of the indictment.
Appellant further claims the evidence was insufficient in that no criminal intent to defraud was shown. In the instant action, as in most mail fraud prosecutions, there are numerous instances of allegedly illicit conduct, all of which need not be proved to sustain a conviction. See, Schaefer v. United States, 8 Cir., 1959, 265 F.2d 750, 753; Holmes v. United States, 8 Cir., 1943, 134 F.2d 125, 133. The record contains many indications of appellant’s fraudulent representations and conduct which the jury could find established his criminal intent:
1. The appellant encouraged the making of false representations concerning exclusive vending machine territories.
2. Appellant consistently urged salesmen to promise two or three-week delivery of machines when there was no intent or possibility to comply with these limits.
3. Appellant devised profit representation material for use by the salesmen which he knew fraudulently depicted the profit possibilities of the vending machines.
4. Appellant sanctioned the use of fraudulent misrepresentations at the time of original sales concerning the repurchase and relocation of vending machines for dissatisfied customers.
When this court previously considered an appeal from a similar mail fraud prosecution for fraudulent misrepresentations where fraudulent misrepresentations were conveyed through salesmen at widely different places and times, it recognized that proof of such representations could establish the existence of a scheme to defraud. Reistroffer v. United States, 8 Cir., 1958, 258 F.2d 379, 387. In the instant case it is clear that fraudulent misrepresentations were made by appellant’s agents with his knowledge and encouragement. Totality of appellant’s conduct while involved in the National scheme as set out above is properly admissible as evidence and subject to the consideration of the jury in its determination of the appellant’s intent. Shreve, v. United States, 9 Cir., 1939, 103 F.2d 796, 803. Finally, permissively indicative of appellant’s intent is the absence of any effort on his part to rectify the wrongs suffered by victims of the vending machine scheme. United States v. Press, 2 Cir., 1964, 336 F.2d 1003, 1011, cert. denied, 379 U.S. 965, 85 S.Ct. 658, 13 L.Ed.2d 559. Although appellant was well aware of the complaints made by many defrauded customers, he made no effort to make good. A thorough examination of the record compels the conclusion that there was substantial evidence of appellant’s criminal intent to defraud as well as his control of National. His claim of insufficiency of the evidence must fail.
II. Denial of motion to dismiss Count 5. Count 5 of the indictment in the instant ease was based upon a complaint letter sent by Elmer Bender to National. The mailing and receipt of the letter are not questioned. Although appellant claims that the aforementioned letter was written by Bender only upon the instigation of the government with the intent of obtaining evidence against National, the testimony of Bender indicates that his principal purpose in writing the letter was to recover money he had prepaid National for vending machines that had never been delivered. Appellant further contends that this letter was not written by him nor caused to be written by him within the meaning of 18 U.S.C.A. § 1341 and hence is not a proper basis for prosecution. It is well settled that the letter upon which an indictment is based need not be written by the defendant nor need the letter contain within itself the fraudulent scheme, but “It is sufficient that the use of the mails was caused by the defendant in furtherance of the fraudulent scheme.” (Emphasis supplied.) United States v. Hopkins, 6 Cir., 1966, 357 F.2d 14, at page 17. See, also, Atkinson v. United States, 8 Cir., 1965, 344 F.2d 97, 98, cert. denied, 382 U.S. 867, 86 S.Ct. 141, 15 L.Ed.2d 106. Further, even if it could be established that the writing of Bender’s letter had not in the first instance been caused by appellant’s scheme to defraud, the rule recognized by federal courts is that where there has been a general sentence imposed based upon several counts, conviction upon any one of the counts is sufficient to support the judgment. See, Atkinson v. United States, supra, at page 98, and cases cited therein. Conviction and sentence upon the other counts being valid, the general sentence must stand. Motion to dismiss Count 5 was properly denied by the trial court.
III. Denial of due process through prosecutor’s improper reference to prior indictment. Appellant claims that mention of a prior indictment on cross and recross-examination was so prejudicial to the minds of the jury in this action that he was denied a fair trial. Appellant also refers to cross-examination and closing argument comment by the prosecution which he claims indicate guilt by association but this is not urged as a ground of error and is evidently mentioned only to buttress his prior indictment argument. Reference to the prior indictment was made at two places in the transcript, the first actual utterance being that of appellant. The government questioned appellant on cross-examination concerning a lulling letter which he had sent out to explain why there had been a delay on the delivery of light bulb vending racks — an earlier business venture similar to the one involved in the instant action. The precise reason given in his letter for the failure of delivery was “unforeseen circumstances”. During the government’s attempted clarification of what these “unforeseen circumstances” were, the following exchange occurred:
“Q. Now, what were the unforeseen circumstances here, Mr. Anderson? Were they production problems on these racks as we had with Precision?
“A. May I see the letter?
“Q. You may.
“A. The unforeseen circumstances were a Federal indictment.
“Q. A Federal indictment when?
“A. February or early March, 1962.
“Q. And that involved what?
“A. About the same charges as this one does, only it was dismissed.
“Q. That involved the Allied Tobacco Company, didn’t it?
“A. It may have.
“Q. It may have?
“A. I believe it did.”
From the testimony it is clear the appellant originally brought out the matter of the indictment, and no objection was interposed at any time over the government’s pursuit of the matter once it had been brought to light. The context out of which the cross-examination arose indicates that the government was attempting to establish why there had been a failure of delivery on a contract, similar in most respects to the contracts in the instant case, arising out of a former business venture in which appellant was involved rather than presenting to the jury the fact of appellant’s former indictment. In recross-examination the reference to unforeseen circumstances received further consideration.
“Q. Now, in reference to Government’s Exhibit 93, the letter of Mr. Nyquist on Consolidated Sales stationery, with a copy to Mrs. Sward, you said that ‘Due to unforeseen circumstances beyond my control I would be unable to schedule a location man for the Mora area until after March 1st.’ You have told us that as of March 10, that was the fact, that you were indicted ?
“A. Indicted, yes.
“Q. March 2nd was the date you were indicted, wasn’t it?
“The Court: What year, please?
“Mr. Abramson: 1962.
The Witness: I don’t recall the exact day. I know it was in the month.
“By Mr. Abramson:
“Q. But you sold that December 28 of 1961?
“A. Yes.
“Q. You had three months, did you, to schedule the location man, so the unforeseen circumstances had nothing to do with that indictment, is that right?”
Again, no objection was interposed to the government’s cross-examination of the witness. Appellant cites numerous authorities in support of the accepted principle that for purposes of impeachment nothing short of a criminal conviction is admissible into evidence. Homan v. United States, 8 Cir., 1960, 279 F.2d 767; Echert v. United States, 8 Cir., 1951, 188 F.2d 336; Little v. United States, 8 Cir., 1937, 93 F.2d 401; Salerno v. United States, 8 Cir., 1932, 61 F.2d 419. In all of these cases which appellant cites, quotes and upon which he principally relies, timely objection was urged to the prosecutor’s inquiries and an appealable record perfected. Admittedly, no such course was followed in the instant action. Although no record was here made by timely objection, appellate courts are expressly permitted to note and review plain errors that substantially affect the rights of the parties. Rule 52(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. See, also, United States v. Pennix, 4 Cir., 1963, 313 F.2d 524, 527. But in this case it is clear that plain error has not occurred. Appellant in this action was the first to bring the fact of the indictment into issue by volunteering information which he evidently hoped would relieve him from his admitted failure of performance on a prior contract. Reasonable cross-examination exposed the fact that the prior indictment had nothing to do with his failure of performance under the contract. This court recognizes the generally accepted proposition that the scope of cross-examination relating to collateral matters rests principally within the discretion of the trial court. Rizzo v. United States, 8 Cir., 1961, 295 F.2d 638, 640. No error was committed by the trial court when it permitted the prosecution to cross-examine appellant concerning collateral matters interjected into the proceedings by appellant. To hold otherwise would enable a witness to interpose the fact of a prior indictment in his testimony, refrain from objecting to questions relating to a statement and thus automatically insure for himself the possibility of a new trial. Silence of a witness should not in this manner sabotage the trial. Brennan v. United States, 8 Cir., 1957, 240 F.2d 253, 262.
IV. Improper exclusion of evidence. The offered Exhibit 48, which appellant claims the trial court erroneously refused to admit, consisted of 19 invoices indicating the drop-shipment of vending machines by a cigar vending machine manufacturer to customers of Allied. Appellant claims these exhibits were offered in order to rebut the government’s theory that the sales were fraudulent in that no deliveries were intended. By placing these invoices into evidence appellant evidently believed that his good faith in regard to his conduct in prior transactions when he was in control of Allied would be relevant in showing his good faith when he directed National — the latter period being the time in which the instant case arose. The trial court refused to admit the invoices into evidence unless sufficient foundation was laid, reasoning that the invoices were only proof that a certain number of machines had been shipped by the manufacturer to customers of Allied. Only by introducing the original contract for purchase of the machines with the invoice of shipment could it be shown that full compliance had been made with the terms of the original contract. From the record it is clear that when National made shipments of machines to customers, such shipments seldom if ever completely filled the contractual obligation. It is therefore obvious that the admissibility of invoices into evidence was inherently dependent upon the proper presentment of the foundation contracts. Although the appellant was given the opportunity at that time and throughout the course of trial to bring forth proper foundation and insure the admissibility of the exhibits, he failed to so comply. There was here failure to lay proper foundation. The defendant is entitled to reversal only if he establishes that there was prejudicial error in the court’s refusal to admit evidence. See, Alexander v. United States, 8 Cir., 1959, 271 F.2d 140, 144, and cases cited therein. This the appellant failed to do.
V. The trial court’s comment wpon evidence. While the prosecuting attorney was questioning Schnabel, president of National, on redirect examination about his wife’s personal check book that was also used as the company check book for National (received into evidence as Exhibit J), appellant contends that the trial court made a statement which deprived him of a fair trial. The statement, in context, appears as follows:
“The Court: * * * We are not engaged in an accounting between Mr. Schnabel and the companies. I take it the only purpose in exploring the check books is insofar as it throws light upon Anderson’s relation to the National Tobacco Company and Schnabel’s relationship to the National Tobacco Company and to these other companies ?
“Mr. Abramson: Yes, Your Honor.
“The Court: We are not here to determine where the money went to.
“Mr. Abramson: No, sir, but there is an implication that Mr. Schnabel’s memory has all of a sudden gotten good because we told him what to say. I am trying to review what we went over briefly last night so it can show that it went over to this account.
“The Court: If there is any confusion you may explore it if you desire, but I merely call your attention that we don’t need to spend too much time on these matters that are not crucial.” (Emphasis supplied.)
The italicized statement is the one to which appellant objects. The facts that the bank account used by National as a business account was in the name of Schnabel’s wife and that she alone could make withdrawals from it are important aspects of the appellant’s argument that Schnabel in fact controlled National rather than appellant. But a careful examination of the trial court’s comment and the context within which it was made clearly indicates that the judicial comment was not directed to the validity or importance of the check book itself. Rather, the court was here concerned with limiting the prosecution’s exploration of collateral matters not relative to the instant action; namely, a monetary accounting between Schnabel and National. The real point of concern which the court specifically recognizes is the relationship between Schnabel and appellant, and appellant and National. From reading the record it is apparent that the reason for the court’s comment was to prevent crucial concerns from being obscured through the prosecution’s pursuit of extraneous matter. This would seemingly be to appellant’s benefit rather than to his detriment, as he here claims. In any event, it is clear that Judge Nordbye’s remark did not constitute prejudice, much less “plain error” recognizable under Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A. See, Wilson v. United States, 8 Cir., 1965, 352 F.2d 889, 892, cert. denied, 383 U.S. 944, 86 S.Ct. 1199, 16 L.Ed.2d 207.
VI. Denial of motion for new trial. Appellant’s motion for new trial was made upon the ground of newly discovered evidence; to-wit, (1) two envelopes addressed to National at a secretarial service which had been delivered to National by the service after it left the address at which it had conducted business between 1959 and 1961, and (2) a receipt from the secretarial service for $3.75 showing payment by Schnabel for telephone and mail answering services as of August 1961. It was contended that employment by National of the services along with National’s informing customers of its new address are indications of good faith on the part of the company negating a showing of fraud, and would have been persuasive to the jury on a new trial. It was also contended that the newly discovered evidence would conclusively destroy the credibility of Marilyn J. Peterson, a partner in the secretarial service which purportedly forwarded mail to National, and who had testified on direct examination that secretarial services had not been performed for the appellant or any of the companies with which he was involved subsequent to January 6, 1959. First, we direct attention to the fact that motions for new trial grounded upon newly discovered evidence are viewed with disfavor, and that such motions are addressed to the sound discretion of the trial court, whose determination thereof will not be reversed excepting where it is shown that there has been an abuse of discretion. Connelly v. United States, 8 Cir., 1959, 271 F.2d 333, 334, and cases cited therein. This court long ago, in Johnson v. United States, 8 Cir., 1929, 32 F.2d 127, set out the prerequisites for the granting of a new trial upon the ground of newly discovered evidence at page 130:
“ * * * There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.”
The guide lines for passing on a motion for a new trial on the ground of newly discovered evidence as set forth in Johnson have been consistently applied by this court since. See, Ferina v. United States, 8 Cir., 1962, 302 F.2d 95, 107, and cases cited therein. It seems obvious herein that if the referred to newly discovered evidence had been submitted to the jury its sole effect would have been possible impeachment of one of the government’s minor witnesses. Further, the evidence, even if newly discovered, is not of such a nature as to probably produce an acquittal, another prerequisite to the granting of the motion. We conclude that the District Court did not abuse its discretion and that the motion for new trial was properly denied.
After an exhaustive review of this extensive record, we find that the appellant received a fair and impartial trial and was properly convicted upon very substantial evidence.
This case is in all things affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel1_1_2
|
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.
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 "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".
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: This question concerns the first listed appellant. 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:
|
sc_petitioner
|
027
|
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.
In re UNITED STATES, et al.
No. 17-801.
Supreme Court of the United States
Dec. 20, 2017.
PER CURIAM.
This case arises from five related lawsuits that challenge a determination adopted by the Acting Secretary of the Department of Homeland Security (DHS). The determination, announced by the Acting Secretary, is to take immediate steps to rescind a program known as Deferred Action for Childhood Arrivals, or DACA, by March 5, 2018. The Acting Secretary stated that her determination was based in part on the Attorney General's conclusion that DACA is unlawful and likely would be enjoined in potentially imminent litigation.
The five suits were filed in the United States District Court for the Northern District of California, and the plaintiffs in those actions are the respondents in the matter now before this Court. The defendants in the District Court, and the petitioners here, include the Government of the United States, the Acting Secretary, and the President of the United States, all referred to here as the Government.
In the District Court litigation respondents argue that the Acting Secretary's determination to rescind DACA in the near future is unlawful because, among other reasons, it violates the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment, including the equal protection guarantee implicit in that Clause.
The issue to be considered here involves respondents' contention that the administrative record the Government filed to support the Acting Secretary's determination to rescind DACA is incomplete. The record consists of 256 pages of documents, and the Government contends that it contains all of the nondeliberative material considered by the Acting Secretary in reaching her determination. (Nearly 200 pages consist of published opinions from various federal courts.)
On October 17, the District Court, on respondents' motion, ordered the Government to complete the administrative record. See Regents of Univ. of Cal. v. Department of Homeland Security , App. C to Pet. for Mandamus, 2017 WL 4642324 (N.D.Cal., Oct. 17, 2017) (District Court Order). The details of that order are recounted further below. See infra , at 3.
The Government petitioned for a writ of mandamus in the Court of Appeals for the Ninth Circuit. The Court of Appeals, in a divided opinion, denied the Government's petition. See 875 F.3d 1200 (2017).
On November 19, three days after the Court of Appeals issued its opinion, respondents moved the District Court to stay its order requiring completion of the administrative record until after the District Court resolved the Government's motion to dismiss and respondents' motion for a preliminary injunction. See Motion to Stay in No. 17-cv-5211 (Nov. 19, 2017), Doc. 190. The District Court did not grant respondents' request, instead staying its order for one month.
Still objecting to the District Court's order, the Government now seeks relief in this Court. It has filed here a petition for a writ of mandamus to the District Court, or, in the alternative, for a writ of certiorari to the Court of Appeals.
The Court now grants the petition for a writ of certiorari, vacates the order of the Court of Appeals for the Ninth Circuit, and remands the case.
The District Court's October 17 order requires the Government to turn over all "emails, letters, memoranda, notes, media items, opinions and other materials" that fall within the following categories:
"(1) all materials actually seen or considered, however briefly, by Acting Secretary [Elaine] Duke in connection with the potential or actual decision to rescind DACA ..., (2) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with written advice or input regarding the actual or potential rescission of DACA, (3) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input regarding the actual or potential rescission of DACA, (4) all comments and questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual or potential rescission of DACA and their responses, and (5) all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA." District Court Order, 2017 WL 4642324, at *8.
The Government makes serious arguments that at least portions of the District Court's order are overly broad. (The Government appears to emphasize certain materials in categories 2, 3, and 4.) Under the specific facts of this case, the District Court should have granted respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is "committed to agency discretion," 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.
On remand of the case, the Court of Appeals shall take appropriate action so that the following steps can be taken. The District Court should proceed to rule on the Government's threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate. Thereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate. In any event, the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.
This order does not suggest any view on the merits of respondents' claims or the Government's defenses, or that the District Court's rulings on the Government's motion to dismiss and respondents' motion for preliminary injunction should be delayed.
The judgment of the Court of Appeals for the Ninth Circuit is vacated, 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_counsel2
|
F
|
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
Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.
No. 89-15050.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 17, 1989.
Decided Feb. 21, 1990.
Juliana Drous, San Francisco, Cal., for petitioner-appellant.
Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
PREGERSON, Circuit Judge:
Owen Duane Nunnemaker, a California state prisoner, appeals the district court’s dismissal of his petition for a writ of habe-as corpus filed under 28 U.S.C. § 2254. A California jury convicted Nunnemaker of first degree murder under Cal. Penal Code § 187. At trial, a psychiatrist called by the state prosecutor gave testimony on statements made by Nunnemaker in a post-arrest interview. Nunnemaker contends that the admission of the psychiatrist’s testimony violated his Fifth and Sixth Amendment rights, that his Fifth and Sixth Amendment claims are not barred by procedural default, and that he received ineffective assistance of counsel. In light of the Supreme Court’s recent decision in Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the district court ruled on Nunnemaker’s petition, we reverse in part and remand the case to the district court for consideration of Nunnemaker’s Fifth and Sixth Amendment challenges to his conviction. We affirm the district court’s judgment that Nunne-maker was not deprived of effective assistance of counsel.
BACKGROUND
On January 30, 1976, Owen Duane Nunnemaker was convicted in California state court of first degree murder. He was sentenced to life in prison.
At trial, Nunnemaker introduced expert testimony to establish a diminished capacity defense then available under California law. To rebut this testimony the state prosecutor called as a witness a psychiatrist who interviewed Nunnemaker two days after his arrest. At the time of the interview, Nunnemaker was told that the psychiatrist was working for the prosecution. Nunnemaker, however, was not informed that he had the right to remain silent and the right to an attorney. At trial, defense counsel made several specific objections to certain statements made by the state’s psychiatrist, but failed to challenge the entire testimony on the grounds that it was based on an interview conducted in violation of Nunnemaker’s Fifth and Sixth Amendment rights.
On direct appeal to the California Court of Appeal, Nunnemaker raised for the first time his federal constitutional challenges to the testimony of the state’s psychiatrist. Affirming the conviction, the state appellate court expressly avoided these challenges and held that “the failure to interpose an objection during trial preclude[d its] consideration on review.” The state appellate court, however, considered on the merits — and rejected — Nunnemaker’s ineffective assistance of counsel claim. On direct appeal, the California Supreme Court denied Nunnemaker’s petition for hearing, without comment or case citation, on September 27, 1978.
Nunnemaker petitioned the California courts for a writ of habeas corpus. In his habeas petitions, he raised, among other claims, his federal constitutional challenges to the testimony of the state psychiatrist and his ineffective assistance of counsel claim. His petitions were denied.
Nunnemaker then filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California. The district court dismissed the petition without prejudice because the petition did not make clear whether all state remedies had been exhausted. Nunne-maker filed a second petition for habeas relief in the California Supreme Court, arguing again that his statements to the state prosecution psychiatrist were “clearly inadmissible,” and stating in greater particularity his claim of ineffective assistance of counsel. That petition was also denied, without comment or case citation, by the California Supreme Court on April 7, 1988.
Nunnemaker filed another federal habe-as petition. The district court issued an Order to Show Cause on July 8, 1988. On December 9, 1988, the district court denied the petition. The court held that Nunne-maker’s state procedural default barred review of the Fifth and Sixth Amendment challenges to the prosecution’s psychiatrist testimony, and that Nunnemaker had not been deprived of effective assistance of counsel.
Nunnemaker filed a timely notice of appeal. This court has jurisdiction over the district court’s final order under 28 U.S.C. § 2253.
STANDARD OF REVIEW
We review the district court’s denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, - U.S. -, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). The question whether Nunnemaker was deprived of effective assistance of counsel is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir.1989).
DISCUSSION
I. Procedural Bar
This case presents the issue whether the California Supreme Court’s denial of an original petition for writ of habeas corpus without comment or case citation constitutes a “plain statement” sufficient to establish the procedural default bar of federal habeas review under the Supreme Court’s recent decision in Harris v. Reed, 109 S.Ct. 1038. We hold that it does not.
The Supreme Court has held that a state prisoner barred by procedural default from raising a federal constitutional claim in state court “could not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default.” Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In Harris v. Reed, the Supreme Court applied this rule, but held that “a federal claimant’s [state] procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” 109 S.Ct. at 1043 (emphasis added). The Court explained that Wainwright v. Sykes’ holding that a state procedural default may bar federal habeas review is based on the adequate and independent state ground doctrine, under which the Court “will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Id. 109 S.Ct. at 1042 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-36, 22 L.Ed. 429 (1875)). The Court in Harris applied the “ ‘plain statement’ rule” of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7, 103 S.Ct. 3469, 3477 and n. 7, 77 L.Ed.2d 1201 (1983), to state prisoner cases on federal habeas review, and held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).
Under Harris, then, a procedural default bars review in federal habeas proceedings only if the last state court ruling on a case states the basis of its decision. Procedural default alone does not bar federal review; the state court’s ruling must have been based, at least in part, on an “adequate and independent” state procedural rule. Harris v. Reed, 109 S.Ct. at 1042. Harris undertakes to resolve the problem — often faced by district courts — of discerning from an ambiguous state court ruling the basis of a decision to deny habeas relief to a state prisoner raising federal constitutional claims. The plain statement requirement ensures that federal courts will decline to review state prisoners’ federal constitutional claims only where required by the interests of comity.
Here, the California Supreme Court was the “last state court to render judgment in the case.” That court did not clearly and expressly state its reliance on Nunnemaker’s procedural default when it denied his final habeas petition. The petition raised Nunnemaker’s objection to the testimony of the state’s psychiatrist and Nunnemaker’s ineffective assistance of counsel claim. From the record before us, we cannot say that the California Supreme Court’s denial of Nunnemaker’s final petition, without comment or case citation, was based on a procedural default rather than on the underlying merits of Nunnemaker’s claims. The rationale and plain language of Harris require that, where, as here, a state supreme court does not plainly state in its summary denial of an original habeas petition that its ruling rests on a state procedural bar, federal habeas review is not precluded.
In fact, the Supreme Court discussed in Harris the issue now before us. The Court addressed concerns raised over the burden the plain statement requirement would place on state courts ruling on habe-as petitions. The Court stated that “a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that ‘relief is denied for reasons of a procedural default.’ ” Harris v. Reed, 109 S.Ct. at 1044 n. 12. The California Supreme Court did not do that in this case.
The district court carefully reviewed Nunnemaker’s habeas petitions, but did not have the benefit of the Supreme Court’s later clarification of federal habeas law in Harris. We hold that the district court was not barred from reviewing Nunnemaker’s federal constitutional claims concerning the testimony of the state’s psychiatrist.
II. Ineffective Assistance of Counsel
Nunnemaker also contends that he was deprived of effective assistance of counsel, and that federal habeas relief should be granted for that reason. This Sixth Amendment ineffective assistance of counsel claim is based on Nunnemaker’s trial counsel’s failure to object to the admission of the state psychiatrist’s testimony on Fifth and Sixth Amendment grounds. The district court concluded that “[djefense counsel was clearly acting as the ‘counsel’ guaranteed by the Sixth Amendment.” We agree.
An ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A convicted defendant complaining of the ineffectiveness of counsel’s assistance must show that counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064.
The trial record demonstrates that Nunnemaker’s counsel vigorously objected to parts of the psychiatrist's testimony on various grounds. Further, because the state’s psychiatrist was subject to potentially damaging cross examination, trial counsel’s decision to allow the testimony, make specific objections, and impeach the witness on bias and credibility grounds may well have been a sound trial tactic.
Nunnemaker has not shown that his trial counsel’s performance “was not ‘within the range of competence demanded of attorneys in criminal cases.’” Id. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).
CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part.
. The Sonoma County Superior Court denied Nunnemaker’s petition on February 25, 1985. The California Court of Appeal for the First Circuit denied his petition in late 1985. The California Supreme Court denied his first petition on December 3, 1986, and his second petition on April 7, 1988.
. The district court stated:
The petition is not entirely clear as to the procedural history of this matter. Petitioner states that none of his claims were raised by way of direct appeal in the California courts. However, petitioner did present these and other claims to the California Court of Appeal and Supreme Court by way of a habeas petition. The California Supreme Court denied the petition, citing In Re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (1965) and In Re Swain, 34 Cal.2d 300, 304 [209 P.2d 793] (1949). These citations are cryptic. Waltreus holds that arguments rejected on appeal will not be reviewed again in habeas; thus the implications of this citation contradict petitioner’s assertion that he did not raise these claims on appeal. Swain, in contrast, holds that habeas claims not pleaded with sufficient particularity must be dismissed without prejudice. This latter citation implies that at least some of petitioner’s claims were not presented on appeal, and the California Supreme Court declined to consider their merits on procedural grounds.
As to any claims raised on appeal to the state and rejected on the merits, petitioner has exhausted his state remedies and this court can hear his habeas petition.... However, any claims not raised on appeal, and whose merits the state courts have not considered on habeas, must be dismissed....
District Court Order, September 8, 1987, at 2.
. Where comity does not require it, federal courts should not deny review. “[T]he federal courts ... have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” Harris v. Reed, 109 S.Ct. at 1045 (Stevens, J., concurring).
. Nunnemaker’s last filing with the California Supreme Court was an original habeas petition, and not a petition for hearing on a denial of habeas relief based on a procedural rule. Under California law, a state prisoner seeking collateral review of his or her conviction may file separate, independent habeas petitions in the superior court, court of appeal, and supreme court. Cal. Penal Code § 1475. In addition, however, a state prisoner whose habeas petition is denied in the court of appeal may file a petition for review of that denial in the California Supreme Court. Cal. Penal Code § 1506. In McQuown v. McCartney, 795 F.2d 807, 809-10 (9th Cir.1986), we held that when a habeas case is before the California Supreme Court on a petition for hearing, rather than as an original habeas petition, a summary denial by the state supreme court is not a decision on the merits of the petition. See also Tacho v. Martinez, 862 F.2d 1376, 1378-80 (9th Cir.1988) (applying McQuown and holding that the Arizona Supreme Court’s denial of review of a trial court denial of habeas relief without case citation or comment was not a decision on the merits). Cf. Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976) (“Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass upon the merits of the issue and has resolved it against the petitioner.’’).
McQuown does not affect the present case, because the California Supreme Court denied Nunnemaker’s original habeas petition on April 7, 1988. That ruling was a "judgment” under Harris, and was the last rendered by a state court in Nunnemaker’s case. We do not now address the question whether, in light of Harris v. Reed, the California Supreme Court's summary denial of a petition for hearing on a denial of habeas relief based on a procedural rule bars federal habeas review.
. In Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989), the Fifth Circuit held that, where a state trial court denied review of certain claims on state procedural default grounds but the appellate court "denied relief without written order,” the claims were procedurally barred. That court, however, did not reconcile its decision with the plain language of Harris that "a procedural default does not bar consideration of a federal claim ... unless the last state court rendering judgment in the case 'clearly and expressly’ states that its judgment rests on a state procedural bar," Harris v. Reed, 109 S.Ct. at 1043, and in fact discussed in detail the merits of the petitioner’s claims. We decline to follow Ellis v. Lynaugh.
. Nunnemaker raised this claim on direct appeal in the state court proceedings, and the state appellate court decided the merits of the claim. The state has made no argument that this claim was not properly before the district court. The district court correctly reached the ineffective assistance claim in its review of Nunnemaker’s habeas petition.
. This was the conclusion reached by the state appellate court on direct appeal.
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_usc1sect
|
44
|
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 most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
ADVANCE ALUMINUM CASTINGS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 9519.
Circuit Court of Appeals, Seventh Circuit.
June 2, 1948.
Frank J. Albus, of Washington, D. G, James F. Spoerri and Bobb, Spoerri, Bourland & Harris, all of Chicago, 111., for petitioner.
Theron L. Caudle, Asst. Atty. Gen., and Sewell Key, George A. Stinson, S. Walter Shine and Melva M. Graney, Sp. Assts. •'O Atty. Gen., and Charles Oliphant, Chief Counsel, Bureau of Internal Revenue, and John M. Morawski, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G, for respondent.
Before KERNER, and MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Petitioner questions a deficiency assessment in its income tax for the year 1942, determined by the Commissioner of Internal Revenue and approved by the Tax Court, of $51,313.24. The controversy between the parties presents only the question of whether, in determining its taxable income for income tax purposes for the period involved, petitioner was enttiled to deduct from its net income a credit of $504,-579.32 for excess profits, as it insists, instead of a credit of $376,296.24 as determined by the Commissioner and the Tax Court, — a purely legal question as to which of the two sums constitutes the proper credit under the pertinent revenue statutes.
Petitioner is a manufacturer of aluminum products, which it sells in two ways,— in ordinary sales and in installment sales. Its books are kept upon a calendar year accrual basis of accounting and its taxes have been reported and paid upon that basis, except that receipts from installment sales have been reported and tax thereon computed under the alternate plan provided for installment sales by Section 44(a) of the Internal Revenue Code. However, after Congress had enacted Section 736(a) of the Internal Revenue Code in 1942, granting relief to installment sales taxpayers by providing that they might elect to compute their excess profits tax, insofar as it involved installment sales, upon an accrual basis, rather than under Section 44, petitioner elected to compute its excess profits tax income, in accord with this section, upon an accrual basis. Calculated upon this formula, petitioner’s adjusted excess profits net income was $376,296.24; and upon that basis, admittedly correct, the excess profits taxes were assessed ’and paid. The parties diverge upon whether this was the proper excess profits tax credit deductible from petitioner’s net income in determining its income taxes. Petitioner contends that it should have been permitted to deduct an excess profits tax credit, calculated upon a consideration of its income upon the installment basis, which, in turn, would have resulted in a deductible credit of $504,579.32, reducing its income tax to that reported and completely eliminating the deficiency approved by the Tax Court.
Section 13 of the Internal Revenue Code, as amended by the Acts of 1939 and 1942, provides that corporate adjusted normal net income for income tax purposes shall be net income, minus the credit for income subject to the excess profits tax. Section 15, similarly defines corporate sur-tax net income. Section 26 gives to a corporation the right to deduct from its net income the excess profits tax credit. In 1942 Congress added Section 736(a) providing that taxpayers who had been computing income from installment sales in accord with the alternate method provided by Section 44 (a) of the Revenue Code, might elect, for the purpose of determining their excess profits taxes, to compute their income from installment sales on an accrual basis, in accord “with regulations prescribed by the Commissioner.” These statutory provisions appear in 26 U.S.C.A. §§ 13, 15, 26, 44(a), 710, 711 and 736.
Following the latter enactment, the Commissioner promulgated Regulation 112, which provides that, in case of election by the taxpayer to compute his excess profits tax income on an accrual basis, his income tax shall be based upon net income including “income from installment sales computed under the installment method provided by Section 44(a)” and the excess profits tax upon an income reflecting installment sales income calculated on an accrual basis, and that the credit to be allowed under Section 26(e), in determining taxable income for income tax purposes, shall be calculated by including in the excess profits tax income receipts of sales on installment sales on an accrual basis. This regulation, says the petitioner, exceeds the statutory enactment and includes provisions not contemplated by the Act of Congress.
Petitioner contends that inasmuch as Section 736(a) was applicable only to the excess profits tax, it was the intent of Congress to retain the amount of credit which it might have deducted, under its former method of reporting its excess profits tax income, from its taxable net income for income tax purposes. It insists that, though it elected to account for its receipts from installment sales on the accrual basis, thereby reducing its taxable excess profits income, it was still entitled, in computing its income for income tax purposes to deduct as a credit, not the excess profits tax income as actually computed but the amount it might have deducted had it continued to report its excess profits tax income on the installment basis under Section 44(a), and it argues that the statute, when properly interpreted, justifies this construction.
We think the argument unsound. After the excess profits tax sections were enacted, corporations were subjected both to that tax and to normal and sur-income taxes. Consequently, Congress, in order to avoid excessive taxation, in Sections 13 and 15, provided that corporations might have a credit against their normal and surtax income in the amount of their income subject to excess profits tax. In other words, the income for income tax purposes was reduced by the amount of income subject to the excess profits tax. Obviously Congress’ purpose was to avoid double taxation of that portion of income subjected to an excess profit tax and to exempt it from income taxes. The various sections to which we have previously referred plainly evince this intent. Thus, when petitioner found itself subjected to both taxes, realizing that it might advantageously elect to report, for excess profits tax purposes, its installment sales receipts on an accrual basis, as provided by 736(a), it was entitled, in computing its taxable net income for income tax purposes, to a credit upon taxable income for just so much as its excess profits tax income amounted to, however calculated, that is, whether upon an accrual basis or upon an installment basis. By reducing its excess profits tax, by electing to take advantage of the option granted by Congress under Section 736(a), it was able, as Congress intended, to reduce its excess profits tax income and its excess profits tax thereon, but we read nothing in the statute that would justify an implication that Congress intended at the same time to exempt from income taxes that portion of income eliminated from excess profits tax liability. Indeed, the whole purport of the legislation is to the contrary, the intent having been at all'times that the net income for income tax purposes should be decreased only by the amount of the excess profits tax income in order to avoid double taxation of the same income. It would be a violent and unjustified construction to conclude that petitioner could reduce its excess profits tax under the option granted by Congress and at the same time deduct from its taxable net income an excess profits tax income credit nowhere in existence, calculated upon the installment basis. To permit this would remove from all excess profits taxation and from all income taxation, in this particular instance, some $128,000 in income and reduce the income tax to a figure below what it would have been, had no excess profits tax been imposed. To our mind there is nothing to justify petitioner’s contention that the statute permitted it to deduct a credit reflecting its income on the installment basis, and that the credit to be allowed should be upon that basis. To permit this would ignore the essential fact that when petitioner elected to report its adjusted excess profits net income on the accrual basis under Section 736(a) it thereby automatically established the credit which it might deduct from its taxable net income for income tax purposes.
We think the reasoning of the court in Commissioner v. South Texas Lumber Company, 333 U.S. 496, 68 S.Ct. 695, 700, applicable to the situation here. There the court said: “There is no indication in any of the congressional history, however, that by passage of this law Congress contemplated that those taxpayers, who elected to adopt this accounting method for their own advantage could by this means obtain a further tax advantage denied all other taxpayers, whereby they could, as to the same taxable transaction, report in part on a cash receipts basis and in part on an accrual basis.”
The attack upon the validity of the regulation involved is completely met by the decision in Commissioner v. Texas Lumber Company, supra.
The decision is affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? 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".
UNITED STATES of America, Plaintiff-Appellee, v. Richard Dwight ABRAVAYA, Defendant-Appellant.
No. 79-5559
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 2, 1980.
Donald L. Ferguson, Miami, Fla., for defendant-appellant.
Jeffrey H. Kay, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Before HILL, GARZA and THOMAS A. CLARK, Circuit Judges.
Fed.R.App.P. 34(a); 5th Cir. R. 18.
GARZA, Circuit Judge:
By a four count indictment, the Appellant was charged with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), importing a quantity of cocaine into the United States in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2 and possession of a quantity of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The only issue on appeal is whether the trial court’s instruction to the jury, unsolicited by either side, concerning plea bargain agreements of unindicted co-conspirators buttressed the credibility of those witnesses to the prejudice of the Appellant. We find no error and affirm.
The evidence, taken in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), came predominantly from the testimony of five unindicted coconspirators. All five individuals had negotiated plea bargains with the government arising out of an earlier indictment regarding a number of cocaine transactions with Appellant, including the instant one. Each individual testified that he had been involved in cocaine transactions with the Ap-. pellant. Some of the witnesses testified to numerous transactions of purchasing cocaine from Appellant. The major transaction charged in the indictment involved an attempt to smuggle cocaine into the United States from Peru. The evidence showed that coconspirators Gary Leveque, James Wagner, Mark Freedman and Mark Mullaney all invested or assisted in the investment of money with the Appellant for a shipment of cocaine from Peru. Joseph Sheffler, another unindicted coconspirator, served as the courier who received the cocaine in Peru and attempted to bring it into the United States. He was arrested by United States Customs Officials at Miami International Airport.
The fact that Appellant’s accusers had all previously pled guilty was continually mentioned during the instant trial. Both counsel for the government and the defense referred to the plea bargains in opening statements, during direct and cross-examination of the coconspirators and in closing arguments.
During his instruction to the jury, the trial judge noted that the coconspirators in this case had entered into plea agreements with the government and that such plea bargains are lawful and proper and expressly provided for in the rules of the court. The judge, however, followed this with a cautionary instruction that evidence from such witnesses must be “received with caution and weighed with greater care.” The judge also instructed the jury that a defendant should not be convicted upon the unsupported testimony of an alleged accomplice unless that testimony is believed beyond a reasonable doubt. Additionally, the judge stated that a plea of guilty by an alleged accomplice is not evidence in and of itself of the guilt of another person.
No objections were made to the trial judge’s instructions. Thus, this court may reverse only if plain error was present. See United States v. Fowler, 605 F.2d 181, 184 (5th Cir. 1979). When a trial judge’s instructions to the jury have been challenged, this court must examine the entire charge and determine if, taken as a whole, the issues and the law were properly presented to the jury. See United States v. Arguelles, 594 F.2d 109, 112 n. 3 (5th Cir. 1979), cert. denied, - U.S. -, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); United States v. Chandler, 586 F.2d 593, 606 (5th Cir. 1978), cert. denied, 440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d 483 (1979).
In the present case, the trial judge commented on the existence of the plea bargains, which had been mentioned repeatedly throughout the trial by both sides. Such an instruction was merely a helpful explanation of facts brought to the jury’s attention by both government and defense counsel. Although that particular instruction had been unsolicited, both sides had read the court’s charges before they were given and had no objection. The trial judge then adequately and clearly cautioned the jury as to those witness’ testimony as well as to the fact that an admission of guilt by one person is not necessarily evidence of guilt as to another person. At the close of the court’s instructions, both sides were again given the opportunity to object and did not do so. Based upon an examination of the trial judge’s instructions regarding the plea bargains, taken as a whole, there was absolutely no error, plain or otherwise.
AFFIRMED.
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_casetyp1_2-3-2
|
D
|
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 "civil rights - voting rights, race discrimination, sex discrimination".
Deborah A. NORTHCROSS et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Appellees, CITY OF MEMPHIS and Wyeth Chandler, Mayor of Memphis, et al., Third-Party and Added Defendants, Exxon Corporation et al., Added Defendants.
No. 73-1666.
United States Court of Appeals, Sixth Circuit.
Dec. 4, 1973.
Norman J. Chachkin, New York City, and William E. Caldwell, Memphis, Tenn., for Deborah A. Northcross; Louis R. Lucas, Elijah Noel, Jr., Ratner, Sugar-mon & Lucas, Memphis, Tenn., Jack Greenberg, James M. Nabrit, III, New York City, on briefs.
Ernest G. Kelly, Jr., Evans, Petree, Cobb & Edwards, Memphis, Tenn., for Bd. of Ed. of the Memphis City Schools.
Frierson M. Graves, Jr., City Atty., Memphis, Tenn., for City of Memphis and others.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
ORDER
This case was consolidated for hearing with Cases Nos. 73-1667 and 73-1954, 489 F.2d 15 (and also with Cases Nos. 73-1953 and 73-1955, 489 F. 2d 18), and for further explanation of the factual background involved see the per curiam opinion filed therein this date and the earlier appeals arising out of the same general situation cited therein. At issue in the present appeal is the validity of a resolution adopted by the Memphis City Council directing the mayor and comptroller to withhold $250,000 from funds previously approved for use by the Memphis Board of Education. Said sum approximated the cost of the busing of school children ordered by the District Court, and in oral argument in this Court the City’s attorney frankly conceded that the City’s action was a protest against such Court ordered busing. The District Judge found that the City took such action in an effort to prevent busing as a means of desegregation and issued an order restraining such unlawful defiance of the Court’s orders. This appeal followed, and we affirm, holding that the action of the District Court was required to accomplish a constitutionally mandated result.
Appellees seek costs and attorneys’ fees in this case and in the dispute involving the School Board’s gasoline supply. In support of this request appellees cite Rule 38, Fed.R.App.P., which empowers an appellate court to “award just damages and single or double costs to the appellee” when the appeal is determined to be frivolous. Alternatively, appellees suggest the application of 20 U.S.C. § 1617, which entitles the prevailing party to attorneys’ fees in a suit against “a local educational agency, a State (or any agency thereof) for failure to comply with any provision of [Chapter 36 of the General Educational Provisions Act of 1972] . or for discrimination on the basis of race . . . [in] elementary or secondary education . . . .” Finally, appellees cite Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973), to buttress their claim. In that case the Supreme Court held that attorneys’ fees should normally be awarded in discrimination cases, and that it required a special circumstance of unfairness to defeat this rule.
We find that the appeals in these eases are essentially frivolous in nature, constituting an attempt by appellant to interfere with the desegregation plans ordered by the District Court. Although appellant is technically neither a “State” nor “an agency thereof,” the spirit of 20 U.S.C. § 1617 and North-cross, supra, justify the award of costs and attorneys’ fees to appellees in this case. In addition, we are empowered to make this award under Rule 38, Fed.R. App.P.
Costs including an attorney’s fee of $500 is hereby assessed against the City of Memphis.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
|
songer_geniss
|
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. 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".
Howard B. PASHMAN, Plaintiff-Appellant, v. CHEMTEX, INC., Defendant-Appellee.
No. 1265, Docket 87-7240.
United States Court of Appeals, Second Circuit.
Argued June 18, 1987.
Decided July 17, 1987.
Philip Esterman, New York City (Gideon J. Karlick, Esterman & Esterman, New York City, of counsel), for plaintiff-appellant.
Wayne A. Cross, New York City (Karen J. Pordum, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for defendant-appellee.
Before OAKES, MESKILL, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
This appeal from a grant of summary judgment against plaintiff Howard Pash-man requires us to assess the meaning of “pretax profits”, as used in Pashman’s employment agreement with defendant Chem-tex, Inc., 664 F.Supp. 701. This agreement called for Pashman to receive a “participation of ten [10] percent of the pretax profits on all sales made by” him. Because the meaning of this contract is clear, and as applied to the sale at issue entitled Pash-man to no more, and perhaps less, than he has already received, we agree with the district court that Pashman raises no “genuine issue of material fact”, Fed.R.Civ.P. 56, and therefore affirm.
BACKGROUND
Much of the factual background of this case is undisputed. In 1977 Pashman went to work for Chemtex as a salesman of paint plants. His compensation was established by a clause in his employment contract that provided:
Your compensation for these services will be a participation of ten [10] percent of the pretax profits on all sales made by you. A draw against this participation in the amount of $3,500 per month will be paid to you monthly. Participation will be paid, net of draws, on the basis of 50% payable on contract effectuation and 50% payable on the acceptance of the plant by the customer.
Under this agreement Pashman participated in the sale of only one plant, to Egyptian businessman Adel Khalil. The plant was to be constructed in Egypt.
By the terms of the sale, Chemtex agreed to sell its “equipment, formulae, and technical services” to Khalil for $7.6 million. Khalil, Chemtex, and another party (Issa Nakleh) formed an Egyptian corporation, the Egyptian-American Paint Company, to facilitate the transaction and eventually purchase the plant from Khalil. Chemtex holds 36.67% of the equity in the company, Khalil holds 60%, and Nakleh the remaining 3.33%.
In April 1981, three years after negotiating the Egyptian sale, Pashman quit his job at Chemtex. Based on his draw-against-commission, he had received a total of $162,752 from Chemtex.
Later in 1981 the terms of the sales agreement between Chemtex and Khalil were altered. The sales price increased from $7.6 million to $10.1 million, and Chemtex formed an Austrian subsidiary, as a condition of obtaining Austrian financing, to export many of the materials and equipment to be used in the project.
In 1985, Pashman filed suit against Chemtex alleging that he should receive 10% of the $10.1 million sale price received by Chemtex, less the $162,750 he had already drawn. While his prayer for relief asked for damages of $5 million, it appears that his actual claimed damages are $847,-250.
Chemtex moved for summary judgment, submitting documents showing it had actually lost money on the transaction, approximately $722,000. Since the deal generated no profits for Chemtex, it argued that Pashman is entitled to no commission and thus that Pashman was in fact $162,750 ahead.
In response, Pashman argued that the term “profits” in his contract actually meant “gross revenues”, and that Chem-tex’s accounting — which deducted costs from total revenues — was therefore inaccurate, creating an issue of fact as to actual profits.
Judge Walker concluded that the term “pretax profits” was clear on its face, saying that “as a general rule, a court should not interpret the word 'profits’ as synono-mous with ‘revenues,’ but instead read the term ‘profits’ as referring to ‘revenues minus costs.’ * * * Plaintiff has provided no evidence to show that a different meaning was intended when the parties used the term ‘pretax profits’ in plaintiffs employment contract.” Pashman v. Chemtex, Inc., 664 F.Supp. 701, 704 (S.D.N.Y.1987). Pashman now appeals.
DISCUSSION
It is plain that the district court was correct in stating the general rule that profits are not equal to revenues. Indeed, we would have thought that no citation was necessary for the proposition. If citation is needed, the cases mentioned by the district court, Catalano v. J.C. MacElroy Co., 13 A.D.2d 914, 215 N.Y.S.2d 873 (1st Dep’t 1961), and Martin v. City of New York, 264 A.D. 234, 35 N.Y.S.2d 182 (1st Dep’t 1942), provide sufficient support. Perhaps the first rule of accounting is that the black ink of profit is not entered into the ledger until expenses are deducted from gross revenues.
Chemtex’s gross revenues on the Khalil sale are agreed by the parties to be $10.1 million. Thus, the only dispute centers on how much Chemtex was entitled to deduct as expenses in calculating pretax profits.
We begin by noting what is not at issue on this appeal. Since Pashman did not below challenge the propriety of each individual cost deducted by Chemtex, he cannot seek to create an issue of fact on appeal by claiming that this or that expense was not proved by Chemtex. See Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (per curiam); 6 Moore’s Federal Practice 11 56.27, at 56-1557 (2d ed. 1985) (“An appellant may not, as a general rule, overturn a summary judgment by raising in the appellate court an issue of fact that was not plainly disclosed to the trial court.”). Pash-man’s vague challenges below about the “audit trail” submitted by Chemtex in justification of its claimed expenses did not suffice to raise a genuine issue of fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968-69 (2d Cir.1983).
Pashman must therefore stand or fall on his claim that each and every one of the “costs of sale” claimed by Chemtex is invalid simply by reason of Chemtex’s purchase of an equity share in the joint venture with Khalil. This step, according to Pashman, served to make Chemtex its own “customer”—in effect, the purchaser as well as the seller of the plant—and magically transformed the costs into “capital investments”, leaving the entirety of the gross revenues, $10.1 million, as “profits”. This is the issue of fact Pashman articulates in his brief on appeal as precluding summary judgment.
We disagree. This means of financing the paint plant, far from making Chemtex the purchaser of the plant, instead was merely a means of bringing about the sale. It is undisputed that purchasing the equity share in the project was a necessary expense for Chemtex to close the deal and obtain financing for it. It is further undisputed that Pashman was well aware of this necessity when he negotiated the deal for Chemtex. Under these circumstances, it borders on the frivolous for Pashman to claim that the costs Chemtex incurred on this sale were really the company’s “capital expenses”.
Indeed, under the circumstances of this transaction, the $1.9 million Chemtex spent toward purchasing its share in the paint company was itself a cost of the sale. While this is true only to the extent that the cost ($1.9 million) exceeds the value of what Chemtex received for it (the equity share in the project), Pashman does not dispute the statement of John M. Ryzewic, a Vice-President of Chemtex, in his affidavit that “[bjecause of the Project’s massive delay and cost overruns, the volatile nature of Egypt and Egypt’s foreign exchange problems, Chemtex currently treats its equity participation * * * as a 100 percent selling expense.” In other words, the value of Chemtex’s equity share is zero.
In relying solely on the form of and label attached to the transaction, Pashman fails to raise any issue of fact. The mere fact of a purchase of equity will not blind us to the true nature of the underlying transaction; Chemtex sold a paint plant to Khalil, and incurred certain expenses in doing so-including having to purchase equity in the paint company. Pashman has not produced any evidence that the equity expenditure's usefulness extended beyond facilitating the Egyptian plant sale. Moreover, Pashman has not intelligibly argued that the purchase of equity in this case altered the character of other project expenses to make them "capital expenditures".
Pashman has thus not shown that Chem-tex incorrectly calculated its net loss on the transaction. As of the date of the motion for summary judgment, Chemtex had lost some $722,000 on the deal, meaning that Pashman is entitled to no commission. Indeed, since he has already drawn $162,750 against his commission, he would not be entitled to further compensation until net profits pass $1.6 million. Thus, even if the $1.9 million in equity is not deducted from Chemtex’s revenues, there was still no issue of fact raised, since it would bring Chemtex into the black on the transaction only to the extent of $1.2 million. In fact, since Pashman is entitled to only half his commission until the project is actually completed, he would be ineligible for any further compensation (beyond the $160,000 he has already received) until profits exceed $3.2 million (when the 5% to which he is thus far entitled would be more than $160,000).
In short, on any conceivable construction of the facts, Pashman is not entitled to any further compensation for the Egyptian sale. In order to succeed he would have to be able to show that costs are not costs, that a plant that is not now and likely never will be completed is complete, and that a necessary expense of completing a sale is in reality a “capital expenditure”. We decline to subject defendant and the judicial system to the burden of such a futile quest.
Affirmed. Chemtex’s request for sanctions is denied.
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_respond1_1_4
|
B
|
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)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant.
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, Carpenters District Council of Denver and Vicinity, and United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Colorado State Council of Carpenters its Affiliated District Councils and Affiliated Local Unions, and Leslie Prickett, Adolph Lavalle and James McFarland, Appellants, v. HENSEL PHELPS CONSTRUCTION COMPANY, a Colorado corporation, Appellee.
No. 8634.
United States Court of Appeals Tenth Circuit.
Feb. 6, 1967.
Rehearing Denied June 7, 1967.
Wayne D. Williams, Denver, Colo. (Howard E. Erickson, Denver, Colo., on the brief), for appellants.
Bennett S. Aisenberg, Denver, Colo. (Charles E. Grover, Denver, Colo., on the brief), for appellee.
Before BREITENSTEIN and SETH, Circuit Judges, and KERR, District Judge.
SETH, Circuit Judge.
The appellee, Hensel Phelps Construction Company, brought this action under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185, for damages for breach of collective bargaining agreements. The defendant-appellants are labor organizations and individuals representing a single union which was a party to the agreements. The action was tried to the court, and judgment was rendered against the appellant-union in the amount of $8,000.00. The union took this appeal.
The disagreement arose between the parties over the question whether certain work done by appellee’s carpenter employees on an elevated ramp for automobiles to reach the entrance to the Denver airport was to be paid at the rate for building work or highway work. The issue raised the question as to which of two collective bargaining agreements would be applicable to this type of work, both agreements being between the same parties. The amount of the judgment appealed from represents the difference between the two wage scales.
The trial court concluded that the union had breached its highway collective bargaining agreement with appellee Phelps by causing a work stoppage without first complying with the disputes procedure of such agreement.
The facts, about which there is no dispute, may be summarized as follows:
Appellee Phelps had been awarded a contract by the City and County of Denver, Colorado, to construct an air terminal building and an elevated drive at Stapleton Airfield in Denver. Phelps was a member of the Associated Building Contractors of Colorado, Inc., hereinafter “ABC.” ABC, representing its members, had negotiated a master collective bargaining contract with the appellant union, which contract is captioned “Building Construction Agreement Carpenters,” and to which we will refer as the “building contract.” Article I, section 4, of the building contract describes in detail the carpenter work within the coverage of the contract. However, Article I, section 2(d), of the building contract states that work covered by the “Housing Agreement and The Heavy and Highway Agreement” shall not be considered similar to work within the coverage of the building contract for purposes of automatically granting a lower wage scale to any employer under the building contract when another employer has secured a lower wage scale than that provided by the contract.
Section 2(d) of the building contract further states that a Heavy and Highway Agreement “shall be available to any member of the Employer [any member of ABC], who desires to engage in such work, for signature with the Union.”
The Heavy and Highway Agreement, which we will refer to as the “highway contract,” is the second of two collective bargaining contracts involved in this appeal. The building contract describes work within its jurisdiction in terms of the particular job the employee might perform, e. g., “making and setting of concrete forms,” “fitting and hanging of all doors,” “making and installing of all acoustic properties.” The highway contract describes work within its jurisdiction by the nature of the construction project, e. g., “all work performed in the construction of streets and highways, airports, utilities, levee work,” etc. The important fact giving rise to the dispute and leading to this appeal is that the wage scale for carpenters provided in the highway contract is less than the wage scale provided in the building contract.
Although there is no dispute that a substantial part of the entire construction project was within the jurisdiction of the building contract (the terminal buildings), classification of the elevated drive leading to the building entrance as highway work or building work immediately became a source of disagreement between the parties. There is conflicting evidence relating to the understanding of the parties as work commenced; however, for the first four or five weekly pay periods Phelps paid employees working on the elevated drive the lower wage scale provided in the highway contract. After a number of informal discussions, the dispute between Phelps and the union representatives concerning the classification of the elevated drive and applicable wage scales reached a critical point in the week of July 24, 1964.
On July 23 Phelps mailed to the union a Heavy and Highway Agreement for union signature, as provided in section 2(d) of the building contract. The union received the agreement on July 24, but did not sign it. On July 24 a formal meeting was convened between the union representatives and representatives of ABC, the contractors’ association, pursuant to Article VIII, section 1, of the building contract, which provides: “The said committees are charged with the responsibility of reaching a settlement by mediation, conciliation or arbitration as the circumstances require; the decision so reached shall be put in writing and shall be binding on all parties to the controversy.” The foregoing excerpt is the extent of the procedure for resolving disputes under the building contract. A vote taken at the meeting resulted in a deadlock. The union considered the building wage scale applicable to the elevated drive, and the contractors considered the highway wage scale applicable.
After the meeting was adjourned on July 24, the union advised Phelps that unless Phelps agreed to pay building wages on the elevated drive, the union would inform its members that they were receiving substandard wages. It was understood that such advice would result in a v/alkout or work stoppage. Phelps would not agree to pay building wages, but did offer to place the amount represented by the difference between highway and building wages in escrow pending a final determination of the issue. The union declined this offer, and advised its members that Phelps was paying substandard wages, and the carpenters walked out. Work was resumed in two days, after Phelps agreed to pay building wages, but reserved all rights under the building contract pending a final determination of the issue.
Phelps thereafter brought this suit against the union for breach of contract, seeking recovery of the difference between highway and building wages paid, and other damages.
The trial court found that the building contract meeting of July 24, which resulted in a deadlock, had exhausted the dispute procedure set forth in such contract. The trial court found that the ramp construction was highway work, and that the highway contract was operative. It also found that the dispute procedure set forth in the highway contract was different from that established in the building contract, and that the union had not complied with its contract dispute procedure before causing a work stoppage.
From the foregoing findings, the trial court concluded that the parties were bound by the provisions of both the building and highway contracts, and that the dispute concerned the application of the highway contract to the elevated drive. Thus the union was required to comply with the dispute procedure of both the highway contract and the building contract. The court concluded that the union had failed to comply with the dispute procedure of the highway contract; that the highway contract was breached by the work stoppage, and Phelps was entitled to recover damages in the amount of the building wage scale paid for highway work.
This appeal is under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, and federal substantive law applies. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580; John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. Although we have been referred to no case concerned with issues quite like those presented in the case at bar, the Supreme Court has established a broad policy for judicial interpretation of collective bargaining contracts. The Court has stated: “[W]e think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve.” United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed. 2d 1403. “The collective agreement covers the whole employment relationship. It calls into being a new common law * * United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409. The Court has also held that in the context of collective bargaining contracts, preoccupation with the doctrines of ordinary contract law may thwart realization of congressional policy. Cf. United Steelworkers of America v. American Manufacturing Co., supra.
These policies are of course difficult to apply to a particular factual'situation such as we have before us. We can examine however the purpose for which the agreements were intended to serve, the fact that they are intended to cover as great a portion of the parties’ relationships as possible, and that all the doctrines of contract law may not be applicable.
This dispute originated during the course of work under a particular agreement, the building contract, and all negotiations and procedures were initially taken pursuant to it. The employees’ pay was initially made at a different scale, but with no indication that a different agreement would be invoked in its entirety. The dispute was treated by the parties as one over an applicable pay scale under a single contract, and the court should treat it in the same way. There was no disagreement as to the hourly rate if the nature of the work was decided. Thus again it was treated by all concerned as a dispute over which of two wage scales should apply.
We hold that the judgment of the trial court must be affirmed, but we cannot agree with the trial court’s conclusion of law that the parties were bound to comply with the dispute procedures of both the building contract and the highway contract.
As indicated above, the disagreement between the parties centered about one issue. Was the elevated drive building work, or was it highway work ? The contents of the contracts in question cannot be considered separately from the unusual nature of the dispute in the case at bar. Unlike the facts of most cases to which we have been referred, the dispute here is fundamental, for it questions which of two contracts should apply to the elevated drive. Until the underlying question of fact was determined, that is, classification of the elevated drive as building or highway work, the parties could not know which wage scale to use. Although the trial court concluded that the dispute concerned application of the highway contract to the elevated drive, the dispute was concerned equally with application of the building contract to the elevated drive.
Review of the record satisfies us that the parties regarded the dispute as one arising under the building contract. It appears that work on the airport project was commenced under the building contract, though the parties never agreed on the classification of the elevated drive. A substantial part of the airport project was within the jurisdiction of the building contract, and the building contract, in Article I, section 2(d), provides that a highway contract, for signature with the union, shall be available to any contractor desiring to engage in highway work. The meeting of July 24 was convened pursuant to the dispute procedure established in the building contract, and Phelps sought to invoke the highway contract in the manner provided in the building contract.
When Phelps sought to put into effect the highway contract under section 2(d) of the building contract, the dispute had long before focused on the classification of the elevated drive. It could not invoke the highway contract for building work, and thus the “jurisdictional” question still remained as before. Phelps’ action in executing the highway contract was no more than a further assertion of its position in the dispute. Neither “party” to the highway contract could be the sole judge of whether the project was within the jurisdiction of the highway contract. Such an interpretation would be inconsistent with the efforts of the union and the contractors to establish comprehensive definitions of building work and highway work in the contracts.
In the case at bar, the union did not agree that the elevated drive was highway work. The basic issue was unchanged by the action of Phelps. The dispute was thus in fact still proceeding under the building contract. The union could not under such circumstances breach the highway contract by causing a work stoppage. The highway contract thus never came into existence, and the union cannot be required to exhaust its dispute procedure. Cf. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347; United Mine Workers of America, Dist. 22 v. Roncco, 314 F.2d 186 (10th Cir.).
The dispute procedure established in the building contract is rudimentary. Beyond the requirement of a meeting between the parties, the dispute provisions in the building contract provide for no further procedure for a binding resolution of the dispute, short of a strike, a lockout, or a law suit. While the dispute procedure does charge the parties to reach a settlement by “mediation, conciliation or arbitration as the circumstances require,” no machinery is provided by which any of the foregoing alternatives might be implemented to achieve the “binding decision” envisioned by the dispute procedure. The parties do not assert that any procedure, beyond the meeting, was required by the language of the contract, and it appears that the language of the contract is inadequate to compel the parties to resort to additional extrajudicial procedures. Cf. United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.).
A failure to agree that disputes shall be resolved by binding arbitration permits the parties to resort to other remedies such as work stoppages, lockouts, or the courts. Compliance with the dispute procedure of the building contract was effected by the meeting of July 24, which resulted in a deadlock. The contract does not contain a “no strike” clause, and, as we have seen, it does not provide for binding and compulsory arbitration. Thus after the contractual dispute procedure proved ineffective to resolve the dispute, the parties were free to pursue their other remedies. The device selected by the union was a work stoppage. Phelps later has sought its remedy in the United States District Court. With different facts the forums selected could be reversed, Phelps imposing a lockout and the union bringing suit.
The union argues that the merits of the dispute concerning classification of the elevated drive were “matters which the parties left to mutual confidence and to their joint committees to work out, if possible, when problems should arise”; and therefore, the trial court erred by finding that the elevated drive was “highway construction within the meaning and intent” of the highway contract. We cannot accept this analysis of the trial court’s limited role in adjudicating disputes arising under a collective bargaining contract. Federal policy, as revealed by § 301 of the Labor Management Relations Act, undoubtedly favors arbitration as the method for resolving disputes arising under collective bargaining contracts. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Local 174 Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. In the case at bar however the contract does not provide for binding arbitration, and resort to the court was proper.
The contracts in question reveal a joint effort of the union and the contractors to define and classify construction projects as building or highway work for purposes of determining the appropriate wage scale. Classification of a particular construction project is not beyond the scope of the contracts in question, nor is such classification beyond the contractual intent of the parties. The dispute here concerned interpretation and construction of the contracts, and the trial court properly adjudicated the dispute on its merits. When the dispute is one arising within the provisions of the contract, it is the function of the courts, under § 301, to adjudicate the dispute, absent provisions in the contract for binding arbitration. See Line Drivers Local No. 961, etc. v. W. J. Digby, Inc., 341 F.2d 1016 (10th Cir.); United Steelworkers of America (AFL-CIO), etc. v. New Park Mining Co., 273 F.2d 352 (10th Cir.); cf. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246; Brown v. Sterling Aluminum Products Corp., 365 F.2d 651 (8th Cir.). See also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.
Although the record reveals conflicting evidence relating to classification of the elevated drive, we are satisfied that there was substantial evidence to support the trial court’s finding that the elevated drive was highway construction. Rule 52, Fed.R.Civ.Proc.; J. A. Tobin Construction Co. v. United States, 343 F.2d 422 (10th Cir.); State Farm Mutual Automobile Ins. Co. v. Lehman, 334 F.2d 437 (10th Cir.). The union caused Phelps to pay building wages for highway construction which was a breach of the building contract, and the union is liable to Phelps for damages.
The record discloses that Phelps claimed $9,327.00 in actual damages. The trial court awarded judgment for $8,000.00, finding that Phelps had paid to carpenters working on the elevated drive “not less than $8,000.00 in excess of that which the plaintiff [Phelps] would have been obligated to pay” if the highway contract had been applicable. We are satisfied that there was substantial evidence upon which the trial court could find that a sum not less than $8,-000.00 would compensate Phelps for excessive wages paid, and we cannot say that such finding is clearly erroneous.
The judgment is affirmed.
. The letter awarding the contract to Phelps and the plans and specifications of the project refer to “Schedule Two Elevated Drive” and “Schedule Three Terminal Building.”
. The hiyhioay contract defines building construction as “building structures, including modifications thereto or additions or repairs thereto, intended for use as shelter, protection, comfort or convenience * * * No structures such as * * * bridges * * *, forming a part of a highway, which are required under the provisions of a highway construction contract, shall be regarded as constituting building work.”
. It also appears that Phelps made retroactive payments for the first four or five weekly pay periods for which the highway scale had been paid.
. The highway contract sets forth its dispute procedure in some detail, but representatives for the union and the contractors, for purposes of a meeting to resolve a dispute, are different than those designated by the building contract. Article VII of the highway contract provides:
“If the Joint Committee is unable or unwilling to render a decision because of deadlock vote or otherwise, thereafter the Employer and the Union shall be free to pursue whatever other legal rights and remedies they may have.” The highway contract expressly prohibits work stoppage by either side until the joint committee has, or has not, reached a decision, but neither party is bound to abide the decision of the joint committee.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant?
A. residential
B. commercial or industrial
C. other
D. unclear
Answer:
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sc_decisiondirection
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A
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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.
LOCKHEED AIRCRAFT CORP. v. UNITED STATES et al.
No. 81-1181.
Argued November 30, 1982
Decided February 23, 1983
Powell, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 199.
'Warner W. Gardner argued the cause for petitioner. With him on the briefs were Richard M. Sharp, Michael S. Giannotto, Jeffrey C. Martin, Carroll E. Dubuc, and Nicholas H. Cobbs.
Carolyn F. Corwin argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, William Ranter, and Katherine S. Gruenheck
Dewey R. Villareal, Jr., filed a brief for the Britannia Steam Ship Insurance Association Limited et al. as amici curiae.
Justice Powell
delivered the opinion of the Court.
Under the Federal Employees’ Compensation Act, a federal employee may not bring a tort suit against the Government on the basis of a work-related injury, but may seek recovery from a third party. The issue here is whether such a third party may seek indemnity from the Government for its tort liability to the employee.
On April 4, 1975, a C-5A aircraft operated by the United States Air Force and manufactured by petitioner Lockheed Aircraft Corp. crashed near Saigon, South Vietnam. Almost 150 people died in the crash, including Ann Nash Bottorff, a civilian employee of the United States Navy. The United States paid death benefits to Bottorff’s survivors under the Federal Employees’ Compensation Act (FECA), 5 U. S. C. §8101 et seq.
Thereafter Bottorff’s administrator filed suit against Lockheed, as the manufacturer of a “defective product,” in the United States District Court for the District of Columbia. He sought damages for Bottorff’s wrongful death and for the injuries she suffered prior to her death. Lockheed, asserting a right to indemnification under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680, impleaded the United States as a third-party defendant.
Lockheed settled the administrator’s claim and moved for summary judgment in the third-party action. The Government did not dispute that it was primarily responsible for the fatal crash, nor did it challenge the terms of the settlement. Rather the Government moved to dismiss the third-party claim on the ground that it was barred by 5 U. S. C. § 8116(c), FECA’s exclusive-liability provision:
“The liability of the United States . . . under [FECA] with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States ... to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States . . . because of the injury or death . . . .”
The District Court, concluding that § 8116(c) did not bar the indemnity claim, granted summary judgment for Lockheed.
On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed. Thomas v. Lockheed Aircraft Corp., 215 U. S. App. D. C. 27, 665 F. 2d 1330 (1981). It concluded that § 8116(c) barred Lockheed’s third-party claim against the United States. In reaching this conclusion, the Court of Appeals relied primarily on several decisions by other Courts of Appeals. See, e. g., Kudelka v. American Hoist & Derrick Co., 541 F. 2d 651, 658-660 (CA7 1976); Galimi v. Jetco, Inc., 514 F. 2d 949 (CA2 1975). The court recognized, however, that its holding was contrary to that reached in Wallenius Bremen G. m. b. H. v. United States, 409 F. 2d 994 (CA4 1969), cert. denied, 398 U. S. 958 (1970).
We granted certiorari to resolve the conflict. 456 U. S. 913 (1982). We now reverse.
M I — l
Section 8116(c) is specific and detailed. It prohibits actions against the United States by an “employee, his legal representative, spouse, dependents, next of kin, [or] any other person otherwise entitled to recover damages from the United States . . . because of the [employee’s] injury or death.” Lockheed is not within any of the specified categories. If § 8116(c) applies, therefore, it can only be because Lockheed is an “other person otherwise entitled to recover damages from the United States.” The Government argues that the language is broad enough to include Lockheed. We must decide if Congress intended that result.
A
FECA’s exclusive-liability provision was enacted in substantially its present form in 1949. FECA Amendments of 1949, §201, 63 Stat. 861 (enacting FECA § 7(b)) (currently codified at 5 U. S. C. § 8116(c)). It was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity. In enacting this provision, Congress adopted the principal compromise — the “quid pro quo” — commonly found in workers’ compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government. See H. R. Rep. No. 729, 81st Cong., 1st Sess., 14-15 (1949); S. Rep. No. 836, 81st Cong., 1st Sess., 23 (1949). This compromise is essentially the same as that found, for example, in the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). See 33 U. S. C. § 905(a).
In Weyerhaeuser S.S. Co. v. United States, 372 U. S. 597 (1963), the Court considered FECA’s exclusive-liability provision and carefully reviewed its legislative history. That case arose out of the collision between an Army dredge and a vessel owned by Weyerhaeuser. A federal employee injured in the collision recovered FECA compensation from the Government and tort damages from Weyerhaeuser. Weyer-haeuser brought suit against the United States under the Public Vessels Act, 43 Stat. 1112, 46 U. S. C. §781 et seq., seeking the damages that it could have recovered from another private shipowner. Included in its claim, under the admiralty divided damages rule, was the Government’s share of the employee’s tort recovery.
The Government challenged the inclusion of any part of the tort damages paid to the employee on the ground that FECA’s exclusive-liability provision protected the United States from such claims. In particular, the Government argued — much as it does in this case — that third parties plainly were included within the general phrase “anyone otherwise entitled to recover damages.” Brief for United States in Weyerhaeuser S.S. Co. v. United States, O. T. 1962, No. 65, pp. 5, 8-11. See 372 U. S., at 600. The Court, however, rejected this argument. It first pointed out that the statute was ambiguous. “[T]he general language upon which the Government relies follows explicit enumeration of specific categories: employees, their representatives, and their dependents. Under the traditional rule of statutory construction which counsels against giving to general words a meaning totally unrelated to the more specific terms of a statute, we think the meaning of the statutory language is far from ‘plain.’ ” Id., at 600-601. The Court then reviewed the legislative history of the exclusive-liability provision, and concluded that it had been intended to govern only the relationship “between the Government on the one hand and its employees and their representatives or dependents on the other.” Id., at 601. The Court summarized its review of the legislative history as follows: “There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.” Ibid. (footnote omitted).
The Weyerhaeuser Court reinforced its conclusion with a discussion of the “nearly identical” LHWCA provision. Id., at 602. The Court observed that under Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956), a shipowner was entitled to obtain indemnification from an injured longshoreman’s employer for damages that were recovered against the shipowner but were based on the employer’s negligence. Although Ryan relied on the existence of a contractual relationship between the shipowner and the employer, the same result was reached in a series of later cases where “the contractual relationship was considerably more attenuated.” 372 U. S., at 603. In Weyerhaeuser there was no contractual relationship, but there was a well-established admiralty rule that had “governed with at least equal clarity the correlative rights and duties” at issue in the case. Ibid.
B
The Court’s reasoning in Weyerhaeuser applies with equal force in the present case. The Government advances the same arguments before us now that it unsuccessfully advanced in Weyerhaeuser. To paraphrase the Weyerhaeuser Court’s conclusion, “[t]here is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of [tort] law affecting the mutual rights and liabilities of private [parties] in [indemnity] cases.” Id., at 601. Section 8116(c) was intended to govern only the rights of employees, their relatives, and people claiming through or on behalf of them. These are the only categories of parties who benefit from the “quid pro quo” compromise that FECA adopts. See Wallenius Bremen, 409 F. 2d, at 995.
The Government seeks to distinguish Weyerhaeuser, but the present situation is nearly identical. Here, as in Weyer-haeuser, a third party has been forced to pay tort damages for the death or injury of a federal employee covered by FECA, and the third party seeks to recover a portion of its payment. Here the basis for the suit against the United States is the Federal Tort Claims Act rather than the Public Vessels Act, but that difference is irrelevant. Congress intended § 8116(c) to apply to suits under both Acts without distinction. See H. R. Rep. No. 729, 81st Cong., 1st Sess., 14 (1949); S. Rep. No. 836, 81st Cong., 1st Sess., 23 (1949). Here Lockheed relies on substantive indemnity law, while the private shipowner in Weyerhaeuser relied on the admiralty divided damages rule, but this is the same irrelevant distinction. The Federal Tort Claims Act permits an indemnity action against the United States “in the same manner and to the same extent” that the action would lie against “a private individual under like circumstances.” 28 U. S. C. §2674; see Stencel Aero Engineering Corp. v. United States, 431 U. S. 666, 669-670 (1977) (citing United States v. Yellow Cab Co., 340 U. S. 543 (1951)). The Public Vessels Act permits an action to recover collision damages on essentially the same terms. To the extent that the basis for the underlying cause of action could make any difference, the indemnity theories on which Lockheed relies are as well established as the divided damages rule was in Weyerhaeuser.
C
The most relevant changes since Weyerhaeuser have been in the LHWCA Amendments of 1972, 86 Stat. 1251. While these changes are illuminating, they do not help the Government’s position. Under the amended LHWCA, an injured longshoreman’s employer is no longer liable to a shipowner for tort damages that the shipowner has paid the employee. See 33 U. S. C. § 905(b). Congress thus overruled the result in Ryan, supra, and abolished the shipowner’s indemnity action. But in so doing, Congress also abolished the injured employee’s seaworthiness remedy against the shipowner — a strict-liability action that the Court had recognized in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). In other words, Congress abolished the third-party indemnity action only in conjunction with a “quid pro quo” to benefit the third parties. Here there has been no FECA amendment to abolish the third-party indemnity action recognized in Weyer-haeuser. The Government nevertheless invites us to abolish the action without the benefit of an amendment. We are requested to do this- even though Congress has provided no “quid pro quo” as it thought appropriate in the LHWCA context. We decline the invitation.
rH 1 — i
The District Court held that Lockheed had a right to indemnity under the governing substantive law, but the Court of Appeals did not rule on that question. Accordingly, we do not consider it. We adhere to the decision in Weyerhaeuser, and hold only that FECA’s exclusive-liability provision, 5 U. S. C. § 8116(c), does not directly bar a third-party indemnity action against the United States. We reverse the judgment of the Court of Appeals and remand the case for further consideration consistent with this opinion.
It is so ordered.
The crash occurred during a mission to evacuate over 250 orphans from Vietnam shortly before the fall of Saigon. The incident is discussed in greater detail in Schneider v. Lockheed Aircraft Corp., 212 U. S. App. D. C. 87, 90-91, 658 F. 2d 835, 838-839 (1981) (per curiam), cert. denied, 455 U. S. 994 (1982).
Lockheed also asserted other claims against the United States that are not currently before the Court.
In United Air Lines, Inc. v. Wiener, 335 F. 2d 379, 402-404 (CA9), cert. dism’d sub nom. United Air Lines, Inc. v. United States, 379 U. S. 951 (1964), the court concluded that FECA’s exclusive-liability provision does not bar a third-party indemnification action against the United States. The court held, however, that the Government nevertheless was not liable to the third party. Since there was no underlying tort liability on the Government’s part toward the employee, there was no basis for indemnification.
We note that the decision whether or not to allow third-party indemnity actions is a problem common to all workers’ compensation systems. Professor Larson has described this issue as “[plerhaps the most evenly-balanced controversy in all of workers’ compensation law.” Larson, Third-Party Action Over Against Workers’ Compensation Employer, 1982 Duke L. J. 483, 484.
The FECA exclusive-liability provision was modeled on the analogous provisions of LHWCA and the New York Workmen’s Compensation Law. By 1949 the New York courts already had construed the New York law to permit third-party indemnity actions against the employer. See, e. g., Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N. Y. 175, 15 N. E. 2d 567 (1938); Gorham v. Arons, 76 N. Y. S. 2d 850 (Sup. Ct. N. Y. Cty. 1947); Clements v. Rockefeller, 189 Misc. 885, 70 N. Y. S. 2d 146 (Sup. Ct. N. Y. Cty. 1947).
Contrary to suggestions in the dissent, post, at 199, 200, 201, there is no indication that the Weyerhaeuser Court balanced FECA’s exclusive-liability provision against the divided damages rule. On the contrary, the holding in Weyerhaeuser relates simply to congressional intent. Whatever Congress might have done, it did not intend FECA’s exclusive-liability provision to override the rights of unrelated third parties — including rights asserted under the Public Vessels Act on the basis of the divided damages rule.
We reject the Government’s suggestion that Weyerhaeuser was wrongly decided. See Brief for United States 22. We note that in the 20 years since Weyerhaeuser was decided, Congress has not modified FECA’s exclusive-liability provision to include third parties. This is particularly significant in view of the 1966 codification of FECA, which included amendments to the new § 8116(c). See Pub. L. 89-554, 80 Stat. 542.
As counsel for Lockheed suggested at oral argument, a guardian ad litem for an employee’s minor dependent could be an “other person” under § 8116(c). Tr. of Oral Arg. 7-8.
The validity of Lockheed’s underlying substantive claim is not before us. The District Court ruled that, as a matter of substantive law, indemnity is available to Lockheed against the United States. The Court of Appeals did not find it necessary to rule on this issue.
Since the validity of the substantive indemnity claim is not before us, the LHWCA cases on which the dissent relies, post, at 200-202, are entirely irrelevant. In Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 842 U. S. 282 (1952), decided 4 years before Ryan and 11 years before Weyerhaeuser, the Court merely held that a substantive right of contribution did not exist in the circumstances of that case. The Court explicitly left open the issue whether such a right to contribution, if it were to exist, would be subject to LHWCA’s exclusive-liability provision. 342 U. S., at 286, and n. 12. Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U. S. 340 (1972) (per curiam), is nothing more than a three-sentence reaffirmation of Halcyon.
Stencel Aero Engineering Corp. v. United States, 431 U. S. 666 (1977), which the dissent finds “similar,” post, at 202, also offers no support to the Government’s position on this point. The issue in Stencel, again relating to the underlying substantive claim, was whether the Government’s waiver of sovereign immunity in the Federal Tort Claims Act applied to an indemnity action based on an injury to a serviceman. Relying primarily on the military nature of the action, we held that the doctrine of Feres v. United States, 340 U. S. 135 (1950), precluded the substantive claim without regard to any exclusive-liability provision. It is clear that the Government has waived its sovereign immunity here.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_numresp
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1
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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.
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.
Darlene SHIDAKER, Plaintiff-Appellant, v. Paul N. CARLIN, in his capacity as Postmaster General (United States Postal Service), Defendant-Appellee.
No. 84-2791.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 13, 1985.
Decided Jan. 29, 1986.
Stephen G. Seliger, Chicago, 111., for plaintiff-appellant.
E. Roy Hawkens, Dept, of Justice, Civ. Div., Washington, D.C., for defendant-appellee.
Before CUMMINGS, Chief Judge, and BAUER and FLAUM, Circuit Judges.
BAUER, Circuit Judge.
This is an appeal by Darlene Shidaker from an adverse judgment entered below in favor of Paul N. Carlin in his capacity as Postmaster General of the United States Postal Service. Shidaker, a postal employee, claims that the Postal Service denied her a promotion because she is a woman and then demoted her for challenging that promotion denial as discriminatory. We reverse and remand for further consideration the district court’s finding that Shidaker’s promotion denial was not discriminatory. We affirm, however, the district court’s finding that Shidaker’s demotion was not retaliatory.
I.
Shidaker was Acting Postmaster and then Postmaster of Kenilworth, Illinois from 1962 through 1982. In this position she was in pay scale category PES-18.
In 1977 Shidaker applied for vacant postmaster positions at Glenview, Palatine, and Franklin Park, Illinois. These positions were PES-22 positions. Ninety-two postal employees (the Postal Service follows a policy of promoting from within) applied for the vacant postmaster positions. Shidaker was the only female applicant. Shidaker was not promoted to any of the positions. The lower court found that two of the men who were promoted were better qualified than Shidaker and that the other promotee was as qualified as Shidaker.
In 1978 Shidaker filed an Equal Employment Opportunity (“EEO”) complaint alleging that she was denied promotion to the PES-22 postmaster positions on the basis of sex. In 1980 an Equal Employment Opportunity Commission Complaint Examiner held a hearing on Shidaker’s complaint. In September 1982 the Complaint Examiner issued a decision on the complaint finding that Shidaker was denied promotion on the basis of sex. In October 1982 the Postal Service’s Regional Director for Employment and Labor Relations Central Region notified Shidaker that the Postal Service was rejecting the Examiner’s decision.
On February 8, 1982 Shidaker received a “Proposed Notice of Reduction in Grade” from her immediate supervisor, Frank J. Santoro. Santoro’s notice proposed that Shidaker be reduced from Postmaster, Kenilworth, PES-18, to distribution clerk, PES-5, because of alleged official misconduct. The notice informed Shidaker that she had the right under Postal Service regulations to answer the charges in the notice. The notice told her to direct her response to Santoro’s superior, Richard Koenigs, District Manager of the Northern Illinois District, the official who would initially decide whether the demotion would occur.
Shidaker responded to Santoro’s notice in two ways: she sent a letter to Koenigs answering the charges, and she filed a second EEO complaint. This complaint alleged that the proposed reduction in grade was in retaliation for her filing the first complaint challenging the promotion denial.
After Shidaker had answered Santoro’s charges in her letter to Koenigs, Santoro wrote Koenigs a personal letter. In his letter Santoro responded to Shidaker’s answers, alleged an additional ground for demoting Shidaker, and urged Koenigs to approve Shidaker’s reduction in grade “for the good of the Service.” Shidaker was unaware of this letter until after Koenigs approved her demotion.
Shidaker was eventually demoted to distribution clerk, PES-5. Shidaker filed an administrative appeal with the Postal Service from this reduction in grade and was accorded a full de novo hearing before a hearing officer appointed to examine the merits of her appeal. Shidaker was given a chance to respond to all charges and evidence including Santoro’s letter to Koenigs. After the hearing, the Postal Service informed Shidaker by letter that the charges against her were supported by the evidence and that the demotion was warranted.
Shidaker sued the Postal Service in the United States District Court for the Northern District of Illinois, Eastern Division. Her complaint is in two counts. Count I alleges discriminatory failure to promote under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 and 39 U.S.C. § 409. Count II seeks review of Shidaker’s administrative appeal of her demotion.
The district court made findings adverse to Shidaker on both counts and entered judgment accordingly. As regards Count I, the district court found that Shidaker failed to establish a prima facie case of discriminatory impact. The court found that Shidaker did make a prima facie showing of disparate treatment, but also found that the Postal Service demonstrated legitimate nondiscriminatory reasons for not promoting Shidaker that were not pretextual. Shidaker’s discrimination count was thus found to be without merit. As regards Count II, the district court found that there was substantial evidence to support the Postal Service’s finding that Shidaker was demoted for misconduct and poor performance and not in retaliation for challenging her promotion denial. The court also found that the Postal Service’s administrative review of Shidaker’s appeal was in adequate compliance with its own procedural regulations. This appeal followed.
II.
Shidaker makes two main arguments on appeal, one charging error in the trial court’s treatment of her discrimination claim and the other charging error in its treatment of her retaliation claim. First, Shidaker argues that the district court erroneously found that she failed to make a prima facie showing of discriminatory impact. She argues that when an employer follows the policy of promoting from within (that is, fills high level positions with lower level employees rather than bringing in “laterals”), a plaintiff need only show statistical evidence of an imbalance between the percentage of a minority occupying high level positions and the percentage of that minority occupying lower level positions in order to make a prima facie case of discriminatory impact. Second, Shidaker claims that Santoro’s letter to Koenigs was an ex parte communication that violated the Postal Service’s regulatory procedures and denied Shidaker due process of law.
We agree with Shidaker that she made an adequate prima facie showing of discriminatory impact. We therefore reverse the district court’s findings and judgment to the contrary, and remand Shidaker’s discriminatory impact claim for further consideration. We affirm the district court’s judgment in all other respects, however, including its finding that despite Santoro’s letter to Koenigs the Postal Service adequately complied with its own procedural regulations when demoting Shidaker.
A.
The district court incorrectly found that Shidaker failed to make a prima facie showing of discriminatory impact. Once Shidaker proved that the Postal Service promotes from within and introduced statistical evidence showing that there is a gross disparity between the percentage of women occupying lower level positions and upper level positions, she made a sufficient prima facie showing of discriminatory impact. She need not, as the district court apparently thought, Shidaker v. Bolger, 593 F.Supp. 823, 835 (N.D.Ill.E.D. 1984), make a further showing of the percentage of female applicants for upper level positions or the percentage of lower level female employees qualified for upper level positions.
To make a prima facie showing of discriminatory impact Shidaker need only present evidence that the Postal Service’s promotion practices, although facially neutral, select promotees “in a significantly discriminatory pattern”. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). This evidence may be, and most often is, statistical in nature. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979); Teamsters v. United States, 431 U.S. 324, 339-40, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Only in very limited instances may a court find discriminatory impact from non-statistical evidence. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977); Carpenter v. Board of Regents, 728 F.2d 911, 914 (7th Cir.1984).
[3,4] Gross disparity between the racial or gender composition of the relevant labor pool and the composition of the group occupying the positions in question can, by itself, make a prima facie case of disparate impact. Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir.1984); Clark v. Chrysler, 673 F.2d 921, 927 (7th Cir.1982), cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982) ; Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235, 1244-45 (7th Cir.1980); See also, Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Where a company is shown to promote from within, the relevant labor pool for upper level positions is the group of employees from which promotees will be drawn. Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. 2742 n. 13; Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir.1984); Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235, 1258 (7th Cir.1980); Paxton v. Union National Bank, 688 F.2d 552, 563-64 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983) ; Fisher v. Procter & Gamble Mfg., 613 F.2d 527, 544 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981). Thus, where the plaintiff can show that the employer promotes from within, evidence of a gross disparity between the percentage of a minority in upper and lower level positions is sufficient to make a prima facie case of disparate impact. Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir.1984); Segar v. Smith, 738 F.2d 1249, 1276-77 (D.C.Cir.1984), cert. denied sub nom. Meese v. Segar, — U.S. -, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); Fisher v. Procter & Gamble Mfg., 613 F.2d 527, 544 (5th Cir.1980).
Once a plaintiff makes a prima facie showing with statistics of this nature, the burden shifts to the defendant to rebut the inference of discrimination raised by these statistics. Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). Defendants may rebut a statistical prima fade showing of disparate impact with statistical evidence of their own that is “more refined, accurate and valid”, Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235, 1245 (7th Cir.1980); Teamsters v. United States, 431 U.S. 324, 339-40 and 360, 97 S.Ct. 1843, 1856, and 1867, 52 L.Ed.2d 396 (1977), or by showing that the challenged standards causing the discriminatory pattern are job related. Washington v. Davis, 426 U.S. 229, 246-47, 96 S.Ct. 2040, 2050-51, 48 L.Ed.2d 597 (1976); Griggs v. Duke Power, 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
Thus, it is not up to Shidaker to proffer evidence of lower level female employees’ qualifications or evidence of the percentage of lower level female employees who applied for upper level positions. The burden is now on the Postal Service to bring forward evidence that few women occupying lower level positions have applied for upper level positions or are qualified for upper level positions, or to bring forward evidence of the job-relatedness of its promotion standards.
We must, therefore, remand Shidaker’s discriminatory impact claim for further consideration by the district court. If the Postal Service can come forward with evidence of a low percentage of female applicants for upper level jobs or evidence of the lack of qualifications of women in lower level positions, the Service might possibly rebut the inference of discrimination that arises from Shidaker’s prima facie statistical showing. The Service might also be able to show the job-relatedness of its promotion standards. These determinations are best left in the discretion of the district court on remand, Soria v. Ozinga Bros., 704 F.2d 990, 995 n. 6 (7th Cir.1983), and are not properly before us for review.
B.
The district court correctly found that the demotion procedure was in adequate compliance with Postal Service regulations. We reject Shidaker’s claim that Santoro’s letter to Koenigs was an ex parte communication that “voided” the demotion decision.
Shidaker alleges that the demotion procedure violated Postal Service regulations and thereby denied her due process. Specifically, Shidaker claims that Santoro’s personal letter to Koenigs, sent after Shidaker responded to Santoro’s notice of reduction in grade, was in violation of § 661.5 of the Postal Service’s Disciplinary, Grievance and Appeal Procedures. That section provides that employees are to have notice and a chance to respond to charges against them when they are the subject of a proposed adverse action. Shidaker claims that this section was violated by Santoro’s letter because Santoro’s letter alleged an additional ground for demoting Shidaker and Shidaker was unaware of that letter until after Koenigs made the decision to demote her. The Postal Service apparently concedes that § 661.5 was violated here, and we, therefore, assume that it was.
It is well-settled that an agency must abide by its own regulations when discharging or disciplining an employee. Vitarelli v. Seaton, 359 U.S. 535, 539-40, 79 S.Ct. 968, 972-73, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 389, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957); Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 503, 98 L.Ed. 681 (1954). Every minor deviation from procedural guidelines, however, does not amount to a denial of procedural due process sufficient to vitiate the entire administrative proceeding. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); County of Del Norte v. United States, 732 F.2d 1462, 1467 (9th Cir.1984), cert. denied sub nom. Assoc, of Cal. Water Agencies v. United States, — U.S. -, 105 S.Ct. 958, 83 L.Ed.2d 964 (1985); Boylan v. United States Postal Service, 704 F.2d 573, 577 (11th Cir.1983), cert. denied, 466 U.S. 939, 104 S.Ct. 1916, 80 L.Ed.2d 464 (1984); Doe v. Hampton, 566 F.2d 265, 277 (D.C.Cir.1977). The question becomes one of determining the seriousness of the error by looking to possible prejudice resulting from siich error. Vermont Yankee Nuclear Power, 435 U.S. at 558, 98 S.Ct. at 1219; United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); Dozier v. United States, 473 F.2d 866, 868 (5th Cir. 1973); Wathen v. United States, 527 F.2d 1191, 1200 n. 9, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976).
If the procedure is found substantially defective because likely to prejudice the rights of individuals subjected to that procedure, the substantive merits of Shidaker’s particular retaliation claim are irrelevant. Greene v. United States, 376 U.S. 149, 161-62, 84 S.Ct. 615, 622, 11 L.Ed.2d 576 (1964); Sullivan v. Dept. of the Navy, 720 F.2d 1266, 1273-74 (Fed.Cir. 1983); Ryder v. United States, 585 F.2d 482, 487-88, 218 Ct.Cl. 289 (1978). We are thus unconcerned with whether, absent the ex parte communication from Santoro to Koenigs, Koenigs would have reached the same decision to demote Shidaker. The test is not whether the procedural defect caused actual prejudice to the rights of the party before the court. Greene v. United States, 376 U.S. 149, 161-62, 84 S.Ct. 615, 622, 11 L.Ed.2d 576 (1964); Simmons v. United States, 348 U.S. 397, 405-06, 75 S.Ct. 397, 401-02, 99 L.Ed. 453 (1955). The test is an objective one, whether the particular procedural defect is so substantial and so likely to cause prejudice that no claimant can fairly be required to be subjected to adverse action under such a flawed proceeding. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); Vitarelli v. Seaton, 359 U.S. 535, 540-46, 79 S.Ct. 968, 973-76, 3 L.Ed.d 1012 (1959); Sangamon Valley Television v. United States, 269 F.2d 221, 224 (D.C.Cir.1959).
Although we view this as a close case, we cannot say that the letter from Santoro to Koenigs was such a serious departure from Postal Service procedures that it vitiated the entire process. Even though this was an ex parte communication and in violation of Postal Service regulations, the defect was not so substantial that it would unfairly prejudice the rights of claimants reviewed undér procedures having this defect.
Certainly other cases have found that certain ex parte communications from an adversary to a neutral administrative decision-maker in the context of an employee discharge or demotion were by themselves procedural defects substantial enough to vitiate the entire administrative proceeding. Sullivan v. Department of the Navy, 720 F.2d 1266 (Fed.Cir.1983); Ryder v. United States, 585 F.2d 482, 218 Ct.Cl. 289 (1978); Camero v. United States, 375 F.2d 777, 179 Ct.Cl. 520 (1967); Sangamon Valley Television v. United States, 269 F.2d 221 (D.C.Cir.1959). We cannot, however, conclude from these cases, as Shidaker argues, that every ex parte communication is sufficient by itself to undermine the integrity of an administrative proceeding. Many other cases have found ex parte communications in administrative proceedings to be harmless error. Pinar, v. Dole, 747 F.2d 899, 906 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Chrysler Corp. v. Federal Trade Commission, 561 F.2d 357, 362 (D.C.Cir.1977); Doe v. Hampton, 566 F.2d 265 (D.C.Cir.1977); Korman v. United States, 462 F.2d 1382, 1388,199 Ct.Cl. 78 (1972); Salter v. United States, 412 F.2d 874, 188 Ct.Cl. 524 (1969). Not every ex parte communication is a procedural defect so substantial and so likely to cause prejudice that it entitles the claimant to an entirely new administrative proceeding.
Several aspects of this ex parte communication convince us that it is not such a substantial procedural error that Shidaker or other claimants subjected to such a defective procedure are entitled to a new proceeding. First, the degree of departure from regulatory guidelines was minor. The regulations did not guarantee Shidaker that Santoro would not respond to her answer. They simply gave her the right to answer all charges and allegations made against her before the demotion decision would be made. Therefore, Santoro’s letter violated Postal Service procedures only to the extent that it alleged an additional ground for demoting Shidaker. This it did in one sentence stating that “[Shidaker’s] community relations also leave much to be desired as evidenced by correspondence previously submitted to you.” Although the Postal Service apparently admits that this single sentence was in violation of regulations, we do not find that it amounts to the type of extended, substantial, and adversarial ex parte communication in blatant violation of known procedural guidelines that has been found fatally defective in other cases. Sullivan v. Department of the Navy, 720 F.2d 1266 (Fed.Cir.1983) (supervisor, angered by employee’s filing of grievance against him, instigated investigation by FBI and Naval Investigative Service into employee’s work habits, directed department head to recommend employee’s removal on basis of evidence discovered in investigation, encouraged hearing officer by ex parte communication to recommend employee’s removal, and encouraged reviewing officer by repeated ex parte phone calls to finalize employee’s removal); Ryder v. United States, 585 F.2d 482, 218 Ct.Cl. 289 (1978) (supervisor, who had recommended employee for discharge on grounds of inefficiency, wrote a lengthy signed ex parte statement to the officer who was reviewing the hearing examiner’s findings, which statement the officer adopted in toto); Camero v. United States, 375 F.2d 777, 179 Ct.Cl. 520 (1967) (attorney, who represented agency at hearing reviewing agency’s discharge of employee, engaged in on-going ex parte discussion of case with officials who reviewed that hearing committee’s recommendation); Brown v. United States, 377 F.Supp. 530 (N.D.Tex.1974) (prosecutor for agency that discharged employee flew with hearing officer to hearing, discussed case with hearing officer on plane, stayed in hearing officer’s hotel, and discussed case after hearing with hearing officer in car on way back to airport).
Second, the “additional ground” alleged in Santoro’s letter was “additional” to the charges in the “Proposed Notice of Reduction in Grade” but was cumulative to other information that Koenigs had already reviewed in regard to Shidaker’s performance. Santoro’s letter itself reveals that Shidaker's poor community relations were “evidenced by correspondence previously submitted.” We thus view Santoro’s ex parte communication less harshly since there is less concern with claimants being unaware of evidence and charges against them when evidence is cumulative to that already before the decision-maker. Doe v. Hampton, 566 F.2d 265, 277 (D.C.Cir.1977) (harmless error where evidence, obtained in violation of regulations and to which claimant had no chance to respond, was cumulative); Dozier v. United States, 473 F.2d 866, 868 (5th Cir.1973) (same); Salter v. United States, 412 F.2d 874, 877-78, 188 Ct.Cl. 524 (1969) (ex parte communication harmless error where evidence submitted thereby is cumulative).
Third, the minor procedural error of Santoro’s ex parte communication was mitigated by Shidaker’s knowledge of it, and chance to respond to it, in the full de novo hearing at which Koenig’s decision was reviewed. We certainly acknowledge that an ex parte communication can be so prejudicial that it cannot be “cured” by subsequent review. Sullivan, 720 F.2d at 1273; Ryder, 585 F.2d at 486-87. Where the communication is already unlikely to do any harm, however, we are reluctant to require a reviewing agency that discovers a minor procedural error to reinstitute an entirely new proceeding rather than rectify that error by giving the employee full opportunity to respond to the new charges and evidence in the communication. Here, Shidaker knew of the existence and contents of Santoro’s letter to Koenigs before the full de novo hearing reviewing her demotion. She had full opportunity to respond to the additional charge and present evidence to the contrary. Whatever damage might possibly have been done by the ex parte communication Shidaker had full opportunity to undo.
Finally, we are reluctant to apply a stringent procedural standard in this particular case since we are not firmly convinced that the regulations give Shidaker the right to have Koenigs act as a neutral decision-maker. Shidaker was certainly entitled to have Koenigs consider her response to charges against her. This, however, would be a sensible requirement for any agency concerned with demoting only those employees who deserve such adverse action. The regulations can thus be interpreted in two ways: as allowing Koenigs to act adversely to Shidaker in the interest of the Postal Service, or as giving Shidaker the right to have Koenigs act as a neutral decision-maker. Santoro clearly was not required to act neutrally towards Shidaker while the hearing examiner reviewing Koenigs’ decision clearly was. The problem is that Koenigs’ function lies somewhere in between these two roles of the Postal Service in the administrative review process. Although we do not rest our decision solely on this basis, Koenigs’ uncertain role as neutral decision-maker makes us unwilling to apply the high standard of procedural protection designed for adjudicatory proceedings.
III.
We find Shidaker’s other bases for appeal to be completely without merit. The district court’s findings as to the promotees’ qualifications were not undermined by the fact that documents underlying the promotion committee’s decision are now unavailable, and there is sufficient evidence to find that Shidaker was demoted for misconduct and poor performance and not in retaliation for challenging her promotion denial as discriminatory.
The judgment of the district court finding that Shidaker failed to make a prima facie showing of discriminatory impact is reversed, and Shidaker’s disparate impact claim is remanded for further consideration. On remand, Circuit Rule 18 will not apply. The district court’s judgment in all other respects is affirmed.
. The district court summarized Shidaker's statistical evidence as follows:
The statistics presented to the Court are as follows: In November, 1974, women held 20.8% of the positions in the Postal Service workforce. The percentage had moved to 23.5% by November, 1980. Nationally, women held 11.5% of the positions at PES 15 and above in January, 1980.
In 1978, the year of Shidaker’s failed promotion, women occupied 23 of the 108 postmaster positions in the North Suburban MSC, or 21.1% of the total postmaster positions.
However, none of the women postmasters were rated higher than PES 20 and 15 of them were at level PES 15 or lower. Additionally in 1977-78 a total of 2,008 women were employed in the North Suburban MSC,- 29.4% of the entire Postal Service workforce in the area. Despite that overall percentage, only four women or 5% were rated in positions of PES 19 or higher. Grossly, the disparities could be significant.
Shidaker v. Bolger, 593 F.Supp. 823, 835 (N.D.Ill. E.D.1984).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_r_natpr
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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 "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.
UNITED STATES of America, Plaintiff-Appellee, v. Thomas O. ROBINSON, Jr. and Aleida Robinson, Defendants-Appellants.
No. 82-5366.
United States Court of Appeals, Sixth Circuit.
Argued May 4, 1983.
Decided May 25, 1988.
Bart Durham, Nashville, Term., Joseph Dalton, argued, for defendants-appellants.
Joe B. Brown, U.S. Atty., Nashville, Tenn., Robert J. Washko, argued, Joel M. Gershowitz, Washington, D.C., for plaintiff-appellee.
Before KEITH and WELLFORD, Circuit Judges, and COHN, District Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
PER CURIAM:
On September 7, 1983 the conviction of defendant Thomas O. Robinson was reversed by this Court, 716 F.2d 1095 (6th Cir.1983). On March 4, 1985 the Supreme Court granted a petition for a writ of cer-tiorari, 470 U.S. 1025, 105 S.Ct. 1387, 84 L.Ed.2d 778 (1985), vacated the judgment and remanded the cause for further consideration in light of United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). On July 9, 1986 this Court reaffirmed its prior decision, 794 F.2d 1132 (6th Cir.1986). Thereafter, on February 23, 1987 the Supreme Court granted a petition for a writ of certiorari, — U.S. -, 107 S.Ct. 1282, 94 L.Ed.2d 141 (1987), and on February 24, 1988 reversed this Court’s decision and remanded the cause for further proceedings in conformity with its opinion. — U.S. -, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988). In conformity with the decision of the Supreme Court the conviction of defendant Thomas O. Robinson is AFFIRMED.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_initiate
|
G
|
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. Charles Kyle GRAY, Defendant, Argonaut Insurance Company, Movant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barbara Ann GASTON, Defendant, Argonaut Insurance Company, Movant-Appellant.
Nos. 77-2299 and 77-2300
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1978.
Janet Reno, Miami, Fla., for movant-appellant in both cases.
J. V. Eskenazi, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases.
Before RONEY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir 1970, 431 F.2d 409, Part I.
PER CURIAM:
In this appeal, the appellant Argonaut Insurance Company asserts that justice did not require the enforcement of two $100,000 appearance bond forfeitures entered against it in the court below and that these bonds should have been set aside under Fed.R.Crim.P. 46(e)(2). We decline to address this question, and consider instead whether the lower court abused its discretion in refusing to set aside the forfeitures. After careful review of the testimony, much of it taken confidentially in camera, we conclude that the lower court did not abuse its discretion, and affirm.
This Court has consistently held that the standard of review for a district court’s refusal to remit part or all of a bond forfeiture is whether the district court abused its discretion. United States v. Shelton, 444 F.2d 522, 523 (5th Cir. 1971); Brown v. United States, 410 F.2d 212, 218 (5th Cir. 1969). We are convinced that a similar standard should be applied when a district court refuses to set aside a bond forfeiture. See United States v. Foster, 417 F.2d 1254, 1256 (7th Cir. 1969). While reasonable minds could have concluded, contrary to the decision of the court below, that justice did not here require a bond forfeiture, we are not persuaded that the lower court abused its discretion in reaching the decision that it did.
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:
|
songer_trialpro
|
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 court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. 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".
Harry Earl POLLARD, by next friend, Sol G. Cherry, Appellee, v. William Patrick FENNELL and Tillie Michel Fennell, Appellants.
No. 12077.
United States Court of Appeals Fourth Circuit.
Argued May 7, 1968.
Decided July 18,1968.
F. T. Dupree, Jr., Raleigh, N. C., (David R. Cockman, and Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, N. C., on brief) for appellants.
Joe McLeod, Fayetteville, N. C., (Quil-lin, Russ, Worth & McLeod, Fayetteville, N. C., on brief) for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
WINTER, Circuit Judge :
In a jury trial in which liability was conceded, plaintiff, an eighteen-year-old minor, was awarded judgment for $42,-500 for a permanent one-inch shortening of his right leg and for pain and suffering as a result of an accident which occurred when he was approximately sixteen years old. At that time, plaintiff, a pedestrian, was struck by a motor vehicle owned by one defendant and operated by the other. In the action no claim was made for medical expenses or for loss of services during minority. Defendant in appealing assigns as error (a) the manner in which the district judge conducted the trial, his interrogation of witnesses and his repetition of testimony favorable to plaintiff, (b) the district judge’s limitation on defendants in the efforts of their counsel to cross-examine plaintiff on the basis of his pretrial deposition, and (c) the district judge’s interruption of defendants’ counsel’s closing argument and his admonition. The amount of the verdict, standing alone, does not shock us, but we are constrained to reverse the judgment and award a new trial because of the district judge’s improper and unwarranted participation in the trial.
To treat defendants’ contentions in inverse order, we see no merit in the claim of error in the interruption of closing argument. In the case liability was conceded. Yet in closing argument defendants’ counsel told the jury “We hope that our fairness and our approach to the whole thing has been evidenced by our giving up the right to show that this was, indeed, a pure accident and one that couldn’t be helped. We hope that — .” Quite properly, we think, the district judge interrupted the argument and told the jury that there was no evidence at all that the accident could not be helped. In advising counsel that he would not permit the argument that the accident was unavoidable after the driver (William Patrick Fennell) pleaded guilty to responsibility for the accident and both defendants admitted liability at the trial, the district judge correctly exercised his function as governor of the trial.
The district judge did unduly limit defendants’ counsel in his cross-examination of plaintiff, but we cannot say that the limitation, as such, constituted reversible error. On cross-examination, counsel asked plaintiff in regard to pain experienced during his hospitalization whether the pain continued for about two weeks. Plaintiff replied that the pain persisted for over two weeks. After an exchange with the district judge, in which the latter volunteered that “there is no question in my mind he hurt all the time for a long period of time,” counsel attempted to interrogate plaintiff about his deposition testimony that the pain' he experienced in, the hospital continued “not long” and specifically “about two weeks.” The district judge interrupted the interrogation, ruling “You want to introduce his deposition, introduce it, let the jury read it,” gratuitously and incorrectly observing “there is no evidence that this boy has changed his story in the slightest.” After counsel voiced an objection, the district judge repeated his erroneous comment, saying “I am not going to let you infer or make a statement that the boy has changed his story when there isn’t a bit of evidence to indicate that he has.”
Ordinarily, counsel should be permitted to interrogate a party or a witness on the basis of his deposition about apparent inconsistencies between his testimony in court and his testimony on deposition with regard to all matters relevant to the issues at trial. There was an apparent inconsistency in plaintiff’s testimony on the two occasions in regard to the duration of pain in the hospital, an item of injury for which recovery was sought, and counsel should have been permitted to inquire. Plaintiff’s deposition, under Rule 26(d) (2), Fed.R.Civ.Proc., because he was a party, could be used by defendants for any purpose. While we neither commend nor approve of the district judge’s failure to observe the provisions of Rule 26(d) (1), Fed.R.Civ.Proc., that a deposition “may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness,” defendants’ counsel could have achieved the same practical result by adopting the suggestion of the district judge and offering plaintiff’s deposition so that he could call to the jury’s attention plaintiff’s apparently inconsistent statement. This counsel failed to do, and we conclude that the district judge’s error in this regard was not sufficiently prejudicial to warrant reversal. However, more basic and fundamental considerations do require that result.
As we have adverted to in our discussion of defendants’ counsel’s argument to the jury, in this circuit the rule is well-established that the district judge is the governor of the trial. United States v. Chase, 372 F.2d 453 (4 Cir. 1967); Fields v. United States, 370 F.2d 836 (4 Cir. 1967); United States v. Godel, 361 F.2d 21 (4 Cir. 1966); Wallace v. United States, 281 F.2d 656 (4 Cir. 1960), cert, den., 370 U.S. 923, 82 S.Ct. 1564, 8 L.Ed.2d 503 (1962); Simon v. United States, 123 F.2d 80 (4 Cir.), cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). This is so because he is the only disinterested lawyer connected with the proceeding; his only interest is to see that justice is done.
As the only disinterested lawyer whose only interest is to see that justice is done, and especially as one who, in the eyes of the jury, occupies a position of preeminence and special persuasiveness, the district judge must be assiduous in performing his function as governor of the trial dispassionately, fairly and impartially. On this record we regret that the district judge fell short of the required standard. By acting, not as a disinterested prober for the truth, but as an advocate and, in addition, by acting as a witness, he created a record from which we must infer that defendants and the jury, with justification, concluded that he unduly favored plaintiff over defendants in regard to the point in issue. A recitation of parts of the record show the basis for these conclusions.
First, the record shows that repeatedly and consistently the district judge was not content to permit counsel to interrogate the witnesses, and the record discloses no reason why the excessive intervention of the district judge in this regard was necessary. We agree with the statement of the Third Circuit that:
“Where both sides are represented by eminently competent counsel we think it important that the court minimize its own questioning of witnesses, to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.” Groce v. Seder, 267 F.2d 352, 355 (3 Cir. 1959).
More objectionable was the fact that the district judge’s questions were usually leading in form. It must be remembered that this was a trial before a jury, and the impact of a question by the court on both the witness and the jury, together with the natural reluctance of counsel to object to the court’s questions, which is even greater when the questioning is in the presence of a jury, should not be underestimated. See, In re United States, 286 F.2d 556 (1 Cir. 1961).
In the margin we set forth part of the direct examination of the plaintiff by his own counsel. Aside from apparently unnecessary interrogation by the district judge, a close reading of the remarks shows that the district judge supplied the testimony that plaintiff was “strapped down to the bed,” that “this cast [was] clear up to the shoulder and all the way down” and that plaintiff was “in a solid cast from the chest down.” In assuming a role as witness, the district judge far exceeded his function as judge.
Advocacy on the part of the district judge was also exhibited in his apparent impatience to bring to the attention of the jury demonstrative evidence of the extent of plaintiff’s injuries, as the following extract from the record shows. Again, we add, the record shows no reason why the intervention of the district judge at this part of the examination of the plaintiff by his counsel was necessary. Groce v. Seder, supra.
We have adverted to the district judge’s misstatement of the contents of plaintiff’s deposition in regard to the' duration of the period that he experienced pain while in the hospital. If' the aura of impartiality on the part of' the district judge had not been diminished up to this point in the trial, it was. demolished in the full exchange which, took place.
Again, the district judge acted as witness. He made his position crystal clear that, irrespective of the evidence, plaintiff’s pain persisted over a considerable period of time; worse, he depicted counsel for defendants as taking an unfair advantage when counsel undertook only to represent his clients’ interests and sought to inquire about a manifest inconsistency between plaintiff’s testimony and his earlier deposition.
We conclude that the manner in which the district judge conducted the trial in the instances set forth ineluctably had its influence on the jury to the prejudice of defendants. Notwithstanding their admission of liability, defendants are entitled, in a new trial, to the fair and impartial assessment of plaintiff’s damages, which they were denied.
Reversed and remanded.
. In the earliest statement of the rule, in this circuit, Judge Dobie said:
“ * * * It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. I-Ie sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. He should not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other. * * * The judge is the only disinterested lawyer connected with the proceeding. He has no interest except to see that justice is done, and he has no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury.” Simon v. United States, 123 F.2d 80, 83 (4 Cir.). cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
. DIRECT EXAMINATION OF HARRY EARL POLLARD
By Mr. McLeod:
Q. Okay. What if any treatment did you receive while you were in the hospital?
THE COURT: Just tell the jury, son, in your own words, not technical, what you remember of how they had you in bed, what they did to you, just in boy’s language; don’t worry about doctor language; they will tell that when they get here. Tell them what they did to you. Did they keep you in bed or have you stretched out?
THE WITNESS: Yes, sir.
THE COURT: Tell the jury.
THE WITNESS: I remember waking up in a operating room where they had taken a steel pin and run it through my right knee through the bone and afterwards fell asleep and woke up pulling my leg down at the foot of the bed and the head of the bed, and my left leg was in traction. THE COURT: How long did they keep you in bed when you were under traction, couldn’t move?
THE WITNESS: From the night I got hit until sometime in January. THE COURT: From November until January they had you in, strapped doion to the bed where you couldn’t move?
THE WITNESS: Yes, sir.
THE COURT: All right.
Go ahead.
Q. How long were you in the hospital bed at your home?
THE COURT: So the jury will thoroughly understand, was this oast clear up to the shoulder and all the way doion, you couldn’t move?
THE WITNESS: No, sir.
THE COURT: Somebody had to carry you or move you, you couldn’t walk or move at all?
THE WITNESS: I could.
THE COURT: Move your arms, but you couldn’t move your body or hips or anything, could you?
THE WITNESS: No, sir.
THE COURT: All right.
So the jury understands he was in a solid cast from the chest down. All right. Go ahead.
(emphasis supplied)
. CONTINUATION OF DIRECT EXAMINATION OF MR. POLLARD
By Mr. McLeod:
Q. What is the condition of your leg at this time?
A. I can’t bend my right leg all the-way back and it is an inch shorter.
THE COURT: Get down and show the jury. Get down and show them where you can’t bend it and how, so-walk in front of them. Pull your trousers up and let them see it if you. want to, I mean if they can’t.
MR. McLEOD: Take your pants off.. THE COURT: Let him do whatever he wants to.
MR. McLEOD: Take your pants off if you will and show the jury your right leg. You might take your shoes: off.
THE COURT: He can walk up there and let you look at it.
MR. McLEOD: Take your shoes off and your pants all the way off so you won’t trip.
(Witness complied)
MR. McLEOD: You walk down here. (Witness complied)
THE COURT: Stop right there. Let them look over, the jury can. You point out to them, son, about the knee and bend it, show them where the trouble is.
THE WITNESS.: Right there is as far as I can bend the leg, (demonstrating) .
THE COURT: In other words, you can’t sit down or squat all the way down.
THE WITNESS: No, sir.
. CROSS-EXAMINATION OF MR. POLLARD
By Mr. Dupree:
Q. And that went on for about two weeks, didn’t it?
A. Longer than that.
Q. About two weeks?
THE COURT: Let’s be fair with the boy. It went on for a year. What do you mean two weeks, Mr. Dupree? I can’t be operated on — I don’t care what he said in that deposition.
MR. DUPREE: I follow it with some questions.
THE COURT: Yes, sir. But I don’t want you to take this young boy like this and say he only had two weeks of pain when he was in a cast from his chest down to his toes for four months and then went back for two operations, and there is no question in my mind he hurt all the time for a long period of time. You take it from there. There isn’t any question about it.
MR. DUPREE: No, sir.
THE COURT: Is there?
MR. DUPREE: Your Honor, I would just like to ask him the length of time over which he experienced this pain. THE COURT: You can aslc him, hut I will tell the jury to use their own experiences on that. I am not going to alloio this young hoy loho obviously doesn’t know if he is under medication to have the record show that he only had tico loeeks of pain on a broken leg of this type and the time that he was in the cast and coming hack a year later and wheel chair. You know it isn’t right yourself. And he had to have a cast to sleep on at night. I mean I want the jury to get the facts. Go ahead.
MR. DUPREE: Yes, sir.
Q. Your deposition in this case was taken by me on the eleventh of March, 1967, wasn’t it?
A. I think so.
Q. And at that time you were asked questions concerning your injury, were you not?
A. Yes, sir.
Q. Is your recollection of how you felt at that time as good as it is now?
A. When I was sitting down talking to you my leg was hurting.
Q. The question, sir, is whether or not your recollection of how you had felt in the hospital and everything at the time when your deposition was taken was as good as it is now?
A. No, sir.
Q. What have you done since that time to refresh your recollection or make you know anything more about it than you did at that time?
THE COURT: Mr. Dupree, wait a minute, I am not going to permit this. That is not fair at all. You want to introduce his deposition, introduce it, let the jury read it. I mean there is no — this boy — there is no evidence that this hoy has changed his story in the slightest. There isn’t. I am not going to stand still for it on this kind of a case. This is an infant.
MR. DUPREE: May I have an exception ?
THE COURT: You may have all the exceptions you want.
MR. DUPREE: Yes, sir.
THE COURT: Yes, sir.
But I want the record to show that this is an infant, and I am not going to let you infer or make a statement that the hoy has changed his story when there isn’t a hit of evidence to indicate that he has.
(emphasis supplied)
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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