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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".
CONNORS, Joseph P., Sr., Pierce, Donald E., Jr., Miller, William, Jordan, William B., Dean, Paul R., as Trustees of the United Mine Workers of America 1950 Pension Trust, 1950 Benefit Plan and Trust, 1974 Pension Trust and the 1974 Benefit Plan and Trust, Appellants in No. 89-1960, v. BETH ENERGY MINES, INC. f/t/a Bethlehem Mines Corporation and f/t/a Beth-Elkhorn Corporation. CONNORS, Joseph P., Sr., Pierce, Donald E., Jr., Miller, William, Jordan, William B., Dean, Paul R., as Trustees of the United Mine Workers of America 1950 Pension Trust, 1950 Benefit Plan and Trust, 1974 Pension Trust and the 1974 Benefit Plan and Trust, v. BETH ENERGY MINES, INC. f/t/a Bethlehem Mines Corporation and f/t/a Beth-Elkhorn Corporation, Appellants in No. 89-1961.
Nos. 89-1960, 89-1961.
United States Court of Appeals, Third Circuit.
Argued Aug. 13, 1990.
Decided Dec. 6, 1990.
Abraham C. Reich (argued), Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., David W. Allen, Margaret M. Topps, Kenneth M. Johnson, United Mine Workers of America, Health and Retirement Funds, Office of General Counsel, Washington, D.C., for appellants/cross-appellees.
J. Anthony Messina, Raymond A. Kresge (argued), Laura M. Stein, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appel-lees/ cross-appellants.
Before MANSMANN, GREENBERG and SEITZ, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this contract matter we are asked to resolve a dispute which requires interpretation of the National Bituminous Coal Wage Agreements of 1981 and 1984. Specifically, we must determine whether the employer, Beth Energy Mines, Inc. (“Beth Energy”) and its predecessors are obligated, under the terms of the Agreements, to credit the Trustees of the United Mine Workers Pension Trust of 1950 and 1974 and Benefit Plan and Trust of 1950 and 1974 (“the Trustees” and “the Funds”) with contributions for lunch periods worked by Beth Energy employees. Because we find that the district court correctly concluded that resolution of this dispute is controlled by our decision in Connors v. Consolidation Coal Co., 866 F.2d 599 (3d Cir.1989), we will affirm the district court’s grant of summary judgment mandating contributions to the Funds. We also find that the district court correctly determined that certain of the Trustees’ claims are time-barred, and will, therefore, affirm the district court’s entry of partial summary judgment in favor of Beth Energy, limiting the Trustees’ recovery to those contributions due after March 11, 1984. Finally, we find no error in and will affirm the district court’s calculation of interest and damages.
I.
The historical facts are straightforward. On March 11, 1987, the Trustees of four collectively bargained employee benefit trust funds filed suit against Beth Energy under the Labor-Management Relations Act and the Employee Retirement Income Security Act in the United States District Court for the Eastern District of Pennsylvania. The Trustees alleged that Beth Energy and its predecessors had failed to make required contributions to the Funds for a period beginning in November, 1983. Specifically, the Trustees alleged that Beth Energy had violated the terms of the National Bituminous Coal Wage Agreements of 1981 and 1984 (“the Wage Agreements”) in failing to make contributions to the Funds for “worked lunch hours.” The Trustees contended that in addition to making contributions based upon a normal eight-hour workday, Beth Energy was required to make contributions to the Funds, on a cents per hour basis, for each 30 minute period worked by a miner in lieu of his regular, contractually mandated lunch break. The miner receives premium pay (IV2 times the normal hourly rate) for working through the lunch period.
In November, 1983, Beth Energy modified its method of accounting for worked lunch hours by moving them from an accounting category, “Hours 1,” to which the contribution obligation applied, to another category, “Hours 4,” for which it was not required to make contributions. The Trustees contended that this change in the method of accounting for worked lunch hours was first discovered by them in February or March, 1985, after the Funds audited the books of a Beth Energy predecessor, Beth Elkhorn Corporation. The Trustees objected to this change, arguing that Beth Energy’s revised accounting for worked lunch hours and the concommitant cessation of contributions to the Funds based upon these hours, violated the terms of the Wage Agreements. Relying primarily upon the same agreements, Beth Energy denied that it had any obligation to contribute to the Funds as a result of worked lunch hours.
In January, 1988, the parties filed cross-motions for summary judgment. On October 14, 1988, the district court determined that it would delay ruling on these motions pending our potentially dispositive decision in Consolidation Coal. Consolidation Coal, which involved the identical Funds and Wage Agreements, required that we determine whether another signatory to the Wage Agreements, Consolidation Coal, was required to make contributions to the Funds for worked lunch hours.
In our January 24, 1989 decision in Consolidation Coal, we held that the employer was obligated to make contributions to the Funds based on worked lunch hours. On March 13, 1989, the district court granted summary judgment in favor of the Trustees in the case now before us; finding Consolidation Coal to be controlling, the district court ruled that Beth Energy was required to base its contributions to the Funds, in part, on worked lunch hours.
Having concluded that contributions were required, the district court gave separate consideration to a motion for partial summary judgment filed by Beth Energy on the issue of limitations. In that motion, Beth Energy contended that all claims for worked lunch hour contributions arising prior to March 11, 1984 were barred by the applicable three-year statute of limitations. The court rejected the Trustees’ claim that the limitations period was subject to equitable tolling and granted Beth Energy’s motion.
In setting the total amount of contributions owed to the Funds, the district court denied Beth Energy’s motion to reduce the award by an amount equal to the interest and liquidated damages which had continued to mount in the days pending our decision in Consolidation Coal and during an extension of time for discovery.
The final order was entered on October 10, 1989, and these cross appeals followed. Beth Energy appeals the determination that it is liable to the Funds for worked lunch hours and challenges the district court’s calculation of interest and liquidated damages. The Trustees appeal the district court’s refusal to apply the doctrine of equitable tolling in order to stay the applicable statute of limitations.
II.
Our resolution of the issues raised on appeal requires that we look first to the district court’s determination that Beth Energy was, in fact, required to make contributions to the Funds on the basis of lunch hours worked. Our review of the grant of summary judgment on this issue is plenary. Goodman v. Mead Johnson and Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
In concluding that the terms of the Wage Agreements required that Beth Energy contribute to the Funds for worked lunch hours, the district court relied primarily on our decision in Consolidation Coal. There we were called upon by the same Funds, referencing the same Wage Agreements, to decide the same issue as that presented here. We concluded there that Consolidated Coal, another signatory to the Agreement, was required to “make contributions to the employee benefit trust fund for ‘worked lunch hours’.” 866 F.2d at 600. Despite the fact that this matter involves a different signatory, we find that the district court’s reliance upon Consolidation Coal was well-placed and that much of the reasoning of Consolidation Coal is applicable in this litigation.
Here, as it was in Consolidation Coal, our first point of reference in determining how the parties intended to treat worked lunch hours for purposes of contributions to the Funds must be the Agreements themselves. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3d Cir.1980). Both parties rely on Articles IV and XX of the 1984 Agreement in support of their worked lunch hours position.
Article IV(b)(l) defines the concept of “work day” within the meaning of the Wage Agreement:
For all inside Employees, a work day of eight (8) hours from portal-to-portal which means collar to collar or bank-to-bank is established including a staggered thirty (30) minutes for lunch, and without any intermission or suspension of operation throughout the day. For inside day workers these eight (8) hours per day and forty (40) hours per week shall be paid for at time and one-half.
App. at 67a.
Article XX of the 1984 Agreement is also relevant as it creates and defines the employer’s obligation to make contributions to the Funds on the basis of hours worked. Section (d)(l)(vii) of this Article provides, in pertinent part:
[H]ours of work for purposes of Employer contributions to the plans and trusts described in this Article shall include all hours worked, or fractions thereof, by Employees in a classified job covered by this Agreement. Hours actually worked for which a premium pay of any type is provided shall be treated for purposes of Employer contributions to the Trusts as though worked on a straight time basis.
App. at 77a.
Construing these provisions in Consolidation Coal, we concluded that in failing to make Fund contributions for worked lunch hours, the employer had failed “to account for the miner’s contractual entitlement to a half-hour lunch period during which he is not required to work,” and that,
“[WJhen an employer requests a miner to forego his contractual right to a lunch period, the employer cannot expect to gain the extra one-half hour of employee productivity without the concurrent responsibility to contribute to that employee’s pension and health funds.”
This outcome is consonant with the provisions of the wage agreements and with industry practice.
866 F.2d at 602 (footnotes omitted).
While the Trustees argue that our interpretation of the Wage Agreements in Consolidation Coal is determinative of the worked lunch hours issue, Beth Energy contends that a number of factors remove this case from the reach of Consolidation Coal. Beth Energy first asserts that under the terms of Articles IV and XX of the Wage Agreements, it has no monetary obligation to the Funds based on worked lunch hours. Beth Energy argues essentially that while an employee may forego his contractually scheduled lunch period, this does not mean that he does not eat lunch; in the interest of production efficiency, the miner simply eats lunch at a time later than he otherwise would have. The total amount of time worked is the same. Beth Energy compensates the miner at a premium rate, not because he works longer, but because his delaying lunch increases the efficiency of the mining operation.
Beth Energy claims that when the contract terms are evaluated, in light of actual worked lunch hour practice, it is clear that no additional contribution is required. Beth Energy focuses upon Article IV(b) of the wage agreement which defines the “basic” work day as eight hours portal-to-portal. Uninterrupted staggered thirty minute lunch periods are included in this eight hour period. Beth Energy then argues that Article XX establishes that the hours actually worked (the portal-to-portal hours) —and only those hours — trigger the contribution obligation. Thus, a miner who delays his regularly scheduled lunch hour and, in reality, does no additional work, is entitled only to contribution for the eight hours of portal-to-portal time; no contribution is required because no additional hours are worked. Beth Energy buttresses this position by relying on the testimony of collective bargaining negotiators to the effect that contributions to the Funds were intended to be based only on actual “clock time”; contributions were not intended to be based on premium pay where that premium pay was not the result of an increase in the number of hours worked.
This argument does not persuade us any more than it did the district court. During these proceedings to the point of our decision in Consolidation Coal, Beth Energy consistently defined the “worked lunch hour” as “the practice of an employee foregoing his or her uninterrupted lunch period in exchange for premium pay.” See, e.g., App. 113a, 173a, 262-263a, 341a, 422a, 502a, 543a and 605a. It was only after our decision in Consolidation Coal that Beth Energy explained that this term really means “delayed lunch hour.” This redefinition renders the phrase “worked lunch hour” meaningless.
We believe that neither Beth Energy’s practice of awarding premium pay for the worked lunch hour nor its accounting for these lunch hours under “Hours Four” squares with this redefinition. In our view, the fact that Beth Energy provides premium pay for “worked lunch hours” suggests that the miner, in foregoing his contractually scheduled lunch hour, is conferring something of special value upon Beth Energy or is giving up something of value to which he is contractually entitled. In working through the scheduled lunch break, it seems clear that the employee does something which the Wage Agreements do not require him to do and is, therefore, entitled to additional compensation. It is also clear that the Wage Agreements contemplate that there will be times when contributions are due on hours for which the miner is paid at a premium.
Article XX(d)(l)(vii) of the Wage Agreement provides that:
[h]ours actually worked for which a premium pay of any type is provided shall be treated for purposes of Employer contributions to the Trust as though worked on a straight-time basis.
App. at 77a. The miner does actually work through his contractual lunch period and is provided with premium pay. The plain language of the Agreement establishes that contributions are due on a straight-time basis.
In concluding that Beth Energy is obligated to the Funds for worked lunch hours, we have also found it significant that, in accounting for worked lunch hours in the category “Hours 4,” Beth Energy reported these hours as overtime hours for purposes of awarding pension credit. Employee pay stubs also reflect credit for overtime. App. at 392a. This accounting for the hours in question implies recognition on the part of Beth Energy that extra work is being performed. If, as Beth Energy claims, the worked lunch hour issue involves nothing beyond juggling of lunch periods, we find it difficult to understand why Beth Energy would provide premium pay and report worked lunches as overtime for pension credit purposes. In sum, we find nothing in Beth Energy’s actual worked lunch hour practice which would support our deviating from the construction given the identical provisions of the Wage Agreements in Consolidation Coal.
We find no merit to Beth Energy’s contention that this case is distinguishable from Consolidation Coal in that the record here, unlike the record in Consolidation Coal, contains persuasive evidence relating to the collective bargaining history of the Wage Agreements. We think that the district court was correct in finding “no material difference between the evidence of bargaining history before the Court of Appeals in Consolidation Coal and the evidence of bargaining history before this court.” Connors v. Beth Energy Mines, Inc., No. 87-1392, 1989 WL 21328 (E.D.Pa., March 13, 1989) at 6.
Finally, we reject Beth Energy’s argument that evidence relating to industry practice with respect to worked lunch hours was improperly considered by the district court. In an affidavit made by Judy L. Lance, the Fund’s Audit Manager, Lance stated that her audit review of the top 40 contributors to the Funds revealed only three instances in which the auditors identified underpayment of contributions to the Funds because of improper reporting of worked lunch hours.
Beth Energy contends that the Trustees gave up the right to rely on this affidavit and any other evidence of industry practice when they refused to answer Beth Energy’s Interrogatory 16. The Trustees declined to answer this interrogatory, which sought identification of employers determined by audit to have credited lunch hours improperly, on the ground that “a response would serve no purpose.” Based upon this refusal, Beth Energy contends that “through that sworn discovery statement, the Funds ... effectively stated that industry practice is irrelevant to this case.”
We do not believe that the Trustees’ refusal to answer the interrogatory posed mandated the district court to refuse consideration of evidence relevant to industry practice. Given the Trustees’ rather vague response to the interrogatory, Beth Energy certainly could have sought clarification of the Trustees’ intent to rely on industry practice, moved to compel discovery, or countered the material set forth in the affidavits.
In sum, we find nothing in the record before us which would remove this case from the holding in Consolidation Coal and will, therefore, affirm the district court’s determination that Beth Energy is required, under the terms of the Wage Agreements, to make Fund contributions based upon worked lunch hours.
III.
Having concluded that Beth Energy is liable to the Funds for worked lunch hour contributions, we must next determine the extent of that liability. Relying on the applicable three year statute of limitations, the district court granted Beth Energy’s motion for partial summary judgment and limited the Funds’ recovery to those contributions which were due from March 11, 1984 forward. The Funds argue that the district court erred in failing to apply the doctrine of equitable tolling to stay the running of the statute. Our review is plenary. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 319 (3d Cir.1983).
Under Pennsylvania law governing the doctrine of equitable tolling, it is clear that “the courts have not required fraud in the strictest sense, encompassing an intent to deceive, but rather have defined fraud in the broadest sense to include an unintentional deception.” Nesbit v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473, 476 (1964). Even under this broad interpretation of fraud, however, it is clear that, in order for the doctrine of equitable tolling to apply, the defendants’ actions must have amounted “to an affirmative inducement to plaintiff to delay bringing the action.” Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir.1985). The intent of the defendant in making this affirmative inducement is irrelevant; “it is the effect upon the plaintiff, not the intention of the defendant, that is pertinent.” Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir.1979).
The burden of proving fraud or concealment, whether intentional or not, rests upon the party making the claim. The evidence presented must be clear, precise and convincing. “[M]ere mistake, misunderstanding, or lack of knowledge is not sufficient to toll the statute of limitations.” Molineaux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987).
Our review of the record reveals no “clear, precise and convincing evidence” to establish that Beth Energy acted intentionally to mislead the Trustees in revising its method of accounting for worked lunch hours. The inquiry thus becomes whether Beth Energy has engaged in unintentional deception. The Funds argue that Beth Energy’s change in the reporting of worked lunch hours without notification to the Funds constituted an affirmative act which had the effect of deceiving the Funds so that suit was delayed. The Trustees argue that “through no fault of their own, the Trustees were unaware of Beth Energy’s practice of misreporting worked lunch hours and, thus, were unaware of their claim for delinquent contributions.” The claim was not discovered until 1985 when the Funds conducted an audit of Beth Elk-horn records.
In our view, the record does not support the Trustees’ construction of the facts. We recognize that there is serious disagreement over whether the Funds were notified or became aware of the change in accounting for worked lunch hours at some time prior to the 1985 audit. The precise details of this disagreement are not relevant to this discussion, however, because we find that, even on the basis of what is undisputed, the Funds are not entitled to invoke the doctrine of equitable tolling.
The parties agree that at all times relevant to this action, Beth Energy supplied the Funds with bi-weekly magnetic tape reports which contained detailed information on Beth ■ Energy’s accounting for worked lunch hours. In these reports, hours were divided by type, individual employee, and location. It is undisputed that these tapes reflected the change in accounting for worked lunch hours as soon as the change was made. The Trustees admit that the tapes’ “breakdown of hours type included Beth Energy’s reporting of worked lunch hours as union committee time” but argue that “consistent smaller misrepresentations are much more difficult to detect than a one-time large anomaly in reporting.” We believe that while this may be so, these tapes were sufficient to put the Trustees on notice of claims based upon the misreporting of worked lunch hours.
As the Trustees have noted, even under accrual of actions and equitable tolling rules, the limitations period begins to run at the point where the plaintiff knew or should have known of the cause of action. See, e.g., Keystone Insurance Co. v. Houghton, 863 F.2d 1125, 1129 (3d Cir.1988) (accrual), and Vernau v. Vic’s Market, Inc., 896 F.2d 43 (3d Cir.1990) (Pennsylvania tolling principles). In light of the bi-weekly reports reflecting the change in accounting for worked lunch hours, we find that the Trustees should have become aware, in the exercise of reasonable dil-igenee, of claims arising from accounting for worked lunch hours, prior to the 1985 audit. We will, therefore, affirm the district court’s conclusion that those claims based on misreporting of worked lunch hours prior to March 11, 1984, are time-barred.
IV.
The final issue which we are called upon to address involves the district court’s award of and Beth Energy’s challenge to interest and liquidated damages incurred during periods of court-imposed delay. Beth Energy argues that in enacting ERISA, Congress did not contemplate that damage and interest assessments would continue during the period of delay which resulted from the district court’s suspending these proceedings pending our decision in Consolidation Coal. Beth Energy also argues that interest and damages should not have been assessed during a period of extension of time for discovery requested by the Trustees which amounted to 103 days for which interest and damages were calculated at $34,533.44. We are asked to rule that the district court’s assessment of this amount was error and that no interest or liquidated damages are due for the court-imposed periods of delay. Here, too, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981).
In order to resolve this question, we look to 29 U.S.C. § 1132(g)(2) which provides that, under ERISA, interest on unpaid contributions and liquidated damages will be awarded to a retirement plan in any successful action based upon delinquent contributions. We have held that the statutory language is clear; the award of damages and interest is mandatory. United Retail and Wholesale Employees Pension Fund v. Yahn and McDonnell, Inc., 787 F.2d 128, 134-35 (3d Cir.1986).
Beth Energy is unable to provide us with any authority in support of its proposition that the damage and interest award becomes discretionary during periods of delay not attributable to the defendant. Because we find no reason to believe that we are not bound by the mandatory language of the statute, we will affirm the district court’s award of interest and liquidated damages.
V.
Having found no error in the district court’s application of our holding in Consolidation Coal to the facts of this case, in its determination that claims prior to March 11, 1984 are time-barred, or in its calculation of interest and damages, we will affirm the judgment of the district court.
. These four funds were established in order to provide pension, health, and other welfare benefits to certain miners and their dependents. The levels of benefits to be paid and relevant eligibility requirements are negotiated by the parties to the Wage Agreements. Benefits are paid from contributions made by signatory employers in accordance with formulae set forth in the Wage Agreements.
. The Trustees also sought contributions for so-called “grievance-hours.” The grievance hour claims are not at issue here.
. The Beth Energy hours accounting system was derived from an instruction booklet prepared by the Funds in conjunction with the parties to the Wage Agreements. The booklet identified four basic categories into which employee hours might fall. “Hours 1" was defined to “[include] all hours worked, or fractions thereof, by all employees. Hours 1 must include all shift time paid for (portal to portal, lunch time, etc.) as such time is specified in the Agreements.” Contributions to the Fund were required for each hour listed in this category. “Hours 2” represented “all time for which employees are paid by the employer but during which no classified work is performed.” This category was to include time spent for vacation, holidays, jury duty, bereavement, etc. “Hours 3" represented sickness and accident hours not paid for by the employer, and “Hours 4" was to include contractual union committee work hours. No Fund contributions were required for Hours 2, 3, or 4. Employees did, however, receive vesting credit and benefit accrual for Hours 3 and 4.
.The record reflects a vigorous factual dispute over when the Funds became aware of the change in accounting procedure. Beth Energy contends that the Trustees were notified of the change late in 1983 or 1984. Our analysis does not require that we determine which view of the facts is correct.
. The underlying purposes of federal labor policy are best served where the collective bargaining agreement is interpreted and enforced uniformly. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985).
. The district court noted that it had before it the affidavit of Roger Haynes, a participant in the collective bargaining process underlying the Wage Agreements. The Haynes testimony relative to bargaining history was also available to us in Consolidation Coal.
. In reaching this conclusion, we have not overlooked Internal Operating Procedure 9.1 which provides that no subsequent panel overrules a published opinion of a previous panel. Rather, we do not regard that procedure as controlling as our decision in Consolidation Coal was predicated on the undisputed facts in that record which were employed to interpret the contract. Beth Energy was not a party to that litigation. We regard Internal Operating Procedure 9.1 as applying to rules of law.
. The parties do not dispute that the three year statute of limitations set forth in Pennsylvania’s Wage Payment Collection Law, 43 Pa.Stat.Ann. § 260.9a(g) (Purdon Supp.1985) is controlling. This issue was resolved in Consolidation Coal, 866 F.2d at 604.
. We are aware that our affirmance on the equitable toiling issue rests on an analysis different from that employed by the district court. While we believe that the district court may have placed undue emphasis on the issue of intent to deceive, we are confident that the result reached was correct and that any error was harmless.
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:
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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. John D. McGREGOR et al., Appellants.
No. 74-1347.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1974.
Decided Oct. 7, 1974.
Jack S. Nordby, St. Paul, Minn., for appellants.
Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before LAY, ROSS and WEBSTER, Circuit Judges.
ROSS, Circuit Judge.
John D. McGregor, Robert Fletcher, and Fountain Agency, Inc. were each charged in a twenty-six count indictment with the use of the mail for the purpose of executing a scheme to defraud in violation of 18 U.S.C. § 1341. Specifically, the indictment alleged that the defendants, acting as agents for Northland Insurance Co., caused notification of insurance policy cancellations to be sent to Northland for the purpose of obtaining premium refunds from Northland. However, the defendants’ customers, whose policies were cancelled, were never informed of the cancellation. From a verdict finding them guilty of all twenty-six counts, McGregor, Fletcher and Fountain appeal contending that the court erred in denying their motion for transfer to another district and that the evidence was insufficient to establish that they acted with intent to defraud.
During the relevant time period, Fountain Agency, Inc., an insurance agency incorporated in Louisiana, was primarily involved in selling automobile collision insurance, generally on vehicles newly purchased by high risk drivers. The policies were often written by the auto dealer himself acting as Fountain’s subagent and financed together with the purchase price of the auto through finance companies such as General Motors Acceptance Corporation. Fountain, itself, was not the insurer, but merely the agent for several insurance companies, chief among which was Northland Insurance Co., a licensed insurance company in Minnesota.
Fountain had negotiated a retrospective contract with Northland, under the terms of which Fountain earned 80% of the premium and Northland earned 20%. The total premium, however, was forwarded to Northland; the 80% was credited to Fountain’s account at North-land and used as a fund out of which all claims by Fountain’s insureds were paid. After claims adjustment, if the losses did not exceed the agent’s earned premium pool, Northland would refund a pro rata amount of earned premium to Fountain.
These retrospective contracts added to cash flow problems already suffered by Fountain. Not only did Fountain experience a need for revenues to pay operating expenses but it also negotiated collateral contracts with subagents who sold policies under which the subagent, usually the automobile dealer, could retain 20% of the face value of the insurance premium as a commission for the sale of the insurance policy. Fountain thus committed 120% of the premium at the outset.
After it was realized that expanding its business under retrospective contracts did nothing to remedy the cash flow problems, McGregor consulted with other insurance agencies who were also experiencing the same difficulties with retrospective contracts. After consulting with these other agencies and with an employee of the Louisiana Insurance Commission, McGregor determined to undertake a program of cancelling policies without notifying or forwarding refunds to the insured.
Under the plan, notices of cancellation were prepared on arbitrarily selected policies, the originals of which notices were sent to Northland. Copies were prepared for the policyholder and lien-holder, but were not sent. Rather, they mailed other documents to the policyholder and the lienholder by registered mail. Certificates of mailing were obtained for these mailings and sent to Northland with the original of the notice of cancellation as false proof that notices of cancellation had been sent to the policyholder and the lienholder. Northland then refunded to Fountain the prorated unearned portion of the premium on the cancelled policy. In effect, these policies were cancelled to the insuror, but not to the policyholders or lienholders who could still hold North-land primarily liable on the policy since they never received notices of cancellation.
During the periods of cancellation, Fountain paid claims against the can-celled policies out of the refunded premiums. As the cash flow situation improved, Fountain began to rewrite the previously cancelled policies with North-land. Names of the policyholders on the reissued policies were changed slightly so that, as McGregor testified, the computer would not reject the policy application. None of the cancelled premiums were ever refunded to the policyholders. Fountain employees were under instructions to conceal records of these cancellations from Northland representatives. Northland was never reimbursed for its prorata loss of its 20% premium nor for its potential liability under the policy during the period of cancellation. When delays began to develop in Fountain’s ability to pay claims against the can-celled policies and complaints were directed to Northland, the plan came to light.
Motion for Transfer.
The Constitution provides that “The Trial of all Crimes . . . shall be held ip the State where the said Crimes shall have been Committed.” U.S.Const. art. Ill, § 2. The sixth amendment carries a like command. However, Fed.R.Crim.P. 21(b) permits a transfer:
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.
This Court has held that the grant of transfer under that rule is a matter of the discretion of the district judge. United States v. Phillips, 433 F.2d 1364 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). In reviewing the district court’s exercise of discretion in these matters, we are guided by the enumeration of factors which were considered in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964):
(1) location of corporate defendant;
(2) location of possible witnesses;
(3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.
Concerning those factors, the Supreme Court stated that the main office or “home” of the defendant has no independent significance in determining whether transfer to that district would be “in the interest of justice,” although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel. Id. at 245-246, 84 S.Ct. 769.
18 U.S.C. § 3237(a) provides in part:
Any offense involving the use of the mails ... is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such . . . mail matter moves.
The Supreme Court and other circuits have accordingly held that the government may elect to bring the prosecution in the district where the letter was mailed or where it was delivered. Salinger v. Loisel, 265 U.S. 224, 233-234, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Benson v. Henkel, 198 U.S. 1, 15, 25 S.Ct. 569, 49 L.Ed. 919 (1905); United States v. Sorce, 308 F.2d 299, 300 (4th Cir. 1962), cert. denied, 377 U.S. 957, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Kreuter v. United States, 218 F.2d 532, 534 (5th Cir.), cert. denied, 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262 (1955); Holdsworth v. United States, 179 F.2d 933, 936 (1st Cir. 1950); Kaufman v. United States, 163 F.2d 404, 411 (6th Cir. 1947), cert. denied, 333 U.S. 857, 68 S.Ct. 726, 92 L.Ed. 1137 (1948); Gates v. United States, 122 F.2d 571, 577 (10th Cir.), cert. denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1941); Johnson v. United States, 59 F.2d 42, 45 (9th Cir.), cert. denied, 287 U.S. 631, 53 S.Ct. 83, 77 L.Ed. 547 (1932). Venue for this crime, then, properly existed in Minnesota, the location of the addressee of the fraudulent mail. To determine whether the appellants were entitled to a transfer from the district for trial, the factors announced in Platt come into play. Here the party defrauded was an insurance company based in Minnesota. The chief government witness was the vice president of Northland. Other North-land witnesses and the postal inspectors involved were from Minnesota. Most of the documents entered into evidence during the trial came from Northland’s office. These factors buttress the trial court’s denial of the motion for transfer. The appellants have failed to demonstrate, as required by United States v. Phillips, supra, 433 F.2d at 1368, that some substantial right.has actually been affected. The motion was properly denied.
Sufficiency of Evidence.
We have recently reiterated the essential elements of a violation of 18 U.S.C. § 1341:
“(1) a scheme conceived by appellant for the purpose of defrauding . by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of the scheme.” “Scheme” to defraud within the purview of this section involves some connotation of planning and pattern. Thus, intent to defraud is an essential element. It may be inferred by all the facts and circumstances surrounding a transaction. [Additionally] ... to bring the scheme within the ambit of the mail fraud statute, the mails must be used for the purpose of executing the scheme, . . . must be employed before the scheme reaches fruition, . . . yet, need not be contemplated as an essential element of the scheme.
United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974). The appellants concede that there is no doubt here that the mails were in fact employed and that this use of the mails was an integral part of the activity which the government alleged to be fraudulent. They do, however, contend that the first requisite was not met on this record. They maintain that because McGregor consulted the Louisiana Insurance Commission, because he received advice from other agencies undergoing similar difficulties, and because Fountain paid all claims against the cancelled policies during the periods of cancellation, they did not have the requisite intent to defraud.
In reviewing the sufficiency of the evidence, we note that the verdict must be sustained if there is substantial evidence, taking the view most favorable to the' government to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). United States v. Madden, 482 F.2d 850, 851 (8th Cir. 1973). The district court made clear in its instructions to the jury that specific intent to defraud was essential to a finding of guilt. Given the proper instructions of the district court and the scope of review, we find that there was sufficient evidence of covert conduct which could permit the jury to determine that the appellents acted with the requisite intent to deceive both Northland and the policyholders. Policyholders were never informed of the cancellation. Office personnel were instructed to conceal the cancellation practice from Northland representatives. At the outset the substitution of other documents for the cancellation notices was effectuated by McGregor in the privacy of a closed office without informing office personnel of the procedure. North-land was never reimbursed for its potential risk during the period of cancellation. Names were altered on reissued policies so that a computer would not detect the prior cancellations. Fountain, while paying claims against cancelled policies acted as an insurance company, an enterprise for which it was not licensed and could not meet capitalization requirements. Given this evidence, resolved in the light most favorable to the verdict, it is clear that the jury, as properly instructed, found that the appellants had specific intent to defraud.
For the reasons hereinbefore expressed, the judgment of conviction is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_r_fed
|
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 "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.
Ricky Lee GRUBBS, Appellant, v. Paul DELO, Appellee.
No. 90-1664.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 10, 1990.
Decided Nov. 8, 1991.
Motion for Abeyance of Proceedings Pending Motion to Recall State’s Mandate Denied Nov. 8, 1991.
Rehearing and Rehearing En Banc Denied Jan. 31, 1992.
Charles A. Siegel, III, St. Louis, Mo., argued, for appellant.
Stephen David Hawke, Jefferson City, Mo., argued, for appellee.
Before BEAM, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOODS, District Judge.
The HONORABLE HENRY WOODS, United States District Judge for the Eastern District of Arkansas, sitting by designation.
BEAM, Circuit Judge.
Ricky Lee Grubbs was convicted of capital murder by the state of Missouri and sentenced to death. He appeals the district court’s denial of his habeas petition. We affirm the judgment of the district court.
I. BACKGROUND
On February 16, 1984, fire fighters were called to the scene of a mobile home fire in Miner, Missouri. They discovered the body of Jerry Russell Thornton inside the mobile home. Thornton’s hands and feet were bound with neckties and he had suffered massive injuries: thirteen broken ribs, a cracked sternum, a laceration of the liver, damage to the small intestine, abrasions and lacerations on the face, a broken nose, a brain hemorrhage, and a large laceration of the neck, extending from the trapezius muscle to nearly the front of the left side of the neck.
The following day, Ricky Grubbs and his brother, Randy Grubbs, were arrested. The day after his arrest, Ricky Grubbs confessed to killing Thornton. In his written confession, Grubbs stated that he and his brother went to Thornton’s trailer home on the afternoon of February 15. (Both brothers were acquainted with Thornton.) Grubbs said that he and his brother had been drinking beforehand and that Thornton was drinking when they arrived. According to Grubbs, shortly after they arrived, Thornton said that he did not like Grubbs and wanted him to leave. Grubbs said Thornton then came toward him and he became scared and struck Thornton repeatedly. When Thornton fell to the floor, Grubbs and his brother “hog-tied” him with some of Thornton’s neckties and Grubbs cut Thornton’s neck with a knife. Before leaving the trailer home, the brothers took thirty dollars and some food stamps. Grubbs stated in his confession that he and his brother returned the following day and set the fire to destroy any evidence that might incriminate them.
In November 1985, after a pretrial hearing, the Missouri circuit court determined that Grubbs’s confession would be admissible as evidence. A trial was held a few weeks later, in December, and Grubbs testified in his own defense. The proceedings, however, resulted in a mistrial when one juror, during a poll of the jury after it had submitted its verdict to the court, denied that the guilty verdict was his. A change of venue was granted and a second trial was held in March 1986. Grubbs did not testify at this trial, but his confession— which was essentially the only direct evidence that he had committed the crime— was admitted against him. The jury convicted Grubbs of capital murder and he was sentenced to death.
In February 1987, the Missouri Supreme Court affirmed the judgment on direct appeal. State v. Grubbs, 724 S.W.2d 494 (Mo.) (en banc), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 707 (1987). Grubbs then filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 27.26 (repealed effective January 1, 1988; now governed by Rule 29.15). The post-conviction court denied relief and the Missouri Supreme Court affirmed this judgment in November 1988. Grubbs v. State, 760 S.W.2d 115 (Mo.1988) (en banc), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 672 (1989). In June 1989, Grubbs filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1988). In late 1989, the district court issued an unpublished order and memorandum finding a number of Grubbs’s claims to be procedurally barred. Grubbs v. Delo, No. 89-1048C(1), Order and Memorandum (E.D.Mo. Dec. 27, 1989). In April 1990, the district court issued a published order and memorandum addressing the merits of Grubbs’s remaining claims and denying his petition. Grubbs v. Delo, 734 F.Supp. 395 (E.D.Mo.1990).
II. DISCUSSION
Our task in reviewing Grubbs’s claims is made much easier by the district court’s excellent memoranda. In fact, because the district court did its work very thoroughly and competently — and because many of Grubbs’s claims are without merit — it is unnecessary for us to discuss at length several issues raised by Grubbs on appeal. Instead, we will address those matters that we believe contain Grubbs’s most meritorious claims and those issues that are affected by cases decided since the district court’s decision.
A. Double Jeopardy
Grubbs argued in the district court that his second trial violated the double jeopardy clause of the Fifth Amendment. The district court determined that the disposition of this issue by the Missouri post-conviction trial court rested on an adequate and independent state procedural bar. Grubbs argues on appeal that the state procedural bar was not adequate. There may be some merit in Grubbs’s argument, and we will discuss this aspect briefly, but if we cut through the procedural-bar chaff, so to speak, we find no merit in the underlying constitutional claim.
It is a basic doctrine of law that if a state court’s resolution of an issue rests on a state law procedural ground that is “independent” of federal law and “adequate” to support the state court’s judgment, a federal court will not review the issue in a habeas action. See Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989). The difficulty in applying this doctrine, of course, lies in determining what constitutes an adequate and independent state law ground. For our purposes, it will suffice to state two guiding principles. First, a state court’s discussion resolving an issue need not be confined entirely to the state law ground: if a state court addresses the merits of a federal claim in an alternative holding, the adequate and independent state-ground doctrine will still preclude federal habeas review. See Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10. Second, a state procedural rule is not adequate unless it is strictly or regularly adhered to. If a state applies its rule inconsistently, we are not barred from reaching the federal law claim. See Coleman, 111 S.Ct. at 2568-69 (White, J., concurring); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988).
The state post-conviction trial court stated the following in response to Grubbs’s double jeopardy claim:
This claim is not one properly cognizable in a 27.26 motion as it is a motion which could have been properly reviewed upon appeal. Bradford vs. State, 694 S.W.2d 760, 761 (Mo.App.1985). Further, that Movant’s constitutional rights were not violated by having a second trial in this instance. For the reason that the trial court’s ruling was justified by manifest necessity. State vs. Franks, 702 S.W.2d 853, 856 (Mo.App.1985).
Respondent’s Exhibit J, at 83 (decision of St. Francois County Circuit Court). The district court determined that the first sentence quoted above constitutes an adequate and independent state procedural bar — that is, issues not raised on direct appeal in Missouri are not cognizable if raised for the first time in post-conviction proceedings. The last two sentences, according to the district court, merely state an alternative federal law holding.
Grubbs argues that the first sentence is not an adequate procedural bar because the post-conviction trial court failed to recognize an exception to the procedural rule for double jeopardy claims. We believe that there may be some problem with the adequacy of the state-law ground. There is some indication that the Missouri courts have not consistently followed their procedural rule. But there is no need for us to work through the Missouri case law to resolve the question of the adequacy of the state-law ground for the procedural bar, for in the final analysis there is no merit to Grubbs’s claim that his second trial was in violation of the double jeopardy clause. As we explained in the background, Grubbs requested a mistrial after a juror in his first trial stated during a poll that the guilty verdict “was not his separate, individual verdict.” Respondent’s Exhibit B, at 9. This decision to request a mistrial was not a Hobson’s choice for Grubbs. Under Rule 29.01(d) of the Missouri Rules of Criminal Procedure, the trial judge could have either discharged the jury or directed it to retire for further deliberations. As a general rule, absent proseeutorial or judicial overreaching — neither of which is alleged in this case — a motion by a “defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution.” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Therefore, the double jeopardy clause was not violated by Grubbs’s second trial.
B. Grubbs’s Confession
Grubbs argued in the district court that his counsel on direct appeal was constitutionally ineffective, under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to argue to the Missouri Supreme Court that his confession was inadmissible. The district court determined that Grubbs had procedurally defaulted on this claim in state court and that no excuse exists to overcome the procedural bar. Grubbs does not deny on appeal that he procedurally defaulted, but he argues that the district court erred because “cause” for the default, under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), exists in his post-conviction trial counsel’s ineffective assistance. We find no merit in Grubbs’s underlying claim.
At the outset, we note that Grubbs does not explain, in any detail, why his confession was inadmissible. We gather from oral argument and Grubbs’s brief that his principal contention is that his confession was unconstitutionally obtained as a result of questioning after he had invoked his right to remain silent. Grubbs, however, also seems to make an argument that the confession was unconstitutionally obtained as a result of questioning after he had requested an attorney. Before we can determine whether Grubb’s counsel on direct appeal was ineffective under Strickland for failing to argue that Grubbs’s confession was inadmissible, and before we can determine whether post-conviction trial counsel’s failure to argue the ineffectiveness of direct-appeal counsel constitutes “cause” under Wainwright, we examine the circumstances surrounding Grubbs’s confession. If there is no basis for claiming that his confession was inadmissible, Grubbs’s counsel on direct appeal cannot be considered ineffective for having failed to argue a meritless issue before the Missouri Supreme Court. See Meyer v. Sargent, 854 F.2d 1110, 1115-16 (8th Cir.1988) (no prejudice under Strickland when counsel on direct appeal fails to raise a merit-less issue). Therefore, a brief background on Grubbs’s claim is necessary for a full and clear resolution of this issue.
Before trial, Grubbs filed a motion to suppress his confession. This motion claimed, inter alia, that his confession had been unconstitutionally obtained as a result of continued questioning by law enforcement officers after he had invoked his right to remain silent and after he had requested an attorney. Respondent’s Exhibit B, at 24-27; see also Respondent’s Exhibit A, at 82-84. The Missouri trial court held a hearing on Grubbs's motion, at which the testimony of Grubbs, the county sheriff, and others revealed the following events leading up to Grubbs’s confession.
Grubbs was arrested at about 8:30 p.m. on Friday, February 17, 1984. Respondent’s Exhibit A, at 24. (His brother Randy had been arrested earlier that day and was held in custody at another location. Id. at 19.) When Grubbs was brought into custody, the county sheriff read a Miranda warning to him. Id. at 21, 63. According to Grubbs’s testimony, he refused to answer any questions and requested an attorney. Id. at 63. There is some indication in Grubbs’s testimony that questioning by the sheriff continued after this point. Id. According to the sheriffs testimony, Grubbs invoked his right to remain silent, but he did not request an attorney. Id. at 18, 25. (It is not clear from the sheriffs testimony, whether any questioning of Grubbs continued after Grubbs had invoked his right to remain silent.) Following this brief encounter (described by Grubbs as lasting “a little while”), Grubbs was placed in a cell overnight. Id. at 63.
The following day, at about 1:30 p.m., the sheriff and Grubbs met again. According to Grubbs, the sheriff initiated the meeting, asked him if he wanted to make a statement, and he refused. Id. at 64-65. At the pretrial hearing, the sheriff did not remember whether Grubbs initiated this meeting, but the sheriff testified that Grubbs did not refuse to make a statement. Id. at 25-26. According to the sheriff, Grubbs simply wanted to talk to his brother. Id. There is no dispute that after this brief encounter, Grubbs did speak to his brother, Randy, on the telephone (apparently to confirm whether Randy had been cooperating in the investigation). Id. at 64-65. According to Grubbs’s testimony, his brother informed him that he was cooperating with officials. Id. at 65. After the telephone call, according to Grubbs, the sheriff asked him again if he wanted to make a statement and Grubbs told him no. Id. at 66. Grubbs was then promptly placed back in his cell with no further questioning. (Grubbs testified, “I said, ‘No I don’t want to [talk].’ So he [the sheriff] took me and locked me back up.” Id.) At about 3:30 p.m., according to the sheriff’s testimony, Grubbs told him that he wanted to make a statement. Id. at 19. The sheriff testified that he then read the Miranda warning to Grubbs again, Grubbs signed a written waiver of his rights, and Grubbs confessed to the crime in a written statement. Id. at 15-20. It is not clear from the record whether Grubbs contacted the sheriff and volunteered the confession or whether it was in response to further questioning.
Two weeks after the pretrial hearing, the trial judge denied Grubbs’s motion to suppress his confession. The trial court made a ruling as follows: “[T]he court finds that the statements [of Grubbs] were given after a knowing [and] intelligent waiver of his rights were made [and] after his Miranda warnings were given to him explaining his constitutional rights. The [court] finds his statements were not coerced from him nor were they a result of a product of an illegal arrest.” Respondent’s Exhibit B, at 6 (Docket Sheet Entry, Circuit Court, Perry County, Mo., Nov. 27, 1985). Grubbs’s statement to the sheriff was admitted as evidence against him (in fact, at his trial in March 1986, it was, as earlier indicated, the only direct evidence introduced to show that he had murdered Thornton).
At the conclusion of Grubbs’s trial, his trial counsel raised the issue of the admissibility of the confession again in a motion for a new trial, thus preserving the issue for appeal. See Respondent’s Exhibit B, at 145. On direct appeal, however, Grubbs’s new counsel did not include the claim in Grubbs’s brief and, as a result, the issue was not addressed by the Missouri Supreme Court. In post-conviction trial court, instead of alleging ineffective assistance of counsel on direct appeal, Grubbs argued that his counsel at trial was ineffective for not arguing that his confession was inadmissible. See Respondent’s Exhibit J, at 2-9, 14-23 (pro se post-conviction petition and amended petition). The post-conviction trial court noted that Grubbs’s trial counsel had in fact argued against the admission of Grubbs’s confession. The court concluded that Grubbs’s trial counsel was not constitutionally ineffective. See id. at 78-79. On post-conviction appeal, the Missouri Supreme Court affirmed and stated:
[N]either movant’s pro se 27.26 nor his amended motion allege ineffective assistance of appellate counsel for failure to raise the admissibility of the defendant’s statement on direct appeal. “It is fundamental that issues not raised in a Rule 27.26 motion may not be considered on appeal.” Walker v. State, 715 S.W.2d 261, 262 (Mo.App.1986).
Grubbs, 760 S.W.2d at 120 (emphasis added).
In his federal habeas petition, Grubbs claimed that his counsel on direct appeal was constitutionally ineffective for failing to argue that his confession was inadmissible. The district court decided that the resolution of the issue by the Missouri Supreme Court rested on an adequate and independent state ground. The district court also held that the failure of Grubbs’s post-conviction trial counsel to raise the issue cannot constitute cause because no constitutional right to counsel exists in state post-conviction proceedings. See Grubbs, Order and Memorandum, at 1461 n. 1.
As Grubbs correctly notes, a few months after the district court issued its final order and memorandum this court expressly stated that “ineffective assistance of post-conviction counsel can be ‘cause’ for purposes of lifting a procedural bar.” Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir.1990) (emphasis added). This rule is brought into question by the Supreme Court’s recent opinion in Coleman v. Thompson. We will not, however, address that issue here because it is clear that there is simply no merit to Grubbs’s underlying claim that his confession was inadmissible.
First, we note the relevant principles of law. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court “established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived.” McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991). If the state can establish that the suspect “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel,” his statements elicited during questioning are admissible. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that once a suspect asserts a right to counsel, the interrogation must cease and he cannot be approached for further questioning “until counsel has been made available to him.” Id. at 484-85, 101 S.Ct. at 1885. If questioning does resume, “the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” McNeil, 111 S.Ct. at 2208. If a suspect exercises the right to remain silent, but does not request counsel, subsequent statements are admissible if law enforcement officers “scrupulously honored” the suspect’s right to remain silent. Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).
Second, we note the standard under which we determine the facts as they apply to Grubbs’s claim. As we recently explained in Hill v. Lockhart, 927 F.2d 340 (8th Cir.1991), under the Supreme Court case of Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985),
[t]he admissibility of a defendant’s confession is a mixed question of law and fact and as such merits independent consideration by a federal court in a habeas proceeding. However, “subsidiary factual questions such as ... whether the police in fact engaged in the intimidation tactics alleged by defendant,” involved in a state court’s determination of volun-tariness are factual determinations entitled to the presumption of correctness under 28 U.S.C. § 2254(d) (1988).
Hill, 927 F.2d at 346 (quoting Miller, 474 U.S. at 112, 106 S.Ct. at 450-51).
Applying these principles to Grubbs’s case, it becomes clear that there is no merit to Grubbs’s assertion that his confession was inadmissible (thus, his counsel on direct appeal could not have been ineffective for failing to argue the issue). The trial court expressly ruled that Grubbs gave his confession “after a knowing [and] intelligent waiver of his rights.” The judge did not make an explicit factual finding on whether Grubbs asked for an attorney, but the implication of the court’s ruling is that the court decided Grubbs had not made such a request, thus believing the sheriff’s testimony and not Grubbs’s. See Winford v. Swenson, 517 F.2d 1114, 1118 (8th Cir.1975) (“federal courts sitting in habeas corpus may, in the absence of clear expression by the state court, reconstruct implied findings of fact and interpolate the constitutional criteria applied”). We must accept such a factual finding by the state court, so no violation of the rule established in Edwards can be said to exist. Likewise, after a careful review of the record, we can see no violation of Mosley; we believe that Grubbs’s right to remain silent was scrupulously honored by the police. We also agree with the trial court’s finding that Grubbs’s statement was not coerced from him.
C. Error of Attorney on State Post-Conviction Appeal
Grubbs argued in the state post-conviction trial court that his trial counsel was constitutionally ineffective for failing to conduct a reasonable investigation into witnesses who could testify that he was intoxicated on the day of the crime and, thus, establish that he was incapable of forming the requisite intent to commit capital murder. Again, the post-conviction court was the first forum in which Grubbs could effectively raise the ineffective assistance claim. Following an evidentiary hearing, the post-conviction trial court concluded that Grubbs’s trial counsel had not been ineffective. See Respondent’s Exhibit J, at 74-75. Grubbs did not pursue the issue on post-conviction appeal.
In his federal habeas petition, however, Grubbs again argued that his trial counsel was constitutionally ineffective for failing to reasonably investigate the availability of possible witnesses. The district court ruled that Grubbs’s failure to pursue this issue on state post-conviction appeal constituted a procedural default that bars review in federal habeas. The district court rejected Grubbs’s argument that ineffective assistance of counsel on post-conviction appeal can constitute cause to overcome the procedural default. On appeal to our court, Grubbs does not deny that a procedural default occurred, but he argues that the district court erred on the issue of cause. We disagree and base our analysis and conclusion on the Supreme Court’s recent decision in Coleman v. Thompson.
The issue resolved in Coleman, in fact, is nearly identical to the one raised by Grubbs. Coleman argued in state habeas trial court that his counsel was constitutionally ineffective during trial, sentencing, and direct appeal. Under state procedural law, the state habeas trial court was the first forum in which Coleman could raise an ineffective assistance claim. Coleman, 111 S.Ct. at 2567. After holding an eviden-tiary hearing, the state habeas court ruled against Coleman. Coleman’s attorney then filed a notice of appeal from the court’s judgment. The notice, however, was filed three days past the deadline established by state court procedures and the state supreme court eventually dismissed the appeal on that basis. Id. at 2552-53. In federal habeas, Coleman argued that his attorney’s error in failing to file a timely appeal constituted ineffective assistance of counsel and thus cause for the procedural default. Id. at 2567.
The Supreme Court considered Coleman’s claim in two parts. In the first part, the Court reviewed in general the circumstances under which an attorney’s error can constitute cause. It noted that states are not constitutionally obligated to provide counsel in state post-conviction proceedings. Id. at 2566-67; see Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (no constitutional right to an attorney in post-conviction proceedings); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (applying Finley to capital cases). Thus, a petitioner “must bear the burden of a failure to follow state procedural rules” because the error cannot be imputed to the state. Coleman, 111 S.Ct. at 2567.
In the second part, the Court considered Coleman’s argument that there must be some exception for those cases involving constitutional claims that can only be raised in state post-conviction proceedings. “[A]t least as to these claims,” Coleman argued, “attorney error in state habeas must constitute cause.” Id. The Court declined to consider this question broadly because one state court — the state habeas trial court — had addressed Coleman’s claim and the effectiveness of Coleman’s counsel before that court was not at issue. The Court explained that indigent criminal defendants have a right to appointed counsel “in [their] first appeal as of right” in state court and that that “right encompasses a right to effective assistance of counsel.” Id. at 2568. Thus, because the state habe-as trial court considered Coleman’s claim, and he was represented by counsel which he did not claim was ineffective, he “had his ‘one and only appeal’ ” as of right. Id. In other words, Coleman’s state collateral evidentiary hearing was the functional equivalent of the one appeal to which every defendant is entitled; and, because the right to counsel does not extend beyond the first criminal appeal of right, Coleman cannot claim a right to effective assistance of counsel in his appeal from the state habeas trial court’s decision.
All this results in the same conclusion for Grubbs. The Missouri post-conviction trial court held an evidentiary hearing to consider his claim of ineffective assistance of trial counsel, and it denied his claim. He cannot claim to be entitled to a right to effective assistance on appeal from that determination. Cause cannot exist. His claim fails.
D. Lesser-Included Offense Instruction
Grubbs argues that he was denied due process, under the Eighth and Fourteenth Amendments, when the state trial court failed to instruct the jury on a lesser-included offense of felony murder (i.e., murder in the course of theft). This is a different claim than Grubbs presented below. In the district court, Grubbs claimed that his post-conviction trial counsel was constitutionally ineffective for “failing to make an argument concerning instructional error.” Grubbs, Order and Memorandum, at 5. The district court ruled that Grubbs’s claim “is not cognizable on a federal habeas corpus action.” Id. (relying on Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir.1988).) Grubbs’s failure to present his due process claim to the district court precludes appellate consideration of the issue. See Warden v. Wyrick, 770 F.2d 112, 114 (8th Cir.1985).
E. Supporting Evidence for Two Aggravating Circumstances
In the district court, Grubbs argued that two of the three statutory aggravating circumstances found to exist by his sentencing jury were not supported by the evidence and thus were improperly submitted to the jury. Grubbs argued further that as a result of this impropriety his death sentence should be vacated. The two aggravating circumstances were: (1) that Grubbs murdered Thornton “for the purpose of receiving money or any other thing of monetary value,” and (2) that the murder was committed “for the purpose of preventing” Grubbs’s lawful arrest. Respondent’s Exhibit B, at 131 (Jury Instruction No. 17). The district court reviewed Grubbs’s claim under a de novo standard and agreed with Grubbs that there was not enough evidence to submit these two aggravating circumstances to the jury. The district court noted a concurring opinion in Grubbs’s direct appeal, by Judge Blackmar of the Missouri Supreme Court, that reached a similar conclusion. See Grubbs, 724 S.W.2d at 502 (Blackmar, J., concurring). The district court, however, did not agree with Grubbs’s contention that his death sentence should be vacated; the court explained that the “remaining aggravating factors might well have been sufficient to outweigh any existing mitigating factors.” Grubbs, 734 F.Supp. at 407.
Grubbs argues on appeal that the district court applied the wrong standard in determining the effect of the improperly submitted aggravating circumstances. According to Grubbs, the district court’s conclusion that the remaining aggravating circumstances “might well have been
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_genresp2
|
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.
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. P. R. MALLORY & CO., Inc. and International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, Respondents.
No. 11671.
United States Court of Appeals Seventh Circuit.
Oct. 11, 1956.
David P. Findling, Associate Gen.: Counsel, Owsley Vose, Atty., N. L. R. B., Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Myron S. Waks, Atty., N. L. R. B., Washington, D. C., for petitioner.
Frederic D. Anderson, Earl C. Townsend, Jr., George J. Zazas, Barnes, Hick-am, Pantzer & Boyd, Indianapolis, Ind., for respondent, P. R., Mallory & Co., Inc.
Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.
MAJOR, Circuit Judge.
This matter is here upon petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act as amended, Title 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents, International Union of Electrical, Radio and Machine Workers, CIO, Local 1001 (hereinafter referred to as: IUE), and P. R. Mallory & Co., Inc. (hereinafter referred to as the Company). The Board’s decision and order are reported in 111 N.L.R.B. 38, Both respondents request that the order be set aside.
The Board found that IUE by engaging in work stoppages in support of its demand that the Company discharge Mayme Dietz, a non-member, in order to prevent her from displacing a junior IUE member in her department, violated Section 8(b) (2) and (1) (A) of the Act, and that the Company by acquiescing in IUE’s demand, with knowledge of IUE’s unlawful purpose, violated Section 8(a) (3) and (1) of the Act.
The unfair labor practices are predicated upon incidents which occurred on September 15 and 22, 1953, with the subsequent discharge of Dietz. The issue, most strongly pressed here by both respondents is the lack of substantial evidence to support the Board’s findings upon which its order rests. At this point,, a brief statement of the factual situation will suffice.
Prior to November 1949, Local 1001,. the collective bargaining representative for the Company’s employees at Indianapolis, Indiana, was affiliated with the United Electrical, Radio and Machine Workers of America (hereinafter referred to as UE). At that time, members of the Local, numbering about 2,000 employees, voted to disaffiliate from UE and to affiliate with IUE, which was substituted for UE as the bargaining representative and continued as such to and including the events in controversy. A small group of employees, some eighteen in number, including Dietz, were opposed to the change of affiliation and. were not offered membership in IUE. Dietz joined UE in January 1944, and in: 1947 or 1948 served as a union steward for three or four months. This constituted her only activity in connection with UE. Dietz continued her employment with the Company until the time of her discharge in 1953. She made no effort to join IUE, except on one occasion when she visited the union office and inquired of Sullivan, president of IUE, as. to why she had not been offered a membership application card. At that time she was informed by Sullivan that it was because of her association with one Jackson whom Sullivan considered a Communist, and that the members had disaffiliated with ÜÉ because it-was con-trolled by Communists. At the same time Sullivan assured her that she would be protected as a non-member under the Taft-Hartley Act. The Company, unaware of her non-membership, continued for a while to deduct IUE dues from her pay. Upon advice from IUE that she was not a member, the Company, in August 1950, returned to her money which it had collected since November 1949.
For some two years following the change in affiliation by Local 1001, Dietz continued undisturbed in her employment with the Company and became a senior employee in her department. In October 1951, the Company announced that it was necessary to lay off a number of employees, and the next day the employees in her department engaged in a work stoppage apparently for the reason that they were opposed to Dietz and other non-union members working while union members were being laid off. Union president Sullivan came to the plant, advised the employees that the work stoppage was unauthorized, in violation of their collective bargaining agreement, and that future recurrences would be their own responsibility. He succeeded in persuading the employees to return to work. Dietz was permitted to resume her work while forty other employees, both member and non-member, were laid off.
Again Dietz continued in her employment for another period of almost two years or until September 15, 1953, when the first of the incidents in controversy took place. During the period after the affiliation with IUE, almost four years, there is no proof that Dietz was active either for or against the union and there is no proof of any hostility or favoritism by the Company toward IUE or any other union or any of its employees. On September 15, 1953, Dietz, after having been absent for several months on account of illness, returned to work, when some controversy arose in her department relative to her seniority rights. Apparently, however, this was adjusted and she commenced work. After the lunch hour, however, a mass demonstration took place, participated in by more than two hundred employees, including a number of union stewards. Bert Whisler, superintendent of the division in which Dietz worked, attempted in vain to ascertain the reason for the trouble. He ordered the employees to return to work and threatened to stop their pay. The employees gave no heed to Whisler’s warnings and the uprising continued. Dietz informed Whisler that she was afraid, and she was escorted by Company officials to Whisler’s office for protection. The employees crowded about the outside of Whisler’s office, banged on the door, stamped their feet and yelled, “Let’s go get her and throw her out.” Several telephone calls for help were made, without success, to the president and vice president of the Local. Thereupon, Alex Kertis, the Company’s personnel manager, instructed Whisler to have Dietz removed from the area for her own safety. Dietz expressed fear of returning to the floor to get her coat and hat, and they were obtained by Homer Stull, her immediate supervisor. At that time Dietz was promised by Kertis that an investigation would be made and she would be notified when to return to work.
Kertis and other Company officials made an investigation, saw no reason why she should not return and she was requested to return to work on September 22, 1953. At that time Dietz reported she had received telephone messages indicating another demonstration would occur. Dietz returned as requested and Kertis for safety reasons assigned A1 Huber, supervisor of plant security and safety, together with two of his guards, to protect her. Shortly after she returned, however, another demonstration, which could more appropriately be described as mob action, similar to that of the previous week took place. Again Dietz was removed from the area and advised by Company officials to go home, with the promise that she would be notified when to return. Subsequently, Dietz made frequent calls to the personnel office and was advised by Kertis on one occasion that he could not recall her, that the same thing would probably again occur and that her safety would be in jeopardy. Following the September 22 incident, Kertis conducted further investigations as to the work stoppages, with no conclusion as to the motivating cause, but never felt the time was appropriate when he could safely advise Dietz to return to work. Dietz obtained employment with the Naval Ordnance Plant, Indianapolis, about November 4, 1953. This fact was called to the attention of Kertis and he decided to treat her as “quit with notice” as of that date for record purposes. On the following December 24, Dietz was paid her interest in a profit sharing and retirement plan and shortly thereafter was requested to return her identification badge.
The Board in its complaint with reference to the respondent union charged: “ * * * on or about September 15, 1953 and on or about September 22, 1953, by its officers and other agents, including Esther L. Davis, L. Dearing, Charles Doyle, Basil Fox, Robert J. Freeman, Cordelia Mutchler, Grace Simmons, Charles L. Snodgrass and John M. Sullivan, restrained and coerced * * * Dietz, in the exercise of the rights guaranteed to her in Section 7 of the Act, by inducing and encouraging more than two hundred members of the Respondent Union, employed in the Vibrator Department in Plant No. 2 * * * to quit their work * * *, and to yell demands and threats that they would refuse to return to work unless the Respondent Company ejected Dietz and terminated her employment; all because of the former membership of Dietz in UE, her former adherence to and activity in behalf of UE, and the announced policy of the Respondent Union to require the Respondent Company to terminate the employment of Dietz and other former adherents of UE, and in order to discourage adherence to, ■ membership and activity on behalf of UE, and in or- ■ der to encourage membérship- in the Respondent Union.” Further, the Board charged: “Since on or about September 15, 1953, and September 22, 1953, and at all times thereaftér; the Respondent Union, by its officers and agents, attempted to cause, caused, and is now causing the Respondent Company to discriminate against Dietz, as heretofore set forth in paragraph 5 above, in violation of Section 8(a) (3) of the Act.”
The complaint as it relates to the Company charged that the “Company terminated the employment of Dietz, and since September 22, 1953, has failed and refused and does now fail and refuse to employ and reinstate Dietz because of the demands of the Respondent Union made on the Respondent Company * * *, and for the purpose of discouraging adherence to, membership in, and activity on behalf of UE, and for the purpose of encouraging membership in the Respondent Union,” and that by reason of such acts “the Respondent Company has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(a) (1) and 8(a) (3) of the Act.”
We shall first consider the order as it relates to the respondent union. The intermediate report of the trial examiner comes close, in our view, to demolishing the Board’s theory as embodied in its complaint. Particularly is this so on the charge that Dietz was discharged because of her former membership in UE or because of the announced policy of the respondent union to terminate the employment of Dietz and other former adherents of UE. In this respect the examiner found: “At this point it is appropriate to point out that Dietz admitted she ceased being a member of UE in November of 1949, and did not thereafter engage in any activities on its behalf. Further there is no evidence of any activity at the plant on behalf of the UE during the time in question. Again the record is totally inadequate to support the allegation of the complaint that the IUE caused or demanded the discharge of Dietz in accordance with its announced policy to require the Company to discharge former adherents of the UE in order to discourage membership therein and to encourage membership in the IUE. The undersigned so concludes and finds.”
Evidently the trial examiner recognized that the charge could not be sustained as alleged in the complaint, as is shown by his report wherein he poised the issue thus: “Did the IUE, through its agents, induce and encourage a large number of employees to engage in work stoppages the object thereof being to force the Company to discharge Dietz because of her nonmembership in the IUE in order to encourage membership in that organization?” The examiner found: “The undenied evidence adduced by the General Counsel clearly established that the work stoppages were instigated and directed by the department stewards, which stoppages were in violation of the existing agreement and for an unlawful purpose.”
The Board before this Court, consistent with its decision, also urges responsibility of the union solely upon the premise that certain stewards who actively participated in the mass demonstrations of September 15 and 22 were doing so as agents of the union and were acting within the general scope of their authority. With this contention we do not agree.
In its brief the Board states: “Under the Act the general law of agency is applicable and a union is liable for acts of its agents whether or not expressly authorized or ratified so long as the union actually empowered the agent to represent it in the area in which the agent acted.” Assuming this to be a correct statement of a general principle of law, we think it is of no benefit to the Board in the instant situation.
Assuming at present that a few of the stewards in the division where Dietz was employed were leaders in the mass movements which we have related and that their purpose was to obtain her discharge because of non-membership in the union, the decisive question is whether they in such capacity were agents of the union, that is, acting for and on its behalf. The record not only fails to support such a result; it refutes it. Dietz, as previously noted, was informed by Sullivan, the president of the union, at the time she was denied membership that the TaftHartley Act would protect her in her employment. Also as previously noted, Sullivan at the time of the work stoppage in October 1951, informed the employees that such stoppage was unlawful and that any further occurrences would be on their own responsibility. Also as noted, the trial, examiner found that there was no proof in support of the contention that the union had an announced policy to terminate the employment of Dietz and other non-union members. For some four years there had been no union activity in or about the plant, and during that period there had been no demand or request of any kind by an official of the union that any person be discharged because of non-membership.
More important, of course, is the precise status- which the stewards occupied in relation to the union. At the time of the incidents in controversy there were more than two hundred stewards in the plant. The manner in which they were selected was provided in the union constitution as, follows: “Chief Stewards or Stewards shall be elected by his or her line, group or department, for a term of one (1) year.” The same document provided the manner for their removal as follows: “For. the removal of a Chief Steward or Steward, any member in good standing may appear, before the Execu-. tive Board of Local 1001 with a petition signed by 51% or more of members in good standing within a line, group or department at that time must show good reason for removal of such steward or chief steward, this decision to be passed upon by the Executive Board.” Thus, the record plainly discloses that the stewards in the, division in which Dietz was employed, as in all other divisions, were elected by the employees of each division. Any authority which they possessed with reference to employees was limited to those of the division in which they were- elected. Their tenure was dependent upon the wishes of the employees of the division inasmuch as' a movement for their removal required the support of 51% of the employees thereof. These stewards were neither elected nor appointed by the union or its members generally and any voice which the union or the members generally had in their removal was limited to a situation where a request was made by a majority of the employees of a particular division. Stewards received from the union no compensation for their services. With no obligation on the part of the union to compensate, with no right to appoint or discharge and with very limited authority or control, we discern no basis for a ruling under the general law of agency that the stewards were agents of the union.
Cases cited by the Board in support of this union-agency theory are clearly distinguishable. In United Mine Workers of America v. Patton, 4 Cir., 211 F.2d 742, 746, in an action against a union for damages caused by a strike, it was held that a Field Representative was the agent of the union. Presumably, although the opinion does not so disclose, he was appointed and compensated by the union, with the right in it to discharge. In National Labor Relations Board v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 210 F.2d 581, it was held that an international' union was responsible for the acts of a local union where the latter acted within its delegated authority. In National Labor Relations Board v. United Brotherhood, etc., 10 Cir., 205 F.2d 515, the court in a Per Curiam opinion held, without relating the facts, that it was sufficiently shown that the union was responsible for the acts of the steward there involved. Reference, however, to the decision of the Board in that case, 100 N.L.R.B. 753, and particularly the report of the trial examiner, pages 761 and 762, completely dissipates any support which the Board' professes to find in the opinion of the court. It is there shown that the peréon held to be ah agent of the union was a “job steward” and that he was acting in pursuance of a “settled union policy.” In the instant case, as shown, the trial' examiner found that there was no proof that the stewards acted pursuant to an announced union policy; in fact, as-shown, they acted contrary to a known union policy. Other cases cited by the Board are equally barren of support.
Furthermore, we do not agree with the Board that the stewards in conducting the work stoppages were acting within the scope of their authority.- By agreement with the Company, the union was precluded from authorizing a strike of any kind, “including a work stoppage.” It is not discernible on what basis the stewards could have been acting within the scope of their authority so as to make the union responsible when the union itself was under obligation to forego such conduct. Moreovér, as previously shown, the stewards had been admonished by Sullivan that the work stoppages were unlawful and that those who participated would be personally responsible.
It follows from what we have said that the Board’s order as it relates to the respondent IUE should be .set aside and its enforcement denied.
. The trial examiner in his report stated the issue relátive to the Company as follows: “Did the Company, being aware of the purpose of the stoppages, yield to the demands of the IUE and unlawfully discharge Dietz?” It is not discernible how we could answer this question in the affirmative in view of our holding that IUE made no demand for the discharge of Dietz and was not responsible for the acts and conduct of the employees in causing the work stoppages of September 15 and 22. The Board, however, in its decision stated: “ * * * we conclude and fin'd, in agreement with the Trial Examiner, that the illegal motivation behind the employees’ determination to exclude Dietz from the plant was known to the Employer, and by acquiescing therein the Employer laid off and in effect discharged' her in violation of Section 8(a) (3) and (1).” Even so, the Board’s brief is permeated with the thesis that the Company is responsible because it acquiesced in the illegal demand made by IUE. For instance, in the concluding portion of its argument it stated: “Under all the circumstances of the case the Board could reasonably conclude that the Company had knowledge of the illegal motivation behind the IUE’s exclusion of Dietz from the plant.” And again: “It follows that the Company, by acquiescing in the IUE’s illegal demand, thereby violated Section 8(a) (3) and (1) of the Act, as the Board found.”
True, the Board advances the theory, specifically urged in oral argument, that there is no reason to deny enforcement of the order against the Company even though it should be denied as to IUE. In other words, the validity of the order against the Company is not dependent upon the validity of the order against IUE. This argument, as we understand, is bottomed on the premise that the demonstrations against Dietz were unlawful and discriminatory, known by the Company to be such, and that her discharge under such circumstances constituted an unfair labor practice. We assume this is a sound premise for the purpose of the discussion to follow. The issue is whether the Company had knowledge that the employee demonstrations were to cause the discriminatory discharge of Dietz and if so, whether it acquiesced in the employees’ demands for the purpose of discouraging or encouraging membership in a labor organization. It was incumbent upon the Board to prove the affirmative of this issue.
The Board in its decision stated: “We also find, in agreement with the Trial Examiner, that the facts of this case preponderate in favor of finding that the Employer was well aware of the reason for the employees’ objection to Dietz. Although there is no direct evidence of such knowledge by the Employer, we believe that the following circumstances compel an inference of Employer awareness of the motive behind the stoppages * * */> (Then follows an enumeration of the circumstances relied upon by the Board, subsequently to be stated and discussed.) The Board might have added that each Company official who testified at the hearing clearly and positively stated that he had no knowledge concerning the purpose of the work stoppages or that Dietz was a non-member of the union. Kertis, the Company’s manager and the person solely responsible for all decisions made and all actions taken by the Company in respect to Mayme Dietz, in addition to denying any knowledge on his part testified that he knew of no Company official who had such knowledge. The Board does not rely upon any inconsistencies or discrepancies in the testimony of Company officials of a lack of knowledge but upon circumstances which it contends give rise to an inference to the contrary.
We have experienced much difficulty in reaching a conclusion as to whether the Board’s finding on this issue of knowledge should be accepted. On the one hand, we recognize the rule that the Board is entitled to draw inferences from the facts which, if reasonable, are not to be set aside by a reviewing court. On the other hand, we are charged with the responsibility of determining if a finding is substantially supported when viewed in the light of the entire testimony, including that opposed to the Board’s view. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456. We think a superficial consideration only of the relevant circumstances might lead to the conclusion reached by the Board However, a careful study of the record, which we have made, leads to the belief that the Company’s contention of lack of knowledge is, under the circumstances, both reasonable and logical. In evaluating its contention, the circumstances leading up to and surrounding the activities in controversy as well as the environment in which the parties acted are highly important. There is no contention and not a scintilla of proof of any friction between the Company and IUE or any other union, or any proof of hostility or favoritism by the Company toward any union or any employee because of membership or non-membership in the union. In fact, the proof clearly demonstrates a relation'between the Company and IUE that was amiable and: cooperative. There was some showing of friction between IUE and non-member employees but at the same time, as we have heretofore shown, IUE time and'again recognized the right of non-union members to remain as employees. As we have previously pointed out, the examiner recognized in his findings that there was no proof of any policy of IUE to discriminate against non-union members and that there was no union activity in or about the Company’s plant. Dietz was a valuable employee and, unlike the common discharge situation, there is no proof that the Company had any purpose-or desire to terminate her employment. No independent discriminatory motive on the part of the Company was claimed or found; in fact, so far as this record discloses, the Company had a well Hear perfect record in according to IUE as well as to its individual employees every right guaranteed by the Labor Act.
We can go no further in evaluating the circumstances in proof’ than to hazard a guess that the Company’ possessed the alleged knowledge, and we doubt if the Board could do more. But a finding cannot rest merely upon guess, suspicion or speculation predicated upon inferences arising from widely separated and inconsequential incidents. Particularly is this so when inferences are utilized to overcome direct and positive testimony. See Indiana Metal Products Corp. v. N. L. R. B., 7 Cir., 202 F.2d 613; A. E. Staley Mfg. Co. v. N. L. R. B., 7 Cir., 117 F.2d 868, and Martel Mills Corp. v. N. L. R. B., 4 Cir., 114 F.2d 624. In the last cited case the Court refused enforcement of the Board’s order against the Company for an alleged discriminatory discharge of an employee. The motivating cause was in issue as it is here. The Board had found an improper motive based upon circumstantial proof. In rejecting the finding as- not Substantially supported, the court stated, quite appropriate-to the instant situation; as follows at page 631: “We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer’s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who undertook to .disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation. * * * Isolated statements which alone carry incriminating import often lose their ominous significance when surrounded by all the facts of a given case.”
The meager circumstances relied upon by the Board as giving rise to an inference of knowledge so as to overcome direct proof to the contrary demonstrate the weakness of the Board’s position. Those circumstances, as stated in its decision, are as follows: “(1) the Employer knew that Dietz had been a member of the UE, and that after the schism in 1949 she was not a member of the IUE; (2) in 1951, the employees had strenuously objected to her retention while IUE members were being laid off; (3) responsible company officials were on the production floor in September 1953 when the employees crowded around Dietz and taunted her for her nonmembership in the IUE; (4) the plant superintendent told the employees gathered there that he had a 'damned good idea’ what it was all about; and (5) the Employer, in its socalled investigation of the stoppages, failed to call on Dietz’s immediate supervisor, IUE officials, or any of the participating employees.”
Without detailed discussion, we comment upon these five circumstances in the order in which they have been stated.
(1) The only proof of Company knowledge that Dietz was not a member- of IUE is a letter written by the Company, ■ dated August 22, 1950, addressed to Dietz, in which was enclosed a check for $16, representing dues withheld from her wages for a period prior to June 1950, with the information that the Company had been advised by the union that she was not a member during that period. This letter was signed by Nicholas Mase, the Company’s assistant personnel director. There is no proof that this knowledge on the part of Mase was conveyed to any other Company official. Moreover, Mase died February 27, 1951. How this incident which occurred more than three years prior to those in controversy has any relevancy is not understandable. Following this incident other non-member employees were accepted by the union as members and obviously the same thing could have happened to Dietz.
(2) It is true that in 1951 there was a demonstration by the employees against Dietz but there is no proof that the Company had knowledge of its purpose. In fact, as heretofore shown, president Sullivan of the local union induced the employees to return to their work. Dietz continued in her employment undisturbed for almost two years after that incident and for aught that is shown the Company might well have thought that whatever grievance the employees had against her in 1951 had been amicably adjusted.
(3) The evidence does show, of course, that the employees crowded around Dietz at the time of the work stoppages in controversy but there is no proof that any taunting- remarks made to Dietz relative to her non-membership in the union were made in the presence or. hearing of any Company official. In fact, the evidence shows that certain Company officials on the floor at that time were not in hearing distance.
(4) Dietz testified that Whisler, superintendent of the department in which she worked, made the statement attributed to him by the Board when he addressed the employees shortly after the September 15 demonstration began. Whisler was a witness for the Board but no inquiry was made of him as to whether he made the “damned good idea” statement or, if so, what he meant by it. Any meaning to be attached to the statement, if made, is a matter of conjecture but, in any event, indulging in the dubious inference that it referred to knowledge, the same was not communicated to Kertis who was the Company official solely responsible for the situation which developed between the Company and Dietz subsequent to the demonstrations.
(5) Much is said concerning the failure of the Company to properly investigate the purpose of the employees engaged in the work stoppages in controversy. The fact is that an investigation was made but evidently not sufficient to satisfy the Board’s idea of what management should have done under the circumstances. Witnesses who' were interviewed either refused to talk or answered that they did not know the purpose of the demonstrations against Dietz. In any event, even though it be assumed that the Company did not investigate the situation as thoroughly as i.t might, it is not discernible how any failure in that respect can now be utilized as proof of knowledge. In this connection it may also be noted that while the Board is critical of the Company’s failure to investigate and ascertain the purpose of the demonstrating employees, it evidently has failed in the same respect. This may be assumed, we think,- from the Board’s failure to call as witnesses, employees who could have given direct testimony as to the purpose. Instead it relied upon tidbits of evidence picked from here and there which have little if any probative value.
The Board in its brief states the following principle of law: “An employer has an affirmative duty to resist the demands of a union or group of employees, when to yield to those demands results .in the denial of a statutory right conferred on another- employee.” It cites in support of this, principle N. L. R. B. v. McCatron, etc., 9 Cir., 216 F.2d 212, 214-215; N. L. R..B. v. Newton, 5 Cir., 214 F.2d 472, 475; N. L. R. B. v. John P. Weissman Co., 6 Cir., 170 F.2d 952, 954, and N. L. R. B. v. General Motors Corp., 7 Cir., 116., F.2d 306, 309-311. Of course,- the application of this principle is dependent upon knowledge by the employer that the activities of the union or employees have a discriminatory objective. Thus, in the cited cases as in the instant case, knowledge on the part of the company becomes the critical issue, with the burden on the Board to establish it by substantial evidence. A reading -of cases relied upon by the Board discloses factual situations which are a far -cry from those shown here. Generally the employer was found guilty, of independent unfair , labor practices, a hostile union attitude or active participation by the employer in the discriminatory acts charged to the defending union or employees. For instance, in the General Motors Corp. case, this court stated at page 310: “Respondent seeks to justify this policy on the ground that to interfere with the men would have been to cause further excesses and more violence. This, however, fails to explain away the fact that the record also shows that foremen, assistant foremen, and others occupying a supervisory capacity, sometimes directly participated in the evictions.” In the Weissman ease the court stated 170 F.2d at page 954: “It is clear enough that the attitude of the anti-Union group of respondents’ employees was encouraged, and tacitly, if not openly, approved by respondent Weissman * *
The same or similar conduct was attributed to the employer in the other cases. Under such circumstances knowledge on the part of the Company was readily inferable. In the instant case, however, none of these factors exist. As already shown, respondent Company had no motive or desire to- discharge Dietz and it, like the union, gave no assistance either directly or indirectly to the group of employees who for some reason ■or other were hostile toward her. The predicament of Dietz was caused solely by the acts and conduct of an irresponsible group of employees and it is unfortunate that they cannot be held responsible. What action, if any, the Company should have taken in order to escape the accusing finger of the Labor Board we do not know. The Company thought, and so did Dietz, that her personal safety was at stake. In our judgment, the course which the Company pursued was dictated by prudence and common sense and it should not' be held guilty of embracing the improper and unlawful motive of the demonstrating employees, if such they had, upon proof of such a nebulous and uncertain character.
It follows that the Board’s petition for enforcement of its order issued January 5, 1954, against
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_direct2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
WHITING v. SQUIRES.
(Circuit Court of Appeals, Fourth Circuit.
June 15, 1925.)
No. 2346.
1. Bankruptcy <S=>143(I2‘) — Cash surrender value of policies on life of bankrupt, reserving right to change beneficiary, assets of estate, unless a state exemption.
The eash áurrender value of policies on life of bankrupt, reserving absolute power in him to change beneficiary, are assets of his bankrupt estate, unless embraced in state exemption laws.
2. Bankruptcy <@=>396(3) — Surrender value of life policy payable to wife not exempt, where power to change beneficiary reserved.
Exemption under Const. N. C. art. 10, § 7, authorizing husband to insure his life for wife’s benefit, and providing that “in case of his death” the amount so insured shall be paid to her free of his creditors’ claims, does not embrace the surrender value at time of his becoming bankrupt of policy reserving power in him to change beneficiary. 3. Bankruptcy <@=>396(3) — Statute as to exemption of life insurance for wife’s benefit to be construed to conform to Constitution.
As construction of C. S. N. C., § 6464, declaring exemption to wife of policy on husband’s life, is doubtful, it will be construed to conform to exemption limited by Const. N. G. art. 10, § 7, and so not to embrace surrender value when insured husband became bankrupt.
On Petition to Superintend and Revise, inf Matter of' Law, Proceedings of the District Court of ‘the United States for the Western District of North Carolina, at Greensboro, in Bankruptcy; Edwin T. Webb, Judge.
. In the matter of W. S. Whiting, bankrupt; Mark Squires, trustee. On petition of bankrupt to superintend and revise, in matter of law, judgment of District Court (3 F.[2d] 440).
Affirmed.
F. J. Heazel and Alfred S. Barnard, both of Asheville, N. C. (Duff Merrick and Merrick, Barnard & Heazel, all of Asheville, N. C., on the brief), for petitioner.
Mark Squires, of Lenoir, N. C. (J. W. Whisnant and Squires & Whisnant, all of Lenoir, N. C., on the brief), for respondent.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
WOODS, Circuit Judge.
The petitioner, W S. Whiting, was adjudicated a bankrupt April 9, 1924. At that time he had $72,000 life insurance in ten policies. His wife, Caroline L. Whiting, was named beneficiary in five of the policies whenrissued. Whiting’s estate' was first named as beneficiary in the other five. More than four months before bankruptcy Caroline L. Whiting was substituted beneficiary.. In all the policies it was provided that Whiting should have the right to change the beneficiary at his will. The eash surrender value of the policies at the date of the bankruptcy was $18,415.78.
In his schedule the bankrupt listed the policies and claimed them as exempt from his debts in right of his wife under the Constitution and statutes of the state of North Carolina. At the first meeting of creditors the bankrupt amended, his schedule by claiming exemption of $500 personal property allowed to him by the Constitution of the state. The District Court adjudged the trustee entitled to have the policies for the purpose of realizing the eash surrender value for the benefit of the creditors of the bankrupt.
The rule laid down by the Supreme Court is that under section 70a of the bankruptcy statute (Comp. St. § 9654) the eash surrender value of a policy of insurance is an asset of a bankrupt's estate, even when tbe policy is payable to a beneficiary other than the- bankrupt, his estate, or his personal representative, if the bankrupt has reserved absolute power to change the beneficiary. Cohen v. Samuels, 245 U. S. 50, 38 S. Ct. 36, 62 L. Ed. 143; Cohn v. Malone, 248 U. S. 450, 39 S. Ct. 141, 63 L. Ed. 352. The court has further held that insurance policies embraced within the exemption laws of the state do not become assets in the hands of the trustee for the benefit of creditors. Holden v. Stratton, 198 U. S. 202, 25 S. Ct. 656, 49 L. Ed. 1018. The question, therefore, is whether the cash surrender value of the policies, which was the property of the husband at the time of the bankruptcy, was an exemption for the wife under the Constitution and laws of North Carolina. By article 10 of the Constitution of North Carolina it is provided :
“Exemption of Personal Property. — The personal property of any resident of this state, to the value of five hundred dollars, to be selected by such resident, shall be, and is hereby exempted from sale under execution or other final process of any court, issued for the collection of any debt.” Section 1.
“The husband may insure his own life for the sole use and benefit of his wife and children, and in case of the death of the husband the amount thus insured shall be paid over to the wife and children, or to the guardian, if under age, for her or their own use, free from all the claims of the representatives of her husband, or any of his creditors.” Section 7.
By the statute it was enacted:
“When a policy of insurance is effected by any person on his own life, or on another life in favor of some person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, are entitled to its proceeds against the creditors and representatives of the person effecting the insurance. The person to whom a policy of life insurance is made payable may maintain an action thereon in his own name. Every policy of life insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred, or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband, or by any other person, and whether the assignment or transfer is made by her husband or by any other person, inures to her separate use and benefit and to that of her children, if she dies in his lifetime.” Consolidated Statutes, § 6464.
There are no words either in the Constitution or the statute which even intimate an intention to take away or impair the liberty of a married man to make any contract of insurance he sees fit. He is not prohibited from making a contract for the benefit of his wife or children on any condition he may see fit, including the reservation of the right to himself to change the beneficiary. Such a right is of value to him, and it seems perfectly clear that neither the Constitution nor the statute expresses or intimates an intention to take it away from him or to confer it on his wife and children. Nor does either the Constitution or the statute attempt to confer upon the husband an exemption of more than $500 in personal property. In this ease the husband, having already received his $500 exemption, of course, has no claim to exemption out of the surrender value of the policy.
In the light of these observations we consider first the meaning of the constitutional provision relating to insurance for the benefit of the wife and children. It is found under the title “Homestead and Exemptions.” Section 6 under that heading provides for the sole and separate ownership of her property by a married woman free from the debts of her husband, with the right to devise and bequeath it, but not to convey without the written consent of her husband. Section 7 confers on the husband the right to insure for the benefit of his wife and children, and confers on them, “at the death of her husband,” the right to receive the amount of any policy of which they may then be the beneficiaries, free from the claims of the representatives of the husband or his creditors. This means, in the absence of fraud, that payment of premiums, even by an insolvent husband, shall not defeat payment at the death of the husband to the beneficiaries named in the policy.
The limit of the constitutional exemption of an insurance policy on the life of the husband against the claims of his creditors is that the wife or the wife and children take the benefits of 'a policy payable to her or them as beneficiaries at the death of the insured. The exemption may cover a policy payable to the wife and children with no power of the insured to change the beneficiaries, because in such a policy the wife or the wife and children have a vested interest, and the policy, if paid at all, must be paid to them at the death of the husband. But the exemption does not embrace the surrender value, the property of the husband, of a policy in which he can change the beneficiary at will. This construction of the constitutional provision agrees with the construction of Judge Call, Judge Clayton, and the Circuit Court of Appeals of the Fifth Circuit of a Florida statute in similar terms in In re Long (D. C.) 282 F. 383; In re Morgan (D. C.) 282 F. 650; Morgan v. McCaffrey et al. (C. C. A.) 286 F. 922. The Circuit Court of Appeals of the Eighth Circuit took a- similar view of a like Minnesota statute in Aberle v. McQuaid, 283 F. 779; but it afterwards felt compelled, by a contrary construction of the statute by the Minnesota court, to bold that tbe cash surrender value of sueb a policy was exempt under the state law, in Ralph v. Cox, 1 F.(2d) 435.
Judge Connor, in the District Court for the Eastern District of North Carolina, took a view of the North Carolina Constitution contrary to that we have stated. We think, however, he did not give effect to the decisions of the Supreme Court of the United States in Cohen v. Samuels, 245 U. S. 50, 38 S. Ct. 36, 62 L. Ed. 143, and Cohn v. Malone, 248 U. S. 450, 39 S. Ct. 141, 63 L. Ed. 352, and we are unable to concur in his reasoning.
The Legislature could not by statute add’to the constitutional exemption. Wharton v. Taylor, 88 N. C. 230. Therefore it could not make an exemption of the surrender value of the policy which might or might not, according to the will of the husband, fall to the wife or the wife and children as a policy of which they were beneficiaries at the death of the husband. • It follows that, if the statute be construed as embracing the surrender value of a policy like these, it would he invalid as a legislative attempt to enlarge the insurance exemption to the wife and children provided by the Constitution. In re Jones (D. C.) 249 F. 487.
If the statute stood alone, with its language unrestrained by the constitutional provision, the argument would he strong in favor of the view that every possible value of a policy including cash surrender value, though the husband retained the right to change the beneficiary, inures to the benefit ' and use of the wife or her children. This is the view taken of somewhat similar statutes where uo constitutional limitation was involved. In re Orear, 189 F. 888, 111 C. C. A. 150; In re Young (D. C.) 208 F. 373; In re Brinson (D. C.) 262 F. 707; Jens v. Davis (C. C. A.) 280 F. 706; Magnuson v. Wagner (C. C. A.) 1 F.(2d) 99; Brown v. Home Life Ins. Co., etc. (D. C.) 3 F.(2d) 661.
But, as this construction of the statute of North Carolina is doubtful, it should not be adopted when opposed to the provision of the Constitution, for every presumption must be indulged that the Legislature did not intend to attempt by statute to confer an exemption beyond that provided by the Constitution. Taking this view, we hold that the last sentence of the statute is hut a repetition of the constitutional provision on the same subject, and is limited in its application to a policy of insurance standing in the name of the wife or her children as beneficiaries at the death of the husband. In re Jones, supra.
For these reasons, we think the judgment of the District Court was right.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
19
|
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".
Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.
No. 72-3125
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 19, 1973.
Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant.
John O. Charrier, Jr., New Orleans, La., for defendants-appellees.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This is a seaman’s action for damages for personal injuries sustained while working on a barge off the coast of Louisiana.
Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back.
Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott’s insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories.
On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows:
1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970?
A. Yes.
2. Was plaintiff a seaman or a member of the crew of Mc-Dermott #23?
A. Yes.
3. Was the barge McDermott #23 unseaworthy ?
A. No.
5. Did Dick Evans own, operate, control or have an operational interest in the barge in question?
A. Yes.
6. Was the defendant, Dick Evans, Inc., through its employees, negligent ?
A. No.
9. Was the plaintiff, Darrell Nimnicht, negligent?
A. No.
11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plaintiff for the damages he sustained ?
A. $13,500.
After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ.P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm.
There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197.
This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides:
“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in 'accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”
This case presents a situation in which the answers to the special interrogatories were consistent with each other but inconsistent with the findings as to the quantum of damages. Under Rule 49(b) the trial court had three alternatives: (1) to enter judgment in accordance with the special answers, notwithstanding the general verdict, (2) to return the jury for further deliberation, or (3) to order a new trial. The trial court chose the first alternative, holding, in effect, that the answers to the special interrogatories inexorably negated the award of damages.
We are of the opinion that those findings left the District Court with no room to adopt any other course. In the absence of unseaworthiness or negligence, damages could not be awarded. The jury should not have responded to Interrogatory No. 11. The fact that it mistakenly did so could not change the answers to the prerequisite questions, upon which any damages at all had to live or die.
The judgment of the District Court is
Affirmed.
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:
|
songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES of America, for the Use and Benefit of ROPER, IBG, A DIVISION OF ROPER CORPORATION, Plaintiff-Appellant, v. A.I. REISZ and National Surety Corporation, Defendants-Appellees.
No. 82-7067.
United States Court of Appeals, Eleventh Circuit.
Nov. 3, 1983.
W.J. Sullivan, Jr., Mac B. Greaves, Birmingham, Ala., for plaintiff-appellant.
Thomas Elliott, Jr., Birmingham, Ala., for defendants-appellees.
Before TJOFLAT, HILL and JOHNSON, Circuit Judges.
TJOFLAT, Circuit Judge:
This is a Miller Act case. I.B.G., International, Inc. (I.B.G.), a subcontractor, sued A.I. Reisz, d/b/a Reisz Engineering Co. (Reisz), the general contractor, for the balance due on its subcontract. Reisz counterclaimed, claiming, inter alia, that it was damaged because of I.B.G.’s delay in performing the work. The jury awarded Reisz $87,223.07 on this claim. In this appeal, I.B.G. asks us to set aside this jury award for want of sufficient evidence or, alternatively, to grant it a new trial. We decline to grant either form of relief. We do, however, find that the district court erred in calculating prejudgment interest.
I.
Reisz was prime contractor for the Tennessee Valley Authority (TVA) on an experimental greenhouse project entailing the use of cooling waters from its Browns Ferry nuclear plant near Athens, Alabama. Reisz hired I.B.G. as a subcontractor to supply a substantial part of the materials and labor for the project. Shortly after I.B.G. came on the job in December 1977, a dispute arose between them as to whether I.B.G. was to do the plumbing work. When the dispute was not resolved at the end of December, I.B.G. pulled its men off the job. Negotiations for a resolution of the dispute ensued, culminating in an agreement between the two parties dated April 4, 1978. I.B.G. returned to the job in May, and the greenhouse was completed and accepted by TVA in December 1978.
Reisz withheld the final payment due I.B.G.; therefore, in August 1979, I.B.G. brought this suit against Reisz and its surety, National Surety Company, seeking the withheld sum. As an affirmative defense Reisz admitted that it had failed to make the final payment, as alleged, but claimed that it was not indebted to I.B.G. because I.B.G. was liable to it for certain warranty items and backcharges, and for damages Reisz allegedly suffered because of I.B.G.’s delay in performing the subcontract. Reisz counterclaimed for these items of damages. Because of the possibility that its claim for delay damages occurring prior to April 4, 1978, had been foreclosed by the settlement agreement of that date, Reisz alleged, in its counterclaim, that the settlement agreement was void for lack of consideration. I.B.G., in reply, denied all the allegations of Reisz’ counterclaim.
At the pretrial conference, the parties stipulated that I.B.G. was due a final payment of $91,499.03 and that Reisz was due $12,776.93 for warranty items and back charges. The only matter remaining for trial was Reisz’ counterclaim for delay damages.
The counterclaim was tried to a jury. At the close of Reisz’ ease, I.B.G. moved for a directed verdict under rule 50(a) of the Federal Rules of Civil Procedure on the ground, inter alia, that the April 4 settlement agreement had foreclosed all of Reisz’ claims for delay, whether they had occurred before or after April 4, 1978. The court denied the motion. I.B.G. then put on its case. Reisz offered no rebuttal. Neither side moved for a directed verdict at the close of all the evidence. See Fed.R.Civ.P. 50(b). Following a charge conference and the final summations of counsel, the court submitted Reisz’ counterclaim to the jury. The jury returned a verdict awarding Reisz $87,-223.07 in delay damages. After taking into account the amounts the parties stipulated were due one another, the court entered a final judgment for Reisz in the sum of $8,500.97, together with prejudgment interest on this amount from January 1, 1979. I.B.G. then moved the court for judgment n.o.v. or, alternatively, for a new trial. See Fed.R.Civ.P. 50(b). That motion was denied, and I.B.G. took this appeal.
II.
We first address I.B.G.’s motion for judgment n.o.v. Rule 50(b) of the Federal Rules of Civil Procedure requires that a party move for a directed verdict at the close of all the evidence as a prerequisite to its motion for judgment n.o.v. Fed.R.Civ.P. 50(b) advisory committee note. A motion for a directed verdict at the close of plaintiff’s case will/not suffice unless it is renewed at the close of all the evidence. Special Promotions, Inc. v. Southwest Photos, Ltd., 559 F.2d 430, 432 (5th Cir.1977). As this case went to trial on the counterclaim, Reisz presented evidence first. I.B.G., thou'gh it moved for a directed verdict at the close of Reisz’ case, never renewed its motion after presenting its case. Therefore, I.B.G. was not entitled to move for a judgment n.o.v., the district court had no authority to entertain I.B.G.’s motion therefor, and we will not determine whether the court should have directed a verdict for I.B.G. at the close of all the evidence.
I.B.G.’s failure to move timely for a directed verdict does not, however, preclude our review of the district court’s denial of LB.G.’s motion for a new trial. Special Promotions, 559 F.2d at 432. LB.G.’s claim that the district court wrongfully allowed the jury to find that Reisz was damaged by LB.G.’s delay prior to April 4,1978, could, if I.B.G. made proper and timely objection at trial, warrant a new trial. The submission to the jury of an issue not proper for its consideration may be a ground for a new trial. United N.Y. & N.J. Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613, 619, 79 S.Ct. 517, 520, 3 L.Ed.2d 541 (1959). Thus, if I.B.G. had requested the district court, in its instructions, to take the issue of pre-April 4 delay from the jury, or had objected to the court’s instruction that the jury could find pre-April 4 delay, we could consider whether a new trial is warranted. However, I.B.G. made no such objection. We therefore cannot award I.B.G. a new trial on the ground that the district court erred in permitting the jury to consider pre-April 4 delay. Generally, issues not raised and preserved in the trial court will not be considered on appeal. Brookhaven Landscape v. Barton Contracting Co., 676 F.2d 516, 523 (11th Cir.1982).
I.B.G. raises no other claims for a new trial meriting discussion here. Accordingly, the district court properly denied I.B.G.’s motion for a new trial.
m.
Under Alabama law only liquidated claims ordinarily are subject to prejudgment interest. E.C. Ernst, Inc. v. Manhattan Construction Company of Texas, 551 F.2d 1026, 1042 (5th Cir.1977), cert. denied sub nom Providence Hospital v. Manhattan Const. Co. of Texas, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978). There are two exceptions:
(1) when the amount of damages are capable of being ascertained by mere computation; and (2) when the damages are complete at a particular time and can be determined as of such time in accordance with fixed rules of evidence and known standards of value.
Belcher v. Birmingham Trust National Bank, 488 F.2d 474, 477 (5th Cir.1973).
Neither of these exceptions is applicable here; the parties did not agree that I.B.G. caused any specific number of-delay days, and cost per day was not even in evidence. Thus, the duration of the delay was not certain and the amount of damages was not ascertainable simply by computation. The damages responsibility and amount were jury questions; therefore, the claim was not subject to a prejudgment interest calculation.
Whether the unliquidated portion should have been set off against the liquidated amount stipulated to be owed to I.B.G. is a more difficult question. The trial court, finding no Alabama law on point, applied the proposition asserted in Macri v. United States, 353 F.2d 804, 808 (9th Cir.1965):
[S]ome courts declare that in instances where the counterclaim is for defective performance of the contract on which the liquidated claim is based, the damages assessed under the counterclaim are regarded as payment pro tanto and interest should be awarded only on the remainder.
This theory recognizes that when the contractor withholds payment at a time when an unliquidated damages claim has accrued to him, where the two claims are related, it would penalize the contractor to award interest on that part of the liquidated claim which is offset by the unliquidated claim. This approach has been called the “interest on the balance rule.” While it is often discussed in the context of a small unliquidated claim partially offsetting a larger liquidated claim, such that prejudgment interest is only awarded on the balance, the same principle applies, as here, when a large unliquidated claim more than offsets a smaller liquidated claim. See Socony Mobile Oil Company v. Klapal, 205 F.Supp. 388, 390 (D.Neb.1962). The delay claim asserted fiere accrued before the withholding of I.B. G.’s final payment, and, according to Reisz, justified the withholding; it is thus the kind of unliquidated claim directly related to the payment withholding that demands application of this theory.
The trial judge was correct in recognizing the appropriateness of applying the “interest on the balance rule”; however, he failed to apply it correctly in this case. The judge offset the jury award of $100,000 ($87,-223.07 unliquidated and $12,776.93 liquidated warranty and backcharge) against the stipulated liquidated damages of $91,499.03 owing to I.B.G. for work performed. The judge noted that the remaining $8,500.97, as it was less than the liquidated $12,776.93, was a liquidated balance, on which prejudgment interest should be awarded.
We believe logic compels that the stipulated liquidated offset of $12,776.93 be made first, and that .the $8,500.97 remaining after the claims are offset thus be treated as an unliquidated damage claim for which interest should be allowed only from the date of the judgment.
This result fits the interest on the balance theory in that Reisz withheld the final payment recognizing that I.B.G. owed it the warranty and backcharge and delay damages effectively as of that date. While an unliquidated amount does not accumulate prejudgment interest, it would penalize Reisz not to allow so much of the unliquidated amount as it withheld because of I.B.G.’s inadequate performance of the work to be set off against the amount due I.B.G. on a dollar for dollar basis. Since Reisz knew when it withheld the sum from I.B.G. that I.B.G. owed it the warranty and backcharge, Reisz can be said to have withheld only $78,722.10 as contemplated delay damages. Since Reisz was awarded $8,500.97 more than that amount on its unliquidated claim, that unliquidated amount is what remains after the set-off. As the unliquidated amount does not accumulate prejudgment interest, we reverse on the award of prejudgment interest on the $8,500.97 owed to Reisz, and direct the district court, on remand, to correct the final judgment accordingly.
AFFIRMED in part; REVERSED in part, and REMANDED, with instructions.
. The district court had subject matter jurisdiction of Reisz’ counterclaim because it was a compulsory counterclaim, arising out of the same contract for which I.B.G. sought payment under the Miller Act bond Reisz had posted pursuant to 40 U.S.C. § 270b(b) (1976). United States v. Thermo Contracting Corp., 437 F.Supp. 195, 198 (D.N.J.1976). See Graybar Elec. Co. v. John A. Volpe Const. Co., 387 F.2d 55, 57 n. 3 (5th Cir.1967).
. Alabama law regarding the scope of a settlement agreement is set forth in Nero v. Chastang, 358 So.2d 740 (Ala.Civ.App.1978), cert. denied, ex parte Nero, 358 So.2d 744 (Ala. 1978). Generally, a compromise agreement covers only matters that the parties “have fairly intended to include”; however, this notion is read broadly to cover all claims arising from the dispute known at the time of the settlement and not expressly preserved. Id. at 743. Since at the time of the agreement I.B.G. and Reisz both had ripe delay claims for damages caused by the dispute, the delay claims were arguably settled by the agreement, as they were not expressly reserved.
. The court instructed the jury to return a verdict for Reisz in the amount of the stipulated damages (for the warranty and back charge items) of $12,776.93, plus whatever sums the jury might determine were due Reisz as a result of any delay in the work caused by I.B.G.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. In fact, I.B.G. requested the court to allow the jury to determine whether or not the April 4, 1978, agreement settled and therefore foreclosed Reisz’ claim. Such an instruction would have been proper only if the April 4 agreement were ambiguous, so that the parties’ intent became an issue. Since the April 4 agreement was not ambiguous, the scope of the agreement was a question of law for the court, not for the jury.
. I.B.G. does not contend on appeal that the damages award was against the manifest weight of the evidence, thus warranting a new trial; rather it only contends that its directed verdict motion should have been granted on that issue. I.B.G.’s other claims for a new trial are without merit.
. While Reisz never claimed interest on the warranty and backcharge, the judge recognized that Reisz did not need to claim interest on these amounts in order to be entitled to interest. Alabama Terminix Co. v. Howell, 276 Ala. 59, 158 So.2d 915, 918 (1963).
. In other words, the liquidated $12,776.93 owing to Reisz should be set off against the liquidated final payment of $91,449.03 owing to I.B.G. first. Then, the unliquidated delay damage award owing to Reisz should be set off dollar for dollar against the final payment until the entire final payment is offset. At that point Reisz has justified its withholding, and I.B.G. has not been allowed any interest advantage because its claim was liquidated. Thus, Reisz takes the rest of its unliquidated damage claim according to the general rule, without prejudgment interest.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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.
COLORADO INTERSTATE GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, K N Energy, Inc., Public Service Company of Colorado, Western Gas Supply Company, and Cheyenne Light, Fuel and Power Company, Intervenors.
Nos. 88-1169, 88-1273 and 88-1478.
United States Court of Appeals, Tenth Circuit.
Dec. 1, 1989.
Donald C. Shepler, Gen. Atty. and Daniel F. Collins, Sr. Vice President, Colorado Interstate Gas Co., Washington, D.C. (William W. Brackett, Atty., Washington, D.C., with him on the brief), for petitioner.
Robert H. Solomon, Atty. (Catherine C. Cook, Gen. Counsel, Jerome M. Feit, Sol., and Frank R. Lindh, Atty., on the brief), F.E.R.C., Washington, D.C., for respondent.
T.J. Carroll, III, Lakewood, Colo., for intervenor, K N Energy, Inc.
James K. Tarpey and Kenneth V. Reif of Kelly, Stansfield & O’Donnell, Denver, Colo., filed a brief for intervenor, Public Service Group.
Before SEYMOUR and BARRETT, Circuit Judges, and WEST, District Judge.
Honorable Lee R. West, United States District Judge for the Western District of Oklahoma, sitting by designation.
SEYMOUR, Circuit Judge.
In this consolidated appeal, petitioner Colorado Interstate Gas Company (CIG), a transporter of natural gas, protests the imposition of various conditions which respondent Federal Energy Regulatory Commission (FERC) attached to its approval of CIG’s three applications for certificates of public convenience and necessity under section 7(c) of the Natural Gas Act (NGA), 15 U.S.C. § 717f(c) (1988). In all three cases, FERC limited the duration of the certificates to either one year, or until CIG accepted a blanket certificate, instead of approving the longer terms CIG had requested. In one application, FERC required in addition that CIG charge a higher transport rate than it had proposed. In this application, FERC also refused to certify the firm transport service CIG had requested, limiting CIG to providing interruptible service only.
CIG challenges all of the conditions as arbitrary and capricious, and attacks the rate condition as beyond FERC’s statutory authority to impose conditions on its approval of certificates under the NGA. We hold that CIG’s acceptance of a blanket certificate, which caused the three individual certificates to expire and allowed CIG to offer firm service at the rate it originally requested, has mooted the claims based on the one-year term limitation, the rate condition, and the denial of firm service. We also hold that we cannot review the validity of the blanket certificate acceptance term limitation in the three applications at issue because CIG did not properly challenge this limitation in administrative proceedings below.
I.
BACKGROUND
CIG is a major interstate seller and transporter of natural gas, subject to FERC regulation under the NGA, 15 U.S.C. §§ 717 et seq. (1988). The NGA prohibits the transport of natural gas absent FERC certification. Traditionally, FERC has certified energy transactions on an individual basis, which are the type of certificates at issue in the present appeal. Following FERC’s promulgation of Order No. 436, however, interstate natural gas companies also have been able to obtain authorization to transport gas under a so-called “blanket” certificate procedure. A blanket certificate enables a transporter of natural gas to provide service throughout its pipeline system without the necessity of individual section 7(c) certification for each transaction with each customer. This added freedom is not without its regulatory quid pro quo, however. A transporter under blanket certification must provide access to all shippers on a “first-come, first-served” basis, even if the shipper intends to compete with the pipeline company in the sale of gas. Holders of blanket certificates are also under loose rate regulation and are subject to a variety of other procedural and substantive constraints. See generally 18 C.F.R. §§ 284.1-.13; §§ 284.-221-.226 (1989) (promulgated as part of Order No. 436, 50 Fed.Reg. 42,408 (1985)), vacated sub nom. Associated Gas Distribs. v. FERC, 824 F.2d 981 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1468, 99 L.Ed.2d 698 (1988), repromulgated as Order No. 500, 52 Fed.Reg. 30,334 (1987). The purpose of the new blanket procedure is to increase downstream competition in natural gas sales by ensuring that sellers who do not transport their own gas have access to transportation facilities. See Associated Gas Distribs., 824 F.2d at 994. Throughout the administrative proceedings in the present case, CIG was negotiating for a suitable blanket certificate. See rec., tab 7, at 105 n. 1.
A. Case No. 88-1169
In December 1986, CIG applied for an individual certificate of public convenience and necessity authorizing the transport of up to 125,000 Mcf/day, and up to 22.5 Bcf/year of natural gas for its largest customer, Intervenor Public Service Company of Colorado and its subsidiaries (PSCo). The application ensued from an agreement under which CIG would transport gas that PSCo purchased from Inter-venor K N Energy, Inc. (K N), a gas producer. In its application, CIG requested an initial ten-year term, and proposed that PSCo have the option to elect “firm” or “interruptible” service. The proposed initial rate of transport was $.306/Mcf for the first 40,000 Mcf/day transported and $.18/Mef for any volume above 40,000. These charges would be credited against a monthly reservation charge of $3.07/Mcf for any firm service that PSCo might elect. In September 1987, FERC approved CIG’s application subject to the following limitations: (1) CIG must charge PSCo its maximum volume No. 1-A tariff rate for inter-ruptible service — a rate significantly higher than that which CIG had proposed in its application; (2) CIG could offer PSCo only interruptible service and not the firm service option CIG had requested; and (3) the certificate would expire once CIG accepted a blanket certificate or after one year. Of course, CIG could apply to renew the certificate. See 40 F.E.R.C. If 61,231 (1987).
In its request for rehearing, CIG noted three “errors,” namely: (1) the refusal to certify firm service; (2) the imposition of a one-year term; and (3) the failure to approve the rate negotiated by the parties. CIG did not list as error the imposition of the blanket certificate acceptance term limitation. CIG requested only that “on rehearing [FERC] should eliminate the 1 year restriction imposed by the September 15 order and issue a certificate for the requested ten-year term.” Rec., tab 7, at 114 (emphasis added). FERC denied rehearing. See 42 F.E.R.C. ¶ 61,157 (1988).
B. Case No. 88-1273
Since December 26, 1985, CIG had held an individual section 7(c) certificate authorizing it to transport gas acquired by PSCo. In May 1987, CIG applied, inter alia, to extend the certificate for two more years, and month-to-month thereafter, in accord with its contract with PSCo. FERC granted the application, but again mandated that the certificate expire after one year from the date of the order, or earlier if CIG accepted a blanket certificate. Rec., tab 9, at 170. In its rehearing request, CIG argued that the one-year limitation was unreasonable, but did not argue that the blanket certificate acceptance limitation was similarly unacceptable. CIG’s request concluded that “on rehearing [FERC] should eliminate the one-year restriction ... and grant CIG’s petition for the requested term.” Id. at 173 (emphasis added). FERC denied the request. See 42 F.E.R.C. If 61,138 (1988).
C. Case No. 88-1478
In April 1987, CIG sought to amend its individual 7(c) certificate under which it had transported gas for the City of Colorado Springs since October 1985. Among other requested amendments, CIG asked for an initial two-year extension, to be continued month-to-month thereafter. FERC granted the application but limited the term to one year, or until CIG accepted a blanket certificate. See 42 F.E.R.C. ¶ 61,020 (1988). In its request for rehearing, CIG claimed that FERC “erroneously limited the term of the authorization to the earlier of one year from the date of the order or the date CIG accepts a blanket certificate.” Rec., tab 11, at 220-21. As in the request in Case No. 88-1273, CIG targeted its argument only at the one-year term limitation. The rehearing request stated that FERC “fails to address why the parties’ need for, and CIG’s application for, a longer-term certificate should be arbitrarily limited in the Order.” Id. at 224 (emphasis added). The only discussion of blanket certificates occurred in the argument concerning the one-year limitation: CIG argued that the shorter term could “force” it to forego its individual certificate by accepting a blanket certificate. See id. at 225. CIG then requested that “on rehearing [FERC should] issue an order approving the amendment as requested by CIG.” Id. at 226. No indication exists that CIG sought to amend the blanket certificate acceptance limitation, which its preamendment certificate had contained. See FERC’s Order Amending Certificate, Colorado Interstate Gas Co., 42 F.E.R.C. ¶ 61,020, 61,118 (1988); see also FERC’s Order Amending Certificate, Colorado Interstate Gas Co., 39 F.E.R.C. If 62,214 (1987). FERC denied CIG’s request for rehearing. See 42 F.E.R.C. ¶ 61,341 (1988).
D. CIG’s Acceptance of a Blanket Certificate
From March 1987, CIG had pending before FERC an application for a blanket certificate. On August 4, 1988, five days after CIG filed its opening brief in the present appeal, CIG accepted a blanket certificate. The three individual certificates at issue in this appeal consequently expired prior to the running of the alternate one-year limitation.
As near as we can fathom, CIG continued to supply PSCo and the City of Colorado Springs under its newly acquired blanket certificate authority. It appears undisputed that CIG is presently free to charge PSCo the rate it had requested in its December 1986 application. CIG also does not seem to dispute that it presently can offer PSCo the same firm service option it had originally requested. Finally, blanket certificate authority appears to be indefinite in duration. Of course, the new blanket certificate transportation service is subject to a different regulatory framework than had been the case under the expired section 7(c) individual certificates.
II.
DISCUSSION
A. The Blanket Certificate Acceptance Limitations
In all three certificates, FERC mandated that the certificate expire upon CIG’s acceptance of a blanket certificate. FERC argues that CIG cannot challenge this limitation on appeal because CIG did not argue this limitation’s invalidity in its requests for rehearing below.
The statute giving this court jurisdiction to hear this appeal provides that “[n]o objection to the order of the Commission shall be considered by the [reviewing] court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.” 15 U.S.C. § 717r(b) (1988). The statute further provides that “[t]he application for rehearing shall set forth specifically the ground or grounds upon which such application is based.” Id. § 717r(a) (emphasis added). The aim of this exhaustion requirement is “to afford [FERC] an opportunity to bring its knowledge and expertise to bear on an issue before it is presented to a generalist court.” Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 78 (D.C.Cir.1988) (citing Federal Power Comm. v. Colorado Inters. Gas Co., 348 U.S. 492, 501, 75 S.Ct. 467, 472-73, 99 L.Ed. 583 (1955)). We agree with the District of Columbia Circuit that we must apply this statute “punctiliously” to carry out its purpose. New Jersey Zinc Co. v. FERC, 843 F.2d 1497, 1503 (D.C.Cir.1988).
CIG’s requests for rehearing clearly did not put FERC on notice that CIG was attacking the validity of the blanket certificate acceptance limitation. In none of the requests did CIG specify a ground upon which the blanket certificate acceptance limitation was invalid. Instead, CIG objected specifically only to the alternate one-year limitation and asked for relief only from that limit. CIG’s arguments concentrated on FERC’s insistence on “short-term” limits, while the blanket certificate acceptance limitation carries no particular time limit.
CIG argues in the alternative that it had a “reasonable ground” under section 717r(b) of the NGA for failing to address the blanket certificate acceptance limitation. In essence, CIG asserts that it should be excused for viewing the alternative term limitations as a single “one-year” limit, because FERC so viewed them in its orders. FERC did indeed state both conditions in the disjunctive in one sentence. But stating them in such a manner does not detract from the fact that the fixed term limitation has a wholly different effect than the blanket limitation and that the conditions were easily separable. CIG was therefore under a duty to specify on rehearing exactly what aspects of the term limitations displeased it. CIG inexcusably failed to do this and, accordingly, Congress precludes us from passing on the validity of the blanket certificate acceptance limitations on the duration of the three certificates at issue.
B. The One-Year Fixed Term Limitations
FERC limited the term of all three certificates to a maximum of one year, subject to renewal after further review, instead of the longer terms CIG had requested. CIG claims that the one-year limit is arbitrary and capricious because it lacks record support. We conclude that we have no jurisdiction to decide this issue, since CIG’s acceptance of a blanket certificate prior to the running of the one-year limits in all three certificates rendered the issue moot.
Under Article III, Section 2 of the United States Constitution, the Federal Courts’ jurisdiction is limited to deciding “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988). Only a “ ‘real and substantial controversy admitting of specific relief through a decree of conclusive character’ ” allows us to adjudicate this matter. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). “ ‘Generally an appeal should be dismissed as moot when events occur that prevent the appellate court from granting any effective relief.’ ” Ten Mile Industr. Park v. Western Plains Serv. Corp., 810 F.2d 1518, 1522 (10th Cir.1987) (quoting Thour-nir v. Buchanan, 710 F.2d 1461, 1463 (10th Cir.1983)).
Under highly analogous facts, the court in New Jersey Zinc Co., 843 F.2d at 1503, held that the same one-year limitation was mooted after acceptance of a blanket certificate. In New Jersey Zinc, Tennessee Gas Pipeline Co. applied for five-year terms in two section 7(c) certificates. Id. at 1500. FERC imposed a blanket certificate acceptance limitation on both certificates and also limited them to one and two years, respectively. Id. As in the present case, several months later Tennessee Gas accepted a blanket certificate, causing the certificates to expire. The court was unable to pass on the validity of the blanket certificate acceptance limitation for the identical reason involved in this case: failure to raise the issue on rehearing. The court in New Jersey Zinc held that the prior expiration of the certificates upon acceptance of blanket certification mooted the challenge to the one-year and two-year limits. The court reasoned that “[bjecause of the alternative and operative blanket certificate limitation, Tennessee would be in no different position today had FERC set the fixed term at two, five, or any other number of years.” Id. at 1503. This same reasoning applies to moot the one-year limitations in the present case. Moreover, now that CIG’s certificates have expired under presumptively valid terms, our order granting CIG its right to a ten-year term would be completely ineffective.
CIG argues in desultory fashion that FERC’s imposition of the one-year limit “forced” it to accept blanket certification, causing the individual certificates to expire. Were we to find that the limit impermissi-bly coerced CIG, then the limitation would not be moot. But CIG in this case did not adequately demonstrate that the combination of the blanket certificate acceptance limitation and the one-year limit impermis-sibly coerced it into accepting blanket certification. Obviously, FERC wanted to discourage pipelines in most cases from obtaining simultaneous individual and blanket certification. No indication exists that FERC sought to prohibit CIG’s use of individual section 7(c) certificates. CIG’s con-clusory statements in its reply brief that operating under the short-term individual certificates, subject to renewal, was “wholly infeasible”, Reply Brief at 3, finds no factual support in the record. Thus we must conclude that CIG voluntarily accepted the blanket certificate. Accordingly, we hold that the one-year limit issue is moot.
We also agree with the reasoning of the court in New Jersey Zinc, under which it did not apply the “capable of repetition, yet evading review” exception to the mootness doctrine, see Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). The court in New Jersey Zinc observed that similar fixed term limits had been properly adjudicated on the merits in several cases. See, e.g., New Jersey Zinc, 843 F.2d 1500-01; Florida Gas Transmission Co. v. FERC, 876 F.2d 42, 44-45 (5th Cir.1989). Moreover, now that CIG has blanket certificate authority, it is unlikely that it will reapply for a tion of the one-year term limit. At the very least, CIG has not indicated that it has reapplied. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (party invoking exception to mootness doctrine must show a reasonable expectation or demonstrated probability of repetition).
C. The Rate Condition in Case No. 88-1169
CIG claims that FERC’s requirement that CIG charge PSCo its maximum tariff rate as a condition of approval of its individual 7(c) certificate is beyond its statutory authority and is arbitrary and capricious. We cannot decide this issue since CIG’s acceptance of a blanket certificate has rendered it moot.
As we discussed above, the certificates expired by their own terms when CIG accepted a blanket certificate. Consequently, the challenged rate terms “disappeared into the regulatory netherworld when the certificates themselves entered the archives.” Northwest Pipeline Corp., 863 F.2d at 76. In Northwest Pipeline, the company challenged FERC’s requirement that it charge a different rate than it had proposed. Id. at 75. When the certificate expired pending appeal, the court held the challenge moot because it could no longer give prospective relief as to rates in validly expired certificates. See also ANR Pipeline Co., 876 F.2d at 129 (“If we should find the expiration of the individual certificate valid, ... ANR’s challenge to the rate condition would be moot_”).
We find ourselves in a similar situation in the present case. The certificate here expired by its own terms when CIG accepted a blanket certificate. The rate condition expired with the certificate. We are unable to grant any prospective relief as to a condition contained in the now-expired certificate. Moreover, under its new blanket certificate authority, CIG apparently obtained the ability to charge PSCo the identical rate it had originally requested. Thus, even if we were to hold the rate condition unacceptable, any prospective relief we could offer would have no practical effect.
We also are unable to conclude that the rate condition is “ ‘capable of repetition, yet evading review.’ ” Honig, 108 S.Ct. at 601. CIG has not reapplied, see Reply Brief at 2 n. 1, and the same rate condition in the future would not likely reappear. Moreover, CIG has not shown that imposition of such a rate condition in the future would necessarily evade review. Although a company forced to charge a higher rate obviously would have no damages from a rate differential, CIG contends that continued imposition of the rate condition would “kill the deal.” Reply Brief at 4. If this eventuality occurs, then a rate condition, such as the one in Case No. 88-1169, would be properly reviewable. See Northwest Pipeline Co., 863 F.2d at 77 (a claim for retroactive relief would avoid mootness problem).
D. The Denial of Firm Service in Case No. 88-1169
CIG does not dispute FERC’s contention that CIG presently can give PSCo the identical firm service option it had requested in its section 7(c) certificate application. Moreover, the certificate at issue expired by virtue of a presumptively valid blanket certificate acceptance term limitation. Thus, CIG’s challenge to the denial of firm service is moot for substantially the same reasons given in the discussion of the rate condition above.
III.
CONCLUSION
We are unable to review the validity of the blanket certificate acceptance limitation in the certificates in Case Nos. 88-1169, 88-1273, and 88-1478, since CIG did not properly challenge them on rehearing below. The one-year term limitation issue in each of those cases, the rate condition challenge in 88-1169, and the protest of FERC’s denial of firm service in 88-1169 are moot. Accordingly, we vacate the orders under review in each case. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Northwest Pipeline Corp., 863 F.2d at 78-79 (1988).
. The court in Associated Gas Distribs. v. FERC, 824 F.2d 981 (D.C.Cir.1987), upheld most of the provisions in Order 436, but vacated the order in its entirety because the parts of the order it remanded to FERC for reconsideration were better considered in relation to the entire regulatory framework. Id. at 1044. Order No. 500, 52 Fed.Reg. 30,334 (1987), modified, 52 Fed.Reg. 35,539 (1987); 52 Fed.Reg. 39,630 (1987) (Order No. 500-B); 52 Fed.Reg. 48,986 (1987) (Order No. 500-C); 53 Fed.Reg. 8,439 (1988) (Order No. 599-D), did not contain any provisions different from Order 436 that have any bearing on this case.
. "Mcf ’ refers to one thousand cubic feet at a pressure of 14.65 per square inch at 60 degrees Fahrenheit.
. "Bcf” refers to billion cubic feet.
. "Firm” service means "that the service is not subject to a prior claim by another customer or another class of service and receives the same priority as any other class of firm service." 18 C.F.R. § 284.8(a)(3) (1989).
. "Interruptible” service means “that the capacity used to provide the service is subject to a prior claim by another customer or another class of service and receives a lower priority than such other classes of service.” 18 C.F.R. § 284.9(a)(3) (1989).
. This rate derived from schedules CIG filed with FERC under section 311 of the Natural Gas Policy Act, 15 U.S.C. § 3371 (1988).
. The certificate in case No. 88-1169 was due to expire on September 15, 1988 under the one-year limit. The certificates in case Nos. 88-1273 and 88-1478 were due to expire under the one-year limit on December 2, 1988 and January 19, 1989, respectively. All of these certificates were subject to renewal.
. In FERC’s order in case No. 88-1169, the term limitations were referred to as follows: "We will also limit the authorization to a term of one year from the date of issuance of this order or the date that CIG accepts a blanket transportation certificate, whichever comes first.” 40 F.E.R.C. ¶ 61,231, 61,784 (1987) (emphasis added). FERC's Order in Case No. 88-1273, 41 F.E.R.C. ¶ 61,247, 61,647 (1987), contains similar language. In case No. 88-1478, FERC’s Order Amending Certificate apparently amended only the one-year portion of the term limitations. 42 F.E.R.C. ¶ 61,020, 61,118 (1988). The earlier October 11, 1985, order, as amended, 39 F.E. R.C. ¶ 62,214 (1987), which FERC was seeking to amend, already contained a blanket certificate acceptance limitation.
. The D.C. Circuit’s decision in ANR Pipeline Co. v. FERC, 876 F.2d 124 (D.C.Cir.1989), fully supports our conclusion. In ANR Pipeline Co., as in the present case, ANR’s individual certificates were subject to a one-year limit, or earlier if it accepted a blanket certificate. ANR accepted a blanket certificate prior to the running of the one-year period, triggering the expiration of the certificates at issue. Id. at 128. In contrast to the facts before us, however, ANR had preserved for review both aspects of the term limitation.
The court held that the challenge to both term limitations when considered in the aggregate was not moot since the automatic "open-access” condition in the blanket certificate regime is absent in the individual certificate regime. Id. In the present case, however, CIG failed to preserve for review its challenge to the blanket certificate acceptance limitation, precluding us from considering both term limitations in the aggregate. This case is more analogous to the ANR Pipeline Co. court’s mootness analysis of the blanket certificate acceptance limitation challenge after it had held that the one-year limit was valid on the merits. In this posture, the court held the blanket limitation issue moot, since the certificate had already validly expired under the one-year limit, and no party sought retroactive relief. Id. at 130. The same reasoning applies to the instant case, since we must deem valid the blanket certificate acceptance limitation, which operates to moot the alternative one-year provision.
. The factual posture of this case contrasts markedly with the facts in ANR Pipeline Co., under which the court found Great Lakes’ challenge to the durational limitations "capable of repetition yet evading review.” 876 F.2d at 129. Great Lakes, as opposed to CIG in the present case, never accepted a blanket certificate. Instead, it chose to obtain an extension of its individual 7(c) certificate containing the identical term conditions. Id. at 128. Clearly, Great Lakes is more likely to be subjected to the identical constraints it challenged than is CIG, which accepted blanket certification and never reapplied for individual 7(c) certification.
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_state
|
33
|
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".
In re BAY PARKWAY HABERDASHERS & HATTERS, Inc. WILLIAM CARTER CO. v. CULLEN.
No. 278.
Circuit Court of Appeals, Second Circuit.
Feb. 19, 1934.
Cohen & Wedeen, of New York City (Sidney Wedeen, of New York City, of counsel), for appellant.
Jacob Frummer, of Brooklyn, N. Y., for appellee.
Before MANTON, L. HAND and SWAN, Circuit Judges.
PER CURIAM.
The appellant and other creditors, with claims aggregating $1,319.64, voted for Albert L. Olsen as trustee for the bankrupt. Throe claims aggregating $855.36 voted for Thomas H. Cullen, Jr. (the receiver), and the referee appointed him trastee, stating that he declined to certify Mr. Olsen elected trastee because of a disapproval based upon the fact that Mr. Olsen’s election was controlled by the assignee’s attorneys. Cohen & Wedeen, attorneys in fact for the creditors who voted for Mr. Olsen, were also the attorneys for the assignee for the benefit of creditors. The assignee had no assets in his possession; the proceeds of the sale having been paid directly to the receiver.
Nothing in the record supports the eonelusion of the referee that Olsem was controlled by the assignee’s attorneys. By placing their claims in the hands of the attorneys for the assignee, the creditors did not thereby disqualify themselves from voting for the tras-tee. Olsen, who was nominated and voted for by the majority m number and amount of creditors, was not the assignee. The ret-eree stated that he declined “to approve any candidate whose selection the assignee or his attorneys controlled.” Section 44 of the Bankruptcy Act (11 USCA § 72) provides for the appointment of one or three trustees by creditors. General Order 13 (11 USCA § 53) provides that “the appointment of a trustee by the creditors shall he subject to be approved or disapproved, and he shall_be removable, by the referee or by the judge.’ But by statute the unqualified right to appoint trustees m bankruptcy vests in the creditors. In re Harris Construction Co. (D. C.) 37 F.(2d) 951; In re Van De Mark (D. C.) 175 F. 287; In re Malino (D. C.) 118 F. 368. Disapproval or removal must be based upon the exercise of wise judicial discretion. There must be reason for disapproval or removal. In re Mayflower Hat ,Co., 65 F. (2d) 330 (C. C. A. 2). Insufficient reason existed here for refusing the appointment of Olsen as trustee.
n Order reversed.
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:
|
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.
MILLER v. McCAUGHN, Collector.
Circuit Court of Appeals, Third Circuit.
June 20, 1928.
No. 3785.
Internal revenue <§=7(27) — Compensation of auditor appointed by'orphans’ court to ascertain financial worth of surety companies, paid by sureties, held taxable by federal government.
Compensation of auditor appointed by orphans’ court to ascertain and report financial worth of surety companies, whose bonds were tendered to said court by guardians, administrators, etc., and which was paid wholly by surety companies, held not exempt from taxation by federal government, on theory that he was an officer or employee of state, or political subdivision thereof.
In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Suit by Philippus W. Miller against B. D. MeCaughn, Collector. Judgment for defendant (22 F.[2d] 165), and plaintiff brings error.
Affirmed.
Samuel Galt Birnie, of Philadelphia, Pa., for plaintiff in error.
Martin W. Goldsworthy, of Washington, D. C.; George W. Coles, U. S. Atty., of Philadelphia, Pa., and C. M. Charest, of Washington, D. C., for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below Philippus W. Miller brought suit against the collector to recover income tax which he alleged he was wrongfully forced to pay. Jury having been waived, the trial judge found a verdict in favor of the collector, whereupon the plaintiff brought the case to this court for review.
The facts, which are undisputed, are that the judges of the orphans’ court in Philadelphia, having occasion to be advised as to the financial worth of surety companies whose bonds were tendered to said court by guardians, administrators, etc., .appointed Mr. Miller, who was a member of its bar, a standing auditor to ascertain and report the financial worth of such companies as should apply to the court to so furnish surety bonds. No statute of Pennsylvania authorized such appointment, and Mr. Miller received no pay from the state. His services were paid from a fund contributed by applying surety companies. The income tax on the pay thus received was collected from him by the government. This he now seeks to recover on the ground that he is an official of the state, and as such is not subject to federal income tax. On the other hand the government contends he does not come within the income exemption provision which is of “an officer or employee of any state or political subdivision thereof.”
We agree with the government’s contention and the finding of the trial judge. The exemption of state employees from federal income tax rests on the ground that the agencies the state employs in government should not be burdened by federal taxes, which would lessen the state’s power to employ, and compel it to pay more for the services of its employees. But no such reason exists in the case of this examiner. No power of the state is crippled or lessened by his paying tax on his income. Neither the state nor the court pay Mr. Miller. Under modem conditions, these cpmpanies become sureties for pay, and as part of their business expense, and in order to obtain business, they provide a fund by which the court can be satisfied, through the services of an examiner or auditor, of their solvency, and in no sense can such examiner be regarded, for income tax exemption, as an officer or employee of the state of Pennsylvania.
So regarding, the judgment below is 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_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL et al., Respondents.
No. 5395.
United States Court of Appeals First Circuit.
Dec. 31, 1958.
Arnold Ordman, Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., were on the brief, for petitioner.
John I. Robinson, Springfield, Mass., with whom Norris E. Dibble, Springfield, Mass., was on the brief for respondents.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
The president of a labor organization known as the Springfield Building and Construction Trades Council, at a meeting in May, 1957, attended by representatives of affiliated labor unions, some 20 employers engaged in the construction business in and around Springfield, Massachusetts, and representatives of the local association of employers in the building trades, announced that the Trades Council no longer intended to tolerate the employment of union and non-union men working together on the same job, but that thereafter construction jobs within the Council’s jurisdiction must either be run with 100% union men or be run entirely with nonunion men. A few weeks later, on or about June 10, Leo, Spear Construction Co., Inc., as the general contractor, submitted a written bid to the Town of Southwick, Massachusetts, for the construction of an addition to the town office building. In accordance with accepted practice in the area Spear included in its bid as general contractor previously submitted sub-bids of James F. Rogers, doing business under the name of Rogers Heating and Engineering Company for the heating work and of Valley Electric and Heating Service for the electrical work. Both of these sub-bids were the lowest submitted for the work covered in each.
The employees of these sub-bidders, Rogers and Valley, were not represented by any union. Spear’s employees, on the other hand, were all members of local unions affiliated with the Trades Council and Spear had a contract with the Carpenters’ District Council of Springfield which provided in relevant part that: “Members are not allowed to work with non-union Carpenters or Craftsmen specified by the District Council nor with apprentices not recognized by the District Council.”
When it became known that Spear’s bid was the lowest submitted for the Southwick job, the secretary of the Trades Council notified Spear that there would be “trouble” if the job proceeded with participation by the non-union employees of Rogers and Valley. Spear notified the town authorities of this and when on June 15 Spear and the Town of r Southwick executed a written contract ! on the basis of Spear’s bid it was with ■ the oral understanding that if labor diffi- | culties arose Rogers and Valley would 5 be taken out of the general contract, j Two days later, further threats of ¿ trouble having been made to Spear by 5 the secretary of the Trades Council, | Rogers and Valley were taken out of I Spear’s contract by the execution of a ¿^.change order.
When representatives of the Trades Council learned that the heating and electrical work had been taken out of Spear’s general contract they had a meeting with representatives of the Town in an attempt to dissuade the town authorities from executing separate contracts with Rogers and Valley. The argument advanced by representatives of the Council at that meeting w.as that neither Rogers nor Valley, nor indeed any other employer of non-union labor, was- legally eligible to enter into contracts with the Town because their nonunion employees could not work in harmony with union men, and hence no non-union employer could comply with the requirement of Mass.Gen.L. (Ter. Ed.1932) c. 149 § 44A which provides in part that every bidder or sub-bidder for the construction of public buildings for the Commonwealth or any governmental unit thereof “shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work.” In spite of efforts to negotiate, no agreement was reached at this meeting and on July 3 the Town entered into separate contracts with Rogers and Valley for the work each had respectively agreed to perform.
On July 8, prior to the appearance on the job of any of Roger’s or Valley’s employees, the Carpenters’ District Council with the approval of the Trades Council, directed its carpenters who were employed by Spear to quit work on the Southwick job. On the next day, at the instigation of their union officials, union bricklayers employed on the job by Hampden Construction Company, another sub-contractor under Spear, failed to report for work.
We turn now to a very similar situation which developed at about the same time in the Town of West Springfield.
In March, 1957, that Town decided to renovate one of its schools and in pursuance of that decision it entered into a number of contracts with the individual contractors who had submitted the lowest bids for the various phases of the work required to put the school back into operation. The Town awarded the contract for the carpentry work involved to the W. J. Quinn Construction Company and the contract for the ventilating work to Rogers. Quinn’s carpenters were union men working under a contract between Quinn and the District Council containing the same provision mentioned above in Spear’s contract forbidding the employment of union men with non-union men; Roger’s employees, as already appears, were not unionized. The president of the Trades Council attempted to dissuade the town authorities from entering into separate contracts for the various kinds of work involved in renovating the school on the ground that Mass.Gen.L. (Ter.Ed.1932) c. 149 § 44A required a general contract for the entire renovating project with subcontracts for its various aspects, and hinted broadly that trouble would ensue if union and non-union men were employed on the job. These efforts proving fruitless, the District Council, through its business agent, ordered Quinn’s union carpenters off the job and when they quit so also did all other union men on the job and a general strike ensued.
On separate charges filed by Spear with respect to the Southwick job and by Rogers with respect to the West Springfield job, General Counsel for the Board issued complaints against the labor organizations involved and their agents charging all respondents with violating § 8(b)(4)(A) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.A. § 158(b)(4)(A), which makes it an unfair labor practice for a labor organization or its agents “ * * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment * * * to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person * * The two cases were consolidated and as a result of usual proceedings the trial examiner found on the record as a whole that the respondents had “induced or encouraged the employees of Spear, Hampden and Quinn to engage in strikes or concerted refusals in the course of their employment to perform services for their respective employers with an object of (1) forcing or requiring Spear and the Town of South-wick to cease doing business with Rogers and Valley and (2) forcing or requiring Quinn and the Town of West Springfield to cease doing business with Rogers,” and that by such conduct the respondents had committed an unfair labor practice in violation of § 8(b)(4)(A) of the Act. The Board on review adopted the findings, conclusions and recommendations of its trial examiner and ordered the respondents to cease and desist from inducing or encouraging the employees of Spear, Hampden or Quinn “or any other employer to engage in a strike or a concerted refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the Towns of Southwick or West Springfield or any other town, employer or person to cease doing business with [Rogers or Valley] or any other employer or person” (italics supplied), and to post appropriate notices. This is the order the Board asks us to enforce.
The facts essential to the jurisdiction of the Board and of this court are conceded. Nor is there any doubt in our minds that the factual findings and conclusions of the trial examiner which the Board adopted as its own are amply supported by the evidence in the record considered as a whole. Indeed, the respondents do not challenge the evidentiary findings underlying the Board’s conclusion of a violation of § 8(b) (4) (A) of the Act, nor do they seek to distinguish the case at bar from N.L.R.B. v. Denver Bldg. & Const. Trades Council, 1951, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. Theirs is a sort of unclean hands argument. It is that their conduct, although in appearance in violation of the above section of the Act as construed in the case just cited, was justified because") Rogers and Valley, who are the em- j ployers involved whom the Act under- ,j takes to protect, knowingly participated I in violating Massachusetts statutory''» provisions by contracting directly with the towns involved, whereas local law required that in the construction of public buildings there shall be but one contract between the governmental entity and a general contractor and that sub-contractors shall enter into separate sub-contracts with the general contractor.
It may very well be that the letting of separate contracts to Rogers and Valley by the Town of Southwick and to Rogers and Quinn by the Town of West Springfield violated local law. But that does not concern us. It is the function of the Massachusetts authorities to enforce compliance with the Massachusetts law respecting the letting of contracts for the construction of public buildings. The question before us is whether the Labor Management Relations Act, 1947, has been violated and we are not aware of anything in that Act, or in its basic policy, to indicate that its application depends upon compliance by any employer concerned with local statutory provisions regarding the letting of contracts. Indeed, we think the federal Act would lose uniformity of application and be rendered ineffectual to accomplish its purpose if its application were to be made subject to compliance by the persons involved with local statutes, ordinances and policies governing contracts for the erection or repair of public buildings. We find no merit whatever in this defense.
!• Nor do we find any merit in the respondents’ further defense that Rogers and Valley were so “allied” with Spear on the Southwick job, and Rogers was so “allied” with Quinn on the West Springfield job, as to constitute for the purpose of § 8(b)(4)(A) of the Act a single employer on each job with whom the respondents had a primary labor dispute. This is not a case like N.L.R.B. v. Business Machine and Office Appliance Etc. Workers, 2 Cir., 1955, 228 F.2d 553, certiorari denied 1956, 351 U.S. 962, 76 S.Ct. 1025, 100 L.Ed. 1483, in which employees of a secondary employer are doing work “farmed out” by a primary employer whose own employees would be doing the work themselves were they not out on strike. On neither job were the employees of either Rogers or Valley doing work which the employees of Spear or of Quinn would have been doing had there been no strike. The contractors and sub-contractors involved herein were wholly independent of one another, and the fact that they “were engaged on the same construction project, and that the contractor had some supervision over the subcontractor’s work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other. The business relationship between independent contractors is too well established in the law to be overridden without clear language doing so.” N.L.R.B. v. Denver Bldg. & Const. Trades Council, supra, 341 U.S. 689, 690, 71 S.Ct. 951, 952.
But the respondents contend that in any event the order of the Board is unduly broad in its scope and this court should modify it before ordering it enforced by striking out the portions thereof which appear in italics in our quotation from the order earlier in our opinion. The order is certainly broader than is required merely to put an end to the specific statutory violations found by the Board with respect to the two jobs before it. On the other hand, the Board did not in its order attempt “to enjoin violations of all the provisions of the statute merely because the violation of one has been found,” as in N.L.R.B. v. Express Publishing Co., 1941, 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930. The Board’s order deals with specific provisions of one section of the Act which it found that the respondents had violated on two contemporaneous jobs, apparently in an attempt to implement a settled policy previously announced. These two instances of violations of the Act in carrying out that settled policy justify the Board’s evident belief that the respondents would be likely to engage in similar conduct on other jobs should the occasion arise and we think this clearly warrants an order broader than the exigencies of these particular cases require. In short, we think in view of the announced policy of the respondents no longer to tolerate union men working with non-union men on the same building project, that the Board was warranted in issuing the order it did covering persons and employers other than those directly involved in the cases before it, and that the Board is not required to deal with each similar violation of § 8(b)(4)(A) which might be indulged in by these respondents in specific situations which could reasonably be expected to arise in the future. See International Brotherhood of Electrical Workers, Local 501, A. F. of L. v. N.L.R.B., 1951, 341 U.S. 694, 705, 706, 71 S.Ct. 954, 95 L.Ed. 1299.
A decree will be entered enforcing the order of the Board.
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_source
|
A
|
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.
FRIEDMAN et al. v. UNITED STATES.
Nos. 14612, 14663.
United States Court of Appeals Eighth Circuit.
Dec. 31, 1952.
Rehearing Denied Jan. 23,1953.
John W. Graff, St. Paul, Minn. (Marvin A. Miller; Miller, Miller & Miller, Cherokee, Iowa, and Hoffmann, Donahue & Graff, St. Paul, Minn., on the brief), for appellants.
William B. Danforth, Asst. U. S. Atty., Sioux City, Iowa (Tobias E. Diamond, U. S. Atty., Sioux City, Iowa, on the brief), for appellee.
Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The question for decision is whether the District Court abused its discretion in denying the appellants’ motions to vacate their sentences and for leave to withdraw their pleas of guilty and to stand trial.
The appellants, Ray E. Friedman and American Produce Company, a corporation, are two of six defendants who1 on March 21, 1952, were jointly indicted by the Federal Grand Jury for the Northern District of Iowa. The other defendants were Matthew Dvorkin, Nathan Dvorkin, Larry Dvorkin [also known as Sam Dvorkin], and Del Smith [also known as Delmond Smith]. The defendant American Produce Company was owned by Ray E. Friedman, who was its President. The Dvorkins and Smith were connected with the Company. It was engaged at Sioux City, Iowa, in the processing of poultry, some of which was furnished to the Department of the Army under contract.
The indictment contained four counts. The first two counts each charged the defendants, under Title 18 U.S.C.A. § 371, with a conspiracy to make false, fictitious and fraudulent statements in a matter within the jurisdiction of the Department of the Army and in violation of Title 18 U.S.C.A. § 1001. The last two' counts each charged the defendants with the substantive offense of making such false, fictitious and fraudulent statements to that Department in violation of Title 18 U.S.C.A. § 1001.
The arraignment of the defendants was first set by the court for March 25, 1952, but, at the request of their counsel, was continued to March 29. At that time all of the defendants entered pleas of not guilty. The court fixed April 18, 1952, as the trial date, but later changed it to April 21. On April 16 the court was advised that the defendants wished to change their pleas as to certain counts, and thereupon fixed April 22 as the date for a further healing.
On April 22 the defendants appeared with their counsel. He had had ample time to familiarize himself with the charges contained in the indictment. He advised the court that the defendants desired to withdraw their pleas of not guilty to part of the indictment. Counsel for the Government stated that it would accept a plea of guilty by the corporation to Count III of the indictment and upon that plea being entered would move to dismiss the remaining counts as to the corporate defendant. Government counsel stated also that it was the understanding of the Government that the individual defendants would change their pleas to Count II of the indictment, and upon pleas of guilty being entered by each of them to that count the Government would dismiss the remaining counts as to each individual defendant.
The court then made the following statement to the defendants:
“Technically the District Attorney has to have the consent of the Court to dismiss any Count in an indictment. But that is a rather technical matter, because if the District Attorney does not want to prosecute particular Counts the Court cannot undertake to carry on the prosecution. I will state this, as to the dismissal of these Counts, if there has been any promise, inducement, or intimation made to you, that has led you to- believe, because of such dismissal, what your sentence might or might not be on the remaining Count, you are advised not to enter a plea of guilty as to that, because the defendants and defendants’ counsel are informed that no one has any authority to act, to speak or intimate for the Court what sentence a defendant might or might not receive. It is the long standing rule of this Court that no one has any right to speak in any way for the Court in these matters — whether it be the United States Attorney, and I have never known that he has ever done so —at least it has never come to my attention — or any member of the Court staff — and then sometimes there are others who might attempt to do- so and give defendants information that if you will do such and such a thing that the sentence will be so and so, or defendant’s counsel or whoever it might be, if anybody has attempted to hold out to you what your sentences might or might not be, the Court will not accept your plea of guilty. And you are informed that the maximum punishment on Count II is a fine of $10,000.00 and a sentence to imprisonment for five years —and there is always the possibility that the maximum will be imposed. The Court having thus advised you, if the defendants, or any of them, have been under any belief as to what their sentences might or might not be, because of any statements made by any one, they should withdraw their pleas of guilty, and the Court will have you do so now.”
After making this statement, the court asked each of the defendants individually if he had heard the statement, and each of them replied that he had.
Counsel for the Government stated that he had been urged by the defendants’ counsel to inform the defendants as to what sentences might be imposed by the court, but had advised them that that matter was solely for the court to determine and was one with which he had nothing to do. He said he had informed the defendants “That they will have to take their chances on their sentences whatever it might be”; and also said, “They go into it with their eyes wide open.”
At the conclusion of these statements by the court and Government counsel, Friedman, as President of the defendant American Produce Company, was asked what the plea of that defendant was to Count III of the indictment. He said, “Guilty.” The Government thereupon, with the court’s consent, dismissed the remaining counts of the indictment as to the corporate defendant. Each individual defendant was then asked what his plea was to Count II of the indictment, and each said, “Guilty.” Government counsel then dismissed the remaining counts of the indictment as to the individual defendants.
In simple language, the offense to which the corporate defendant had entered a plea of guilty was defrauding the Government by upgrading poultry furnished the Army, and the offense to which the individual defendants had entered pleas was conspiring to defraud the Government by falsely representing that the poultry (furnished the Army), which had 'been eviscerated more than 76 hours after it had been killed, had been eviscerated less than 76 hours after the killing date.
The District Court had before it a pre-sentence report from the Probation Officer. Before pronouncing sentence, the court not ■only permitted, but invited, counsel for the ■Government and counsel for the defendants to make complete statements with respect to the charges to which the defendants had entered pleas of guilty. The statement of counsel for the defendants was to the effect that the offenses were more technical than substantial; that, while the defendants admitted that they had conspired to change the “kill date” on a load of poultry to deceive the Army Inspector at the plant of the corporate defendant, so that the poultry ■could be eviscerated more than 76 hours after it was killed, the poultry was not unwholesome. Counsel for the defendants also stated that there had been very little upgrading of the poultry furnished the Army; that the defendants had at all times ■endeavored to procure and furnish the Army with the best product obtainable; and that they were all reputable and law-abiding persons of good reputation.
From the remarks of the court made before sentences were imposed, it is apparent that the pre-sentence report of the Probation Officer did not support the claims of the defendants that the offenses of which they stood convicted by their pleas of guilty were trivial and technical, rather than serious or substantial. The court sentenced the corporate defendant to pay a fine of $10,-000. The sentence imposed upon the defendant Friedman was five years imprisonment. Each of the other four defendants, whom the court regarded as having been dominated by Friedman, was given a suspended sentence of two years imprisonment, and placed on probation.
The net result of the carrying out of the understanding between the defendants and the Government relative to the disposition of the case was that three counts of the indictment -were dismissed as to each defendant; that each of the defendants, upon a plea of guilty, was convicted upon only one count; that four of the five individual defendants charged with having conspired to defraud the Government were placed on probation; that the corporate defendant was fined; and that the defendant Friedman alone received a prison sentence.
On April 24, 1952, two days after sentences had been imposed, the corporate defendant and Friedman filed a motion to vacate their sentences and for leave to withdraw their pleas of guilty and to stand trial. It was asserted in their motion that they were innocent of the charges made in the indictment, and had a full and complete defense to each of the counts. It was also asserted that the defendant Friedman entered a plea of guilty “on the recommendation of his counsel, Frank Margolin, and on the recommendation of Attorney John W. Graff, Ex-United States District Attorney at St. Paul, Minnesota, as under the indictment both attorneys felt that there was no serious violation of the Federal statutes and that rather than incur a lengthy trial and expense to the United States Government, that the most that could be expected would be a reasonable fine.” It was further asserted that Friedman entered a plea of guilty “solely because of the fact that he was ignorant of his rights and of the consequence of his act, and the plea was entered solely under a mistake or misapprehension that his violation of the statute, if any, was purely technical and not of a serious nature.” Friedman also alleged that, through fear of the United States Army, fear of what might happen to him in the action, and in the courtroom, “and being fearful at that time of the intimacies of a trial, consented to plead guilty April 22, 1952”; that it would be a gross miscarriage of justice if he, an innocent man, was not permitted to present his defense; and that the remarks of the District Judge at the time sentence was pronounced showed that he was misinformed and prejudiced.
Mr. Frank Margolin, of Sioux City, Iowa, who as counsel had represented all of the defendants at the time of their arraignment when they entered pleas of not guilty, and at the time they changed their pleas on April 22 and were sentenced, did not present the motion of the corporate defendant and Friedman for leave to withdraw their pleas of guilty. The motion was prepared and filed by Miller, Miller & Miller, of Cherokee, Iowa, and was verified by the defendant Friedman.
The motion came on for hearing on April 26, 1952. It was argued at length by counsel. No evidence was adduced in support of the allegations of the motion. Mr. Margolin, so far as the record shows, did not appear, nor did Mr. Graff. The defendant Friedman did not testify. At the conclusion of the arguments and statements of counsel, the court found that the pleas of guilty which the defendant Friedman and the corporate defendant were seeking-leave to withdraw had been voluntarily, knowingly, and understandingly entered by the defendant Friedman in order that he might escape the possibility of a longer sentence if he stood trial and was convicted. The motion of the two defendants was denied. On May 6, 1952, they appealed from the order denying their motion. This appeal is No. 14,612 in this Court.
On May 19, 1952, Friedman and the corporate defendant again filed a' motion to vacate their 'sentences and for leave to-withdraw their pleas of guilty and to stand trial. The grounds of the second motion were in part the same as had been asserted in the first motion. In addition, -however, it was alleged that the defendants had, since the hearing of the first motion, discovered evidence showing that a certain Army Captain, in charge of inspecting products processed for the Army in the Sioux City area, had, because of a private grudge against the defendant Friedman, in effect fabricated the evidence which made it appear that -he and his company had violated the law, and that this Captain had brought about the indictment. Friedman filed an affidavit in support of the motion, which contains the following statement:
“ * * * That said plea of guilty entered by the affiant to the second count for himself and on behalf of the-company to the third count under date of April 22, 1952 were entered under a misapprehension of the facts surrounding said alleged offenses and a misconception of the seriousness of the charge that has been made against affiant and the American Produce Company and that both affiant and -.the Company have a complete defense to the charges which have been made against them and that the ends of justice will be subserved by permitting-said judgments and commitments to be vacated and the pleas of guilty heretofore entered to be vacated and pleas of7 ■ not guilty to be entered in lieu thereof.”'
The second motion of the two defendants-was heard on July 1, 1952. It was argued on their behalf by Mr. John W. Graff, of St. Paul, Minnesota. The -court confined' the hearing to the issue raised by the assertion that evidence had been discovered,, since the disposition of the prior motion,, indicating that the defendants were the innocent victims of malice, ill will, or perjured testimony of Army personnel. This evidence was a wire recording of a conversation had by the defendant Matthew Dvor-kin, a brother-in-law of the defendant Friedman, with an Army Sergeant who. was at Dvorkin’s home on a social visit. The conversation as recorded showed dis- ■ paraging statements made by the Sergeant. ■_ about the accused Captain, and that, in substance, the Sergeant said that the Captain had deliberately brought about the shipment to the 'Army of unseasonably eviscerated poultry which the defendants had not intended for Army use, and had, through ill will toward the defendant Friedman, brought about the prosecution.
To refute this showing in support of the motion, the Government produced evidence to prove that the investigation which resulted in the indictment was initiated by the Federal Bureau of Investigation; that the accused Captain had not done the things or made the statements charged against him; that he had been present when Friedman admitted to the Captain’s superior officer that a certain shipment of poultry to the Army consisted of chickens which had been eviscerated more than 76 hours after they had been killed and that it had been made to appear that the killing date was later than it in fact was. The Captain’s superior officer testified that Friedman had admitted to him that the “kill dates” had been altered on this shipment.
The Sergeant whose recorded conversation was offered as newly discovered evidence was not produced as a witness, and, as the District Court observed, the recording was hearsay.
On July 5, 1952, the court made its findings and order. It found that the investigation which led to the indictment against the defendants was made by agents of the Federal Bureau of Investigation, and was not caused, occasioned, or brought about by any of the military personnel having to do with inspection at the plant of the American Produce Company. The court determined that the defendants had not made such a showing as would justify the court in allowing them to withdraw their pleas of guilty, “which were 'heretofore voluntarily, knowingly, intentionally and understandingly entered by them.” The court denied the second motion of the appellants for leave to withdraw their pleas of guilty, and they appealed from this order. The appeal is No. 14,663 in this Court.
We have stated the facts in more detail than necessary, largely for the purpose of showing that the District Court, in exercising its discretion, gave careful consideration to all of the claims and assertions of the defendants.
In their brief the appellants say:
“No claim is made by the appellants that at the time of the entry of their plea that they were not represented by competent counsel. Neither is claim made that any representative of the United States Attorney’s office made any agreement with the appellants upon which reliance is now placed. Neither is any claim made that the trial Court misled the appellants at the time of sentence. However, the claim is made that the appellants are innocent of the charge to which a plea of guilty was entered. It is further the contention of the appellants that notwithstanding whatever explanations were made to them by their own counsel, the United States Attorney, and by the Court the plea was based upon a misunderstanding of the facts and a misconception of the seriousness of the offense charged. The appellant Friedman has stated in his affidavit that he not only is innocent of the charges but that he believes he has a complete defense to the charges which have been made against him and the corporation.”
Rule 32(d) of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A., provides :
“A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”
This rule was merely declaratory of existing law, Goo v. United States, 9 Cir., 187 F.2d 62, which has recognized that, upon a timely application, the District Court, in the exercise of a sound judicial discretion, has authority to grant leave to withdraw a plea of guilty if good and sufficient cause is shown for so doing..
With respect to the withdrawal of pleas of guilty, there are some well established principles of law to which attention should be directed.
A plea of guilty is not a mere admission or extra-judicial confession of guilt; it is itself a conviction and as conclusive as the verdict of a jury. One entering such a plea may be held bound by it. Kercheval v. United States, 274 U.S. 220, 223-224, 47 S.Ct. 582, 71 L.Ed. 1009.
A defendant who enters a plea of guilty has no legal right to withdraw the plea. United States v. Bayaud, C.C.S.D. N.Y., 23 F. 721; Gleckman v. United States, 8 Cir., 16 F.2d 670, 673; United States v. Colonna, 3 Cir., 142 F.2d 210, 211; Bergen v. United States, 8 Cir., 145 F.2d 181, 186-187 and cases cited; Goo v. United States, supra, 187 F.2d 62; Williams v. United States, 5 Cir., 192 F.2d 39, 40.
An application for leave to withdraw a plea of guilty is addressed to the sound discretion of the trial court, and an order granting or denying such an application is reviewable on appeal only for an abuse of such discretion. United States v. Colonna, supra, 142 F.2d 210, 211; Bergen v. United States, supra, 145 F.2d 181, 187; Stidham v. United States, 8 Cir., 170 F.2d 294, 297-298; Williams v. United States, supra, 192 F.2d 39, 40; United States v. Shneer, 3 Cir., 194 F.2d 598, 599-600.
It is not a ground for reversal of a trial court’s order refusing leave to withdraw a plea of guilty that the defendant did not know, when he entered his plea, that he would or might be subjected to a more severe sentence than he anticipated. Stidham v. United States, supra, 170 F.2d 294, 298; United States v. Colonna, supra, 142 F.2d 210, 213; Williams v. United States, supra, 192 F.2d 39, 40; United States v. Shneer, supra, 194 F.2d 598, 600 and cases cited.
The burden of showing the existence of adequate grounds for the granting of leave to withdraw a plea of guilty is upon the defendant who seeks that privilegié. Bergen v. United States, supra, page 187 of 145 F.2d; Stidham v. United States, supra, page 298 of 170 F.2d; United States v. Shneer, supra, page 600 of 194 F.2d.
The issue of the defendant’s guilt or innocence is not involved in an application for leave to withdraw a plea of guilty. Kercheval v. United States, supra, at page 224 of 274 U.S., at page 583, of 47 S.Ct. 71 L.Ed. 1009. Upon such an application a trial court is not required to try the issue of guilt or innocence. The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered or whether it was,, at the time of its entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding that it ought not to be permitted to stand. United States v. Shneer, supra, page 600 of 194 F.2d; Williams v. United States, supra, page 40 of 192 F.2d; Rachel v. United States, 8 Cir., 61 F.2d 360, 362; Kercheval v. United States, supra, page 224 of 274 U.S., at page 583 of 47 S.Ct., 71 L.Ed. 1009. The issues of fact properly raised by such an application, if at all doubtful, are for the trial court to decide, and its determination may not be set aside or disregarded on appeal unless clearly wrong.
There are general expressions in some of the cases dealing with applications for leave to withdraw pleas of guilty, which might create the impression that a defendant who is displeased with the consequences of having entered a plea of guilty, and who asserts that he made a mistake in so doing and has a good defense and that justice will best be served by permitting him to withdraw his plea, should be accorded that privilege.
While the courts should, of course, do all that reasonably may be done to make certain that a plea of guilty represents the free and voluntary act of a defendant who understands the nature of the offense charged against him and the consequences of his plea, we think there is no reason for the adoption of a soft and complacent attitude toward permitting the withdrawal of such pleas. In the interest of proper law enforcement and an orderly administration of criminal justice, one who is accused of crime should be given to understand that he is at perfect liberty to enter a plea of not guilty and to have a trial of the issue of his guilt or innocence, hut that if he enters a plea of guilty he will have to abide whatever sentence the court lawfully may impose upon him.
The Supreme Court of Minnesota, in State v. McDonnell, 165 Minn. 423, 427, 206 N.W. 952, 953, a case in which a defendant challenged an order denying leave to withdraw a plea of guilty, used language which appropriately may be applied to the instant case:
“ * * * An appellate court should appreciate the superior opportunity afforded the trial court for understanding the situation [under which a plea of guilty was entered and sentence imposed], and should he slow to hold that its discretion was not wisely exercised. The trial court may have thought that the defendant knew well the import of the proceedings and was dissatisfied only when leniency was not shown, and then desired to take a different course. We hold that there was no abuse of discretion.”
The superior opportunity of a trial judge, who “has the feel of the case which no appellate printed transcript can impart,” to rule upon a question requiring the exercise of discretion is recognized in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 755, 91 L.Ed. 849.
In the present case the appellants had the advice of competent counsel of their own choosing. They could not have misunderstood the charges to which they entered pleas of guilty. They were in possession oif the facts underlying such charges. They were informed by the court of the maximum sentences which lawfully might be imposed if pleas of quilty were entered. They were free to let their pleas of not guilty stand and to have a trial. They were offered the opportunity by the Government to plead guilty to one count of the indictment or to stand trial upon four counts. It is apparent that their pleas were voluntarily, understanding^, and deliberately entered and that it was only their dissatisfaction with the sentences imposed which caused them to apply for leave to withdraw their pleas and to stand trial.
The contention of the appellants that they were denied due process because the District Court, in determining what sentences to impose, resorted to information contained in a report of its Probation Officer (which report is properly no part of the record in this case) is, we think, sufficiently answered by the opinion of the Supreme Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.
The District Court did not abuse its discretion nor did it err in denying the defendants’ applications for leave to withdraw their pleas of guilty. The orders appealed from are 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:
|
songer_respond2_8_3
|
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.
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 "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.
THE B. & B. NO. 10. NEW YORK SCOW CORPORATION v. OLSEN et al.
No. 330.
Circuit Court of Appeals, Second Circuit.
July 7, 1941.
Christopher E. Heckman, of New York City (Foley & Martin, of New York City, on the brief), for libelant-appellant.
Earle Farwell, of New York City (Barry, 'Wainwright, Thacher & Symmers and John C. Crawley, all of New York City, on the brief), for respondents-appellees.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
In the libel herein, libelant, as owner of the barge “B. & B. No. 10,” claimed collision damages against the two respondents, each alleged to be a resident of the district and within the court’s jurisdiction, as owners of the tug “Dorothy.” After describing the circumstances of the collision in the New York State Barge Canal on August 20, 1936, and making its claim for the cost of repairs and other expenses in approximately the sum of $500, libelant goes on to allege that heretofore and on or about July 23, 1937, it had filed a libel in the court below as owner of the. barges “B. & B. No. 5” and “B. & B. No. 7” against the tug “Dorothy” to recover damages sustained by these barges as a result of the same collision, that the respondents herein filed a claim of ownership of the tug “Dorothy” in said action, that the said action duly proceeded to trial on the merits and resulted in a decision in which the “Dorothy” was held solely at fault for the collision, that thereafter an interlocutory decree and subsequently a final decree were duly entered, and that “by reason thereof the matter now at issue has become res judicata as between the libelant and the respondents herein.” Upon exceptions to this libel the court found for the respondents, on the ground that libelant was attempting to “split its cause of action,” but expressly gave libelant permission to amend. Libelant did not avail itself of the privilege given and, judgment of dismissal being entered, appeals herein.
The sole question herein is the effect of the previous judgment, which libelant relies on as conclusively showing fault against the respondents, but not as barring further recovery. Its claim on the latter issue is that, since the former action was in rem against the vessel, the present action in personam against the owners is not barred. It is quite clear that, if this were an ordinary action for damage, since the parties are in substance the same and the loss arises out of the one accident, the matter would be considered single and only one recovery would be allowed. Brannenburg v. Indianapolis, Pittsburgh & Cleveland R. R. Co., 13 Ind. 103, 74 Am.Dec. 250; Barnard v. Devine, 34 Misc. 182, 68 N.Y.S. 859; Farrington v. Payne, 15 Johns., N.Y., 431; Knowlton v. New York & N. E. R. Co., 147 Mass. 606, 18 N.E. 580, 1 L.R.A. 625; Clark, Code Pleading, 318-324, 329-332. The substantial issue here is whether or not the peculiar jurisdiction of admiralty changes this well settled rule-of repose and allows unnecessary and duplicating legal proceedings.
Since appellant introduced the issue here in its libel, it was necessary for it to go on to make such answer as it had to the issue it had raised. Hughes v. Roosevelt, 2 Cir., 107 F.2d 901; The Sydfold, 2 Cir., 86 F.2d 611. Under the allegations herein, and in view of libelant’s failure to avail itself of the privilege of amending, we may take it as concluded that libelant did obtain the complete remedy and satisfaction it sought in the earlier action. And under present admiralty procedure it could have amended that libel and pursued any other remedies it thought it might have under the circumstances, including, if it so desired, the bringing in of respondents in personam in the action in rem. Admiralty Rules 14, 23, 56, 28 U.S.C.A. following section 723; Fyfe v. Pan-Atlantic S. S. Corp., 2 Cir., 114 F.2d 72, 75, certiorari denied 311 U.S. 711, 61 S.Ct. 319, 85 L.Ed. —. True, before the change in the rules in 1920, and under former Rule 15, proceedings in rem and in personam could not have been had in the same action at the same time, The Corsair, 145 U.S. 335, 341, 12 S.Ct. 949, 36 L.Ed. 727; but when libelant here first sued, every remedy was then available to it in its original action. See The Tonawanda, D.C.S.D.Fla., 278 F. 391. Rules against splitting causes of action apply in admiralty just as in other proceedings. Mercantile Bank v. Flower Lighterage Co., 2 Cir., 10 F.2d 705, certiorari denied 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1152; The Haytian Republic, 154 U.S. 118, 14 S.Ct. 992, 38 L.Ed. 930; Smith v. Lykes Brothers-Ripley S. S. Co., 5 Cir., 105 F.2d 604, 605, certiorari denied 308 U.S. 604, 60 S.Ct. 141, 84 L.Ed. 505. As Judge Hough says in the Mercantile Bank case, supra, 10 F.2d at page 707, with reference to successive claims for cargo loss or damage, the demand “was single and indivisible, and the course here pursued is in our opinion a plain infringement of the rule against splitting claims. * * * Libelant seems to think that, because it did not for unknown reasons produce all its demand, when it sued for and obtained part of it, it can now multiply suits and costs in the way here exemplified. For this there is no authority whatever.”
Appellant relies on certain of the older cases which suggest that a libel in personam will lie concurrently with a libel in rem or subsequent thereto if complete satisfaction of the earlier claim has not been had. The Normandie, D.C.S.D.N.Y., 40 F. 590; Atlantic Mut. Ins. Co. v. Alexandre, D.C.S.D.N.Y., 16 F. 279; Providence Washington Ins. Co. v. Wager, D.C.N.D.N.Y., 35 F. 364; The Samnanger, D.C.S.D.Ga., 298 F. 620. How far these cases may still be applicable in view of the change in the admiralty rules we need not consider, for they permitted only a further remedy to enforce an as yet unsatisfied claim, not the expanding to new limits of a claim already satisfied. See The Brothers Apap, D.C.E.D.N.Y., 34 F. 352; The Cerro Gordo, D.C.Conn., 54 F. 391; The Steam-Ship Zodiac, D.C.S.D.N.Y., 5 F. 220.
Affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant?
A. Indian Tribes
B. Foreign Government
C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY)
D. International Organizations
E. Other
F. 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.
Frank R. JACKLOVICH, as well for the United States of America as for himself, Plaintiff-Appellant, v. INTERLAKE, INC., Defendant-Appellee.
No. 71-1382.
United States Court of Appeals, Seventh Circuit.
April 4, 1972.
Marshall Patner, Alexander Polikoff, Thomas R. Meites, Chicago, Ill., Sheldon Plager, Champaign, Ill., for plaintiff-appellant.
Henry L. Pitts, W. Gerald Thursby, Clifton A. Lake, Chicago, Ill., for defendant-appellee; Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., of counsel.
Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.
CUMMINGS, Circuit Judge.
In this qui tam action, plaintiff sued “as well for the United States of America as for himself” under Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §§ 407 and 411-412). He alleged that in May 1969 defendant Interlake, Inc. was found guilty of discharging and depositing refuse matter from its Riverdale, Illinois, steel mill into the Little Calumet River during June 1968. That conviction occurred in a suit brought by the United States Attorney for the Northern District of Illinois on the basis of information provided by plaintiff and resulted in a fine, one-half of which was paid to plaintiff pursuant to Section 16 of the Act. See United States v. Interlake Steel Corp., 297 F.Supp. 912 (N.D.Ill.1969).
The complaint asserts that plaintiff observed 26 subsequent instances of discharge into the river by defendant from June 1969 through October 1970. Plaintiff purportedly gave the bulk of this information to the United States Attorney for the Northern District of Illinois and to the Department of the Army, but the Government instituted no further proceedings against Interlake under this Act. Pursuant to the first sentence of Section 16 of the 1899 Act (33 U.S.C.A. § 411), he requested the district court to require Interlake to pay a fine not exceeding $2,500 nor less than $500 for each of these 26 violations, one-half to the United States and one-half to plaintiff, who commendably agreed to pay his net recovery to not-for-profit organizations “for use in the prevention of water pollution or the restoration of water quality in navigable waters of the United States.”
Expressly following Bass Anglers Sportsman’s Society v. United States Plywood-Champion Papers, 324 F.Supp. 302 (S.D.Tex.1971), the district court granted defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, holding that the relevant part of Section 16 of the Act is a criminal statute and does not authorize the bringing of a qui tam action. This appeal followed.
The sole question before us is whether the first sentence of Section 16 of the Rivers and Harbors Act of 1899 authorizes a qui tam action. It provides as follows:
“Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act], shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” (33 U.S.C.A. § 411)
Section 17 of the Act provides in part:
“The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 [and] * * * 411 * * * of this title [Sections 13 and 16 of the Act]; and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *." (33 U.S.C.A. § 413)
An examination of the above portion of Section 16 readily discloses that it is a criminal provision. Persons guilty of violating Section 13 (see note 2 supra) are made guilty of a misdemeanor, resulting in a fine or imprisonment, or both. There must be a criminal conviction before half of the criminal penalty is to be paid to the informer. No qui tam action is authorized. This interpretation is buttressed by Section 17, for it places the enforcement powers as to Sections 13 and 16 in the hands of the Department of Justice, with offenders to be prosecuted by the appropriate United States Attorneys. In the present ease, for reasons undisclosed in the record, the United States Attorney for the Northern District of Illinois has not seen fit to prosecute Interlake for the 26 instances of discharge described in this complaint, and he cannot be compelled to initiate another criminal action against Interlake. United States v. Jones, 438 F.2d 461, 468 (7th Cir. 1971); United States v. Cox, 342 F.2d 167, 171-172 (5th Cir.) (en banc), certiorari denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D.N.Y.1961). Since the informer’s right to recover half the fine depends on a conviction in proceedings brought by the Government, plaintiff is remediless here. Two Courts of Appeals and twelve district courts that have considered the problem have unanimously so held.
Plaintiff attempts to avoid this result by reliance upon the last portion of Section 16 of the Act. That portion makes it a misdemeanor for masters, pilots, engineers, and other persons acting as such to engage in substantive violations of the statute. It then provides:
“Any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act] shall be liable for the pecuniary penalties specified in section 411 of this title [the first part of Section 16 of the Act], and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof”. (33 U.S.C.A. § 412; emphasis supplied)
Plaintiff claims that the phrase “pecuniary penalties specified” in this part of Section 16 of the Act means that civil penalties may be assessed under the previous criminal fine language of Section 16. We do not accept this strained construction in view of the plain language to the contrary in the earlier part of Section 16. Moreover, the underscored language was obviously used to limit the in rem liability against any vessel used in violation of the Act to a maximum of $2,500 and minimum of $500, as provided in the first sentence of Section 16. United States v. The Republic No. 2, 64 F.Supp. 373, 377 (S.D.Tex.1946); and United States v. The M/V Martin, 198 F.Supp. 171, 176 (S.D.Ill.1961), affirmed, 313 F.2d 851 (7th Cir. 1963), are not to the contrary because those were both in rem actions brought by the United States. We believe their references to “the pecuniary penalties specified” in Section 16 were merely to show the measure of the in rem liability under the last part of Section 16, in accord with the statutory scheme as it clearly appears. Simply put, the availability of an in rem action with liability in part measured by criminal penalties prescribed in the preceding portion of the statute does not imply the availability of a civil remedy under the preceding portion. On the contrary, the difference in the types of proceedings provided for in distinct provisions of the statute emphasizes the criminal character of that afforded in the first sentence of Section 16. See Helvering v. Mitchell, 303 U.S. 391, 404, 58 S.Ct. 630, 82 L.Ed. 917.
Plaintiff also contends that the first sentence of Section 16 authorizes a civil action for monetary penalties because the Government has brought civil actions to enjoin violations of other provisions of the Act. However, plaintiff has cited no ease in which the Government has proceeded civilly under the first sentence of Section 16, which provides that the mode of recovery of the penalties imposed thereunder is by a criminal action. Merely because other provisions of the Act may be enforced by civil injunctive action does not mean that plaintiff can recover monetary penalties under the opening sentence of Section 16 by way of a qui tarn action. Moreover, while civil remedies for violations of penal statutes are sometimes implied in favor of those whose special protection is the statutory purpose, the bare fact that Section 16 of the Act affords a portion of the criminal penalty assessed upon conviction to an informer is an insufficient basis on which to deprive alleged violators of the procedural protections attendant upon a criminal prosecution. Cf. Helvering v. Mitchell, 303 U.S. 391, 402-403, 58 S.Ct. 630, 82 L.Ed. 917. What the appellant seeks to accomplish here is not collateral civil enforcement of a standard of conduct prescribed in a penal statute especially for his benefit, but recovery of the criminal penalty without the necessity of the criminal prosecution the statute clearly requires.
Plaintiff relies on Adams v. Woods, 6 U.S. 336, 2 Cranch. 336, 2 L.Ed. 297, but the anti-slave trade statute involved there specifically provided for the informer. to sue for the fine, as did the Ohio anti-gambling statute in Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157. Likewise, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, the statute permitted informer suits to “be brought and carried on by any person.” See 317 U.S. at 546, 63 S.Ct. at 385. Although the Government presented strong policy arguments against the informer’s scheme involved in the Marcus case, the Court held that in view of the clear statutory policy there permitting informer suits, the proper forum for change was Congress (317 U.S. at 546-547, 63 S.Ct. 379), and shortly thereafter Congress accepted the challenge by repealing R.S. 3493 and revising R.S. 3491. It should be noted too that in Marcus the penalty involved was civil in nature, whereas the pertinent part of Section 16 of this Act requires a criminal conviction before an informer may share in the penalty. 317 U.S. at 549-552, 63 S.Ct. 379.
Our holding that only the United States may bring and prosecute an action to impose the penalty described by the Rivers and Harbors Act is reinforced by the Eighth Circuit’s opinion in Williams v. Wells Fargo Co., Express, 177 F. 352, 354-356 (8th Cir. 1910). There a postal statute provided that one-half of the penalties and forfeitures imposed for violation of the postal laws should be recoverable “to the use of the person' informing and prosecuting for the same.” The court stated that such language (which is much broader than the key part of Section 16 of the Rivers and Harbors Act) standing alone would impliedly authorize an informer to bring a qui tam action. Nevertheless, the court held that a qui tam suit was prohibited because another section of the postal laws required that all suits for recovery of penalties or forfeitures thereunder “shall be brought in the name of the United States.” Similarly here, Section 17 of this Act commits the enforcement of Sections 13 and 16 of the Rivers and Harbors Act to the Department of Justice, thus also prohibiting qui tam actions by informers.
While we share the public’s growing concern with pollution of public waters, the present design of the 1899 Rivers and Harbors Act does not permit qui tam actions to recover penalties for the discharge of refuse matter into navigable streams. Congress is the proper forum for amending the statute to permit such actions.
Affirmed.
. The phrase “qui tam” is derived from the common law action, “qui tam pro domino rege quam pro se ipso in hac parte sequitur” — who as well for the king as for himself sues in this matter.
. Section 13 of the Act makes it unlawful to discharge or deposit refuse matter from a manufacturing establishment into navigable waters of the United States. The most pertinent part of Section 16 is reproduced infra, early in the text of this opinion.
. The court below did not file an opinion because it would not “add anything to what has already been written.”
. Roscoe Pound’s statement that an informer may sue in his own name “where a penalty is given to him in whole or in part for that reason alone” is not to the contrary, for he was not discussing a criminal statute which is expressly to be enforced by the Department of Justice. See Pound, Actions on Penal Statutes, 42 Central Law Journal 135 (1908).
Plaintiff also relies on 28 U.S.C.A. § 2461(a) which permits civil actions to recover “a civil fine, penalty or pecuniary forfeiture * * * prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof." (Emphasis supplied.) However, as seen, in Section 17 of the 1899 Act, Congress has explicitly provided for the Department of Justice to enforce Sections 13 and 16 of that Act, so that Section 2461(a) does not authorize the criminal fine specified in the first part of Section 16 to be recovered in a civil action.
. According to its regulations, the Corps of Engineers of the Department of the Army does not take action (see 33 U.S.C.A. § 413) where violations are “minor, unintentional or accidental” and generally does not recommend prosecution (see Id.) where an alleged violation is “trivial, apparently, unpremeditated and results in no material public injury,” but only “in all cases of willful or intentional violations.” 33 C.F.R. §§ 209.395 and 209.400. See United States v. Interlake Steel Corp., 297 F.Supp. 912, 915 (N.D.Ill.1969).
. Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir., 1972); Bass Anglers Sportsman’s Soc’y v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971) (per curiam), affirming, 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971; joint opinion of three district judges); Gerbing v. ITT-Rayonier, Inc., 332. F.Supp. 309 (M.D.Fla.1971); Mitchell v. Tenneco Chemicals, Inc., 331 F.Supp. 1031 (D.S.C.1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 330 F.Supp. 695 (D.Conn.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, 329 F.Supp. 339 (E.D.Tenn.1971); United States ex rel. Mattson v. Northwest Paper Co., 327 F.Supp. 87 (D.Minn.1971); Enquist v. Quaker Oats Co., 327 F.Supp. 347 (D.Neb.1971); United States v. Florida-Vanderbilt Development Corp., 326 F.Supp. 289 (S.D.Fla.1971); Durning v. ITT-Rayonier, Inc., 325 F.Supp. 446 (W.D.Wash.1970); Bass Anglers Sportsman’s Soc’y v. United States Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Reuss v. Moss-America, Inc., 323 F.Supp. 848 (E.D.Wis.1971).
. See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed. 2d 908, United States v. Florida Light and Power Co., 311 F.Supp. 1391 (S.D.Fla.1970).
. See 31 U.S.C.A. § 232 and 31 U.S.C.A. § 234 Historical Note.
. See also Allen v. Craig, 102 Or. 254, 201 P. 1079 (1921); People ex rel. Wegner v. Hartford Life Ins. Co., 186 Ill.App. 117 (1914); State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962 (1906); and Omaha & R. V. Ry. v. Hale, 45 Neb. 418, 63 N.W. 849 (1895). Contrary eases relied upon by plaintiff involve such different statutory language as to be unpersuasive. Since it is clear that qui tam actions are not permitted under this particular statutory language, it is unnecessary to consider the English common law history and precedents.
. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 547, 63 S.Ct. 379, 87 L.Ed. 443. Plaintiff relies on footnote 4 of the Marcus opinion which states in part as follows:
“Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue, Adams v. Woods [6 U.S. 336], 2 Cranch. 336 [2 L.Ed. 297].”
As seen, the statute in Adams specifically authorized the informer to sue to recover half the fíne. Here Section 17 of the Act forbids the informer to sue because the enforcement powers are committed to the Department of Justice, and the critical part of Section 16 itself provides only for criminal proceedings.
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_casetyp1_7-3-3
|
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 - commercial disputes".
SOLVAY PROCESS CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 9519.
Circuit Court of Appeals, Fifth Circuit.
Oct. 7, 1941.
Edmund M. Preston and T. Justin Moore, both of Richmond, Va., C. V. Porter and Victor A. Sachse, both of Baton Rouge, La., and Monte M. Lemann and J. Blanc Monroe, both of New Orleans, La., for petitioner.
Robert B. Watts, Gen. Counsel, National Labor Relations Board, and Lewis M. Gill, Atty., National Labor Relations Board, both of Washington, D. C., for respondent.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
In the above numbered and entitled cause the National Labor Relations Board, at the request of the National Defense Mediation Board, has petitioned us to clarify and interpret the decree entered herein on March 27, 1941, particularly paragraph 2(b), which is as follows: “2(b) Upon request, bargain collectively with Oil Workers’ International Union, Local No. 424, as the exclusive representative of all the employees at the respondent’s Baton Rouge, Louisiana, plant, exclusive of clerical and supervisory employees, laboratory employees, gatemen, brine-well employees, and mill, water, and wharf employees, in respect to rates of pay, wages, hours of work, and other conditions of employment, provided, however, that the Solvay Process Company or any labor organization at its Baton Rouge, Louisiana, plant other than Solvay Employees Council may petition the Board for a certification of representatives, in which event the Company may abide the decision of the Board and comply with any supplemental order to enforce certification by the Board, in lieu of bargaining collectively with Oil Workers’ International Union, Local No. 424, as herein ordered”;
The request, so far as this court is concerned, is without precedent, but in view of the present situation regarding national defense and the peculiar facts of the case, we have decided to entertain the request. However, this action is not to be considered as a precedent for other cases in the future. The pleadings before us show the Solvay Company is engaged in important defense work. A strike of any considerable magnitude would seriously interfere with this work and would adversely affect the welfare of the public and the government of the United States.
It also appears from the pleadings that the Chemical Workers’ Union No. 22609, American Federation of Labor, is claiming that the members of that local constitute a majority of the employees of the Solvay Process Co. That union objects to the company entering into an agreement with the Oil Workers’ International Union No. 424 until that question is decided, and had petitioned the National Labor Relations Board to call an election to determine which labor organization should be designated as representing all the employees as the bargaining agent with the Solvay Process Co. That petition was dismissed by the Board.
In interpreting the decree we hold that the Solvay Process Co. is obligated to negotiate with the Oil Workers’ International Union No. 424, affiliated with the Committee for Industrial Organization, without waiting for an election, and that the proviso of section 2(b) does not create a condition precedent to the taking effect of that part of said subsection.
We consider that patriotism in the emergency should override any factional differences between labor organizations and the Board should act promptly on a petition hereafter filed by a labor union or the Company and fully consider and determine the merits, and call an election within the shortest possible period within which it may be effectively held.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Dennis WILLS, Robert Hardaway, Donald Moore, and George Van Trece, Defendants-Appellants.
Nos. 78-2109, 78-2134, 78-2181 and 78-2223.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 1979.
Decided March 5, 1979.
James R. Vogler, Winston & Strawn, Paul Bradley, Chicago, 111., for defendants-appellants.
Robert W. Tarun, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before TONE and BAUER, Circuit Judges, and MORGAN, District Judge.
The Honorable Robert D. Morgan, Chief Judge of the United States District Court for the Southern District of Illinois, is sitting by designation.
TONE, Circuit Judge.
The four appellants in these consolidated appeals were found guilty of theft from interstate shipments in violation of 18 U.S.C. § 659. The only substantial question presented is whether the articles stolen were “goods or chattels moving as or which are a part of or which constitute an interstate . . . shipment of freight, express, or other property” within the meaning of that statute. We hold that they were and affirm the convictions.
Count 1 of the indictment charged all four defendants with theft of 14 appliances from a loading platform at Spiegel, Inc. at Chicago, Illinois, on July 5, 1977. Count 2 charged defendant Wills with the theft of two appliances from the same platform on the same date. After a bench trial all defendants were found guilty.
There was substantial evidence that the goods in question were stolen by the defendants from the Spiegel’s loading platform as charged in the indictment. Except for a contention by Wills that he did not participate in the theft charged in Count 1, the defendants’ contentions relate to questions other than whether they stole the goods.
We discussed the interstate commerce requirements of 18 U.S.C. § 659 at some length in United States v. Parent, 484 F.2d 726, 729-731 (7th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 79 (1974), and we need not repeat what was said there. In that opinion we quoted with approval the following passage from United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970):
The determination of whether a shipment is in interstate commerce at a given time is essentially a practical one, depending upon the relationship between the consignee, consignor, and carrier, the indicia of interstate commerce at the time of the theft occurs, and the preservation of the congressional intent.
We then added that, “No single factor . . . is conclusive in the determination.”
484 F.2d at 729.
It is unnecessary that the goods in question leave the shipper’s facility or be actually moving in interstate commerce at the time of the theft. United States v. Williams, 545 F.2d 1036, 1039 (6th Cir. 1976); United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); see United States v. Gollin, 176 F.2d 889, 893-894 (3d Cir.), cert. denied sub nom. Richman v. United States, 338 U.S. 848, 70 S.Ct. 89, 94 L.Ed. 519 (1949). In Williams, the goods were stolen from the shipper’s “loading and shipping facilities.” United States v. Williams, supra, 545 F.2d at 1039. As explained in Astolas, the language of the statute itself suggests that § 659 reaches such thefts:
The scope of the phrase “moving as or which are a part of or which constitute an interstate or foreign shipment” is plainly to be inferred from the list of places from which theft is proscribed. These places include not only railroad cars and tractor-trailers and other modes of transportation, but any “station, station house, platform or depot * * It was intended that a theft from commerce could be committed before the goods were placed on board, and after they are taken off a carrier; it is not required that a shipment be in motion.
487 F.2d at 279; see also United States v. Parent, supra, 484 F.2d at 729-731.
The evidence upon which the interstate commerce issue turns was as follows. Spiegel, a catalog merchant with annual sales of. approximately $360,000,000, received and filled three kinds of customer orders: direct mail orders, telephone orders, and catalog store orders. After receiving an order, Spiegel personnel transmitted to a computer the ordered item’s catalog number, description, and price, the customer’s name, and the destination to which the item was to be shipped. The computer then scheduled the filling and shipment of the order and generated a sales slip and shipping label showing the consignee and his address, the carrier, the date of shipment, and various other data.
The sales slip and shipping label were then delivered by messenger to the area of the warehouse where the ordered item was stored, which, for the goods involved in the instant case, was the upper floors of Spiegel’s West Pershing Road facility. At that point an order picker examined the sales slip and shipping label, picked the packaged item from storage, and delivered it to a checker station. Using a computer terminal connected to the central computer, the checker made sure the item picked was the one ordered, weighed it on an electronic scale connected to the computer terminal, and inserted the shipping label- into the computer terminal’s printer.
The computer calculated a transportation charge and caused it to be printed on the label, which was then affixed to the package containing the ordered item. At the same time the computer billed the customer and credited the account of the common carrier that was to transport the ordered item to the consignee.
Within minutes, the labeled parcel was placed on a conveyor belt, which transported it immediately to the first floor sorting and loading area. There one of the sorters ascertained from the label the designated common carrier and placed the parcel on a flat truck with other parcels that carrier was to transport. Dock hands then wheeled the loaded flat truck onto trailers waiting in the bays of the dock area. Defendants Hardaway, Wills, and Sheldon were Spiegel dock hands assigned to this duty.
Once an item was labeled and placed on the conveyor belt, there was no practical way for Spiegel to interrupt its journey to the destination the computer had printed on the label. Some 10,000 labeled parcels passed through Spiegel’s first floor loading area daily. After labelling, the goods were moved from the storage floor to the carrier’s truck at the dock in less than four hours. A representative of Spiegel testified that trying to find an ordered item on the first floor loading area of Spiegel’s facility “would be like looking for a needle in a haystack.”
All of the parcels referred to in the indictment in the case at bar were labeled for out-of-state destinations. Twelve of the parcels charged in Count 1 were to be transported by United Parcel Service. For this carrier, computer manifests were used instead of traditional bills of lading. The Spiegel computer prepared the manifests during the night following the scheduled departure of the ordered items. The twelve stolen United Parcel Service parcels matched twelve computer manifests introduced in evidence. In addition to the twelve United Parcel items, there were three items covered by straight bills of lading, which were introduced at the trial. Spiegel was unable to locate a bill of lading for the remaining item, but other documentation showed that the item was labeled for shipment to an out-of-state consignee.
Under the circumstances we have described, a parcel’s interstate journey commenced when it was moved by conveyor belt to the dock area, for it was then that Spiegel’s power to prevent it from making its scheduled interstate journey ended. After that, even if the customer cancelled or changed the order, Spiegel could not retrieve the parcel from among the thousands of parcels that were assembled in the loading area. The irrevocability of this commitment to interstate movement was not altered by the chance that if the parcel was damaged en route to the carrier’s vehicle and the damage was discovered it would be removed from shipment. Any goods in the stream of interstate commerce are subject to the chance that they will be held up or diverted through accident before they cross a state line. The statute nevertheless applies from the time the goods enter the stream. It is not always necessary for purposes of § 659, as the decisions discussed above illustrate, that the commitment to interstate commerce be irrevocable, but, when that is the case, the statute is clearly applicable. Accordingly, we conclude that the stolen goods in this case were within the statute.
Wills, and arguably other defendants, contend that the evidence failed to show theft of the parcels from the first floor loading area rather than one of the warehouse floors, and that parcels in the latter area were clearly not an interstate shipment. Although there was no direct evidence that the defendants took the parcels from the loading area, the circumstantial evidence to that effect was sufficient. The loading area was the place where the defendants were assigned to work and where they therefore had ready access to labeled parcels, the contents of which could readily be identified from the label or the container itself. The parcels in question were labeled with computer generated labels. It was the practice to place a parcel on the conveyor for movement to the first floor loading area as soon as it had been labeled at the computer terminal. The inference is strong that the parcels in question were taken from the loading area by the defendants.
Defendant Wills contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. With respect to Count 1, this argument amounts to a challenge to the credibility of the Federal Bureau of Investigation Agent who testified about his observation, while working undercover, of Wills’ participation in the thefts. It is enough to say that questions of credibility are for the trier of fact. With respect to Count 2, Wills challenges the interstate nature of the shipment because of alleged deficiencies in the documentation and failure to prove the value of one of the items, a GE portable color television set. The documentation in evidence was sufficient to show that both items were bound for out-of-state destinations. Concerning the value of the television set, there was evidence that Wills himself told the undercover agent it was worth $200. This, together with the item itself, which was admitted in evidence, constituted sufficient evidence to support the finding of a value in excess of $100. In any event, it was enough to sustain Count 2 that the other item’s value concededly was in excess of $100.
Defendant Moore argues that there was a fatal variance between the charge in the indictment and the government’s evidence. The indictment charged that the stolen goods were “moving as, were part of, and did constitute an interstate shipment.” (Emphasis supplied.) Moore contends that because the conjunctive was used, the government was required to prove all three charges. It was clearly sufficient if one of the three was proved. United States v. Astolas, supra, 487 F.2d at 280; United States v. Barker, 514 F.2d 1077, 1081 (7th Cir. 1975).
The judgments of conviction are _ affirmed.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_petitioner
|
029
|
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.
FULLER v. ALASKA.
No. 249.
Decided October 28, 1968.
George Kaujmann for petitioner.
Per Curiam.
Petitioner was convicted of shooting with intent to kill or wound and was sentenced to 10 years in prison. Over petitioner’s objection that it was obtained in violation of § 605 of the Federal Communications Act, 48 Stat. 1103, 47 U. S. C. § 605, the prosecution introduced in evidence a telegram allegedly sent by petitioner to an accomplice. The Supreme Court of Alaska affirmed, holding that it did not need to decide whether § 605 had actually been violated since the evidence was in any event admissible in state trials under Schwartz v. Texas, 344 U. S. 199.
In Lee v. Florida, 392 U. S. 378, we overruled Schwartz v. Texas and held that evidence violative of § 605 is not admissible in state criminal trials. The decision of the Alaska Supreme Court cannot stand, therefore, if Lee is to be applied retroactively. We hold, however, that the exclusionary rule of Lee is to be given prospective application, and, accordingly, we affirm.
Prospective application of Lee is supported by all of the considerations outlined in Stovall v. Denno, 388 U. S. 293, 297. The purpose of Lee was in no sense to “enhance the reliability of the fact-finding process at trial.” Johnson v. New Jersey, 384 U. S. 719, 729. Like Mapp v. Ohio, 367 U. S. 643, Lee was designed to enforce the federal law. Linkletter v. Walker, 381 U. S. 618, 639. And evidence seized in violation of the federal statute is no less relevant and reliable than that seized in violation of the Fourth Amendment to the Constitution. Moreover, the States have justifiably relied upon the explicit holding of Schwartz that such evidence was admissible.
Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee.
The petition for a writ of certiorari is granted, and the judgment of the Supreme Court of Alaska is affirmed.
These considerations were more recently applied in DeStefano v. Woods, 392 U. S. 631, 633, in which we concluded that the right to a jury trial in state criminal prosecutions under Duncan v. Louisiana, 391 U. S. 145, and Bloom v. Illinois, 391 U. S. 194, was prospective only.
Lee v. Florida, 392 U. S., at 386-387:
“We conclude, as we concluded in Elkins and in Mapp, that nothing short of mandatory exclusion of the illegal evidence will compel respect for the federal law ‘in the only effectively available way— by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S., at 217.”
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
LINQUATA v. UNITED STATES.
No. 4312.
United States Court of Appeals First Circuit.
March 9, 1949.
Writ of Certiorari Denied May 31, 1949.
See 69 S.Ct. 1157.
Harry Bergson, of Boston, Mass., for appellant.
W. Arthur Garrity, Jr., Asst. U. S. Atty., of Boston, Mass. (William T. McCarthy, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CON-NOR, District Judge.
WOODBURY, Circuit Judge.
The basic question on this appeal from a judgment sentencing the defendant to three concurrent terms of imprisonment, and fining him $1,000, is whether on the evidence taken as a whole the jury were warranted in finding beyond a reasonable doubt that the defendant had wilfully attempted to evade or defeat his income taxes for the years 1942, 1943 and 1944 by falsely and fraudulently understating his net income in the returns which he filed for those years as charged in a three-count indictment drawn under 26 U.S.C.A. § 145(b).
The defendant-appellant is a commercial fisherman who during the years in question was the captain of the fishing boat “Natalie III.” During 1942 the boat, carrying a crew of nine including the captain, engaged principally in dragging for ground fish, and during 1943, and 1944, carrying a crew of fifteen including the captain, it engaged principally in seining for mackerel. When ground fishing the boat operated on what is known as the “60-40 lay”, and when seining it operated on what is known as the “Italian lay.” Under .these systems of operation the costs allocable to each trip, such as the cost of the food, ice, and fuel consumed thereon, are first deducted from the gross proceeds of the catch made on the trip and then the balance remaining is divided proportionately between the owner of the boat and the men on board. On the “60-40 lay” 40% of the net proceeds of each trip go to the owner of .the boat and 60% to the crew, including the captain, in equal parts, and on the “Italian lay” the net proceeds of each trip are divided into equal shares, one for each member of the crew, including the captain, and six for .the owner of the boat. Thus when the “Natalie III” was seining, and hence operating on the “Italian lay”, with a crew of fifteen men including the captain, the net proceeds of each trip were divided into twenty-one shares, one for each man on board and six for the owner of the boat, and when she was ground fishing, and hence operating on a “60-40 lay”, with a nine man crew, each man received about 7 percent of the net proceeds of the catch and the owner 40%. On the “Italian lay” the boat owner’s share was obviously exactly six times that of a crew member, and on the “60-40 lay” the proportionate difference between the boat owner’s share and that of a crew member was approximately the same.
In his returns for each of the years in question the defendant, who was on the cash-calendar year basis, reported a figure as his receipts as a crew member, and another figure exactly six times greater as his receipts as owner of the boat, and calculated his taxes on the sum of these two figures less his deductions. At the trial he testified that although he reported the entire boat owner’s share of the catches made by the “Natalie III” as his own income, he was not in fact the sole owner of the boat but actually owned only a quarter of it, and received only a quarter of the owner’s share. He said that he reported the entire boat owner’s share as his because the person who helped him make out his returns advised him to do so for the reason that his father Marco, who owned half the boat, was aged, infirm, and could neither read nor write, and his nephew Thomas, who owned the remaining quarter was a minor. The defendant’s tax adviser, however, testifying as a witness for the Government, denied this. He said that the defendant told him that he was the sole owner of the “Natalie III” and that he made out the defendant’s returns on the basis of this information.
The Government takes the position that the defendant reported the entire boat owner’s share as his income because in fact he was the sole owner of the boat, and then to prove that the defendant had understated his income for the years involved it introduced evidence of the payments made by various wholesale fish companies for the fish taken by the “Natalie III” during 1942, 1943, and 1944. Calculations from this evidence make it abundantly clear that the jury could well find beyond a reasonable doubt that if the defendant had in fact received the entire boat owner’s share during the years in question, then he had'grossly understated his income in his returns for those years. But from the Government’s evidence it is equally clear that if the defendant had received during those years only one quarter of the boat owner’s share, as he claims, then by reporting what he set out as the entire boat owner’s share he in fact overstated his income for 1942 and 1943, and understated it only slightly for 1944. Thus the ownership of the “Natalie III” was one of the major issues at the trial upon which both sides introduced considerable evidence. But this issue is no longer in the case for the defendant now concedes that the jury had a right on the conflicting evidence introduced at the trial to find that the defendant was indeed the sole owner of the boat. His contention on this appeal is that even if the jury did find him to be the sole owner of the boat, that finding is not sufficient to warrant the inference that beyond a reasonable doubt he actually received the entire boat owner’s share of the income, and that the court below in charging the jury that it had the right to draw that inference committed serious prejudicial error.
It is quite true that there is no direct evidence that the defendant actually received the entire boat owner’s share of the net proceeds of the catches made by the boat during the years involved. The evidence with respect to the disposition of that share is as follows: It was the practice on the “Natalie III”, when she came in from a trip and her catch was sold, for the crew member designated as the purser to take the check given in payment for the catch to a bank, have it cashed, and return on board with the proceeds. There the money was taken into the forecastle and in the presence of the crew, or at least of such members of the crew as wished to attend, the money nécessary to defray the expenses of the trip was counted out and laid to one side, and then each man’s and the owner’s share, if on the “Italian lay”, or percentage, if on the “60-40 lay”, was calculated and counted out into separate piles.
The evidence is that the defendant was not often present in the forecastle when the proceeds of a catch were counted out and distributed. But his share as a crew member was usually, if not invariably, taken to him in the wheel house, or on deck, or wherever else on board he might happen to be, by some member of the crew. At any rate he concedes that during the years involved he actually received all that was due to him as the captain and a member of the crew of the “Natalie III.”
Apparently, however, neither the entire boat owner’s share nor any part of it was ever delivered to the defendant with his share as a crew member. All that appears is that the purser of the boat sometimes delivered the boat owner’s share to the bookkeeper of a wholesale fish company, who as a side line kept some records and books for the defendant, who deposited it in a checking account carried in a local bank in the boat’s name, and sometimes the purser delivered it directly to the defendant’s father. The evidence as to the ultimate disposition of this share by the defendant’s father and from the checking account is fragmentary. There is direct testimony from the defendant himself that he received in cash one quarter of “the money that was taken to my father’s house,” and there is also evidence that from time to time he also received one quarter part of “splits”, or distributions, made of the balance of the money remaining in the checking account after the payment therefrom of taxes on the boat and expenses incidental to its upkeep. Thus there is no direct evidence of actual payments to the defendant of more than a quarter of the boat owner’s share.
The Government’s contention that the defendant actually received the entire boat owner’s share, however, does not rest, as the defendant contends, solely upon the evidence, which the jury evidently believed beyond a reasonable doubt, that the defendant was the sole owner of the boat. There is testimony in the record from two Internal Revenue officials that while the defendant was under investigation by them he not only admitted that he was the sole owner of the boat, 'but also that “he got six shares in addition to his own share as a member of the crew;” that no one “else participated in the profits or the distribution of the income,” and that “the profits were not split with anyone else.” Furthermore an admission by the defendant that he received the entire boat owner’s share is implicit from the way his returns were made out.
These admissions, coupled with the evidence that the defendant actually owned the boat and the evidence that the owner’s share of the net proceeds of its catches far exceeded the amounts reported as such by the defendant in his returns, seem to us amply sufficient to warrant submission of the Government’s case to the jury.
The defendant contends, however, that when the court below told the jury: “Now, if you should decide that he was the sole owner of the boat, you would have sufficient evidence, it seems to me, to conclude that he was not only the owner but that he actually received the money,” it committed serious prejudicial error for the reason that “In effect the court charged the jury as a matter of law that mere ownership is synonymous with actual receipt of the monies which belong to ownership.” The specific contention is, of course, refuted by the words “it seems to me.” 'But the defendant also contends that the sentence constituted an erroneous statement of law because, he says, mere evidence of ownership of an income producing piece of property “is not of itself enough to sustain the 'burden of proof required in a criminal case to show receipt” of the income produced by the property by the owner of it.
We do not pause to consider the validity of the general proposition advanced, for in the case at bar, as already noted, in addition to the evidence that the defendant owned the boat, we have the evidence of his admissions that he received the entire owner’s share of the net proceeds of its catches. And from the context in which the sentence objected to appears in the charge we do not think the jury must have understood it as a statement of the general proposition that a mere finding of ownership standing alone would support a finding that beyond a reasonable doubt the defendant had actually received the income normally incidental to ownership. For immediately preceding the sentence objected to the court told the jury to “take into account all the matters in evidence,” including the defendant’s “own statement under oath when questioned by the Internal Revenue officials after he knew that he was under investigation,” and in the paragraph following it the court told the jury: “Should you reach the conclusion that he actually received the money and was the sole owner of the boat, you could bring in a conviction on each of the three counts for the years 1942, 1943 and 1944. I do not say you should. I merely say you could.”
The defendant’s other objections have been considered but we find them without merit.
The judgment of the District Court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_fiduc
|
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 "fiduciaries". 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERV-AIR, INC., Respondent.
No. 70-70.
United States Court of Appeals, Tenth Circuit.
Sept. 9, 1970.
Glen Bendixsen, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore and Robertamarie Kiley, Attys., N. L. R. B., on the brief), for petitioner.
Frank Carter, Enid, Okl. (Stephen Jones, Enid, Okl., on the brief), for respondent.
Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.
HILL, Circuit Judge.
The National Labor Relations Board is before this court petitioning for enforcement of its supplemental order issued against Serv-Air, Inc., requiring the latter to reinstate R. A. Chodrick to his former position. The order was made on a finding of an unfair labor practice by Serv-Air, in violation of section 8(a) (3) and (1) of the Act. The familiar issue posed is whether substantial evidence supports the decision that Serv-Air suspended and demoted Chodrick in violation of the Act.
R. A. Chodrick was first employed by the Company in 1960 as a hand lineman at Vance Air Force Base. About six months later he was advanced to crew chief of fire fighters. In 1964 the firemen were unionized; Chodrick joined and became a shop steward.
Chodrick has undeniably been a union activist. Since June, 1964, he has served on the union’s negotiation committee; in September, 1964, he led a union walkout; and in February, 1966, he was a leader of a group attempting to present the company with a written grievance over the training schedule. The latter incident resulted in the firing of Chodrick and six others when they refused to drill. Chodrick’s discharge was reduced to a suspension but there has been continued friction between the crew chief and his superiors.
Out of this background arose the incident relevant to this petition for enforcement. In July, 1966, the Company altered its pay procedures by depositing employee salaries in a bank rather than paying the sum directly to each employee. Because of the obvious inconvenience resulting from the change, many of the employees became upset; most considered it to be a thinly veiled attempt to coerce them into opening accounts in the bank because Serv-Air’s president was a stockholder and board member of that bank.
On August 6, 1966, two fire fighters (union members) at Vance Air Force Base left their jobs without permission, apparently to protest the change in pay procedures. For leaving their duty post each was immediately suspended. The next day Chodrick’s crew went on duty. Because men on the earlier shift had reported being bitten by bugs Chodrick’s crew, with his permission, decided to scrub down their sleeping quarters and air out their mattresses. The mattresses were taken outside — two were passed through a window resulting in about $8.00 damage — and laid out to air. The crew then went to chow.
Meanwhile, Terrell, the Assistant Fire Chief, was notified and went to the crash station. After observing the situation and apparently assuming it was a protest related to the suspension of the two union men on the previous day, he called Moxley, the Fire Chief, saying he thought he had “an incident” on his hands. Moxley told Terrell to get the Air Force Security Police, have photographs taken, and a report made. Next Terrell sought out Chodrick and requested an explanation. The reply was that the men were simply attempting to air out the mattresses to rid them of bugs.
Subsequently, Cumpston, director of base operations, asked Moxley what had caused the incident and Moxley answered: “You know as well as I know.” Then, referring to Crew Chief Chodrick, he said: “It looks like this man is continually giving us trouble. It looks like he’s come to the final point. We are going to have to take some action on the individual.” Thereafter Chodrick was suspended for a day and demoted to crash-fireman.
The Company argues that Chodrick’s union activities had nothing to do with the discipline. In their words, “he was laid off because of failure to perform as Crew Chief, his arrogant attitude, his unwillingness to follow prescribed rules and regulations established by Serv-Air, Inc., and the United States Air Force and his callous disregard for the safety of his men.”
Chief Moxley, by his testimony, presented a good case for the Company. But that testimony notwithstanding, the Examiner’s findings are supported by substantial evidence. The Examiner’s observations are clear, pertinent, and concise, and the following excerpts summarize our own conclusions.
“[Ajlthough the purport of Moxley's testimony is that in his opinion Chod-rick had been an unsatisfactory crew chief over a long period of time, Mox-ley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later then [sic] April, 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time.”
“The strenuous effort on the part of respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it lached — no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last straw that broke the camel’s back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent’s defense that Chodrick was disciplined on August 7, 1966, for ‘good and just cause.’ ”
Serv-Air also charges that the Board violated its rules and regulations in denying the Company’s motions for reopening, reconsideration and rehearing of the case to permit introduction of new and material evidence. A bit of background information is necessary to fully comprehend the argument. The Board’s initial decision in this case issued June 27, 1967. On January 17, 1968, this court issued its decision in a related case, Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557 (10th Cir. 1968), reversing a part of the Board’s decision and remanding that case to the Board for reconsideration. Inasmuch as some of the Board’s findings in the instant case were based on the earlier decision, enforcement proceedings were held in abeyance while the earlier decision was reconsidered. On September 4, 1969, following modification by the Board of its earlier decision, the Board sought the position of the parties as to the effect of such modification on the instant decision. On October 21, 1969, the Board issued a supplemental decision in the present case, reversing it with respect to the discharge of another employee, but reaffirming with respect to the suspension and demotion of Chodrick.
On November 21, 1969, the motions for reconsideration, rehearing and reopening of the record were filed by Serv-Air. The substance of those motions concerns findings by a federal district court in an independent civil proceeding which Serv-Air claims to be related to the same incident over which Chodrick was suspended and demoted.
Under section 10(e) of the Act we are empowered to order a remand where it is shown that the “evidence is material and there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board.” That is the same test contained in the Board’s regulations.
Without considering the reasonableness of the failure to adduce the alleged new evidence, we do not consider the district court findings to be of sufficient materiality to the instant suit to call for a reopening, reconsideration or rehearing. The incident over which the civil suit was litigated occurred more than one year prior to Chodrick’s suspension and demotion. Moreover, the primary reason given for the demotion and suspension concerned only the mattress incident and not the June, 1965, occurrence. And it is of more than casual interest to us that although the Company now attaches great significance to the June, 1965, incident, the record reveals that no disciplinary action whatsoever was taken against Chief Chodrick at the time of the June, 1965, fire, or subsequently. On this state of the record we cannot justify Serv-Air’s motions and conclude that the Board was within its discretion in denying same.
Enforcement of the order of the National Labor Relations Board is hereby granted.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
WAUGH et al. v. SUBURBAN CLUB GINGER ALE CO. et al.
No. 9575.
United States Court of Appeals District of Columbia.
Argued Jan. 21, 1948.
Decided April 26, 1948.
Mr. Leonard S. Melrod, of Washington, D. C., for appellants.
Mr. Wilbert Mclnerney, of Washington, D. C., for appellees.
Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.
EDGERTON, Associate Justice.
The plaintiff appeals from a judgment on a directed verdict for the defendant in an action for personal injuries. Appellant, a boy of 13 or 14, was riding a bicycle that collided with appellee’s truck. Tbe truck had been standing at a street intersection, only about five feet from the right-hand curb, waiting for a green light. Appellant had ridden up from behind, entered the-space between the standing truck and the curb, and stopped to wait beside the truck’s right rear wheel. He was riding “next to the curb” but the space was so narrow that he was also close to the truck; in fact he put his left hand on it. When the light changed the truck started. Appellant then put his hand back on the handlebar and started his bicycle. The collision occurred, in the street intersection, because (1) the truck made a right turn from its position near the right curb and (2) appellant, from' his position even nearer the right curb, did not make a right turn but went straight ahead into the intersection. When he saw the truck turning he attempted to turn, but too late.
Appellant’s theory is that “the driver of the truck was negligent in making a sharp, sudden turn, in failing to keep a proper lookout, and failing to give a warning or signal of his intention to make a right turn.”'
Ordinarily a vehicle about to make a right turn is not and need not be less-than five feet from the curb. As the truck driver expressed it, “the reason he wasn’t exactly up against the curb was that if he was, he would not have been able to proceed for the right hand turn — he would have run over the curb.” No doubt there was, as appellant said, “space enough to the right of the truck that he could drive his-bicycle in without any trouble.” But getting out of such a space without trouble is-another matter. For a bicyclist to put himself in a position so near a curb on the right, a truck on the left, and an intersection, ahead, and then ride straight forward without waiting to see whether the truck, which, may properly turn right, will do so, is plainly dangerous. Such a course is not so common that reasonable drivers anticipate it, and devise and take special precautions-against it, before making a “sharp, sudden”' turn to the right. In other words appellee’s. driver was not negligent m making the turn without special precautions.
If the driver failed to keep a proper lookout and to give a proper signal, he negligently endangered anyone in a position to benefit by those ordinary precautions. But appellant was not in a position to benefit by them. There is no evidence that a reasonable and proper lookout would have disclosed to the driver of the truck the fact that a boy had ridden a bicycle into the narrow space between the right rear wheel of the truck and the curb. There is no evidence that a reasonable and proper signal, by hand or light or both, of the driver’s intention to turn, could have been seen by a person in appellant’s position. Therefore the precautions the driver is said to have omitted would not have enabled either him or the appellant to avoid the accident. It follows that appellee is not responsible for the accident. The reason may be expressed in terms either of negligence or of causation. The driver’s alleged omissions (a) added nothing to appellant’s danger and therefore were not negligent toward appellant, and (b) did not cause his injuries.
In these circumstances the driver’s possible incompetence to drive is immaterial, and it is therefore immaterial that he had no District of Columbia license. Moreover, he had a North Carolina license. Appellant rightly makes no point of the fact that some trucks have signaling devices visible from the relative position in which appellant was. For there is no evidence that appellee’s truck had such a device or that operating it without one was negligent.
The court’s action in directing a verdict for appellee was therefore correct. We need not consider whether a boy of appellant’s age and capacity was, as an adult would have been, plainly negligent in staking his safety on the chance that a truck standing near a right-hand curb would not make a right turn at an intersection.
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc1
|
46
|
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.
Jack MATHES, Plaintiff-Appellant, v. THE CLIPPER FLEET, etc., et al., Defendants-Appellees.
No. 84-6122.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 6, 1985.
Decided Oct. 22, 1985.
Jeffrey B. Harrison, John Elson, Harrison & Elson, Los Angeles, Cal., for plaintiff-appellant.
David McLeod, Lillick, McHose & Charles, Los Angeles, Cal., Wilner, Nar-witz, Lewin & Klein, Samuel Wilner, Wendy Berkowitz, Beverly Hills, Cal., for defendants-appellees.
Before SNEED, NELSON, and NORRIS, Circuit Judges.
NORRIS, Circuit Judge:
Appellant Jack Mathes is a seaman who brought this action under the Jones Act, 46 U.S.C. § 688 (1985), and general maritime law to recover damages for personal injury suffered while he was working aboard ship. The jury found in favor of both defendants. On appeal Mathes argues that the district court committed error in refusing to instruct the jury on the the so-called Pennsylvania Rule (The Pennsylvania, 86 U.S. [19 Wall.] 125, 22 L.Ed. 148 (1873)), and on the theory of negligence per se, as well as in refusing to admit certain testimony. We affirm.
I
Mathes was employed by defendant Western Boat Operators (“Western”) as a mate on the supply boat Low Tide. On October 20,1982, the Low Tide was moored to an off-shore oil platform in the Santa Barbara Channel. The Low Tide sent a radio call to the Clipper Larry asking it to come around to the platform and receive some packages from the Low Tide. The Clipper Larry is a vessel owned by defendant The Clipper Fleet, Inc. (“Clipper Fleet”).
Stephen James, Captain of the Clipper Larry, responded to the radio call from the Low Tide and brought his vessel around the platform. He backed the Clipper Larry stern to the starboard side of the Low Tide. As the mate, Mathes was in charge of the operation of passing boxes over to the Clipper Larry. Mathes positioned himself precariously on the edge of the Low Tide and, when the Clipper Larry rode up on an ocean swell, his foot was pinned between the vessels. As a result of the accident, he suffered injury to his left ankle.
Mathes sued Clipper Fleet under general maritime law, alleging that it negligently failed to use proper loading operations, that it negligently controlled the Clipper Larry, and that the vessel was improperly manned and without a licensed skipper. Clipper Fleet denied the allegations, contesting Mathes’s interpretation of the pertinent United States Coast Guard regulations, maintaining that the method employed by the crew of the Clipper Larry was safe, and that Mathes’s own negligence was the sole cause of his injury.
Mathes sued Western under both the Jones Act and maritime law, alleging that the captain of the Low Tide, Bob Levy, was negligent and rendered the Low Tide un-seaworthy in failing to prevent Mathes from loading in an unsafe manner. Western denied the allegations, and argued that Mathes’s own negligence was the sole cause of his injury.
II
Under the Pennsylvania Rule of maritime law, when a vessel operated in violation of a statute is involved in an accident,
the burden rests upon the ship of showing not merely that her fault may not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.
The Pennsylvania, 86 U.S. [19 Wall.] 125, 136, 22 L.Ed. 148 (1873). The Pennsylvania Rule has often been applied in this circuit. See, e.g., Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 736 (9th Cir.1969); States Steamship Co. v. Permanente Steamship Corp., 231 F.2d 82, 86 (9th Cir.1956); The Denali, 105 F.2d 413, 418 (9th Cir.1939), cert. denied, 311 U.S. 687, 61 S.Ct. 65, 85 L.Ed. 444 (1940); The Princess Sophia, 61 F.2d 339, 347 (9th Cir.1932).
Mathes requested jury instructions on the Pennsylvania Rule based on the contention that the Clipper Larry’s skipper did not have the local endorsement on his license as required by Coast Guard licensing regulations (46 C.F.R. § 186.05-1, et seq. (1984) ). The district court ruled that the requirement was satisfied because another member of the crew had a local endorsement even if the skipper did not. We agree with the district court’s interpretation of the regulations.
The regulations, on their face, do not require the skipper of' a vessel to have a local endorsement. Rather they require a vessel to have “in her service and on board such complement of licensed personnel, and crew, as may, in the judgment of the Officer in Charge, Marine Inspector, be necessary for her safe operation.” 46 C.F.R. § 186.05-1(a) (1984). We agree with the Fourth Circuit, as did the district court below, that “[t]he regulation is designed to insure that there shall be on such a vessel a person whose competence to operate or direct its operations has been assured.” Duty v. East Coast Tender Services, Inc., 660 F.2d 933, 947 n. ** (emphasis in original), rev’d on reh’g, 660 F.2d 946 (4th Cir.1981) (en banc), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982). Mathes proved only that the skipper of the Clipper Larry did not have a local endorsement; he did not prove that the Clipper Larry’s certificate of inspection required the skipper to have a local endorsement, nor that the local endorsement requirement was not satisfied by thé credentials of a deckhand, Kurt Holzhauer, as contended by Clipper Fleet. Accordingly, we affirm the district court’s ruling that the requirements of the regulations were satisfied by the credentials of Holzhauer.
Mathes also argues that the Pennsylvania Rule applies because Holzhauer did not have his credentials physically aboard ship as required by 46 C.F.R. § 185.10 (1984). We agree with the district court that this violation does not bring into play the Pennsylvania Rule because there is no conceivable causal connection between the violation and the injury. As the Supreme Court said in The Pennsylvania itself, “[i]t must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration.” 86 U.S. [19 Wall.] at 136. See also Gosnell v. United States, 262 F.2d 559, 563 (4th Cir.1959) (“where it [is] evident that the breach of a statutory duty ... did not cause the accident” the Pennsylvania Rule does not apply); Seaboard Tug & Barge, v. Rederi AB/Disa, 213 F.2d 772, 775 (1st Cir.1954) (in applying the Pennsylvania Rule, the courts “are limited to the reasonable possibilities”) (quoting The Mabel, 35 F.2d 731, 732 (2d Cir.1929) ).
Ill
Mathes also claims that the asserted violations of the Coast Guard regulations entitled him to jury instructions on negligence per se. We agree with the district court’s reasoning that the negligence per se rule is inapplicable for the same reasons that the Pennsylvania Rule is inapplicable, namely that Captain James’s failure to have a local endorsement did not constitute a violation of the regulations and that Hol-zhauer’s failure to have his locally endorsed license on board had no causal connection with Mathes’s injury. The only relevant difference between the two theories is that the per se rule requires the plaintiff to prove causation whereas the Pennsylvania Rule shifts the burden of proof on causation to the defendant. California v. Italian Motorship ILICE, 534 F.2d 836, 840 (9th Cir.1976). Thus, if Mathes cannot invoke the Pennsylvania Rule, he cannot invoke the negligence per se rule.
IV
Mathes also challenges rulings of the district court limiting the testimony of two of his witnesses. Specifically, Mathes contends:
A. Captain John Blank should have been allowed to testify as to the scope of Coast Guard regulation:
B. Vincent Ochoa, a crewman aboard the Low Tide, should have been allowed to testify as to the custom and practice of loading operations; and
C. Blank should have been allowed to testify as to the duties of a captain to intervene and correct improper practices.
A. The district court did not abuse its discretion in excluding testimony by Captain Blank that the Coast Guard manning regulations were designed to avoid accidents resulting from an operator’s unfamiliarity with the waters in which his vessel was operating. The interpretation of the regulations is not a question of fact for the jury to decide, but a question of law for the court to decide. Markair, Inc. v. C.A.B., 744 F.2d 1383, 1385 (9th Cir.1984).
B. We also hold that the district court did not abuse its discretion in foreclosing cross-examination of Vincent Ochoa, the cook on the Low Tide who had previously worked as a deckhand, regarding the custom and practice of transferring items from one vessel to another. The district judge ruled first, that the testimony was beyond the scope of cross-examination and second, that Mathes’s offer of proof failed to show that Ochoa had sufficient experience to qualify him to testify “on whether you can come in stern to or what you can transfer.” Ochoa did not testify on this subject during direct examination. More importantly, the offer of proof failed to indicate the frequency with which Ochoa had witnessed the transfer of items to a vessel that had come stern-to. The mere fact that he had observed the transfer of only small items under these conditions does not, standing alone, qualify him to testify that, as a matter of industry practice, large items were not transferred. We agree with the Fourth Circuit
that habit or pattern of conduct is never to be lightly established, and evidence of examples, for purpose of establishing such habit, is to be carefully scrutinized before admission____ It is only when the examples offered to establish such pattern of conduct or habit are “numerous enough to base an inference of systematic conduct” ... that they are admissible to establish pattern or habit.
Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 511 (4th Cir.1977) (quoting Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1158 (2d Cir.1968)), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978).
C. Mathes’s sole theory of liability against defendant Western under the Jones Act is that the skipper of the Low Tide, Captain Levy, failed to stop him after observing him transfer packages from the Low Tide to the Clipper Larry in an unsafe manner. Mathes argues that Captain Blank should have been permitted to testify regarding the duty of a captain to intervene in such circumstances.
The district court excluded Captain Blank’s testimony on this point because there was insufficient evidence to support a jury inference that Levy had observed Mathes when he was unloading the packages. See Fed.R.Evid. 104. Based upon our own review of the evidence, we agree with the district court that Mathes failed to prove the existence of a preliminary fact necessary to Blank’s expert testimony on this point — that Levy had observed Mathes while he was on deck transferring the packages to the Clipper Larry. We agree with the district court that the only conceivable evidence of this preliminary fact is the testimony of the Low Tide’s chief engineer, Brad Horton, that Levy was on deck for a matter of seconds. But Horton also testified that no loading was occurring at the time. Moreover, Levy’s testimony that he did not see Mathes’s unloading operation was supported by other witnesses, including James and Holzhauer from the Clipper Larry, who testified they did not see him on deck prior to the accident. Accordingly, we also agree with the district court that Horton’s testimony is insufficient to support an inference “that Captain Levy could see what this operation was and what was going on, and should have then done something about it.”
The judgment is AFFIRMED.
. The Pennsylvania Rule applies to violations of regulations promulgated pursuant to statutory authority. Belden v. Chase, 150 U.S. 674, 680, 14 S.Ct. 264, 266, 37 L.Ed. 1218 (1893).
. We review de novo the district court’s interpretation of the Coast Guard Regulations. Rawlings v. Heckler, 725 F.2d 1192, 1194 (9th Cir.1984).
. On appeal, Mathes argues for the first time that Holzhauer's license to operate a vessel up to 300 gross tons did not qualify him to operate the Clipper Larry, a vessel of 100 tons. Because Mathes has failed to demonstrate exceptional reasons why the issue was not raised below, we decline to consider it. Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655 (9th Cir.1984). On the face of it, however, we have difficulty seeing how a license to operate a vessel up to 300 gross tons would not qualify the operator to operate the Clipper Larry, a 100 ton vessel.
. Mathes’s reliance on Waterman Steamship v. Gay Cottons, 414 F.2d 724 (9th Cir.1969), is misplaced. There the causation requirement for invocation of the Pennsylvania Rule was satisfied because, as this court said, “the failure to have an 'efficient' radio direction finder [as required by law] is sufficient to deny limitation of liability if it merely combined with the crew's negligence in using it to be one of the causes of the standing.” Id. at 737 (emphasis in original).
. Mathes also claims that Captain Blank should have been permitted to testify regarding the propriety of the stern approach of the Clipper Larry to the starboard side of the Low Tide. This claim is groundless. The district court reversed itself and permitted Captain Blank to testify at length on this matter.
. Mathes also claims on appeal that the district court committed error in refusing to permit Captain Blank to testify to this same issue. But we find nothing in the record indicating that any such testimony by Captain Blank was ever proffered by Mathes.
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_procedur
|
C
|
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.
UNITED STATES of America, Appellee, v. William A. YATES, II, Defendant, Appellant.
No. 91-1778.
United States Court of Appeals, First Circuit.
Heard Feb. 3, 1992.
Decided Aug. 17, 1992.
Deirdre L. Thurber, New York City, by Appointment of the Court, for defendant, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Jonathan R. Chapman, Asst. U.S. Atty., Portland, Me., were on brief, for U.S.
Before CYR, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.
CAMPBELL, Senior Circuit Judge.
Appellant William A. Yates, II, (Yates) pled guilty in the United States District Court for the District of Maine to a one count information charging him with unauthorized use of credit cards in violation of 18 U.S.C. §§ 1029(a)(2) and 1029(b)(1). He was sentenced to 30 months of incarceration. On appeal, Yates challenges the district court’s calculation of his sentence under the United States Sentencing Guidelines. He complains of a two level increase for obstruction of justice under U.S.S.G. § 3C1.1; a two level increase for possession of a loaded firearm under U.S.S.G. § 5K2.0; and an assessment of 13 criminal history points resulting in a criminal history category of VI. While otherwise affirming, we agree with Yates that the obstruction of justice increase was improper, and remand for resentencing.
Background
We draw the facts from the Presentence Investigation Report (PSI Report) and the transcript of the sentencing hearing. United States v. Connell, 960 F.2d 191 (1st Cir.1992); United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).
On November 8, 1990, the New Hampshire residence of Mark Watkins (Watkins) was burglarized. Among the items stolen were several credit cards; a Colt .45 with ammunition; a lap top computer; a camera; jewelry and compact discs. The following day the New Hampshire Police chased a stolen automobile driven by Yates and his girlfriend Kathie Guilmette. During the chase, Yates and Guilmette threw some of the stolen items out the car’s window. The police discontinued pursuit because of hazardous driving conditions. With the exception of the credit cards and the gun and ammunition, the police recovered most of the items stolen from Watkins’s residence.
On November 21, 1990, Yates and Guil-mette were involved in yet another high speed chase, this time in Massachusetts. The chase began when a Massachusetts state trooper tried to stop a speeding vehicle driven by Yates, Guilmette and a third passenger. The pursuit went eastbound from route 495 to route 114 in the Lawrence/Lowell area in Massachusetts. While trying to elude the police, the fleeing car hit two other vehicles injuring one of the drivers. The police stopped the fleeing car, but Yates and Guilmette managed to escape on foot. The Massachusetts state trooper identified Yates as the driver of the fleeing car at a photographic lineup.
After an extensive investigation, Maine police officers determined that a man and a woman matching the description of Yates and Guilmette given by New Hampshire police were registered under the name Sta-chulski at a motel in Portland, Maine. The Maine Police arrested Yates and Guilmette there on December 2, 1990. While searching the motel room, police officers found Watkins’s credit cards as well as checks and social security cards. They also seized drugs and the Colt .45 stolen from Watkins’s residence. The Colt was discovered to be loaded.
Further investigation revealed that between November 14, 1990 and November 23, 1990, Yates and Guilmette used three stolen credit cards to make purchases valued at $1,999.74. The cards were a Visa card in the name of Christine Stachulski, a Sears card in the name of Watkins, and a Mastercard also in the name Watkins.
When Yates was arrested in Portland on December 2, 1990, he told police officers that his name was William Alan Stickles. His companion Guilmette also provided a false name, but shortly thereafter revealed her true identity. Yates was taken to the Cumberland County jail, where he insisted he was Stickles. Yates gave as date of birth September 29, 1961 and a social security number of [ XXX-XX-XXXX ]. This information was also false.
When Portland Police Detective Peter Baleyco became suspicious of the identity of the man he had just apprehended, he secured the help of United States Secret Service Agent Philip Paradis for checking out the true identity of the man claiming to be Stickles. On December 3; 1990, Paradis began an investigation on unauthorized use and possession of a social security card. He learned that the social security number provided by Yates belonged to a ten year old boy who lived in New Hampshire, and that no social security number had been issued to a William Alan Stickles. On December 5, 1990, a federal grand jury indicted Yates under the name of Stickles — his true identity being unknown — for giving a false social security number. The Stickles name was also used in various official acts undertaken in connection with his apprehension and custody, such as entering his record in the State Bureau of Identification system, and in the Cumberland County Jail records.
Meanwhile, Paradis had forwarded Yates’ fingerprints to the Secret Service laboratory. On December 6, 1990, Paradis learned that the fingerprints belonged to Yates. The investigation further revealed that' Yates was wanted for a probation violation in New Hampshire. On December 7, 1990, Paradis visited Yates in prison to gather additional information. By this date Paradis already knew Yates’ true identity and Yates acknowledged his true name.
At some point between January 1 and January 9, 1991, Assistant U.S. Attorney Jonathan Chapman [Chapman) assumed control over the false social security number ease. He determined that all the evidence obtained when Yates was arrested on December 2nd would be inadmissible because it had been illegally seized. Chapman then asked Paradis if it was possible to find a charge to bring against Yates that could be developed independently of the illegally seized evidence. Paradis stated that there was independent evidence to charge Yates with unauthorized use of credit cards. This evidence consisted mainly of the information provided both by the Massachusetts and New Hampshire Police, the victims of the credit card thefts and the credit card companies.
On February 11, 1991, Yates agreed to waive indictment by the grand jury. He pled guilty to an Information charging him with unlawful use of access devices in violation of 18 U.S.C. §§ 1029(a)(2) and 1029(b)(1). Yates entered his plea on March 1, 1991. The district court ordered the preparation of a PSI Report and a sentencing hearing was scheduled for July 5, 1991. '
The district court found that the guideline for the offense of conviction was U.S.S.G. § 2F1.1(b)(1)(A) [Fraud and Deceit of $2,000 or less] which provides a Base Offense Level (BOL) of six. The court increased the BOL by two levels under U.S.S.G. § 2F1.1(b)(2) because it concluded that the offense conduct involved more than minimal planning. The government sought a two level increase under U.S.S.G. § 3C1.2 for reckless endangerment on the basis that the November 21 flight posed a substantial risk of death or serious bodily injury. The district court declined to impose this increase because it was not persuaded that the requisite nexus existed between the crime of conviction and Yates’ flight. The court nevertheless departed upwards by two levels under U.S.S.G. § 5K2.0 on the basis of Yates’ possession of a loaded firearm during a portion of the offense conduct.
Although the government did not seek an obstruction of justice enhancement under U.S.S.G. § 3C1.1, the district court imposed a two level increase under that section of the guidelines. The court found that Yates falsely represented his identity to the arresting officers, and in doing so, significantly obstructed and impeded the officers in properly identifying him and completing their responsibilities with respect to documenting the arrest. Two levels were reduced under U.S.S.G. § 3El.l(a) for acceptance of responsibility.
This calculation lead to a BOL of ten. The court assessed 13 criminal history points and determined that the criminal history category was VI. With a BOL of ten and a criminal history category of VI, the sentencing table provides a sentencing range of 24 to 30 months. The district court imposed 30 months. This appeal followed.
I.
Yates claims the district court erred in applying a two level increase to his BOL for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. We review that issue de novo. United States v. Manning, 955 F.2d 770 (1st Cir.1992); United States v. Bell, 953 F.2d 6 (1st Cir.1992); United States v. Moreno, 947 F.2d 7, 10 (1st Cir.1991). We will uphold the district court’s sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous. United States v. Pilgrim Market Corp., 944 F.2d 14, 16 (1st Cir.1991); United States v. Akitoye, 923 F.2d 221, 228-229 (1st Cir.1991). In conducting that review, we apply the guidelines in effect on the date of sentencing. Bell, 953 F.2d at 7 (citing United States v. Cousens, 942 F.2d 800, 802 n. 1 (1st Cir.1991) (absent ex post facto problem, sentence is reviewed under guidelines in effect at time of sentencing, not commission of offense)). The district court sentenced Yates on July 5, 1991. The applicable guideline then in effect was U.S.S.G. § 3C1.1, as amended through November 1, 1990. This provided:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by two levels.
Application Note 4(a) in the then applicable Commentary to § 3C1.1 stated that providing a false name did not warrant the two level increase “except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” (Emphasis supplied.) See United States v. Barry, 938 F.2d 1327, 1333 (D.C.Cir.1991).
If we limit ourselves to the text of § 3C1.1 alone, it can be argued that by furnishing a false name when arrested, Yates “willfully ... attempted to obstruct ... justice during the investigation” of the instant (i.e. credit card) offense, as all potentially chargeable offenses were, in some sense, under investigation at the time he was arrested, even though a particularized investigation of the credit card offense had yet to begin. Application Note 4(a), however, adds another wrinkle to the analysis. Note 4(a) requires a showing that the giving of the false name “actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” While Yates’ false representations to the arresting officers can be said to have actually and significantly hindered the investigation of the charge involving the false social security number, that charge was dropped late in 1990. Only thereafter was the “instant offense” involving the unauthorized use of the credit cards, specifically investigated and charged. United States v. Barry, 938 F.2d at 1333. By then, Yates’ identity was well known, and there is no evidence whatever that his previous giving of the false name actually hindered the investigation or prosecution of the instant offense. Indeed, the government’s principal witness, Paradis, testified to the contrary:
Q. [by Assistant U.S. Attorney Chapman] All right. Now, would you state for the Court how it is that act on Mr. Yates’ part of giving a false name and social security number affected your investigations?
A., [by S/A Paradis] The initial investigation as to providing false social security number was hindered due to the fact that he was not providing accurate information.
THE COURT: What happened was you had a false identification and you had reason to suspect that he was not who he said he was, you had to undertake additional investigation effort to find out who he was?
A. Yes.
THE COURT: Next question.
Q. How about with respect to the present charge?
A. It could not hinder the current investigation being a credit card. (Emphasis supplied.)
Q. Why is that?
A. Due to the fact that I was aware of his identity at the time, and I had a body in hand, I was able to identify through-photo line ups who the individual was using the cards.
The government contends that it is irrelevant for purposes of applying U.S.S.G. § 3C1.1 that at the time of the obstructive conduct, the authorities were actually investigating an offense other than the offense of conviction. But as pointed out above, Application note 4(a) — which was not in existence when Barry, see 938 F.2d at 1335, was decided — plainly states that providing a false name does not warrant the enhancement unless it actually results in a significant hindrance to the investigation or prosecution. Thus, even assuming that .Yates attempted to throw off the police in their investigation both of the false social security number offense and the fraudulent use of the credit cards, all factors, including the testimony of the main investigative officer, unequivocally establish that the false name did not actually hinder the investigation of the “instant” credit card offense. We hold, therefore, . that the two level increase for obstruction of justice was unwarranted. To affirm would require either a tortured reading of the commentary or our ignoring it altogether. To be sure, courts have on occasion refused to follow the commentary, and we do not foreclose the possibility of doing likewise in some particularly compelling matter. But we think the guidelines are complicated enough without our ordinarily proceeding along such a path. The Sentencing Commission itself is best situated to fine tune issues of this nature in its periodic review of the guidelines and commentary. In the meantime, courts and parties should be able to rely upon the commentary, at least in the vast generality of cases. Accordingly, without doubting the common sense of the district court’s ruling, we are constrained to hold that it was error to add a two level increase for obstruction of justice.
II.
Next, Yates challenges the district court’s upward departure by two levels under U.S.S.G. § 5K2.0 on two grounds: first, that the district court failed to give him notice of its intention to depart upwards as required by Burns v. United States, — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991); and second, that the departure was a violation of the guidelines. We consider these arguments seriatim.
Yates’ first argument need not occupy us for long. The record flatly refutes Yates’ claim that he was not notified of the district court’s intention to depart upwards. The supplemental report prepared by the presentence investigator on June 28, 1991 specified as a second reason for departing upwards under U.S.S.G. § 5K2.0 that Yates was in possession of a loaded firearm. This constituted the notice required by Bums.
As for the substantive justification for departure, the district court made the following finding:
... The basis of that departure is this defendant’s possession of a firearm, loaded, when it was seized during a portion of the offense conduct. This firearm was taken apparently at the same time the access devices [credit cards] that are the subject of the offense of conviction were taken by larsonist [sic], and with that firearm were taken 75 rounds of ammunition. The court infers from that, that it was taken definitely for a purpose. The amount of ammunition taken with it indicated it was intending to keep it for a considerable period of time and it was anticipated by the defendant in taking it that there would be need for considerable use.
The court notes that by its own admission during one or the other of his instances in November of 1990 when he fled from the police officers, that he has told Mr. Paradis and others the reason for that was that he realized his possession of the firearm would cause him additional legal difficulties. It was a serious aspect of his criminal conduct. Then he continued to hold it, he did not discard it or get rid of it. And I find from all of the facts in this case that it is not improbable that he was keeping that weapon for the purpose of whatever assistance it might afford him in a confrontation with officers, if he should have such confrontation under circumstances where he could gain access to the weapon and, as such, it did pose, in his possession, a significant indeed frightening danger to the public welfare and safety.
I am satisfied that because of the nature of this offense, the guideline provisions make no, provide for no consideration of possession of a firearm as an offense characteristic and that as such it is appropriate basis under 5K2.0 for the Court to depart upwards in recognition of the serious aspect of the offense behavior and I will depart upward by 2 levels ...
Under U.S.S.G. § 5K2.0 the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds
that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described.
In this case, the aggravating circumstance was the alleged possession of a loaded firearm. We review the district court’s departure under the three-step process set forth in United States v. Díaz-Villafañe, 874 F.2d 43, 49 (1st Cir.1989), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).
First, we consider if the offense was sufficiently unusual to warrant departure. Since departures from the guidelines are meant to be the exception, not the rule, Díaz-Villafañe, 874 F.2d at 52, there must be “... something ‘special’ about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense.” United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989). In this case, the district court determined that the possession of a loaded firearm in close conjunction with events surrounding the offense of conviction was sufficiently unusual to warrant departure. We agree. The guideline for the offense of conviction — U.S.S.G. § 2Fl.l(b)(l)(A) [Fraud and Deceit of $2,000 or less] — does not list or mention as a relevant factor the possession or use of a firearm as a characteristic of that offense. This is understandable given the nonviolent characteristics of the offense. Clearly the presence of the loaded pistol was a circumstance beyond the “mine run” of cases involving misuse of a credit card.
Next, we consider if the court’s findings relative to the firearm were supported by the evidence. We must accept these, of course,' unless they are clearly erroneous. United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989). The court found that Yates was in possession of the loaded firearm at the time he possessed the subject credit cards. The district court also found that Yates kept the weapon for
whatever assistance it might afford him in a confrontation with officers, if he should have such confrontation under circumstances where he could gain access to the weapon and, as such, it did pose, in his possession, a significant indeed frightening danger to the public welfare and safety.
Yates contends there was insufficient evidence that he used or even possessed the firearm in the course of the credit card offense. His mere possession of the loaded gun when arrested on December 2, 1990, a week after the period — November 14 through 23 — of the credit card crimes, was, he says insufficient proof. However, as the district court found and the government points out, there was other evidence from which to conclude that Yates held the loaded gun as insurance within the same period that he possessed and misused the stolen credit cards. He had stolen the weapon, the ammunition and the credit cards at the same time and from the same house. He used one of the cards to rent the automobile involved in the high speed chase in Massachusetts and he admitted to having the weapon with him during the chase. When arrested he still had both the cards and the loaded weapon. These and other circumstances mentioned by the court permitted the inference of a significant association between the loaded weapon and the misuse of the stolen cards. There is no necessity of proof that the gun was actually used in the credit card offense. Compare United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990).
III.
Finally, Yates claims the court erred in determining the number of criminal history points leading to a criminal history category of VI. We find no error.
The PSI report indicates that Yates has an extensive criminal record. Between October 16, 1979 and October 26, 1979 Yates burglarized several residences in New Hampshire. All these burglaries occurred within Merrimack County, with the exception of one committed on October 23, 1979 in Hillsborough County. The district court concluded that although sentence was imposed for all burglaries on the same day, the burglary of October 23, 1979 involved different conduct in relation to the other burglaries and therefore was not a related case for purposes of U.S.S.G. § 4Al.l(a), (b) and (c). The court ruled that the October 23, 1979 burglary was an unrelated case to be counted separately and added three criminal history points.
Yates argued that the district court erred in adding three criminal history points for the October 23, 1979 burglary because that burglary was a part of a common scheme. According to Yates, although this burglary occurred in a different county, a look at a New Hampshire map indicates that all the burglaries occurred within a small geographical area. Therefore, he was entitled to have the court consider that burglary as a related case and be treated as one sentence for sentencing under U.S.S.G. § 4Al.l(a), (b) and (c). We disagree.
Under U.S.S.G. § 4A1.2(a)(2), prior sentences imposed on related cases are to be treated as one sentence for purposes of the criminal history. Application note 3 explains what constitutes “related cases:”
Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underre-presents the seriousness of the defendant’s criminal history and the danger he represents to the public. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect the seriousness of the defendant’s criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted. See § 4A1.3.
The district court awarded three points for the first of eight charges for which Yates was sentenced in Strafford County, New Hampshire on June 6, 1980. The court assigned no points for any of the seven other sentences he received in the same court on the same day. Similarly, the court assigned no criminal history points for any of the ten sentences Yates received in Merrimack County, New Hampshire also on June 6, 1980. Thus, Yates received only three criminal history points for a total of eighteen convictions. In the circumstances here, the court’s determination relative to Yates’ criminal history was well founded and fully justified.
We affirm the sentence in all respects except as to the two level increase for obstruction of justice. The sentence is vacated and the case remanded for further proceedings in accordance herewith.
. The United States Secret Service has jurisdiction to investigate criminal violations relating to access devices pursuant to 18 U.S.C. § 1029.
. Cf. United States v. Stinson, 957 F.2d 813, 915 (11th Cir.1992) (although commefitary should generally be regarded as persuasive, it is not binding); United States v. Elmendorf, 945 F.2d 989, 997 (7th Cir.1991) (quoting United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989) (application notes are not binding law, they are only advisory commentary to assist in .the application of the statute)); and compare United States v. Madera-Gallegos, 945 F.2d 264, 267 (9th Cir.1991) (citing United States v. Anderson, 942 F.2d 606 (9th Cir.1991) (en banc) (courts should always consider the commentary and should construe a guideline and its commentary so as to be consistent, if that is possible.)
. In Burns, 111 S.Ct. at 2187, the Supreme Court held that:
... before the district court can depart upward on a ground not specified as a ground for upward departure either in the presen-tence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure, (footnote omitted).
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_appstate
|
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 "state governments, their 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.
RELIANCE INSURANCE COMPANY, Plaintiff-Counterclaim-Defendant-Appellee, v. The KENT CORPORATION, INC., Defendant-Counterclaim-Plaintiff-Appellant.
No. 88-7755.
United States Court of Appeals, Eleventh Circuit.
March 13, 1990.
Tom E. Ellis, Kracke, Thompson & Ellis, PC, Birmingham, Ala., for defendant-counterclaim-plaintiff-appellant.
Lyman H. Harris, Lonette Lamb Berg, Harris, Evans & Downs, Birmingham, Ala., for plaintiff-counterclaim-defendant-appel-lee.
Before TJOFLAT, Chief Judge, CLARK, Circuit Judge, and SMITH , Senior Circuit Judge.
Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
CLARK, Circuit Judge:
Defendant, The Kent Corporation, Inc. (“Kent”), appeals the district court’s grant of summary judgment in favor of the plaintiff, Reliance Insurance Company (“Reliance”). Because we find that a material issue of fact remains in dispute, we reverse the district court’s order granting summary judgment, and remand this case for further proceedings consistent with this opinion.
In July of 1986 Reliance issued a comprehensive insurance policy to Kent. On July 29, 1986, a fire broke out in a dumpster on Kent property. John C. Wallace and several other firemen who participated in putting out the fire filed a lawsuit against Kent. The firemen allege that Kent negligently placed hazardous chemicals in or near the dumpster, that the hazardous chemicals reacted with the fire in the dumpster and emitted hazardous gases, causing the firemen respiratory, digestive, and other injuries. Kent contacted Reliance, requesting that Reliance defend it against this action pursuant to Reliance’s obligations under the insurance policy. Reliance initially participated in defending Kent, but now claims in this declaratory judgment action that it is not obligated either to defend Kent or to reimburse Kent for any liability Kent may owe to the firemen as a result of the dumpster fire.
Reliance argues that the pollution exclusion clause in the policy excludes any coverage for the alleged injuries to the firemen. The pollution exclusion clause provides that no coverage exists for “bodily injury or property damage arising out of the actual, alleged or threatened discharge, release or escape of pollutants: (a) at or from premises owned, rented or occupied by the named insured_” The policy defines pollutants to mean “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” (Exh. A, Plaintiff’s Motion for Summary Judgment, R-9) Reliance argues that because the firemen allege that they were injured as a result of the emission of hazardous gases, no coverage exists because such emissions constitute a release or escape of pollutants within the meaning of the pollution exclusion clause.
In its order granting summary judgment, the district court properly determined that under Alabama law emissions from hazardous waste containers during a dumpster fire constitute a polluting event such that coverage is excluded under a policy containing a pollution exclusion clause like the one in the policy issued to Kent by Reliance. On the particular issue of whether coverage exists under the insurance policy if the firemen were in fact injured by the release of hazardous gases from containers of hazardous materials in the burning dumpster, we adopt and affirm the reasoning set forth in the district court’s opinion on pages two through five. (R-16)
The district court was premature, however, in granting summary judgment in favor of Reliance. The district court apparently entered its order on the mistaken assumption that this case involved only a claim by Reliance that, based on the allegations in the firemen’s complaint, Reliance had no duty to defend Kent. Reliance’s complaint asks the court to declare that “there is no coverage afforded to [Kent] under the policy of insurance as concerns the lawsuit filed by [the firemen].” (Plaintiff’s Complaint, p. 6, R-l) As a result, the resolution of this case requires more than a determination of Reliance’s duty to defend Kent in the firemen’s litigation. Under Alabama law, an insurance company’s duty to defend is separate and distinct from its duty to reimburse the insured. An insurance company’s duty to defend is determined primarily from the allegations of the complaint against the insured. United States Fidelity & Guaranty Company v. Armstrong, 479 So.2d 1164 (Ala.1985); Ladner & Company, Inc. v. Southern Guaranty Ins. Co., 347 So.2d 100 (Ala.1977). The determination of whether the policy extends coverage to liability of the insured arising from any particular instance, however, depends on whether the actual facts of the occurrence fit within the policy’s coverage. Armstrong, 479 So.2d at 1164; Ladner & Co., 347 So.2d at 100.
Reliance reasons that because a fireman cannot recover damages from a property owner for injuries resulting from the normal risks associated with firefighting, the firemen’s action against Kent is necessarily one for injuries resulting from the release of hazardous gases, a “polluting event”. Therefore, Reliance argues, Kent will only be found liable to the firemen if a polluting event actually occurred, and therefore Reliance will never be obligated to reimburse Kent for any liability Kent owes to the firemen. This argument ignores the fact that if it is determined that the firemen’s injuries were not caused by the emission of hazardous gases, the firemen’s action against Kent would be based on a covered event, i.e. an accidental fire. The availability to Kent of an absolute defense to a fireman’s claim for damages based on injuries sustained in fighting a fire which did not involve the release of hazardous gases does not negate Reliance’s obligation to defend Kent against such claims, and to reimburse Kent for amounts paid to the fireman if the defense were unsuccessful.
Therefore, to determine whether coverage exists in the present case, the court must first determine whether the firemen’s injuries were in fact caused by the emission of hazardous gases from the burning dumpster. This question of material fact remains in dispute. Reliance contends that because the firemen’s complaint alleges that the firemen were harmed by the emission of hazardous gases that it has no liability to Kent under the policy. The district court apparently relied on the allegations in the firemen’s complaint and an Alabama Department of Environmental Management report, which found that one five gallon can containing Toluol was in the dumpster at the time of the fire, in determining that a polluting event had occurred. However, to obtain a ruling that Reliance does not owe any coverage, Reliance must prove that the firemen’s injuries were in fact caused by the emission of hazardous gases. The evidence on the record tending to show that hazardous gases were emitted during the fire is sketchy at best. In answers to interrogatories Kent states that a sealed can containing a pair of rubber gloves, a paint filter and an unknown liquid with a weak solvent odor was found in the dumpster after the fire. (Exh. D, Response to Plaintiffs Reply to Defendant’s Supplemental Response, R-15) A report by the Alabama Department of Environmental Management indicates that a five gallon can containing Toluol was found in the dumpster after the fire. The ADEM report does not state whether the can was open or sealed at the time of the fire. (Exh. 5, Reply to Defendant’s Motion for Summary Judgment, R-14)
The record also reveals evidence tending to show that hazardous gases were not emitted during the fire. In letters sent to Reliance by Kent, Kent asserts that the firemen’s injuries are not a result of the emission of hazardous gases. (Exh. 2(a-d), Defendant’s Motion for Judgment on the Pleadings or Summary Judgment, R-10) The deposition of John Wallace, a fireman, taken in connection with the firemen’s lawsuit against Kent, reveals that Mr. Wallace does not know whether he inhaled any hazardous gases at the fire. His testimony indicates that his throat and lungs felt irritated during and after the fire, and that he was told by the fire chief that the dumpster contained cans of naphtha products. He saw several cans in the dumpster after the fire, but has no personal knowledge of their contents. (Exh. 1, Defendant’s Motion for Judgment on the Pleadings or Summary Judgment, R-10) In the answers to interrogatories, Kent states that its investigation of the fire revealed that, other than the one sealed can mentioned above, only empty cans were in the dumpster at the time of the fire. (Exh. D, R-15)
In reviewing a grant of summary judgment, this Court makes an independent assessment of the record as to the existence of any genuine issue of material fact. Greensboro Lumber Co. v. Georgia Power Co., 844 F.2d 1538, 1541 (11th Cir.1988). As described above, our review of the record reveals the existence of colorable evidence both tending to prove and disprove that hazardous gases were actually emitted during the fire. Thus, a genuine issue of material fact remains to be resolved before the district court may enter an order declaring that the Reliance insurance policy affords no coverage with respect to the firemen’s lawsuit against Kent. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
REVERSED AND REMANDED.
. Kent has counterclaimed for damages for breach of contract and bad faith for Reliance's refusal to provide coverage as required in the insurance policy. Reliance’s motion for summary judgment asked for judgment in its favor on its claims and on Kent’s counterclaims. Having determined that the policy did not provide for coverage, the court also granted summary judgment in favor of Reliance on Kent’s counterclaims. Our reversal of the grant of summary judgment in favor of Reliance therefore necessarily encompasses all claims and counterclaims in this case.
. In the final paragraph of its order, the district court states:
In entering this ruling, the court is mindful that it pertains only to the plaintiff's obligation as to the claims formulated in the underlying complaint. Whether an insurance company is obligated to defend its insured must be determined primarily from the allegations in the underlying complaint. The court recognizes that the firemen’s claims could conceivably be amended in the future such that they would then involve claims within coverage under the policy.
District Court order, p. 6 (R-16) (citations omitted, emphasis added)
. The ADEM statement is the only evidence the district court mentions which tends to show that a polluting event actually occurred.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_constit
|
B
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
George L. DOWNING, Plaintiff-Appellant, William H. Merrill, Plaintiff-Appellant, v. Robert L. KUNZIG, Defendant-Appellee.
No. 71-1493.
United States Court of Appeals, Sixth Circuit.
Feb. 7, 1972.
George L. Downing! in pro. per. William H. Merrill, in pro. per.
Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., for appellee; Harold Hood, Chief Asst. U. S. Atty., Detroit, Mich., on brief.
Before MILLER and KENT, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
WILLIAM E. MILLER, Ciruit Judge.
The General Services Administration, by authority of 40 U.S.C. Sec. 318a and 318b, is vested with the power to promulgate all needful rules and regulations for the government of federal property under its charge and control. One such rule provides that “no person while on property shall carry firearms, or other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes.” [Title 41, Code of Federal Regulations, Sec. 101-19.311]. Because of an outburst of acts of violence, bombings of federal buildings and hundreds of bomb threats, resulting in massive evacuations of federal property, and direct financial loss to the Government, ******GSA in the fall of 1970 issued to all of its Regional Administrators across the country supplementary instructions directing that immediate measures be adopted at federal facilities within their areas for the protection of federal property and personnel. Specific steps included the use of additional guards and patrols, the identification of persons entering federal buildings, and the denial of entrance to persons carrying suspicious packages unless they should voluntarily submit such packages for examination. By GSA’s message of October 15, 1970 it was specifically directed :
Information copy: All regional directors, PBS because of the recent outburst of bombings and other acts of violence, effective at once, at all entrances to federal property under the charge and control of GSA, where there are guards on duty, all packages shall be inspected for bombs or other potentially harmful devices. Admittance should be denied to anyone who refuses to voluntarily submit packages for examination.
These measures were in effect on December 7, 1970 when plaintiff, George L. Downing, a practicing attorney in Detroit, entered the Federal Building in that city, briefcase in hand, enroute to a hearing in one of the district courtrooms. He was stopped by a guard and advised that because of the rules then in effect he could not proceed above the first floor unless he either submitted his briefcase for inspection or left it behind until his return from court. Upon his refusal to do either he left the building without attending court. Soon thereafter plaintiff instituted the present action in the court below seeking a declaration that the acts complained of resulting in the demand that his briefcase be submitted for a search, and the GSA rules and regulations authorizing such procedure, are unconstitutional and void in that they require or direct an illegal search without a warrant and without probable cause in violation of the Fourth Amendment. The district court sustained the defendant’s motion to dismiss the action. In describing the procedure followed in Detroit under the applicable GSA regulations and directives, the trial court found:
By nature of the guard’s placement, all persons entering the Federal Building located in Detroit pass by these officers, and those individuals who carry brief cases, packages, etc., are requested to submit to a cursory inspection in order to ascertain whether they are attempting to conceal explosives or dangerous weapons that might cause personal injury or damage to property. Those persons who refuse to submit to a brief search of the articles they carry are not permitted to transport the articles into other portions of the building. Because of the numerous attorneys who daily transact business in the eleven Federal District Courts located within the building, a procedure has subsequently developed whereby lawyers need only show their Detroit Bar Association membership card to gain unrestricted entrance to the building’s premises. Federal employees of the building have also been issued identification cards which permit them unhampered access to their work areas.
The court’s conception of the plaintiff's contention was delineated in its opinion as follows:
Simply stated, it is plaintiff’s contention that his right to be protected against any unreasonable searches and seizures of his papers and effects as guaranteed by the Fourth Amendment of the United States Constitution has been, and will continue to be, violated by the previously described rules and procedures. Plaintiff states, “that the interference by defendant and his agents with the plaintiff's free access to the courts without submitting to an unconstitutional and unreasonable search in violation of plaintiff’s rights and in violation of the rights of plaintiff’s clients to the security of confidential communications threatens to interfere with the plaintiff’s earning of the livelihood and with the substantial business of plaintiff’s clients.”
It is clear that the practice of federal officers in Detroit charged with responsibility to enforce the GSA regulations in no way involved an examination of the personal papers of plaintiff or others entering the Federal Building to learn their contents nor any undue restraint against entry into the building. Assuming that a “search” in the Fourth Amendment sense was actually intended or involved, it must be conceded that it was cursory in nature and made for the strictly limited purpose of determining that no explosives or dangerous weapons were transported into the building.
We cannot agree that such “searches,” (if they may be so characterized) made under the authority of GSA regulations were “unreasonable” under the Fourth Amendment. As clearly demonstrated by the facts of this case, the threat to federal property as well as to the safety of federal personnel performing essential functions of Government was direct and immediate and likely to materialize into acts of violence and destruction in any part of the nation. For the responsible governmental agency to have failed to act when confronted with such a situation could have resulted in a widespread disruption of the processes of government.
The reasonableness of a search under the Fourth Amendment and the question of whether a particular search requires a warrant must depend upon the facts in each case. Here, as stated, the dangers to federal property and personnel were imminent. The Federal Building in Detroit is one of significant importance. It is a ten-story building, housing eleven federal district courts, the offices of congressional and senatorial representatives, the chambers of two members of the Sixth Circuit Court of Appeals, and numerous other federal agencies. Ordinarily of course a person should not have his person or property-subjected to a search in the absence of a warrant or probable cause to believe that a crime is being committed. Yet to relax the strictness of this rule in the special circumstances shown to exist in this case can in our view have no undermining effect on the protections afforded by the Fourth Amendment. As in most instances under the law competing values must be weighed and a balance struck. Here it seems to us that the balance is clearly on the side of upholding the very limited sort of search contemplated by the GSA regulations and actually conducted by federal guards. In the first place, federal buildings housing federal courts and other governmental agencies are designed to be used strictly for governmental purposes. Although members of the public ordinarily have free access to such buildings, principally in connection with some business of their own, responsible agencies are free to adopt and enforce reasonable rules restricting such public use, such as on holidays and outside certain prescribed hours of the day. Similarly, the manner and times of use may be regulated with respect to regular governmental officers and employees.
It is only a short step further to say that in times of emergency government may take reasonable steps to assure that its property and personnel are protected against damage, injury or destruction by resorting to the very minimal type of interference with personal freedom arising from the acts complained of in this case. The “searches” considei’ed here involve no confiscation of legitimate property, no personal inspection of confidential papers, and no undue restraint on freedom of movement. The only intrusion is a brief stop and a cursory examination of packages or briefcases to determine the possible existence of articles having a potential of danger. In our view, the regulations and acts challenged in this case, in light of the factual background and the dangers confronting the Government, were both reasonable and fair. To require that an officer obtain a warrant to examine the packages of each of the hundreds of persons entering the building or determine as to each person the existence of probable cause would as a practical matter seriously impair the power of government to protect itself against ruthless forces bent upon its destruction. We find here no violation of the Fourth Amendment and no unconstitutional infringement upon the plaintiff’s rights.
Affirmed.
. These facts are established by the records of GSA as shown by the affidavit of A. F. Simpson, Commissioner, Public Buildings Service, General Services Administration. This affidavit is challenged by plaintiff on appeal for the first time. The objection is based on technical grounds and we think that it comes too late at this stage of the proceeding. Moreover, aside from the affidavit, we take judicial notice of violent outbreaks across the country and the consequent dangers and hazards to public property and the Government’s officers and employees. Indeed, judicial notice may be taken of facts indicating that the threat is even more serious than the Simpson affidavit would indicate.
. Although the district judge in terms disposed of the case by sustaining the defendant’s motion to dismiss, we construe his opinion as having assumed that the case was before him as upon a motion for summary judgment, since he made findings on the basis of the pleadings (complaint and amended complaint and motion to dismiss) and affidavits filed by both parties. This practice is expressly authorized by Rule 12(b) of the Federal Rules of Civil Procedure.
. See United States v. Cassiagnol, 420 F. 2d 868 (C.A.4 1970), cert, denied 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654, and In re Trials of Pending and Future Cases, 306 F.Supp. 333 (N.D.Ill.1969).
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
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.
WABASH OIL & GAS ASS’N v. COMMISSIONER OF INTERNAL REVENUE.
No. 4194.
Circuit Court of Appeals, First Circuit.
April 3, 1947.
Writ of Certiorari Denied June 9, 1947.
See 07 S.Ct. 1533.
Edmund A. Whitman, of Boston, Mass., (Philip Nichols, of Boston, Mass., on the brief), for petitioner.
Carlton Fox, Sp. Asst, to the Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and Robert N. Anderson and Muriel S. Paul, Sp. Assts. to the Atty. Gen., on the brief), for Comissioner of Internal Revenue.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This petition for review of a decision of the Tax Court of the United States presents but a single question. It is whether during the calendar year 1941 the petitioning taxpayer, although an unincorporated association, was nevertheless taxable as a corporation under § 3797 of the Internal Revenue Code. 26 U.S.C.A. Int.Rev.Code, § 3797.
The facts are fully set out in conjunction with the opinion of the Tax Court reported in 6 T.C. 542. We can state them more briefly here.
During the summer of 1940 one Carey, of Grayville, Illinois, and one Patton of Newton, Massachusetts, who had long been associated in the lumber milling business in Grayville, Patton being an inactive partner, solicited their friends and relatives for subscriptions (they raised approximately $19,000) to finance a venture in a newly discovered oil bearing area near Grayville. With the money so raised they obtained an oil and gas lease in the name of Patton as lessee on a tract of land in the area, and, neither having had any experience in the oil business, they employed an experienced oil operator to take over the property and drill a well on it. This well began to produce early in December 1940, and thereupon Carey purchased necessary supplies and equipment with money sent him by Patton and arranged for the sale of the entire oil production.
There was no written plan of organization prior to the time when the well was brought in. Soon thereafter, however, (December 23, 1940) “Articles of Agreement” were prepared and executed by all the subscribers.
In these Articles it is first set out that the subscribers, who are listed with the amounts of their subscriptions, had provided the consideration for the oil and gas lease taken in Patton’s name and had also provided the funds required for developing the leased property, and then Patton acknowledged and agreed that he “is, and has been, the agent” of the subscribers “in negotiating and securing” the lease and “in the development thereunder” ; that “he holds said lease as agent of, and for the benefit of” the subscribers and “will execute such assignments and agreements and do such acts m connection with said lease and the developments thereunder as may be directed by two-thirds in interest of the subscribers hereto.”
Following this the subscribers agree that Patton, Carey, and one Hall of Wellesley, Massachusetts, are to act “as agents and managers of the business of developing the property and marketing the oil, gas and other incidental products to be conducted under said lease under the trade name of the Wabash Oil and Gas Association”, and furthermore that they shall continue so to serve until their successors are appointed as thereafter set forth, and shall receive such compensation for their services as they may unanimously agree upon. Next it is provided that Patton is to act as treasurer of the business, Carey as superintendent of its active operations, and Hall in an advisory capacity with final power to decide any difference of opinion which may arise between the other two. The subscribers then agree that “These three shall have full power to conduct the business with all the powers that we should have if personally present and active”, including among other specifically enumerated powers, the power to borrow money and pledge or mortgage the “lease or other assets of the business as security therefor.”
The Articles of Agreement continue with provisions requiring the agents and managers to keep open books of account and to make quarterly distribution of the net earnings of the business to the subscribers in proportion to their respective financial interests, subject, however, to the managers’ power to reserve such portion of net earnings as may in their judgment be needed for working capital.
Provisions follow to the effect that should Patton die, resign, or for any reason become unable to act, he, or his personal representative, will assign the lease to any person named by the other two agents; that a majority in interest of the subscribers may remove and also replace any agent; that written approval of two-thirds in interest of the subscribers is required to authorize the agents to sell either the leasehold or the equipment purchased for use in the business; that in every contract order or obligation entered into by the agents on behalf of the Association it shall be stipulated that the other contracting party “shall look only to the leasehold and property Used in said business for payment” and that neither the agents, the subscribers nor their successors shall be personally liable therefor; and that any subscriber may sell his interest provided only that he first give the agents an opportunity to buy that interest for the benefit .of the other subscribers. The Articles conclude with the provision:
“This agreement shall continue during the term of said lease and no one of the parties hereto shall be entitled to any dissolution or termination of this agreement, but on the death or bankruptcy of any one of them, the personal representatives or the trustee in bankruptcy, as the case may be, shall succeed to the interest.”
During the year 1941 the Association had no office, held no meetings, made ño distribution of net earnings, and, other than an unsigned copy of the Agreement, gave no certificate • or evidence of ownership to any of the subscribers.
■ The petitioning association filed its income tax return for the year involved as a partnership. The Commissioner, however, determined a deficiency on the ground that although an association it was “includible in the definition of a ‘corporation’ as prescribed by § 3797 (a) (3) of the Internal Revenue Code.” On appeal the Tax Court, concluding "that petitioner more closely resembled a corporation than a partnership or joint venture”, affirmed the Commissioner and the taxpayer thereupon brought this petition for review.
■ In § 3797 of the Internal Revenue Code Congress . made its own classification of business organizations for the purpose of taxation. And in doing so.it saw fit to put “associations” in the same category with “corporations” as technically defined in the law. This “including of associations with corporations”, the Supreme Court said in Morrissey v. Commissioner, 296 U.S. 344, 357, 56 S.Ct. 289, 295, 80 L.Ed. 263, “implies resemblance; but it is resemblance and not identity.” The question in this case, therefore, is whether the salient features of the organism created by the subscribers as the medium for carrying on their business venture, which they labeled Wabash Oil & Gas Association, make it analogous to a conventional corporation.
There seems to be some divergence of view among the circuits as to the nature of this question. In the Fifth Circuit it was held even before the decision in Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, that the question was one of fact (Commissioner v. Horseshoe Lease Syndicate, 1940, 110 F.2d 748, certiorari denied 311 U.S. 666, 61 S.Ct. 24, 85 L. Ed. 427; Commissioner v. Rector & Davidson, 1940, 111 F.2d 332, certiorari denied 311 U.S. 672, 61 S.Ct. 33, 85 L.Ed. 432; Del Mar Addition v. Commissioner, 1940, 113 F.2d 410) but in the Sixth and Ninth Circuits it seems to have been assumed without discussion that the question was one of law. Commissioner v. Fortney Oil Co., 6 Cir., 1942, 125 F.2d 995; Helm & Smith Syndicate v. Commissioner, 9 Cir., 1943, 136 F.2d 440. See also Nashville Trust Co. v. Cotros, 6 Cir., 1941, 120 F. 2d 157. In the instant case, however, we see no necessity to consider this problem because the Association in every respect meets the test of resemblance to a corporate form of organization established in the Morrissey case, supra, and in the cases decided with it. Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
In the first place the subscribers associated together in a joint enterprise for the transaction of a business from which they hoped to realize profit, and in the second place the medium they chose for carrying on their enterprise substantially resembled a corporation in its organization. That is to say, the Articles of Agreement secured centralized management; title to the property embarked in the undertaking, as to the lease, in an individual with provision for his succession, and, as to the equipment, in a board of three “managers and agents” with provision for their succession; security from termination of the enterprise by reason of the death of any beneficial owner; facility of transfer of the beneficial interests without affecting the continuity of the enterprise, and limitation of' the personal liability of the subscribers. See .7 A Mertens, Law of Federal Income Taxation (1943) § 43.14. The fact that no formal certificates of ownership were issued is unimportant. Nashville Trust Co. v. Cotros, supra, 120 F.2d at page 159; Commissioner v. Fortney Oil Co., supra, 125 F.2d at page 998.
Having all the essential characteristics of a corporation there is no room for any classification of the Association except as a corporation within the meaning of § 3797 of the Internal Revenue Code.
The decision of the Tax Court is af.firmed.
“Definitions
“ (a) When used in this title, where not ■ otherwise distinctly expressed or manifestly incompatible with the intent thereof—
“(1) Person.
“The term ‘person’ sjiall bo construed to mean and include an individual, a trust, estate, partnership, company, or corporation.
“(2) Partnership and partner.
“Tho term ‘partnership’ includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation ; and the term ‘partner’ includes a member in such a syndicate, group, pool, joint venture, or organization.
“ (3) Corporation.
“The term ‘corporation’ includes associations, joint-stock companies, and insurance companies.”
This, provision was stricken from the Articles on December 31, 1941, all but four of the subscribers assenting thereto.
Its return was timely filed with the Collector of Internal Revenue for the Eighth District of Illinois. Review in this circuit is by stipulation in writing pursuant to the provisions of § 1141 (b) (2) of the Internal Revenue Code. 26 U.S.C.A. Int.Rev.Code, § 1141 (b) (2).
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
|
706
|
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".
Charles Andrew THROCKMORTON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD, James Busey, Administrator Federal Aviation Administration, Respondents.
No. 91-1184.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 3, 1992.
Decided May 5, 1992.
Peter Axelrod, Tucson, Ariz., for petitioner.
Joseph A. Conte, Washington, D.C., for respondents.
Before EDWARDS, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
Charles Andrew Throckmorton petitions for review of an order of the National Transportation Safety Board (NTSB) suspending Throckmorton’s airline transport pilot certificate for ninety days. For the reasons set forth below, we deny the petition.
The essential facts underlying Throckmorton’s suspension are undisputed. On December 18, 1986, Throckmorton, an experienced licensed helicopter pilot, requested permission to make a “low pass” in his helicopter over the Colorado Springs, Colorado airport. Air Traffic Control (ATC) cleared him to pass over Runway 17, but instead he passed along a grassy strip between Taxiway Alpha and a civilian ramp, traveling at an altitude of 10-20 feet and a speed of approximately 150 m.p.h.
On October 9, 1987, the Federal Aviation Administration (FAA) issued an order suspending Throckmorton’s Airline Transport Pilot Certificate for ninety days, effective October 28, 1987, based on the foregoing facts and on the additional allegation that in making the pass Throckmorton “flew within close proximity to a Continental Airlines DC-9, an American Airlines B-727, and a Cessna 182 that were operating on the taxiway and ramp.” The order charged Throckmorton with violating four Federal Aviation Regulations then in effect: 91.75(a) (requiring compliance with an ATC clearance), 91.65(a) (prohibiting operation of an aircraft “so close to another aircraft as to create a collision hazard”), 91.79(d) (establishing minimum altitudes for aircraft but exempting helicopter operation “if the operation is conducted without hazard to persons or property on the surface”) and 91.9 (prohibiting operation of aircraft “in a careless or reckless manner so as to endanger the life or property of another”).
Throckmorton appealed the suspension to the NTSB and a hearing was held before an administrative law judge (AU) on September 7, 1988. At the hearing Throckmorton admitted his flight path deviated from the clearance but alleged it was the “custom and practice” for a helicopter cleared to pass over a runway to fly instead over the grass parallel to the runway in order “to avoid the flow of fixed-wing traffic.” Joint Appendix (JA) No. 6 at 13. He also denied passing dangerously close to other aircraft. At the close of the hearing, the AU issued an order affirming the FAA’s decision regarding the violations but reducing the suspension from ninety to sixty days.
Throckmorton appealed the ALJ’s decision to the full NTSB and the FAA cross-appealed the sanction reduction. By opinion and order adopted October 23, 1990, the full NTSB affirmed the ALJ’s decision except that it reinstated the FAA’s original ninety-day suspension. Throckmorton now challenges the NTSB’s order on the following grounds: (1) the findings of violations are not supported by substantial evidence; (2) the AU’s conduct at the hearing deprived Throckmorton of due process, (3) the regulations at issue are unconstitutionally vague and (4) the NTSB acted improperly when it reinstated the original ninety-day suspension, setting aside the AU’s thirty-day reduction. We find none of these grounds meritorious.
First, Throckmorton asserts the AU’s decision, upheld by the NTSB, that Throckmorton violated the four regulations is not supported by substantial evidence. In reviewing the NTSB’s decision we are bound by section 10(e)(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), which requires that we set aside agency findings unsupported by substantial evidence. Chritton v. NTSB, 888 F.2d 854, 856 (D.C.Cir.1989) (citing 49 U.S.C.App. § 1903(d) and 5 U.S.C. § 706(2)(E)). “The substantial evidence test is a narrow standard of review” requiring only “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Refrigerated Transp. Co. v. ICC., 616 F.2d 748, 751 (5th Cir.1980)). Under this standard, our function is to determine only “whether ‘the agency ... could fairly and reasonably find the facts as it did.’ ” Id. (quoting Western Air Lines, Inc. v. CAB, 495 F.2d 145, 152 (D.C.Cir.1974)). An agency conclusion “ ‘may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.’ ” Id. (quoting Western Air Lines, Inc., 495 F.2d at 152). We find the NTSB decision here supported by substantial evidence.
Throckmorton has never disputed that his flight path deviated from the literal terms of his ATC clearance, but has consistently maintained that the deviation was pursuant to “custom and practice” and that it did not bring him within dangerous proximity of the other aircraft. At the hearing witnesses furnished conflicting testimony regarding each of Throckmorton’s defenses. Throckmorton and two other witnesses denied that the helicopter approached dangerously close to the other aircraft, while three of the FAA’s witnesses testified that it did. The AU reasonably resolved this conflict against Throckmorton, concluding that the FAA’s witnesses were in better positions to observe the incident and that Throckmorton and the other two witnesses were not disinterested parties. The AU also rejected Throckmorton’s testimony that the established custom or practice at the Colorado Springs Airport was for helicopters to pass over grass rather than runways, crediting instead the testimony of the experienced air traffic controller who cleared Throckmorton’s pass that he was aware of no such custom. In both cases the NTSB expressly approved the AU’s reasonable credibility determinations. We cannot reexamine those determinations here or substitute our judgment for that of the AU and the NTSB. See Hill v. NTSB, 886 F.2d 1275, 1282 (10th Cir.1989); Borden v. Administrator of FAA, 849 F.2d 319, 321 (8th Cir.1988); King v. NTSB, 766 F.2d 200, 203 (5th Cir.1985); cf. Chirino v. NTSB, 849 F.2d 1525, 1529-30 (D.C.Cir.1988) (upholding NTSB’s reversal of ALJ’s credibility determination as not arbitrary or capricious). Accordingly, we reject Throckmorton’s substantial evidence argument.
Next, Throckmorton challenges the validity of three of the regulations under which he was charged, alleging that Regulations 91.65(a), 91.79(d) and 91.9 are void for vagueness because they “require[ ] airmen to guess at their meaning.” Brief of Petitioner at 19 (citing Brennan v. Occupational Safety & Health Review Comm’n, 505 F.2d 869, 872 (10th Cir.1974)). As we understand Throckmorton’s challenge, he contends these three regulations are unconstitutionally vague because each prohibits conduct only to the extent it creates a hazard but provides no guidelines for determining when the conduct is hazardous. We perceive no constitutional vagueness in the regulatory language. In reviewing regulations for vagueness, we must decide only “whether the regulation ‘delineated its reach in words of common understanding.’ ” Vandehoef v. NTSB, 850 F.2d 629, 630 (10th Cir.1988) (quoting Brennan, 505 F.2d at 872). Further, when considering a vagueness challenge to a “regulation promulgated pursuant to remedial civil legislation ... we must do so ‘in the light of the conduct to which it is applied,’” Brennan, 505 F.2d at 872 (quoting United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 599, 9 L.Ed.2d 561 (1963)), allowing “greater leeway” for regulations and statutes governing business activities than those implicating the first amendment, Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). In such a review, “no more than a reasonable degree of certainty can be demanded” and it is not “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952). Under these standards we conclude the three regulations here are sufficiently clear to put pilots on notice of the kinds of hazardous conduct proscribed. Cf. Boyce Motor Lines, Inc., supra (rejecting vagueness challenge to ICC regulation requiring vehicles carrying explosives to “avoid, so far as practicable, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings”) (emphasis added); Vandehoef supra (rejecting vagueness challenge to NTSB regulation setting minimum altitude “[e]xcept when necessary for takeoff or landing”); Brennan, supra (finding redundant, but not void for vagueness, regulation requiring presence at workplace of person trained in first aid when there is no medical facility “in near proximity”). Accordingly, we reject Throckmorton’s vagueness argument.
Next, Throckmorton alleges the AU deprived him of due process by prejudging his guilt and by improperly admitting expert testimony. Throckmorton first alleges the AU’s decision was impermissibly based on prejudice because he “expressed an opinion on the merits of the 91.75(a) issue prior to any testimony and transferred the burden of proof from the Administrator to Respondent Throckmorton.” Brief of Petitioner at 9. We find no evidence of prejudice on the AU’s part. In asserting prejudice, Throckmorton relies primarily on statements the AU made at the beginning of the hearing. Noting that Throckmorton’s trial brief expressly admitted deviation from the ATC clearance, the AU stated he was “ready to rule” on that violation and admonished Throckmorton’s counsel: “You better convince me right now. As far as I can see, ATC cleared for pass down the runway and there was not a pass down the runway so why isn’t 91.75(a) admitted?” JA No. 6 at 12. Nevertheless, the AU properly assured Throckmorton’s counsel he would “reserve” his ruling and “listen to the testimony by way of excuse to see if that can be excused.” Id. at 13-14. The ALJ’s statements, taken as a whole, do not “connote[ ] a fixed opinion— ‘a closed mind on the merits of the case’ ” so as to disqualify him for prejudice. United States v. Haldeman, 559 F.2d 31, 36 (D.C.Cir.1976) (footnote omitted) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); see also Southern Pac. Communications v. American Tel. & Tel. Co., 740 F.2d 980, 991 (D.C.Cir.1984) (test for disqualification “may be stated in terms of whether the judge’s mind is irrevocably closed on the issues as they arise in the context of the specific case”), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985); cf. C & W Fish Co. v. Fox, 931 F.2d 1556, 1564-65 (D.C.Cir.1991) (agency administrator should be disqualified from rulemaking on account of prejudice only upon a “clear and convincing showing” of an “unalterably closed mind on matters critical to the disposition of the proceeding”).
We find Throckmorton’s second due process argument even weaker. Throckmorton asserts the AU deprived him of due process by admitting testimony by an expert witness whose identity was not disclosed until seven days before the hearing and by two fact witnesses who were not qualified as experts. We agree with the NTSB that Throckmorton has failed to demonstrate how these alleged errors prejudiced his case. We therefore find no due process deprivation arising from them.
Finally, Throckmorton asserts the NTSB improperly reinstated the FAA’s initial ninety-day suspension which the AU had reduced to sixty days. Throckmorton contends the reinstatement was error because the sixty-day suspension “was consistent with Board precedent which is all that is required.” Brief for Petitioner at 36. We find no error in the NTSB’s reinstatement of the original sanction. Throckmorton admits that NTSB precedent supports a thirty-day suspension for his low flight violation alone. Taking into account the additional regulatory violations for deviating from ATC clearance and passing hazardously close to other aircraft, we cannot conclude that a ninety-day suspension was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Cf. Winslow v. NTSB, 885 F.2d 615, 618 (9th Cir.1989) (upholding NTSB’s reinstatement of FAA ninety-day suspension for low flight, which had been reduced by AU to 30-day suspension, concluding that the ninety-day suspension “does not represent a sufficient deviation from NTSB precedent to require the Board to state reasons for its decision or otherwise to justify our interference with the Board’s decision”).
For the preceding reasons, the petition for review is
Denied.
. Section 91.75(a) provided:
Compliance with ATC clearances and instructions.
(a)When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance. However, except in positive controlled airspace, this paragraph does not prohibit him from cancelling an IFR flight plan if he is operating in VFR weather conditions. If a pilot is uncertain of the meaning of an ATC clearance, he shall immediately request clarification from ATC.
14 C.F.R. § 91.75(a) (1986) (now 14 C.F.R. § 91.123(a) (1991)).
. Section 91.65(a) provided:
Operating near other aircraft.
(a) No person may operate an aircraft so close to another aircraft as to create a collision hazard.
14 C.F.R. § 91.65(a) (1986) (now 14 C.F.R. § 91.111(a) (1991)).
. Section 91.79 provided:
Minimum safe altitudes; general.
Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:
(a) Anywhere.
An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.
(b) Over congested areas.
Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
(c) Over other than congested areas.
An altitude of 500 feet above the surface except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
(d) Helicopters.
Helicopters may be operated at less than the mínimums prescribed in paragraph (b) or (c) of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with routes or altitudes specifically prescribed for helicopters by the Administrator.
14 C.F.R. § 91.79 (1986) (now 14 C.F.R. § 91.-111(a) (1991)).
.Section 91.9 provided:
Careless or reckless operation.
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.
14 C.F.R. § 91.9 (1986) (now 14 C.F.R. § 91.13 (1991)).
. We do not understand Throckmorton’s challenge to reach Regulation 91.75(a) which absolutely and unambiguously prohibits deviation from an ATC clearance.
. Throckmorton cites as additional evidence of bias that the ALJ sua sponte questioned one of the witnesses. We see nothing unusual, however, in a judge's questioning of a witness. See Roach v. NTSB, 804 F.2d 1147, 1160 (10th Cir.1986) (“An ALJ has an obligation to conduct the hearing in an orderly manner and to elicit the truth. He has the right to interrogate witnesses for that purpose.”), cert. denied, 486 U.S. 1006, 108 S.Ct. 1732, 100 L.Ed.2d 195 (1988); see also Fed.R.Evid. 614(b) ("The court may interrogate witnesses, whether called by itself or by a party.").
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:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. Tommy L. BUTLER et al., Appellants.
Nos. 73-1359, 73-1360, 73-1362 and 73-1363.
United States Court of Appeals, Tenth Circuit.
Submitted Jan. 7, 1974.
Decided April 4, 1974.
Rehearing Denied May 31, 1974.
Arthur S. Bay, of Bay, Hamilton, Re-negar & Lees, Oklahoma City, Okl., for appellant, Tommy L. Butler.
Gene Stipe, of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., for appellant, Phillip Leonard Gregg.
Paul A. Mancino, Jr., Cleveland, Ohio, for appellant, Wayne Herbert Reinke.
Mac Oyler, Oklahoma City, Okl., for appellant, Ronald James Slomkowski.
John E. Green and Susie Pritchett, Asst. U. S. Attys. (William R. Burkett, U. S. Atty., with them on the brief), for appellee.
Before SETH and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.
SETH, Circuit Judge.
The indictment originally charged twenty-three defendants in one count of conspiracy to convert Government property in violation of 18 U.S.C. § 641 and to commit depredation against Government property in violation of 18 U.S.C. § 1361, and charged various combinations of these defendants in forty additional counts alleging substantive violations of these statutes. The individual motions to sever were denied, and the consolidated trial took slightly more than one week. We have before us the appeals of four defendants.
All twenty-three persons originally indicted were military and civilian employees of the United States Air Force working at Tinker Air Force Base, Oklahoma. The military defendants were members of either the 3d Mobile Communications Group or the 1984th Telecommunications Squadron, while the defendant Gregg, a civilian, was employed in the Redistribution and Marketing (R & M) facility at Tinker. R & M is basically a storage facility and clearinghouse for obsolete or unserviceable Air Force equipment. By following appropriate procedures Air Force personnel can withdraw items of equipment from R & M for use by their units. Such equipment is often “cannibalized” to provide needed repair parts or components which are not available through normal supply channels. Equipment which cannot be reintroduced to Government use is eventually sold for salvage value to private buyers. Although R & M houses various classes of equipment, this case primarily involves radio and electronic related items.
During the period between August 1971 and January 1972, the defendants allegedly conspired to and did obtain numerous items of equipment from R & M to be converted to their own use or destroyed. Sergeant Greene; who entered a guilty plea, and Sergeant Johnson appear to have been the key figures in the operation and the persons responsible for obtaining most of the equipment. The appellant Gregg, in his capacity as a clerk at R & M, allegedly assisted the two sergeants in procuring the equipment and concealing its disposition. The remaining appellants were recipients of equipment thus obtained. In addition, the appellant Slomkowski, in concert with certain other members of the 1984th Squadron allegedly conspired to and did destroy some component parts to a teletype test unit which had originally been obtained from R & M.
Although these appeals were consolidated for purposes of argument, the number and variety of issues asserted in each necessitates their separate, individual consideration.
No. 7S-1S59 — Tommy L. Butler:
Appellant Butler was convicted under the general conspiracy count and under count 22 for having received a stolen radio in violation of 18 U.S.C. § 641. The record discloses that he was assigned to the 3d Mobile, and was a member of the same section as Sergeant Greene during a portion of the period during which the alleged conspiracy existed. Some time 'during November 1971 Sergeant Greene acquired a number of Jeep radios from R & M. After deciding that he personally could not use them, he apparently brought a number of them to the shop where he and Airman Butler worked and left them there with the understanding that anyone who wanted one could have one. Butler was apparently fairly new in the unit. Sergeant Greene, according to the record, may have indicated at the time that they were salvage and not accountable to the Air Force. Airman Butler carried one of the radios to his quarters on base, where he uncrated it, examined it briefly, recrated it, and placed it in his locker. Shortly thereafter Airman Butler was reassigned to the Philippines. Upon his departure he left the radio behind in his military locker. His roommate testified that he left no instructions as to its disposition.
Only twenty-four of the more than 1,200 pages of testimony given at trial pertain directly to Airman Butler. His involvement in the events leading to this prosecution was apparently confined to the incident described above. Nowhere in the record can we find testimony implicating him in a conspiracy. This court has often noted that the essence of the crime of conspiracy is an agreement to violate the law. Carter v. United States, 333 F.2d 354 (10th Cir.). While the agreement need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy. One cannot become a conspirator until he has entered such an agreement, and, of course, such entry can be after the conspiracy is formed, but we find no evidence that Airman Butler ever became a conspirator. Appearing as a Government witness, Sergeant Greene testified that Airman Butler, as well as other members of their section, was aware of the arrangement between himself and Sergeant Johnson for procuring equipment from R & M. Assuming this conclusion to be correct, mere knowledge or approval of or acquiescence in the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to a conspiracy. Jones v. United States, 365 F. 2d 87 (10th Cir.). There is no suggestion that Airman Butler was ever aware of any specific plan to obtain the radios from R & M, much less that he cooperated in such a plan. Rather, the clear inference is that Sergeant Greene appeared with the radios, and left them at the shop for whomever might want one as unaccountable salvage. It was not until that point that Airman Butler decided to take one to his quarters. Such an action alone simply cannot be interpreted as a decision to join a conspiracy. See United States v. Varelli, 407 F.2d 735 (7th Cir.).
We find the evidence equally insufficient to support conviction of the substantive offense of receiving stolen Government property in violation of 18 U.S.C. § 641. After taking the radio to his military quarters and examining it, Airman Butler placed it in his locker and apparently never again disturbed it. When he departed Tinker a few weeks later, it was left behind in the locker with no instructions as to its disposition. Nowhere does it appear that he attempted to remove it from the base or otherwise dispose of it to. his advantage. In the plain language of the statute, knowledge that the property is stolen and intent to convert it to one’s own use or gain are essential elements of the offense. Making the questionable assumption that Airman Butler knew that the radio had been stolen, his conduct, when viewed in the light of the other circumstances of this case, fails to carry sufficient suggestion of an intent to convert it to his own use or gain. It might even be argued, at least in a figurative sense, that the radio never left Government control.
We have evaluated the evidence, as we must, in the light most favorable to the Government and allowed it the benefit of every reasonable inference. Even so, we find the case against Airman Butler inadequate to support either conviction. We therefore reverse his conviction with instructions that the charges against him be dismissed.
No. 7S-1S60 — Phillip L. Gregg:
Although originally charged in sixteen counts of the indictment, appellant Gregg was acquitted of all but the conspiracy charge. Our review of the record fails to uncover adequate support for that conviction as well.
During the period of the alleged conspiracy, Mr. Gregg was employed as a civilian clerk at the R & M facility. He was assigned as a utilization specialist, responsible for a particular series of federal stock numbers consisting primarily of electronic communications equipment. His principal function was to process requests from various Government agencies for equipment within that series which might be in storage at R & M. While many of these requests were either by letter or the appropriate Department of Defense form, it was not unusual for Air Force personnel from the various units at Tinker to “shop” at R & M for items which their units might need or be able to use. When such an item was located Mr. Gregg, or other clerks holding similar positions, would assist the “customer” in completing the official requisition form, and then direct him to the appropriate agency to have the form approved. In most cases this would be the Depot Supply Officer, who would retain copies of the approved form for accounting purposes. The customer would then return to R & M with the approved requisition and would be issued the item. Mr. Gregg would also retain various copies of the approved requisition for R & M records and subsequent distribution. In some cases such distribution may have included the supply officer of the unit drawing the equipment. However, due to the volume of transactions at R & M, distribution of the retained copies did not always follow a consistent pattern, and reliance was placed on the Depot Supply Office to maintain accountability for the equipment after it left R & M. It appears there was also a requirement that “shoppers” from the units at Tinker have a letter of authorization from their unit on file at R & M. Again, because of the heavy volume of business, this requirement was not vigorously enforced with respect to uniformed personnel.
Although many of the transactions which Sergeants Greene and Johnson had with R & M involved Mr. Gregg, it is clear that he was not the only clerk who provided them assistance. Much of the Government’s case hinged on suggested irregularities in the handling of the documentation connected with the two sergeants’ transactions, particularly in Mr. Gregg’s failures on certain occasions to forward copies of the executed requisition forms to their unit supply officer. Mr. Gregg’s supervisor testified, however, that such failures were neither irregular nor inconsistent with R & M policy at that time. The same would have been true with respect to any failure to check Sergeant Greene’s authorization. Mr. Gregg was simply a clerk. His duties were to assist R & M customers in locating equipment which they might need and in completing the necessary paperwork. He had neither responsibility nor authority to approve requests, authorize withdrawals, or check the disposition of equipment once it left the R & M area.
The United States also stresses certain oral statements which Mr. Gregg made to the FBI agent investigating the case to the effect that Mr. Gregg suspected that some of the equipment withdrawn by the two sergeants could not be used by- their unit, and that he knew some of it was being traded to other units. Making the dubious assumption that such statements might infer knowledge of a conspiracy, they certainly fall short of demonstrating cooperation in its objectives. As previously noted, mere knowledge or approval of or acquiescence in the objects of a conspiracy are insufficient to make one a conspirator. Jones v. United States, supra. While it may have been advisable for Mr. Gregg to report his suspicions, there was no showing that he had an official responsibility to do so.
Two additional factors further disrupt this already inconclusive web of circumstantial evidence. Sergeant Greene, who was presumably the core figure in the conspiracy, testified as a prosecution witness. Yet nowhere in his more than 150 pages of testimony did he identify Mr. Gregg as a co-conspirator, or mention any manifestation of Mr. Gregg’s agreement to cooperate in an illegal enterprise. To the contrary, we find only evidence that Mr. Gregg provided ordinary service and assistance, nothing beyond that expected of him in his normal course of employment. Secondly, we find no evidence indicating motive for Mr. Gregg’s cooperation. Nowhere does it appear that he received any of the property withdrawn from R & M or any other form of compensation or benefit for his assistance. On the one occasion when Sergeant Greene asked whether he might be interested in a particular camera, Mr. Gregg rejected the offer. Were he in fact involved in any conspiracy, his services were evidently gratuitous.
As we observed with respect to Airman Butler, some manifestation of agreement to cooperate in the methods or ends of a conspiracy is essential for one to become a conspirator. Mere knowledge, even of the conspiracy itself, is insufficient. We find no evidence of Mr. Gregg’s agreement to cooperate or of his actual cooperation; insinuation is certainly not enough. Accordingly we reverse appellant Gregg’s conviction with instructions that the charge against him be dismissed.
No. 73-1363 — Ronald J. Slomkowski:
Appellant Slomkowski was originally named in the conspiracy count, in count 33 charging receipt of stolen Government property in violation of 18 U.S.C. § 641, and in count 41 charging depredation against Government property in violation of 18 U.S.C. § 1361. He was convicted of conspiracy and receipt of stolen Government property, but was acquitted of the depredation charge.
Sergeant Slomkowski is a career Air Force noncommissioned officer who had over eighteen years’ service at the time of trial. In early August 1971, he was transferred to Tinker Air Force Base and assigned as the noncommissioned officer in charge of the Teletype Maintenance Shop of the 1984th Communications Squadron. Shortly after assuming his duties Sergeant Slomkowski noted that the shop lacked certain essential equipment needed in the performance of its mission. His inquiries revealed that some of this equipment would not be available through normal supply channels for over one year. It was then that he learned of the practice of obtaining salvageable equipment and repair parts from R & M, and decided to investigate this as a possible method of meeting the needs of his shop. He obtained the names of several individuals reputedly familiar with the R & M operation, and he eventually met Sergeant Greene at R & M. At their first meeting Sergeant Greene directed Sergeant Slomkowski to certain areas of the R & M facility where he might find the type of equipment which he needed. At a later time Sergeant Greene visited the Teletype Maintenance Shop which had recently been relocated in a larger building. Sergeant Slomkowski explained his equipment needs in greater detail, and Sergeant Greene mentioned that he might have access to equipment of this type at R & M. In any event Sergeant Greene thereafter made several deliveries to the shop. The items which he brought included an industrial vacuum cleaner, an IBM typewriter, several Jeep radios, a wave form monitor, and an electronic test unit housed in a large metal cabinet.
In addition to attacking the sufficiency of the evidence, Sergeant Slomkowski alleges a number of procedural defects in the proceedings below. Should we be required to consider them, several of these procedural defects would themselves necessitate reversal. It is our conclusion, however, that there is indeed insufficient evidence to sustain either conviction, and it is on that basis that we decide this appeal.
The conspiracy count, which named all twenty-three defendants, alleged as dual purposes of the conspiracy the violations of both 18 U.S.C. §§ 641 and 1361. We of course have considered the evidence in the light most favorable to the United States. Even so we cannot find convincing evidence that Sergeant Slomkowski conspired toward either purpose. It is always difficult to evaluate evidence in a conspiracy case, and because of the secretive nature of the crime, the evidence is almost invariably circumstantial. As the Supreme Court has warned, however, caution must be taken that the conviction not be obtained “by piling inference upon inference.” Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674. That admonition, we think, has special relevance in cases such as this, where many defendants, some of whom were not even acquainted, are charged on the basis of varying degrees of participation at various times. Guilt must be determined individually and not merely by association. Our review of the evidence must therefore be especially meticulous. The evidence, when viewed in its entirety, must generate more than a mere suspicion of guilt, and where such evidence is equally consistent with both guilt and innocence the conviction cannot be sustained. Lewis v. United States, 420 F.2d 1089 (10th Cir.); Doty v. United States, 416 F.2d 887 (10th Cir.), vacated on other grounds as to defendant Epps sub nom. Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542; Brumbelow v. United States, 323 F.2d 703 (10th Cir.).
The United States sought to implicate Sergeant Slomkowski in the portion of the conspiracy directed toward converting Government property largely on the inferences to be drawn from two factors: (1) that several items which Sergeant Greene had obtained from R & M were delivered to the maintenance shop with Sergeant Slom-kowski’s knowledge and consent; and (2) that some of these items were later discovered in a search of Sergeant Slom-kowski’s quarters on the base. In addition there was also reference to a transaction involving some drafting chairs which had been obtained from R & M by one of the members of the 1984th. A number of these chairs were later found in the quarters of various individuals, including Sergeant Slomkowski, where they had evidently been repaired and restored for use as bar stools. Aside from the fact that the four stools found in Sergeant Slomkowski’s quarters had never been taken from the base or otherwise treated in a manner inconsistent with an intent eventually to return them, we find the evidence relating to the acquisition of the chairs, their condition, and their accountability to the Air Force so inconclusive as to render impossible any finding of an intended or actual conversion of Government property. Returning then to the two principal factors, we are unable to discern in the circumstances surrounding the deliveries of the equipment to Sergeant Slomkow-ski’s shop, any indication of the knowledge, intent, or agreement necessary to make him a coconspirator. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. Nowhere is there evidence of any discussion or understanding with Sergeant Greene or anyone else pertaining to illegal acquisition of property for personal use or gain. In his testimony Sergeant Greene did not identify Sergeant Slomkowski or any other member of the 1984th as having knowledge of his arrangement with Sergeant Johnson to obtain property for one another’s personal benefit. Nor did he testify to any knowledge on Sergeant Slomkowski’s part that the property was being illegally obtained or converted, nor any agreement with him to obtain or convert equipment illegally. In short, there is nothing inconsistent with Sergeant Slomkowski’s own testimony that he was merely pursuing an alternative method suggested by his superiors of acquiring property needed by his shop. We shall • discuss the circumstances surrounding the discovery of the typewriter, the wave form monitor, and four drafting chairs in Sergeant Slomkows-ki’s quarters in greater detail below. Suffice it to say at this point that those circumstances likewise fail to demonstrate cooperation in any conspiracy to convert Government property.
The second illegal objective of the alleged conspiracy was a depredation against Government property in violation of 18 U.S.C. § 1361. This portion of the charge pertains to the disposition made of certain component modules contained in an electronic test unit which Sergeant Greene delivered to the Teletype Maintenance Shop. There is considerable confusion in the record as to the actual condition of these modules when the test unit was obtained from R & M. A number of the prosecution’s witnesses testified to their apparent good condition. Such testimony, however, was based on casual, visual inspections by witnesses who were not particularly familar with the equipment. It is undisputed that the unit had been classified as electronic scrap by R & M. The requisition document described the unit simply as 200 pounds of class 5800 (scrap) having a unit value of $1.00 per pound. There was also testimony from both the commanding officer and the maintenance superintendent of the 1984th that it was the common and recognized practice with equipment thus classified, so-called “red tag” equipment, to remove any salvageable parts or components and dispose of the remnants without accountability to the Air Force. Such equipment was available for cannibalization or use in any manner which the unit saw fit. In any event there was testimony indicating that Sergeant Slomkowski had directed various individuals in his shop to remove several of the component modules from the test unit cabinet, destroy them, and place the pieces in plastic bags for distribution among various trash receptacles on base. Recognizing that such a manner of disposition appears somewhat suspicious, we nevertheless conclude, in view of the uncertainty as to the status, condition, and accountability of the unit itself, that there was not sufficient demonstration of illegal conduct. It is often observed that in order to be guilty of conspiracy, one must have at least the degree of criminal intent necessary for the commission of the substantive offense. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. We cannot say under the circumstances of this case that the United States has by substantial evidence shown either that the test unit could have been the object of criminal depredation, or that Sergeant Slom-kowski had either the knowledge that destruction of the components might be a criminal act or the intent to commit such an act. We feel the need to note one further defect in the pleading and proof of this aspect of the case. Section 1361 specifies that the damage to the property measures the degree of the offense, not the value of the property as was alleged in the indictment. In order to constitute a felony the damage must exceed $100.00. The requisition document indicated that R & M had estimated the value of the unit as scrap at $1.00 per pound for a total value of about $200.00. We find no evidence that would allow the jury to infer what the amount of damage caused by the destruction of some of the components might have been, or that such damage would have exceeded $100.00.
The conviction of the substantive offense of receiving stolen Government property was based upon the discovery, during a search of Sergeant Slomkowski’s quarters on the base, of an IBM electric typewriter, a wave form monitor, and four drafting chairs, all of which had originally been obtained from R & M. As we mentioned previously, conviction for receiving stolen Government property in violation of 18 U.S.C. § 641 requires proof that the defendant had knowledge that the property was stolen and that he intended to convert it to his own use or gain. We cannot find substantial evidence of either of these elements with respect to Sergeant Slomkowski. If indeed the property was stolen, there is no indication that Sergeant Slomkowski knew it. The testimony is entirely consistent with his belief that the property had been legitimately obtained for use by his unit. The IBM typewriter, when delivered by Sergeant Greene, was equipped with capital letters only. In order to make it serviceable for use at the shop, Sergeant Slomkowski testified that he took the typewriter to his quarters to convert the typeface during his off-duty hours. The typewriter, when discovered, was partially dismantled on a work table. Alongside it was a tool kit containing some assorted typewriter parts. Such evidence, we believe, corroborates Sergeant Slomkowski’s testimony. It certainly fails to provide a clear suggestion of an intent to convert the typewriter to his own use or gain. Similarly Sergeant Slomkowski testified that he had borrowed the wave form monitor to align his son’s stereo. When discovered, the monitor was indeed connected to some stereo components. While perhaps a conversion in a literal sense, we do not believe such a temporary use in these circumstances manifests the underlying criminal intent necessary to commit an offense under section 641. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. There is no evidence tending to show that Sergeant Slomkowski had any other purpose in mind with respect to the monitor. Finally, we have already noted the uncertainty surrounding the drafting chairs. We find no evidence that Sergeant Slomkowski believed other than that the chairs were surplus unaccountable property, or that he took them other than as an alternative to their being discarded as refuse. To this we would also add that it was not uncommon for military personnel to borrow furnishings from the Air Force for use in their quarters, such furnishings to be returned upon their departure from the base.
We are unable to conclude that the mere location of these various items in Sergeant Siomkowski’s military quarters, when considered in light of Sergeant Slomkowski’s duty assignment and the circumstances under which they were discovered, can' support a conviction for receiving stolen Government property in violation of section 641.
We again emphasize that, while we must review the evidence in the light most favorable to the prosecution, when the evidence so viewed fails to generate more than mere suspicion or insinuation of guilt, the conviction cannot be sustained. The standard of proof required in criminal cases is a cornerstone of constitutional due process. In a case such as this one, involving numerous defendants, multiple transactions, and varying degrees of participation, the task of sifting the evidence relating to each defendant becomes particularly difficult, and a special danger exists that the degree of proof required for conviction might be relaxed. We shall be particularly vigilant in such cases to see that such a relaxation does not occur and that conviction is not predicated upon suspicion. See Doty v. United States, supra. Accordingly, convictions under both counts are reversed with instructions that all charges against Sergeant Slomkowski be dismissed.
No. 73-1362 — Wayne Reinke:
Appellant Reinke was named in the conspiracy count and in Count 31 charging receipt and conversion of stolen Government property in violation of 18 U.S.C. § 641. He was convicted of both charges. In his brief Mr. Reinke alleges twenty-five grounds for reversal. Among these is the assertion that there is insufficient evidence to support the convictions. Unlike the other three appeals, however, we are not prepared to find the evidence against Mr. Reinke is inadequate. Nevertheless, we reverse his convictions on the basis of a fundamental procedural error which has tainted the proceedings against him.
As we have noted, all twenty-three original defendants were named in count 1 of the indictment charging a conspiracy to commit offenses under 18 U.S.C. §§ 641 and 1361. It has been the United States’ position both at trial and on this appeal that the numerous transactions involved in this case can be incorporated into one conspiracy to which all twenty-three defendants were parties. The evidence does not support that position. If indeed the various transactions can be correlated at all, it is in no fewer than three distinct possible conspiracies.
By his own testimony Sergeant Greene indicated that he and Sergeant Johnson had an understanding between themselves relating to the acquisition of property from R & M for one another’s personal use. According to Sergeant Greene, most of the members of his section of the 3d Mobile were aware of this understanding. Whether they were parties to it is questionable. In any event Sergeants Greene and Johnson were responsible for obtaining the majority of the items from R & M which figure in this action. They evidently kept many of these items for themselves. Others, which they could not use, were taken either to the 3d Mobile or the Teletype Maintenance Shop of the 1984th, where some of them eventually came into the possession of various other defendants. Some of these defendants participated in only one such transaction. With the exception of Sergeants Greene and Johnson, none of the 3d Mobile defendants apparently had any significant contact with defendants from the 1984th. Nevertheless, in view of the understanding between Sergeants Greene and Johnson, we will consider the transactions in which they participated as arguably related in one possible conspiracy.
The second possible conspiracy focuses on the destruction of the component modules in the test unit which had been delivered to the 1984th. We have already commented on the considerable uncertainty as to the status, condition, and accountability of the unit. Those issues aside, however, were the unit a possible target of criminal depredation and had Sergeant Slomkowski and the other members of the 1984th conspired toward such an objective, we would still find it impossible to merge such a conspiracy with the supposed conspiracy involving Sergeants Greene and Johnson. The decision to dispose of the modules was evidently not made until after the unit had been in the 1984th shop for some time. It is unlikely that most of the 3d Mobile defendants knew of the existence of the unit. It is inconceivable that they planned or anticipated its destruction. The mere fact that Sergeant Greene had obtained the unit from R & M and delivered it to the 1984th is simply too tenuous a thread to link its eventual destruction with the other transactions under consideration.
Finally, there are the events pertaining to the drafting chairs. We have noted the uncertainty enshrouding this incident. At most, however, it appears that the chairs were obtained from R & M by Sergeant Lopez, a member of the 1984th, and distributed through him to various other members of that unit. Other than their common source no link was established between the acquisition of the chairs and the acquisition of the other items with which we are concerned. Indeed, it appears that not even Sergeant Greene knew of this transaction.
We are thus confronted with a situation in which one general conspiracy has been alleged, while the evidence can support the existence of no fewer than three. Although some of the parties may have been involved in more than one of these combinations, no one such combination embraced the objectives of the others. Such a variance between the indictment and the evidence poses problems on at least two levels. Initially, of course, it requires a determination whether more than harmless error has resulted. We must conclude that it has. The factors which necessitate this conclusion were exhaustively discussed by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. We need not elaborate on them here. We add only that the rationale of that case is made more forceful here by the presence of distinctly different purposes in at least two of the possible conspiracies. In Kotteakos the various conspiracies, although involving different defendants, followed similar patterns and had as their objectives the violation of the same statute. Here, however, two of the supposed conspiracies were directed at obtaining and converting Government property, while the third was aimed at destroying Government property. Thus the burden on a defendant whose participation was limited to one of the conversion conspiracies, and yet who must defend himself against charges of conspiring also to commit depredation, becomes even more oppressive.
Having concluded that the variance is material, an appropriate remedy must now be considered. Two alternatives exist. The first would be the use of an instruction alerting the jurors to the possibility of multiple conspiracies and admonishing them to separate and distinguish such conspiracies and the defendants involved therein. Such an instruction was held appropriate by the Seventh Circuit in the case of United States v. Varelli, 407 F.2d 735 (7th Cir.), in a situation where joinder of defendants and offenses was otherwise proper. The second alternative is the severance of the various conspiracies and the defendants allegedly involved therein for separate trial. This was the procedure held necessary in the Kotteakos case. The point at which an instruction no longer provides adequate protection and a severance must be granted is incapable of precise location. It must be determined in light of the facts of the particular case and with reference to the established rules otherwise governing joinder and severance.
Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in the same indictment “if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 14, on the other hand, provides generally that severance or other appropriate relief may be granted if it appears that a defendant or the Government is prejudiced by joinder of either defendants or offenses. Ordinarily, severance is a form of relief resting within the sound discretion of the trial court, and unless abused that discretion will not be questioned on appeal. See, for example, Baker v. United States, 329 F.2d 786 (10th Cir.), cert, denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56. However, when joinder of either defendants or offenses causes the actual or threatened deprivation of a fair trial, severance is no longer discretionary. As the Supreme Court observed in Kotteakos:
“ . . . Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass. Wholly different is it with those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group.
“Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials. About them we dare not become careless or complacent when that fashion has become rampant over the earth.”
We conclude, as did the Supreme Court, that here “toleration went too far.” The United States has attempted to merge what, if anything, should be at least three separate, distinct conspiracies into one. Twenty-three defendants were named in the indictment. Different combinations of these defendants were involved in nearly every transaction which figured in the trial. Many of the defendants did not know one another prior to trial. Some of the members of the 3d Mobile may have assisted Sergeant Greene in obtaining and converting Government property from R & M. It is impossible, however, upon the evidence presented at trial, to link any of them with the destruction of an electronic test unit by members of another organization located elsewhere on the base. Sergeant Greene, himself, testified that he had not known of the destruction of the unit. There is no evidence that appellant Reinke ever knew the unit existed. Yet because Mr. Reinke may have shared mutual acquaintances with those who collaborated in the destruction of the unit, he was forced to acquit himself of their actions. One can only guess whether he was also forced to share their guilt. We can envision circumstances where what has been alleged as one conspiracy is disclosed at trial to be several repetitive conspiracies in which there is substantial identity of parties and method. The possible conspiracy concentrating on Sergeants Greene and Johnson may prove to be an example. In such circumstances a curative instruction may well bridge the gap between pleading and proof. Such is not the case here. Mr. Reinke, whose participation was limited to his association with Sergeant Greene and the other members of the 3d Mobile, should have been tried only on the charges arising from that association. The possibility that the issue of his guilt was confused with the guilt of other defendants involved in unrelated transactions at different times and in different places is too great. His convictions must therefore be reversed, and the case is remanded for a new trial.
Because of the possibility that appellant Reinke will again be tried on some of these charges, we shall also comment on some matters pertaining to the use as evidence of certain statements which he made to Government investigators and certain items which were discovered in his home during the investigation
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_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellee, v. James William OATES, Appellant.
No. 8802.
United States Court of Appeals Fourth Circuit.
Argued Jan. 7, 1963.
Decided March 11, 1963.
James W. Oates, pro se.
William Medford, U. S. Atty., and Robert J. Robinson, Asst. U. S. Atty., on brief, for appellee.
Before SOPER, BOREMAN and J. SPENCER BELL, Circuit Judges.
BOREMAN, Circuit Judge.
James William Oates prosecutes this appeal from an order denying a motion to vacate his sentence under 28 U.S.C.A. § 2255.
On April 18, 1961, Oates entered his plea of guilty in the United States District Court for the Western District of North Carolina to a two-count indictment, one count charging him with obtaining property, an automobile, by means of false pretense in violation of 22 District of Columbia Code § 1301, and the other count charging him with transportation in interstate commerce of a stolen motor vehicle, knowing the same to have been stolen, in violation of 18 U.S.C.A. § 2312. Involved in each count is the same motor vehicle.
The indictment was returned by a grand jury in the District Court of the United States for the District of Columbia, at which time Oates was in custody of the North Carolina Prison Department, he having been convicted of another offense. Oates was visited by his own counsel and the procedure under Rule 20 of the Rules of Criminal Procedure was explained to him. By his consent and with full understanding, Oates was brought into the court below upon a writ of habeas corpus ad prosequendum where he filed a Consent to Transfer under said Rule 20 and entered his plea of guilty to the District of Columbia indictment.
Following Oates’ plea the court conducted a hearing, referred to as a “trial”, at which evidence relating to the matters charged in the indictment was presented on behalf of the Government and on behalf of the defendant. Oates was then represented by legal counsel of his own choice. The District Court held a hearing on the motion to vacate sentence and filed written findings of fact and conclusions of law.
The findings of fact, fully supported by the record and which we accept, show that Oates had, on February 16,1960, obtained possession of the automobile mentioned in the indictment from an automobile agency in Washington, D. C., by means of certain false pretenses. Whether or not title to the automobile was also transferred to Oates is not authoritatively revealed either by the findings or by anything contained in the record. The automobile was transported by Oates in interstate commerce and was subsequently recovered in North Carolina where Oates was arrested on March 31,1960.
We find no error in the conclusions of law stated by the District Court although some elaboration and amplification may be warranted. The District Court stated: “It is well to point out here that obtaining property under false pretenses is larceny.” No authority was cited to support this conclusion.
Although, in a situation where bare possession of the subject property is transferred to the accused, the obtaining of such property by false pretenses may be larceny at common law, this is not true where the owner voluntarily parted with the title as well as the possession of such property, not expecting it to be returned to him or disposed of in accordance with his direction. Murphy v. United States, 206 F.2d 571 (5th Cir., 1953); Ackerson v. United States, 185 F.2d 485 (8th Cir., 1950); Hite v. United States, 168 F.2d 973 (10th Cir., 1948). As before stated, the question whether appellant obtained title to the automobile here involved or merely bare possession is not satisfactorily answered. However, it is now well settled that the word “stolen”, as used in the National Motor Vehicle Theft Act (18 U.S.C.A. § 2312) making it a crime to transport in interstate commerce a motor vehicle “knowing the same to have been stolen”, is not connotatively limited to circumstances constituting common law larceny, but includes all takings of motor vehicles with criminal intent to deprive the rightful owner of the rights and benefits of ownership, and under circumstances where a vehicle is obtained by false pretenses. United States v. Turley, 352 U. S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); Miller v. United States, 261 F. 2d 546 (4th Cir., 1958); Boone v. United States, 235 F.2d 939 (4th Cir., 1956). It is, therefore, immaterial whether obtaining the automobile by means of false pretenses in the instant ease constituted larceny.
Oates contended that he was subjected to double jeopardy and, although it is difficult to follow his claim of error, it appears that he argues that each count of the indictment charges the same offense and that such constitutes double jeopardy. We fully agree with the District Court that the contention is without merit. An examination of the two counts clearly shows that each charges a separate offense. Obtaining a motor vehicle by means of false pretenses is a violation of the District of Columbia Code, and transporting a motor vehicle in interstate commerce knowing it to have been stolen is a violation of a section of the Criminal Code of the United States. The offenses are separate and distinct, even though the same vehicle is the subject of both acts. The offenses involve different elements and require different proof. The first count requires proof of facts not necessary to be proved under the second count, and the second count requires proof of facts not necessary to be proved under the first count. Prosecution and punishment for both offenses may be sustained without constituting double jeopardy. See Block-burger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_origin
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
PASADENA BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. GOODSON-TODMAN BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. Charles W. JOBBINS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. VOICE IN PASADENA, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation, Intervenor. PACIFIC FINE MUSIC, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation and Voice in Pasadena, Inc., Intervenors. ORANGE RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Western Broadcasting Corporation, Intervenor.
Nos. 74-1002, 74-1012, 74-1019, 74-1033, 74-1034 and 74-1454.
United States Court of Appeals, District of Columbia Circuit.
Argued June 5, 1975.
Decided May 12, 1977.
Reed Miller, Washington, D. C., for appellant in No. 74-1012.
James A. Gammon, Washington, D. C., with whom John M. Duty, Washington, D. C., was on the brief, for appellant in No. 74-1019.
Gerald S. Rourke, Washington, D. C., with whom Edward P. Morgan, Washington, D. C., was on the brief, for appellant in No. 74-1454.
Gregory M. Christopher, Counsel, F. C. C., Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., Washington, D. C., were on the brief, for appel-lee. John W. Pettit, Gen. Counsel, Washington, D. C., at the time the record was filed, Philip V. Permut and Joseph Volpe, III, Counsel, F. C. C., Washington, D. C., also entered appearances for appellee.
Thomas H. Wall, L. Adrian Roberts and John H. Marple, Washington, D. C., were on the brief for appellant in No. 74-1002.
Frank U. Fletcher and Edward F. Kene-han, Washington, D. C., were on the brief for appellant in No. 74-1034.
Joseph M. Kittner, Washington, D. C., with whom James A. McKenna, Jr., Thomas N. Frohock and Steven A. Lerman, Washington, D. C., were on the brief, for interve-nor Western Broadcasting Corporation.
Joseph F. Hennessey, Lee G. Lovett and Robert M. Booth, Jr., Washington, D. C., entered appearances for appellant in No. 74-1033 and for intervenor Voice in Pasadena.
Before ROBINSON and MacKINNON, Circuit Judges, and ROBERT H. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia.
Opinion for the Court filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge.
Sitting by designation pursuant to 28 U.S.C. § 292(d) (1970).
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
In March, 1962, the Federal Communications Commission disqualified its licensee broadcasting from Pasadena, California, on the 1110 kHz (AM) frequency. Interim authorization was issued lest the channel fall silent, and the Commission invited applications from would-be successors to the frequency. The ensuing proceeding generated no fewer than eight opinions during its twelve-year administrative lifespan. The hearing examiner, the Review Board and the Commission each favored a different applicant, and for different reasons. Although each struggled valiantly with the bevy of complex issues presented, the net result was error, and so we reverse.
I
Of those responding to the Commission’s call for applications, seven are parties to these appeals. Four of these proposed service from facilities in Pasadena, and one each from Whittier, Fullerton and the Costa Mesa-Newport area. Pasadena borders on Los Angeles; the other communities lie roughly on a line from Pasadena south-southeasterly to Newport, which is about twenty miles from the Los Angeles city limits and about forty miles from Pasadena. The Newport applicant proposed one-kilowatt daytime service, only while the rest — the “high-power” applicants — contemplated operation on the same basis as the prior licensee: 50 kilowatts daytime and 10 kilowatts nighttime, unlimited service.
No useful purpose would be served by blueprinting every aspect of the Commission’s architectonics. The keystone of the decisional edifice it constructed is the collective view of Section 307(b) of the Communications Act, which provides:
(b) In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each-of the same.
The Commission’s Review Board .disqualified the Newport applicant because his proposal would have provided daytime service to only about three million people, wherer, as all of the high-power proposals would have reached over five million people day and night. Thus the Newport submission was deemed to run afoul of the “efficiency” mandate of the section, which at each level of the administrative process was read as a direction to allot the frequency “so as to provide service to the greatest population and area possible” after such matters as interference had been taken' into account. That Newport had at that time no AM transmission facility — a factor heavily to be weighed in Section 307(b) decisions — gave it no advantage in the Review Board’s eyes, for the same was true of the other commu-, nities represented in the proceeding. Thus considerations of fairness and equity in the allocation of the spectrum were not brought into play, and the greater efficiency of the high-power proposals led the Review Board to prefer all of them to the Newport aspirant.
Had matters ended there, our task would have differed significantly. As it was, the Commission sustained the Review Board’s denial as to Newport without further ado. but went on to request argument solely from the high-power candidates addressed to the theory on which the Review Board had chosen among them. In the Commission’s hands, all the high-power plans became designs for transmission service for the entire Los Angeles-Long Beach metropolitan area rather than for any one community therein. Once that transformation eliminated the necessity of choosing among Fullerton, Pasadena and Whittier on the basis of need for additional service, the Commission, like the Review Board, found dispositive the question of greatest efficiency of the applicants’ proposals and, again like the Review Board, did not resort to standard comparative issues in reaching its
decision. The upshot is that the Commission awarded the 1110 kHz frequency to Los Angeles, which it found to be served by over a score of AM stations, twelve of which specify Los Angeles as the city of license, over Newport, to which no AM transmission service is specifically dedicated.
II
In support of this disposition, the Commission considered only the larger population to be served by the “Los Angeles” applications than by that for Newport. A finding on that score is, however, merely tangential to the congressional imperative to assure “fair, efficient, and equitable” distribution of the broadcast band “among the several States and communities.” Congress was, of course, concerned that radio service extend to as large an audience as possible, but that is not to say that the license is to be awarded to the applicant who would encompass the most listeners within the range of his signal. If that were so, all frequencies likely would be assigned - sooner or later to’ powerful stations in major population centers — precisely the result Congress meant to forestall by means of Séction 307(b) as eveh'cursory examination of its ancestry indicates.
Concentration of radio service in the big city was a problem at the time Section 307(b) was first enacted as part of the Radio Act of 1927, and its purpose was to ehjoin “an equitable distribution of stations over the entire country.” Many feared that the standard was tóo prótéán, however, and that apprehension was fanned by the omission from the bill emerging from conference-of the requirement in the Senate and House bills of “due consideration of the right of each state to have allocated to it or to some [entity] within it, the use of a wave length. . . ” Vigorous efforts to reinsert that language failed, but the next year brought an amendment specifying-that the Commission allocate broadcasting service fdrmulaically according to population to each state and among five “zones” into which the Nation was divided.
Unfortunately, the mechanical formula thereby imposed resulted in “the concentration of the use of frequencies in centers of populatión, and the restriction of facilities in sparsely populated states, even though interference consideration [s/c] would permit the operation of one or more additional stations.” At the Commission’s behest, therefore, Section 307(b) was substantially restored to its original form — in which it remains. The purpose of this reversion was twofold: to loose the Commission from the fetters imposed by the quota system, and to allow “sparsely populated” areas, especially in the West and Middle West, to “securfe] the facilities we ought to have to meet' the demands of that section of the country.”
Section 30.7(b)’s emphasis on wide dispersion of radio transmission service gave rise long ago to the rule that “when mutually exclusive applicants seek authority to serve different communities, the Commission first determines which community has the greater need for additional services and then determine[s] which applicant can best serve that community’s need.” Local transmission service bestows such important benefits that we have consistently interpreted Section 307(b) virtually to ensure an applicant for first local service preference over one who proposes merely to complement preexisting local operations. In the wake of this body of precedent, the Commission makes no showing that it did compare Los Angeles’ need for still another AM station with Newport’s need for its first; nor does it satisfactorily distinguish its action here from that on previous occasions in finding fairness and equity to substantially favor first local service. These omissions render its order infirm.
III
One other matter deserves mention. The Commission found the engineering and siting specifications of every high-power “Los Angeles area” submission “deficient in some respect,” chiefly because each proposed operation would produce objectionable interference with the signals of one or more other radio stations. The absence of a technically-qualified applicant motivated the Commission to an exhaustive consideration of which plan permitted the “most efficient use of the 1110 kHz frequency in the southern California area” — shorthand for saying that the most auditors should, in the aggregate, be served. At the same time, the Commission totally disregarded the standard comparative issues that purport to test for the applicant that most closely conforms with the desired industry structure and the proposal that would deliver the best practicable service. Surprised by this apparent departure from long-settled precedent, we requested that the Commission further elucidate its elision of the comparative issues;
The Commission’s response taxes us with an “apparent misunderstanding” that its focus on technical questions is traceable to Section 307(b)’s “efficiency” criterion. It at once concedes that efficiency in this sense “may be considered as a comparative issue,” and postulates that “where ‘efficiency’ considerations under 307(b) are dis-positive, comparative issues need not be reached.” To hold otherwise, the Commission continues, “would be to suggest that even, in the case of flagrantly inefficient proposals and marked violations of our technical ’ standards, a full comparative hearing would be mandated . . . .” Finally, it suggests that whatever may obtain in the Usual case, the disparity here between the victor's technical presentation and those of the vanquished is so vast that we should proceed as if there were only one qualified candidate.
Underlying the agency’s apologia is the premise that Section 307(b), with its requirement of “fair, efficient, and equitable” spectrum allocation, is a talisman whereby the rigors of a comparative hearing may be avoided if only grounds for decision can be found that smack of “efficiency” — or, presumably,‘“fairness” or “equity.” We reject such a notion. To be sure, courts have countenanced rules dispensing with full-dress hearings on proposals that are, in the expert eyes of the Commission, dramatically wasteful or inequitable. One of many is the Section 307(b) policy, sustained in FCC v. Allentown Broadcasting Company, of allocating transmission service among communities without reference to the relative qualities of their respective champions,, lest “the needs of the community” be “subordinated to the ability of an applicant for another locality.” But we do not think that an aspirant within the scope of the rules established by the Commission may, ad hoc, be refused a comparative hearing merely because a rival appears who is somewhat more “efficient.” After all, his other attributes might show that the satisfaction accorded to those who will listen counterbalances, as far as the public interest is concerned, the fact that fewer could hear.
In the case at bar, of course, there is no surfeit of qualified candidates for the 1110 kHz frequency. Nor do we face a situation like those in which unwaived violations of the Commission’s rules narrow the field to but one qualified contestant. All were in violation, and so presumptively their applications were not efficient nor otherwise in the public interest; the Commission felt called upon to decide to whom, if anyone, a waiver was to be granted. We find ourselves at a loss to understand why the Commission should have disdained guidance from the other applicant characteristics normally explored in comparative proceedings. Should the Commission be forced to a similar decision on remand, it will be well advised to seek enlightenment from that quarter.
Reversed and remanded.
. Eleven Ten Broadcasting Co., 32 F.C.C. 706, reconsideration denied, 33 F.C.C. 92, aff’d sub nom. Immaculate Conception Church v. FCC, 116 U.S.App.D.C. 73, 320 F.2d 795, cert, denied, 375 U.S. 904, 84 S.Ct. 196, 11 L.Ed.2d 145 (1963) .
. Oak Knoll Broadcasting Corp., 45 F.C.C. 1571 (1964) .
. Charles W. Jobbins, 29 F.C.C.2d 609 (examiner’s decision 1969) hereinafter cited “Initial Decision Charles W. Jobbins, 29 F.C.C.2d 533 (Rev.Bd.1971) hereinafter cited “Review Board Decision Charles W. Jobbins, 29 F.C.C.2d 849 (Rev.Bd.1971); Charles W. Jobbins, 33 F.C. C.2d 821 (1972); Charles W. Jobbins, 39 F.C. C.2d 595 (1973); Goodson-Todman Broadcasting, Inc., 45 F.C.C.2d 573 (1973) hereinafter cited “Final Decision ”, reconsideration denied, 46 F,C.C.2d 533 and 49 F.C.C.2d 242 (1974).
. Appellants Pasadena Broadcasting Company; Voice in Pasadena, Inc.; Goodson-Todman Broadcasting, Inc.; and intervenor Western Broadcasting Company—the Commission’s choice.
. Appellant Pacific Fine Music, Inc.
. Appellant Orange Radio, Inc.
. Appellant Charles W. Jobbins.
. Review Board Decision, supra note 3, 29 F.C. C.2d at 534.
. 47 U.S.C. § 307(b) (1970).
. Initial Decision, supra note 3, 29 F.C.C.2d at 663.
. Compare id. at 665-675 with Final Decision, supra note 3, 45 F.C.C.2d at 593 n.5.
. The Review Board, which the Commission sustained, noted two other defects in the Newport application but, in view of the treatment accorded to high-power applicants who shared these deficiencies, we cannot presume that the Commission regarded them as dispositive. One indisputably legitimate concern of the Commission was protecting the international allocation of the frequency to the United States by virtue of the penetration of the Mexican border by the prior licensee’s signal. See Review Board Decision, supra note 3, 29 F.C.C.2d at 540-541. The Newport proposal, specifying daytime service only, could only partially conserve this advantage to the United States. Id. at 543. Yet another applicant whose signal penetrated .the border neither by night nor by day was assessed only a “slight demerit” therefor. Final Decision, supra note 3, 45 F.C.C.2d at 594.
A second defect in the Newport proposal was uncovered when the Hearing Examiner found that it unacceptably overlapped the contours of a preexisting San Diego station. Initial Decision, supra note 3, 29 F.C.C.2d at 760. The Review Board, taking official notice of an intervening change in the San Diego station’s operations, discounted the importance of the overlap, Review Board Decision, supra note 3, 29 F.C.C.2d at 543 n.16, which led it to assume that the Newport application comported with-engineering standards. Id. Though, with respect to other candidates, the Commission’s final decision rejected this apparently unobjectionable reference to matters of public record, Final Decision, supra note 3, 45 F.C.C.2d at 591, it attributed but “minor significance” to the other, albeit less egregious, instances of the now-hypothetical overlap. Id. at 594. We are loathe, therefore, to speculate on what the Commission’s posture would be once its § 307(b) error with respect to Newport was brought to light. Additionally, since these proceedings must in any event be remanded, to the Commission for a fresh look, we find it unnecessary to pass upon its refusal to take official notice of this and other matters. No rationale now appears for deciding these already, hoary cases on obviously outmoded factual findings.
. See, e. g., Final Decision, supra note 3, 45 F.C.C.2d at 593 n.36, quoting Grand Haven Broadcasting Co., 14 F.C.C. 1351, 1366 (1950); Review Board Decision, supra,note 3, 29 F.C. C.2d at 540 et passim; Initial Decision, supra note 3, 29 F.C.C.2d at 764-766.
. E. g., Final Decision, supra note 3, 45 F.C. C.2d at 593. Cf. Review Board Decision, supra note 3, 29 F.C.C.2d at 542-543.
. See note 38 infra and accompanying text.
. Review Board Decision, supra note 3, 29 F.C.C.2d at 544. Indeed, in reaching its decision in favor of the Fullerton applicant, the Review Board relied upon that city’s lack of a nighttime aural transmission facility. Id. at 549.
. Charles W. Jobbins, supra note 3, 39 F.C. C.2d at 598.
. Id.
. See Final Decision, supra note 3, 45 F.C. C.2d at 579-580:
[W]e conclude that no Section 307(b) choice may be made under the unique circumstances of this case among the communities of Pasadena, Fullerton, and Whittier. . . .
We agree with the [administrative law judge’s] . . . characterization of the facility under consideration as a “metropolitan area” service rather than one for a specified community. . . . [T]he mere fact that a studio may be located in one community rather than another is not entitled to disposi-tive consideration.
(footnote omitted).
We are asked to reverse this determination as contrary to the Commission’s Policy Statement on Section 307(b) Considerations for Standard Broadcast Facilities Involving Suburban Communities, 2 F.C.C.2d 190 (1965). In view of our disposition of these appeals, we do not pass on the propriety of treating these communities as a homogeneous part of Los Angeles, nor on the Commission’s curious distinction between that and the situations contemplated by the Policy Statement. Final Decision, supra note 3, 45 F.C.C.2d at 578-580.
. Id., 45 F.C.C.2d at 593 & n.36.
. See Initial Decision, supra note 3, 29 F.C. C.2d at 732-733.
. See text accompanying note 16 supra.
. See, e. g., Review Board Decision, supra note 3, 29 F.C.C.2d at 541-546. But. cf. note 12 supra.
. See text supra at note 9.
. That may in fact be seen as the Commission’s raison d’etre. See 47 U.S.C. § 151 (1970).
. See Television Corp. of Michigan, Inc. v. FCC, 111 U.S.App.D.C. 101, 103, 294 F.2d 730, 732 (1961) (disapproving the Commission’s “premise that more service to more people— even to a group already well served — is prima facie desirable”); Easton Publishing Co. v. FCC, 85 U.S.App.D.C. 33, 38, 175 F.2d 344, 349 (1949) (“difference in size does not necessarily spell a difference in need”). Cf. Northeast Broadcasting, Inc. v. FCC, 130 U.S.App.D.C. 278, 289, 400 F.2d 749, 760 (1968) (concurring opinion).
. Pub.L. No. 69-632, ch. 169, § 9, 44 Stat. 1166.
. 67 Cong.Rec. 5479 (1926). See 67 Cong.Rec. 5564 (1926) (remarks of Representative Davis).
. 67 Cong.Rec. 12355 (1926) (remarks of Senator Cummins).
. 68 Cong.Rec. 2557 (1927).
. See 68 Cong.Rec. 2568-2575, 3031-3033, 3120, 3123, 3258-3259 (1927).
. Act of Mar. 28, 1928, Pub.L. No. 70-195, 45 Stat. 373. See, e. g., General Elec. Co. v. Federal Radio Comm’n, 58 App.D.C. 386, 387-388, 31 F.2d 630, 632-633 (1929), cert, dismissed, 281 U.S. 464, 470, 50 S.Ct. 389, 391, 74 L.Ed. 969, 972 (1930). Cf. Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 278-281, 53 S.Ct. 627, 633-634, 77 L.Ed. 1166, 1174-1176 (1933); WHB Broadcasting Co. v. Federal Radio Comm’n, 61 App.D.C. 14, 15, 56 F.2d 311, 312 (1932). See Note, 21 Va.L.Rev. 318, 322 (1935).
. Letter on S.2243 from Chairman of FCC, 80 Cong.Rec. 6032 (1936); H.R.Rep. No. 2589, 74th Cong., 2d Sess. 3 (1936); S.Rep. No. 1588, 74th Cong., 2d Sess. 3 (1936).
. Act of June 5, 1936, ch. 511, Pub.L. No. 74-652, 49 Stat. 1475, codified as 47 U.S.C. . § 307(b) (1970).
. 80 Cong.Rec. 6032 (1936). See H.R.Rep. No. 2589, supra note 33, at 3; S.Rep. No. 1588, supra note 33, at 3.
. FCC v. Allentown Broadcasting Co., 349 U.S. 358, 361, 75 S.Ct. 855, 858, 99 L.Ed. 1147, - 1153 (1955).
. Jackson Broadcasting & Television Corp. v. FCC, 108 U.S.App.D.C. 128, 129 n.3, 280 F.2d 676, 677 n.3 (1960). Cf. Jupiter Assoc., Inc. v. FCC, 136 U.S.App.D.C. 266, 272, 420 F.2d 108, 114 (1969); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 239, 230 F.2d 204, 207, cert, denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956).
. See, e. g., Fort Harrison Telecasting Corp. v. FCC, 116 U.S.App.D.C. 347, 350, 324 F.2d 379, 382 (1963), cert, denied, 376 U.S. 915, 84 S.Ct. 665, 11 L.Ed.2d 611 (1964); The Price Broadcasters, Inc. v. FCC, 295 F.2d 166, 168-169, 111 U.S.App.D.C. 179, 181-182 (1961); Interstate Broadcasting Co. v. FCC, 105 U.S.App.D.C. 224, 228-229, 265 F.2d 598, 602-603 (1959); Easton Publishing Co. v. FCC, supra note 26, 85 U.S.App.D.C. at 35, 175 F.2d at 346. Cf. Fidelity Television, Inc. v. FCC, 169 U.S.App. D.C. 225, 235, 515 F.2d 684, 694, cert, denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975) ; Northeast Broadcasting, Inc. v. FCC, supra note 26, 130 U.S.App.D.C. at 284, 400 F.2d at 755. See generally, Anthony, Towards Simplicity and Rationality in Comparative Broadcast Licensing Proceedings, 24 Stan.L. Rev. 1, 85-87 (1970); Comment, Comparing the Incomparable: Towards a Structural Model for FCC Comparative Broadcast License Renewal Hearings, 43 U.Chi.L.Rev. 573, 600-601 (1976).
. See authorities cited supra at note 38. The Commission asserts that preexisting broadcast stations can be maintained even though their continuance does not satisfy the strictures of § 307(b). See, e. g., Final Decision, supra note 3, 45 F.C.C.2d at 577-578; Review Board Decision, supra note 3, 29 F.C.C.2d at 538-539. This contention is, we think, belied by the face of the statute, which applies not only to changes in the structure of spectrum allocation, such as grants of new licenses or modifications, but to license renewals as well. Cf. e. g., Fidelity Television, Inc. v. FCC, supra note 38, 169 U.S.App.D.C. at 235, 515 F.2d at 694. Our inference is buttressed by the section’s adjuration that the Commission consider the propriety of allocation “when and insofar as there is demand” for service. 47 U.S.C. § 307(b) (1970). Satisfaction of these statutory commands is not, nor ought it to be, a one-time thing, for the balance of demand for service will shift among communities over time. Admittedly these cases are distinguishable from those in which we have held that “where cities are competing for channel allocation, a temporary allocation to one city rather than another should not operate to create vested rights.” Fort Harrison Telecasting Corp. v. FCC, supra note 38, 116 U.S.App.D.C. at 354, 324 F.2d at 386. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 30-31, 365 F.2d 962, 963-964 (1966). Cf. Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 101, 274 F.2d 753, 759 (1960). It is clear, moreover, that the Commission should not be required to compromise its considered judgment as to what distribution is proper every time someone is dissatisfied with existing allocations. Cf. Logansport Broadcasting Corp. v. United States, 93 U.S. App.D.C. 342, 345-346, 210 F.2d 24, 27-28 (1954). On the other hand, the Commission is required to reasonably respond to changing conditions and here, at least, where the Commission had designated the § 307(b) issue, see Initial Decision, supra note 3, 29 F.C.C.2d at 612-614, it may not cleave to the status quo without a legally acceptable justification.
. Final Decision, supra note 3, 45 F.C.C.2d at 581.
. See, e. g., id. at 582-593.
. Id. at 595.
. See id. at 593 & nn. 35-36.
. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-398 (1965). See, e. g., Star Television, Inc. v. FCC, 135 U.S.App. D.C. 71, 74, 416 F.2d 1086, 1089, cert, denied, 396 U.S. 888, 90 S.Ct. 171, 24 L.Ed.2d 163 (1969); Anthony, supra note 38, 24 Stan.L.Rev. at 27-33. Cf. Fidelity Television, Inc. v. FCC, supra note 38, 169 U.S.App.D.C. at 240, 515 F.2d at 710 (Bazelon, C. J., dissenting from denial of rehearing en banc); Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 43-45, 447 F.2d 1201, 1212-1214 (1971), clarified, 149 U.S.App.D.C. 419, 463 F.2d 822 (1972).
. See, e. g., Policy Statement on Comparative Broadcast Hearings, supra note 44, 1 F.C.C.2d at 398 & n.12; Ashbacker Radio Corp. v. FCC, 326 U.S; 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945); Citizens Communications Center v. FCC, supra note 44; Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert, denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971); Johnston Broadcasting Co. v. FCC, 85 U.S
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_r_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.
Dorothy LEW, Appellant, v. James A. SUFFRIDGE et al., Appellees.
No. 19974.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 18, 1966.
Decided Nov. 8, 1966.
Petition for Rehearing Denied Dec. 9, 1966.
Mr. Walter E. Gillcrist, Washington, D. C., with whom Mr. Edward L. Carey, Washington, D. C., was on the brief, for appellant.
Mr. S. G. Lippman, Washington, D. C., with whom Mr. Tim Bornstein, Washington, D. C., was on the brief, for appellees.
Before Fahy, Danaher and Leventhal, Circuit Judges.
FAHY, Circuit Judge.
In the District Court Dorothy Lew, appellant, widow of Abraham Lew, sued appellees as trustees of the Pension Board of the Retail Clerks International Association Retirement Plan for Employees. The Association is a labor organization.
Dorothy Lew’s husband died October 1, 1958. At the time of his death he was business manager and chief executive officer of the Retail Clerks Union, Local No. 21, of Newark, New Jersey, a Local of the International Association. His widow claimed that from the inception in 1949 of the Retirement Plan administered by appellees until his death Abraham Lew had been a participant in the Plan, had performed all necessary requirements for retirement eligibility under the Plan, and that upon his death, under the terms of the Plan she became eligible for a pension. Her application was denied by appellees, hence her suit against them.
On the undisputed facts before the District Court appellant and appellees moved for summary judgment. The motion of appellees was granted on the ground that the action was barred by the three-years statute of limitations set forth in D.C. Code § 12-301 (Supp. V, 1966).
Appellant contends not only that the action was brought within three years of appellee’s final denial of her claim, but also that she seeks equitable relief, with the consequence that laches rather than limitations is the criterion by which to judge a defense based on untimeliness of resort to the court. She goes on to urge, in the language of her brief in this court, “that the judgment of the District Court should be reversed and judgment in favor of Appellant, granting her status as a beneficiary of the Trust, should be entered. * * * ” Appellant thus submits to us on its merits a case submitted to the District Court on cross motions for summary judgment and involving no dispute of material facts. We accordingly decide the merits and in doing so affirm, without passing upon the question of limitations.
We now explain the reasons for our affirmance.
It is undisputed that the widow of an eligible participant in the Plan is herself eligible for a pension. The difficulty with appellant’s claim, however, is that the Plan requires employees to contribute to its funding. The Plan’s express purpose is “to provide each employee (who elects to and does participate in this Plan) with a retirement benefit. * * * ” Prior to July 1, 1955 a participating employee was to contribute two per cent of his monthly wages or salary to the pension fund; thereafter the amount was increased to four per cent. The collection provision states that the Local “shall deduct the contributions of each such employee from each remittance for services rendered by him. * * * ” Other provisions permit eligible but nonparticipating employees to participate nunc pro tunc, but each of these provisions requires the employee to pay the applicable percentage of the salary or wages he earned during the nonparticipating period for which he is to receive credit. Finally, the extensive refund provisions, available if the employee or his widow did not receive in pension his full contribution, demonstrate that the employee is to be a contributor to the fund.
Abraham Lew did not comply with the contribution requirements of the Plan. He did not contribute any percentage of his salary or wages. And his employer, the New Jersey Local, did not deduct or withhold the required contribution from remittances for Lew’s services to the Local. The facts are the Local remitted each month from its own treasury to the International Association a sum equivalent to what Lew’s contribution should have been. These payments by the Local were without authorization either by its membership or its executive board. The amounts of these unauthorized disbursements by the Local were subsequently returned by appellees to the Local.
It is clear that Abraham Lew did not establish his eligibility for retirement under the Plan. He made no contributions from his own wages or salary. Accordingly the decision of the trustees denying the widow’s claim must be upheld. Cf. Kosty v. Lewis, 115 U.S.App.D.C. 343, 346, 319 F.2d 744, 747, cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414. The widow can claim under the Plan only through her deceased husband. Her status falls with the failure of his own.
Affirmed.
. That we may affirm on the merits though the judgment of the District Court was based on the statute of limitations is supported by Farbenfabriken Bayer A.G. v. Sterling Drug, Inc., 307 F.2d 210, 212, n. 4 (3d Cir.). See, also, Ginsburg v. Black, 237 F.2d 790, 792 (7th Cir.); Springfield v. Carter, 175 F.2d 914, 917 (8th Cir.), and Kithcart v. Metropolitan Life Ins. Co., 150 F.2d 997 (8th Cir.).
. If there are reasons for or conditions under which the trustees might make provision for appellant from the Fund created under the Plan, or under which the International or the Local might provide for her, these are not for the court to set in motion. The question before us is whether appellant has a judicially enforceable right. The trustees acted well within their authority in deciding that the right to retirement under the Plan did not accrue to appellant’s husband and, therefore, that the right to a pension did not accrue to his widow.
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:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. MILLER
No. 74-1179.
Argued January 12, 1976
Decided April 21, 1976
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., post, p. 447, and Marshall, J., post, p. 455, filed dissenting opinions.
Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Sidney M. Glazer, and Ivan Michael Schaeffer.
D. L. Bampey, Jr., by appointment of the Court, 422 U. S. 1054, argued the cause and filed a brief for respondent.
Mr. Justice Powell
delivered the opinion of the Court.
Respondent was convicted of possessing an unregistered still, carrying on the business of a distiller without giving bond and with intent to defraud the Government of whiskey tax, possessing 175 gallons of whiskey upon which no taxes had been paid, and conspiring to defraud the United States of tax revenues. 26 U. S. C. §§ 5179, 5205, 5601 et seq.; 18 U. S. C. § 371. Prior to trial respondent moved to suppress copies of checks and other bank records obtained by means of allegedly defective subpoenas duces tecum served upon two banks at which he had accounts. The records had been maintained by the banks in compliance with the requirements of the Bank Secrecy Act of 1970, 84 Stat. 1114, 12 U. S. C. § 1829b (d).
The District Court overruled respondent’s motion to suppress, and the evidence was admitted. The Court of Appeals for the Fifth Circuit reversed on the ground that a depositor’s Fourth Amendment rights are violated when bank records maintained pursuant to the Bank Secrecy Act are obtained by means of a defective subpoena. It held that any evidence so obtained must be suppressed. Since we find that respondent had no pro-tectable Fourth Amendment interest in the subpoenaed documents, we reverse the decision below.
I
On December 18, 1972, in response to an informant’s tip, a deputy sheriff from Houston County, Ga., stopped a van-type truck occupied by two of respondent’s alleged co-conspirators. The truck contained distillery apparatus and raw material. On January 9, 1973, a fire broke out in a Kathleen, Ga., warehouse rented to respondent. During the blaze firemen and sheriff department officials discovered a 7,500-gallon-eapacity distillery, 175 gallons of non-tax-paid whiskey, and related paraphernalia.
Two weeks later agents from the Treasury Department’s Alcohol, Tobacco and Firearms Bureau presented grand jury subpoenas issued in blank by the clerk of the District Court, and completed by the United States Attorney’s office, to the presidents of the Citizens & Southern National Bank of Warner Robins and the Bank of Byron, where respondent maintained accounts. The subpoenas required the two presidents to appear on January 24, 1973, and to produce
“all records of accounts, i. e., savings, checking, loan or otherwise, in the name of Mr. Mitch Miller [respondent], 3859 Mathis Street, Macon, Ga. and/or Mitch Miller Associates, 100 Executive Terrace, Warner Robins, Ga., from October 1, 1972, through the present date [January 22, 1973, in the case of the Bank of Byron, and January 23, 1973, in the case of the Citizens & Southern National Bank of Warner Robins]
The banks did not advise respondent that the subpoenas had been served but ordered their employees to make the records available and to provide copies .of any documents the agents desired. At the Bank of Byron, an agent was shown microfilm records of the relevant account and provided with copies of one deposit slip and one or two checks. At the Citizens & Southern National Bank microfilm records also were shown to the agent, and he was given copies-of the records of respondent's account during the applicable period. These included all checks, deposit slips, two financial statements, and three monthly statements. The bank presidents were then told that it would not be necessary to appear in person before the grand jury.
The grand jury met on February 12, 1973, 19 days after the return date on the subpoenas. Respondent and four others were indicted. The overt acts alleged to have been committed in furtherance of the conspiracy included three financial transactions — the rental by respondent of the van-type truck, the purchase by respondent of radio equipment, and the purchase by respondent of a quantity of sheet metal and metal pipe. The record does not indicate whether any of the bank records were in fact presented to the grand jury. They were used in the investigation and provided “one or two" investigatory leads. Copies of the checks also were introduced at trial to establish the overt acts described above.
In his motion to suppress, denied by the District Court, respondent contended that the bank documents were illegally seized. It was urged that the subpoenas were defective because they were issued by the United States Attorney rather than a court, no return was made to a court, and the subpoenas were returnable on a date when the grand jury was not in session. The Court of Appeals reversed. 500 F. 2d 751 (1974). Citing the prohibition in Boyd v. United States, 116 U. S. 616, 622 (1886), against “compulsory production of a man’s private papers to establish a criminal charge against him,” the court held that the Government had improperly circumvented Boyd’s protections of respondent’s Fourth Amendment right against “unreasonable searches and seizures” by “first requiring a third party bank to copy all of its depositors’ personal checks and then, with an improper invocation of legal process, calling upon the bank to allow inspection and reproduction of those copies.” 500 F. 2d, at 757. The court acknowledged that the recordkeeping requirements of the Bank Secrecy Act had been held to be constitutional on their face in California Bankers Assn. v. Shultz, 416 U. S. 21 (1974), but noted that access to the records was to be controlled by “existing legal process.” See id., at 52. The subpoenas issued here were found not to constitute adequate “legal process.” The fact that the bank officers cooperated voluntarily was found to be irrelevant, for “he whose rights are threatened by the improper disclosure here was a bank depositor, not a bank official.” 500 F. 2d, at 758.
The Government contends that the Court of Appeals erred in three respects: (i) in finding that respondent had the Fourth Amendment interest necessary to entitle him to challenge the validity of the subpoenas duces tecum through his motion to suppress; (ii) in holding that the subpoenas were defective; and (iii) in determining that suppression of the evidence obtained was the appropriate remedy if a constitutional violation did take place.
We find that there was no intrusion into any area in which respondent had a protected Fourth Amendment interest and that the District Court therefore correctly denied respondent’s motion to suppress. Because we reverse the decision of the Court of Appeals on that ground alone, we do not reach the Government’s latter two contentions.
II
In Hoffa v. United States, 385 U. S. 293, 301-302 (1966), the Court said that “no interest legitimately protected by the Fourth Amendment” is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy, into “the security a man relies upon when he places himself or his property within a constitutionally protected area.” The Court of Appeals, as noted above, assumed that respondent had the necessary Fourth Amendment interest, pointing to the language in Boyd v. United States, supra, at 622, which describes that Amendment’s protection against the “compulsory production of a man’s private papers.” We think that the Court of Appeals erred in finding the subpoenaed documents to fall within a protected zone of privacy.
On their face, the documents subpoenaed here are not respondent’s “private papers.” Unlike the claimant in Boyd, respondent can assert neither ownership nor possession. Instead, these are the business records of the banks. As we said in California Bankers Assn. v. Shultz, supra, at 48-49, “[blanks are . . . not . . . neutrals in transactions involving negotiable instruments, but parties to the instruments with a substantial stake in their continued availability and acceptance.” The records of respondent’s accounts, like “all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party.” Id., at 52.
Respondent argues, however, that the Bank Secrecy Act introduces a factor that makes the subpoena in this case the functional equivalent of a search and seizure of the depositor’s “private papers.” We have held, in California Bankers Assn. v. Shultz, supra, at 54, that the mere maintenance of records pursuant to the requirements of the Act “invade [s] no Fourth Amendment right of any depositor.” But respondent contends that the combination of the recordkeeping requirements of the Act and the issuance of a subpoena to obtain those records permits the Government to circumvent the requirements of the Fourth Amendment by allowing it to obtain a depositor’s private records without complying with the legal requirements that would be applicable had it proceeded against him directly. Therefore, we must address the question whether the compulsion embodied in the Bank Secrecy Act as exercised in this case creates a Fourth Amendment interest in the depositor where none existed before. This question was expressly reserved in California Bankers Assn., supra, at 53-54, and n. 24.
Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court’s statement in Katz v. United States, 389 U. S. 347, 353 (1967), quoting Warden v. Hayden, 387 U. S. 294, 304 (1967), that “we have . . . departed from the narrow view” that “ 'property interests control the right of the Government to search and seize,’ ” and that a “search and seizure” become unreasonable when the Government’s activities violate “the privacy upon which [a person] justifiably reliefs].” But in Katz the Court also stressed that “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” 389 U. S., at 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate “expectation of privacy” concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 335 (1973).
Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they “have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings.” 12 U. S. C. § 1829b (a) (1). Cf. Couch v. United States, supra, at 335.
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id., at 752; Hoffa v. United States, 385 U. S., at 302; Lopez v. United States, 373 U. S. 427 (1963).
This analysis is not changed by the mandate of the Bank Secrecy Act that records of depositors' transactions be maintained by banks. In California Bankers Assn. v. Shultz, 416 U. S., at 52-53, we rejected the contention that banks, when keeping records of their depositors' transactions pursuant to the Act, are acting solely as agents of the Government. But, even if the banks could be said to have been acting solely as Government agents in transcribing the necessary information and complying without protest with the requirements of the subpoenas, there would be no intrusion upon the depositors' Fourth Amendment rights. See Osborn v. United States, 385 U. S. 323 (1966); Lewis v. United States, 385 U. S. 206 (1966).
Ill
Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued. California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, 400 U. S. 517, 537 (1971) (Douglas, J., concurring). Under these principles, it was firmly settled, before the passage of the Bank Secrecy Act, that an Internal Revenue Service summons directed to a third-party bank does not violate the Fourth Amendment rights of a depositor under investigation. See First National Bank of Mobile v. United States, 267 U. S. 576 (1925), aff’g 295 F. 142 (SD Ala. 1924). See also California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, supra, at 522.
Many banks traditionally kept permanent records of their depositors’ accounts, although not all banks did so and the practice was declining in recent years. By requiring that such records be kept by all banks, the Bank Secrecy Act is not a novel means designed to circumvent established Fourth Amendment rights. It is merely an attempt to facilitate the use of a proper and longstanding law enforcement technique by insuring that records are available when they are needed.
We hold that the District Court correctly denied respondent’s motion to suppress, since he possessed no Fourth Amendment interest that could be vindicated by a challenge to the subpoenas.
IV
Respondent contends not only that the subpoenas duces tecum directed against the banks infringed his Fourth Amendment rights, but that a subpoena issued to a bank to obtain records maintained pursuant to the Act is subject to more stringent Fourth Amendment requirements than is the ordinary subpoena. In making this assertion he relies on our statement in California Bankers Assn., supra, at 52, that access to the records maintained by banks under the Act is to be controlled by "existing legal process.”
In Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 208 (1946), the Court said that “the Fourth [Amendment], if applicable [to subpoenas for the production of business records and papers], at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant.” See also United States v. Dionisio, 410 U. S. 1, 11-12 (1973). Respondent, citing United States v. United States District Court, 407 U. S. 297 (1972), in which we discussed the application of the warrant requirements of the Fourth Amendment to domestic security surveillance through electronic eavesdropping, suggests that greater judicial scrutiny, equivalent to that required for a search warrant, is necessary when a subpoena is to be used to obtain bank records of a depositor’s account. But in California Bankers Assn., 416 U. S., at 52, we emphasized only that access to the records was to be in accordance with “existing legal process.” There was no indication that a new rule was to be devised, or that the traditional distinction between a search warrant and a subpoena would not be recognized.
In any event, for the reasons stated above, we hold that respondent lacks the requisite Fourth Amendment interest to challenge the validity of the subpoenas.
V
The judgment of the Court of Appeals is reversed. The court deferred decision on whether the trial court had improperly overruled respondent’s motion to suppress distillery apparatus and raw material seized from a rented truck. We remand for disposition of that issue.
So ordered.
The Fourth Amendment implications of Boyd as it applies to subpoenas duces tecum have been undercut by more recent cases. Fisher v. United States, ante, at 407-409. See infra, at 445-446.
Respondent appears to contend that a depositor’s Fourth Amendment interest comes into play only when a defective subpoena is used to obtain records kept pursuant to the Act. We see no reason why the existence of a Fourth Amendment interest turns on whether the subpoena is defective. Therefore, we do not limit our consideration to the situation in which there is an alleged defect in the subpoena served on the bank.
It is not clear whether respondent refers to attempts to obtain private documents through a subpoena issued directly to the depositor or through a search pursuant to a warrant. The question whether personal business records may be seized pursuant to a valid warrant is before this Court in No. 74-1646, Andresen v. Maryland, cert. granted, 423 U. S. 822.
We do not address here the question of evidentiary privileges, such as that protecting communications between an attorney and his client. Cf. Fisher v. United States, ante, at 403-405.
Nor did the banks notify respondent, a neglect without legal consequences here, however unattractive it may be.
Respondent does not contend that the subpoenas infringed upon his First Amendment rights. There was no blanket reporting requirement of the sort we addressed in Buckley v. Valeo, 424 U. S. 1, 60-84 (1976), nor any allegation of an improper inquiry into protected associational activities of the sort presented in Eastland v. United States Servicemen’s Fund, 421 U. S. 491 (1975).
We are not confronted with a situation in which the Government, through “unreviewed executive discretion,” has made a wide-ranging inquiry that unnecessarily "touch[es] upon intimate areas of an individual’s personal affairs.” California Bankers Assn. v. Shultz, 416 U. S., at 78-79 (Powell, J., concurring). Here the Government has exercised its powers through narrowly directed subpoenas duces tecum subject to the legal restraints attendant to such process. See Part IV, infra.
This case differs from Burrows v. Superior Court, 13 Cal. 3d 238, 529 P. 2d 590 (1974), relied on by Mr. Justice Brennan in dissent, in that the bank records of respondent’s accounts were furnished in response to “compulsion by legal process” in the form of subpoenas duces tecum. The court in Burrows found it “significant . . . that the bank [in that case) provided the statements to the police in response to an informal oral request for information.” Id., at 243, 529 P. 2d, at 593.
A subpoena duces tecum issued to obtain records is subject to nó more stringent Fourth Amendment requirements than is the ordinary subpoena. A search warrant, in contrast, is issuable only pursuant to prior judicial approval and authorizes Government officers to seize evidence without requiring enforcement through the courts. See United States v. Dionisio, 410 U. S. 1, 9-10 (1973).
There is no occasion for us to address whether the subpoenas complied with the requirements outlined in Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 (1946). The banks upon which they were served did not contest their validity.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joseph C. SPAGNOLA, Jr. v. William MATHIS, Office of Management and Budget, et al., Appellants. Joseph C. SPAGNOLA v. William MATHIS, et al., Appellants. Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, Office of Management & Budget, et al. Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, et al.
Nos. 84-5530, 84-5659, 84-5822 and 85-5145.
United States Court of Appeals, District of Columbia Circuit.
Argued April 29, 1987.
Decided Sept. 30, 1988.
George M. Chuzi, Washington, D.C., for appellant in No. 84-5822.
Peter B. Broida, Washington, D.C., for appellant in No. 85-5145.
Joseph B. Kennedy with whom Thomas M. Devine, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for amici curiae, The Government Accountability Project and the American Civil Liberties Union of the National Capital Area urging affirmance of the panel decision in No. 84-5822.
Stuart H. Newberger, Asst. U.S. Atty., for appellees in both cases, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty.,* R. Craig Lawrence, Michael L. Martinez and Scott T. Kragie, Asst. U.S. Attys., were on the brief for appellees in No. 85-5145, and with whom Joseph E. diGenova, U.S. Atty.,* Royce C. Lamberth * and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees in No. 84-5822.
Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 84-5822.
Edith S. Marshall, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 85-5145.
Before WALD, Chief Judge, ROBINSON, MIKYA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
At the time the brief was filed.
Judge Bork participated in the argument but not the decision in these cases.
Opinion PER CURIAM.
PER CURIAM:
On December 5, 1986, two panels of this circuit issued separate, conflicting opinions regarding the availability of Bivens remedies to litigants challenging federal personnel actions for whom Congress has declined to provide full administrative remedies subject to judicial review under the Civil Service Reform Act (CSRA). See Hubbard v. EPA, 809 F.2d 1, 6-11 (D.C.Cir.1986); Spagnola v. Mathis, 809 F.2d 16, 19-28 (D.C.Cir.1986). On January 6, 1987, the full court vacated the conflicting portions of the two panel opinions and scheduled the matter for rehearing en banc. After argument, we ordered proceedings in these cases to be held in abeyance pending the Supreme Court’s disposition of a petition for certiorari in Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), a case presenting issues similar to those before us. We now decide, with fresh guidance from the Supreme Court, that “special factors counsel ]” against the creation of Bivens remedies in these circumstances. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971). Accordingly, we affirm the dismissal of appellants’ Bivens claims.
I.
The facts underlying the constitutional claims of Michael Hubbard and Joseph Spagnola are fully set forth in the respective panel opinions and need only briefly be recounted here. Appellant Hubbard, presently a detective with the District of Columbia Metropolitan Police Department, alleges that he was denied employment as a criminal investigator with the Environmental Protection Agency (EPA) because of his exercise of first amendment rights. In particular, Hubbard contends that the EPA and defendant Peter Beeson, an agency hiring official, rejected his job application due to reports that Hubbard had communicated with the press during an investigation of narcotics use by employees and members of Congress in 1981. Hubbard maintains that his communications with the press were “protected speech,” and that Beeson’s rejection of his application on the basis of such speech was in violation of the first amendment. In addition to seeking equitable relief against the EPA, Hubbard sought damages from Beeson personally under the Bivens doctrine. The district court held that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), precludes a Bivens remedy in this situation, and accordingly dismissed Hubbard’s damages claim.
Joseph C. Spagnola, Jr., an employee of the federal government at all times relevant to this action, sought damages and injunctive relief under the first amendment and 42 U.S.C. § 1985(1) (1982) against two officials for whom he worked in the Office of Federal Procurement Policy of the Office of Management and Budget (OMB). According to Spagnola, the defendants thwarted his efforts to gain promotion beyond the GS-14 level and conspired to prevent him from pursuing professional development in the area of government contracts in retaliation for his “whistleblow-ing” activities. Spagnola appealed from the district court’s dismissal of his Bivens claims for damages against the OMB officials.
While the circumstances surrounding the first amendment claims of Hubbard and Spagnola differ markedly, the CSRA accords claimants in their respective positions substantially the same relief. Under 5 U.S.C. § 1206, each could petition the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) alleging a “prohibited personnel practice.” See 5 U.S.C. § 1206(a)(1) (1982); see also 5 C.F.R. §§ 1250-61 (1988) (OSC regulations). If OSC, in its discretion, believed the allegations meritorious, it was required to report that along with any findings or recommendation of corrective action to the agency involved. If the agency failed to take action, the OSC could have requested the MSPB to order appropriate corrective action. See 5 U.S.C. § 1206(c)(1)(A) & (B) (1982). Irrespective of the course of action chosen by OSC, judicial review for Hubbard and Spagnola, if available at all, was limited to ensuring that OSC conducted the requisite “adequate inquiry” into the allegations. See Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982); 5 U.S.C. § 1207(c) (1982); see also Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983). Neither Hubbard nor Spagnola could claim the more elaborate administrative protections — including judicial review — that Congress reserved for incumbent employees aggrieved by major personnel actions (e.g., removals, reductions in grade or pay, suspensions of more than 14 days). See 5 U.S.C. §§ 7511-14, 7701-03 (1982).
Prior to initiating their federal actions, both Hubbard and Spagnola petitioned OSC for an investigation into alleged “prohibited personnel practices.” In each case, the claimants filed suit in district court before completion of the OSC investigation. OSC’s ultimate disposition of their petitions was, in any event, the same: it found insufficient evidence to suggest a “prohibited personnel practice” in either case.
II.
In the Bivens case itself, the Supreme Court acknowledged that the power to make policy concerning constitutional remedies was not the exclusive province of the judiciary. The court observed that where there is an “explicit congressional declaration” that injured parties should be “remitted to another remedy, equally effective in the view of Congress,” Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, or where there are “special factors counselling hesitation in the absence of affirmative action by Congress,” id. at 396, 91 S.Ct. at 2005, the judiciary should decline to exercise its discretion in favor of creating damages remedies against federal officials. Accord Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In deference to these concerns, the Court’s “more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988).
Indicative of this caution is Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), in which the Court, for the first time, found a statutory system of “comprehensive procedural and substantive provisions giving meaningful remedies against the United States,” id. at 368, 103 S.Ct. at 2406, to constitute a “special factor” counselling hesitation against creating a Bivens remedy. Id. at 389-90, 103 S.Ct. at 2417-18. In Bush, as here, the remedial provisions of the CSRA were at issue. Acknowledging that the CSRA’s “remedies [did] not provide complete relief for the plaintiff[ ]” in that case, id. at 388, 103 S.Ct. at 2417, the Court nevertheless declined to supplement the employee’s statutory remedies with a Bivens action. To the Court, the question before it was not one “concern[ing] the merits of the particular remedy that was sought.” Id. at 380, 103 S.Ct. at 2413. Rather, the question was “who should decide whether such a [damages] remedy should be provided[,]” Congress or the judiciary. Id. Ultimately, the Court reasoned that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service.” Id. at 389, 103 5.Ct. at 2417.
Because he was challenging a “major personnel action,” the plaintiff-employee in Bush, unlike Hubbard and Spagnola, was able to invoke certain of the CSRA’s elaborate remedial processes which, by statute, culminate in judicial review. See 5 U.S.C. § 7703 (1982); Bush, 462 U.S. at 386-88, 103 S.Ct. at 2415-17. Whether the Court intended Bush to bar damages actions for those employees or applicants for whom the CSRA remedies are not so complete has been the source of great debate. Focusing on language in the Bush opinion that suggests a detached inquiry into the meaningfulness of the particular remedies provided to individual claimants under the CSRA, some courts of appeals have conducted that inquiry and have found certain CSRA remedies wanting. Accordingly, they have declined to read Bush as precluding Bivens remedies in those contexts. See, e.g., McIntosh v. Weinberger, 810 F.2d 1411, 1434-36 (8th Cir.1987) (holding that employee subjected to minor personnel action could sue supervisor for damages), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988); Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986) (holding that probationary employee could pursue Bivens action against supervisor), vacated, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 897 (1988); see also Krodel v. Young, 748 F.2d 701, 712 n. 6 (D.C.Cir.1984) (suggesting in dictum that statutory right to petition OSC, without more, would not preclude a Bivens claim for damages), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Note, Bivens Doctrine in Flux: Statutory Preclusion of a Constitutional Cause of Action, 101 Harv.L.Rev. 1251, 1262-65 (1988) (arguing that OSC remedy is constitutionally inadequate). Other circuits, acting in the post-Bush environment, have reached the opposite conclusion. See Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984) (declining to create Bivens remedy for employee subjected to short suspension), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 30 (1985); Hallock v. Moses, 731 F.2d 754, 757 (11th Cir.1984) (denying damages remedy to victim of “harassment and retaliation”). It was this very issue, whether case-specific analysis is required of the particular statutory remedies available to a claimant, over which the original panels in the cases before us disagreed. See Hubbard, 809 F.2d at 7-9; Spagnola, 809 F.2d at 22-24.
The Supreme Court’s latest pronouncement on the special factors doctrine in Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), goes a long way toward resolving the debate. In Chilicky, the Court faced the question of whether Social Security disability claimants whose benefits had been withdrawn unconstitutionally could seek damages against those responsible for the termination. Petitioners, state and disability officials charged with conducting “continue ing disability reviews” pursuant to a 1980 congressional enactment, see Pub.L. 96-265, § 311, as amended, 42 U.S.C. § 421 (1982 & Supp. Ill), argued that in view of the comprehensive and elaborate review and benefit-restoration procedures available to claimants under the Social Security Disability Benefits Reform Act of 1984 (Disability Act), the Court should decline to provide a Bivens remedy in this context. The Court agreed, finding the case indistinguishable from Bush. 108 S.Ct. at 2468. Noting that the Disability Act’s “system for protecting [claimants’] rights is, if anything, considerably more elaborate than the civil service system considered in Bush,” id., the Court concluded that “Congress is in a better position to decide whether or not the public interest would be served by creating [a damages remedy].” Id. at 2469:
Chilicky is significant not only for its holding, but also for its analysis of Bush. In applying the Bush “special factors” doctrine to the Disability Act claims before it, the Chilicky Court made clear that it is the comprehensiveness of the statutory scheme involved, not the “adequacy” of specific remedies extended thereunder, that counsels judicial abstention. Id. at 2467 (citing Bush for “[c]onclu[sion] that the administrative system created by Congress ‘provides meaningful remedies....’” (quoting Bush, 462 U.S. at 386, 103 S.Ct. at 2415) (emphasis added). Indeed, the Court remarked that “[t]he absence of statutory relief ... for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers for the violation.” Id. 108 S.Ct. at 2467 (emphasis added). If the comprehensiveness of a statutory scheme cannot be gainsaid and it appears that “congressional inaction [in providing fof damages remedies] has not been inadvertent[J” id. at 2468, courts should defer to Congress’ judgment with regard to the creation of supplemental Bivens remedies.
As we read Chilicky and Bush together, then, courts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has “not inadvertently” omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies. In these circumstances, it is not for the judiciary to question whether Congress’ “response [was] the best response, [for] Congress is the body charged with making the inevitable compromises required in the design of a massive and complex ... program.” Id. at 2470-71.
III.
These general principles alone weigh heavily in favor of declining to create Bivens remedies for claimants situated as Hubbard and Spagnola were. We are further aided, however, by suggestions the Court provided in Chilicky as to how Bush applies to our cases. For in recounting the principal lesson of Bush—that the CSRA’s administrative system provides meaningful remedies and thus precludes Bivens actions against officials in their individual capacities—the Court included a citation implicitly suggesting that the preclusive effect of Bush extends even to those claimants within the system for whom the CSRA provides “no remedy whatsoever.” Id. at 2467. This passage not only squarely implicates the material facts of at least one of the cases before us today, it also further indicates that the Court regards a case-by-case examination of the particular administrative remedies available to a given plaintiff as unnecessary.
Accordingly, the Court vacated two courts of appeals cases presenting issues nearly identical to those we confront today and remanded them “for further consideration in light of [Chilicky ].” See Cooper v. Kotarski, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.); Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.). One of the cases, McIntosh, involved allegations that an Army personnel official “had violated the [] due-process rights [of the plaintiff employees] by concealing and destroying certain merit-promotion records.” McIntosh v. Weinberger, 810 F.2d 1411, 1417 (8th Cir.1987), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988). The actions challenged by plaintiffs in that case, like the actions challenged by appellant Spagnola, constituted “minor personnel actions” for which the plaintiffs’ sole remedy under the CSRA was a petition to OSC. Id. at 1434-36. The plaintiff in Kotarski, an incumbent employee who claimed his removal from a probationary supervisorial position violated his fifth and ninth amendment rights, likewise was limited to an OSC petition under the CSRA. See Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986), vacated, — U.S. -, 108 S.Ct. 2861, 101 L,Ed.2d 898 (1988). Although the Court’s orders vacating and remanding Kotarski and McIntosh cannot be regarded as a reversal, the Court’s disposition of these cases certainly counsels us to pay close attention to the developments in “special factors” analysis announced in Chil-icky.
Furthermore, we do not believe the legislative history of the CSRA supports the application of Bivens remedies in the cases before us. After Chilicky, it is quite clear that if Congress has “not inadvertently” omitted damages against officials in the statute at issue, then courts must abstain from supplementing Congress’ otherwise comprehensive statutory relief scheme with Bivens remedies—unless, of course, Congress has clearly expressed a preference that the judiciary preserve Bivens remedies. See Chilicky, 108 S.Ct. at 2468. We find nothing in the legislative history suggesting that Congress’ omission of a damages remedy in the CSRA was anything but advertent, nor do we discern any clear expression of congressional intent that the courts preserve Bivens remedies.
Concededly, the Court has provided few, if any, principles governing whether a particular claimant—and his underlying claim—should be included in a given congressional “comprehensive system” for purposes of applying “special factors” analysis. After Chilicky, of course, this issue has become critical. Nevertheless, while in some cases the outer boundaries for inclusion in “comprehensive systems” may be less than clear, there can be little doubt as to whether Congress has brought claims like those advanced by Hubbard and Spagnola within CSRA’s ambit. This is because the CSRA itself, in one fashion or another, affirmatively speaks to claims such as Hubbard’s and Spagnola’s by condemning the underlying actions as “prohibited personnel practices.” Thus, we are dealing with a statutory scheme that at least technically accommodates appellants’ constitutional challenges. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983) (describing CSRA’s scheme for classifying personnel actions).
IV.
While we decline to extend Bivens remedies to Hubbard and Spagnola, we do not suggest that the CSRA precludes the exercise of federal jurisdiction over the constitutional claims of federal employees and job applicants altogether. But see Pinar v. Dole, 747 F.2d 899, 912 (4th Cir.) (holding that the CSRA forecloses judicial review of constitutional claims relating to “minor” personnel actions), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Hallock v. Moses, 731 F.2d 754, 757-58 (11th Cir.1984) (dismissing constitutional claim for equitable relief); Braun v. United States, 707 F.2d 922, 926-27 (6th Cir.) (dismissing claims for equitable relief under 5 U.S.C. § 702), cert. denied sub nom. Hardrich v. United States, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); Broadway v. Block, 694 F.2d 979, 986 (5th Cir.1982) (holding that minor personnel actions are “committed to agency discretion by law” within meaning of 5 U.S.C. § 701(a)(2)). On the contrary, time and again this court has affirmed the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights. See, e.g., Hubbard v. EPA, 809 F.2d 1, 11 (D.C.Cir.1986); Williams v. IRS, 745 F.2d 702, 705 (D.C.Cir.1984); Cutts v. Fowler, 692 F.2d 138, 140-41 (D.C.Cir.1982); Borrell v. United States Int’l Comm. Agency, 682 F.2d 981, 989-90 (D.C.Cir.1982). Of course, to the extent any of these cases indicates that civil service employees may pursue Bivens remedies for the same violations, they are hereby disapproved.
******
In light of the Supreme Court’s holding in Schweiker v. Chilicky, we conclude that “special factors” preclude the creation of a Bivens remedy for civil service employees and applicants who advance constitutional challenges to federal personnel actions. Accordingly, we affirm the district courts’ dismissal of Hubbard’s and Spagnola’s Bivens claims.
. Bivens v. Six Unknown Fed’l Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. Pub.L. No. 95-454, 92 Stat. Ill (codified as amended in scattered sections of 5 U.S.C.).
. The "prohibited personnel practices" Congress included in the CSRA remedial scheme are set forth at 5 U.S.C. § 2302. The definition sweeps broadly to accommodate the “tak[ing] or fail[ure] to take any ... personnel action if the taking or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” 5 U.S.C. § 2302(b)(ll) (1982). One such merit principle provides:
All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management ... with proper regard for their ... constitutional rights.
5 U.S.C. § 2301(b)(2) (1982). Both Hubbard’s and Spagnola's allegations implicate this principle squarely and we are therefore convinced that their constitutional claims are cognizable as "prohibited personnel practices” within the CSRA system. See Pinar v. Dole, 747 F.2d 899, 906 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985). See also H.R. Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978) U.S.Code Cong. & Admin.News 1978, pp. 2723, 2853 (observing that "prohibited personnel practices” include violations of constitutional rights of applicants and employees). Hubbard argues that, as an applicant for federal employment, his claims were not appealable within the CSRA system, but the letter of the statute suggests otherwise. See 5 U.S.C. § 2302(a)(2)(A)(i) (1982) (including “an appointment” within the class of “personnel actions” covered by CSRA).
. Hubbard, as a veteran, had the additional right to Office of Personnel Management (OPM) review of the "passover document" required to be prepared in the event a veteran is rejected for a federal job. See 5 U.S.C. § 3318(b)(1) (1982). At Hubbard’s request, OPM performed the required review and ultimately found no evidence that Hubbard was improperly passed over.
. For instance, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Court held that the "unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens -type remedy against their superior officers.” 462 U.S. at 304, 103 S.Ct. at 2368.
. In his opinion for the majority in Bush, Justice Stevens at two points appeared to suggest that the specific remedies extended under the CSRA to the petitioner were “meaningful.” See 462 U.S. at 368, 386, 103 S.Ct. at 2406, 2415; see also id. at 378, 103 S.Ct. at 2411 (observing that “[t]he existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate”). Nevertheless, the Court failed to set forth the standards it may have applied in forming such a conclusion.
. The Chilicky plaintiffs, like those in Bush and unlike Hubbard and Spagnola, had available an obligatory, elaborate administrative process, with judicial review, through which they could secure retroactive restoration of the withdrawn benefits. See 42 U.S.C. § 423(f) & (g) (1982 & Supp.III); 108 S.Ct. at 2464. It is thus possible to distinguish Chilicky on the basis that the Court was not presented with claimants whose remedies under the congressional scheme were merely discretionary. We nevertheless believé, infra at pp. 228-29, that undertaking that effort runs counter to the clear direction of the Supreme Court's “special factors" reasoning.
. The passage reads as follows:
Concluding that the administrative system created by Congress “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies,” ... the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that "existing remedies do not provide complete relief for the plaintiff[.]” ... See also [Bush, 462 U.S.] at 385, n. 28, 103 S.Ct. at 2414, n. 28 (no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees).
108 S.Ct. at 2467 (citation and internal footnote omitted).
. More precisely, it is one of the fact situations mentioned in the passage that we find comparable to one of our cases—Spagnola. Spagnola challenges a series of minor personnel actions, the class of which includes the "short suspensions” cited in the passage as entitling the recipients to “no remedy whatsoever.” 108 S.Ct. at 2467.
The Court appears to say in Chilicky that the CSRA extends those aggrieved by minor personnel actions "
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_bus
|
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 "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.
GRISCOM-RUSSELL CO. v. WESTINGHOUSE ELECTRIC & MFG. CO.
No. 7501.
Circuit Court of Appeals, Third Circuit
June 19, 1941.
W. Brown Morton, of New York City (Wm. Steell Jackson & Son, of Philadelphia, Pa., and W. B. Morton, Jr., of New York City, on the brief), for appellant.
Drury W. Cooper, Sr., of New York City (Synneslvedt & Lechner, of Philadelphia, Pa., Victor S. Beam, of New York City, A. B. Reavis, of Lester, Pa., and Drury W. Cooper, Jr., of New York City, on the brief), for appellee.
Before MARIS, CLARK, and JONES, Circuit Judges.
JONES, Circuit Judge.
The plaintiff sued to restrain the alleged infringement of United States Patent No. 1,955,015 issued to one Price and whereof the plaintiff is the assignee. The District Court, finding want of invention, entered judgment dismissing the complaint and awarding costs to the defendant. The question on this appeal, therefore, is whether the patent discloses invention.
Only claim 1 of the patent is in suit, and covers a stationary head for feed-water heaters to be used with high pressure boilers. The plaintiff’s invention is said to lie in the combination which he made of certain elements, admittedly known to the art long prior to the patentee’s application.
In feed-water heaters, which have been used for low pressure boiler installations for many years, the preheating of the water is accomplished by means of a cylindrical shell into which exhaust or surplus steam is introduced. At one end of the shell, tubes extend into its chamber and then, bent in u-shape, return to the end of the shell. The open ends of the tubes (inlets and outlets) are integral with the shell’s end plate, which is called a tube sheet. Water flowing through the tubes is thus heated by the steam surrounding the tubes within the chamber formed by the shell.
For the inflow and outflow of water in the tubes there is fastened to the outside of the tube sheet a cylinder or head which is divided longitudinally throughout its length by a partition which serves to separate the inlets of the tubes from the outlets, as well as the water in the head, which enters through an inlet on one side of the head and, after its course through the heating tubes, leaves the outlet on the opposite side of the head. To the end of the cylinder or head, away from the tube sheet, there is fastened a cover plate. This cover plate, which must be removable for the servicing or periodic inspection of the tubes, is kept in place by stay-bolts which clamp the cover externally to the circumference of the head at its outer end. It is essential that the cover plate remain securely fastened at all times (when the heater is in use) not only to prevent external leakage from the head at the cover plate but also to prevent internal leakage through any developing space between the cover plate and the internal partition which bases on the under side of the cover plate at a right angle thereto. Physically (and without taking into consideration the pressure of the boilers into which the heated water is later injected) the pressure of the water at the inlet to the head is slightly greater than at the outlet because of the loss from friction occasioned by the water’s passage through the tubes. Due to this difference of pressure, any opening between the end of the partition and the cover plate would cause the in-going water to by-pass the heating tubes and to enter directly the out-go chamber of the head, there to mingle with the heated water and thus reduce its temperature with a resultant loss in boiler efficiency.
As long as low pressure boilers were used, feed-water heaters constructed as above described functioned satisfactorily. Stay-bolts were quite ample to withstand the thrust on the cover plate from the internal pressure. But with the advent of a greater demand for high pressure boiler installations, trouble developed with the cover plate type of feed-water heater. The high pressure within the head would loosen the stay-bolts and unseat or raise the cover plate. Larger and more stay-bolts were used until a practical extreme limit was reached when the working pressure in boiler feed-water heaters had reached 1600 pounds per square inch.
It was in this situation that a company in Milwaukee asked the plaintiff to bid on the construction of boiler feed-water heaters to have a working pressure of 1800 pounds per square inch. The Milwaukee company accompanied its request with drawings for a feed-water heater with a “manhole” covering designed to avoid the numerous stay-bolts and the high tension upon them which had already reached a limit in the cover plate type of feed-water heater. A “manhole” cover for the opening into a pressure vessel utilizes the pressure to push the cover into tighter contact with its seat instead of loosening it. However, pressure-locked cover plates were not feasible for use with partition sealing of the kind in the cover plate type where the partition extends to the cover plate. Space is necessary for inserting the cover plate and rotating it to its position, and the natural and expected movement of a cover sustained in tight position by pressure is away from the partition. To obviate these obstacles to the use of pressure-locked covers in conjunction with the oldtime partition seal, the Milwaukee drawings showed a head in which the partition was integral with the tube sheet and the chamber, that is, a separate head, each with its own “manhole” cover, was provided for each pass. Thus the partition as an individual element was done away with. The plaintiff advised the Milwaukee company that the head shown by their drawings was impracticable because it could not be made as a sound one-piece forging. None the less the Milwaukee company insisted upon a pressure-locked cover and not a bolted cover plate, and it was then that the plaintiff turned the problem over to its chief engineer, Price, who came forward with the apparatus covered by the patent in suit, which the plaintiff claims is invention.
What Price did was to use a “manhole” cover plate for the head and to shorten the partition within the head. To the shortened partition, at the end away from the tube sheet, he fastened an end plate at right angles to the partition and to the side wall of the cylinder on the outlet side. The effect of this was to reduce the compartment, located within the cylinder or head and into which the heated water flows upon leaving the tubes. Thus sufficient room or clearance was gained for the insertion and rotation of the “manhole” cover to position. The cover, being elliptical in shape, is inserted lengthwise through the long dimension of the elliptical opening in the head and then turned to its seated position. The difference in pressure between the inlet and the outlet water in the head, to which we have already referred, serves to sustain in place the independent chamber within the head, formed by the shortened partition and its own end plate.
Admittedly all of the elements of Price’s claimed combination were old in the art. The “manhole” type of cover for a pressure vessel (including the elliptical shaped cover) was well known and, as the plaintiff concedes, was “an old expedient for using the pressure to push the cover tight instead of loose”. The shortened partition and the relatively smaller internal compartment for the outgoing fluid in the head had been priorly disclosed by the British patent No. 267,225, and with the clarity and definiteness required to constitute it anticipation within the United States. See Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999, 1003; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 220. Utilization of the difference in pressures in the head between the water at the intake and at the outlet to support the seated position of the end plate on the shortened partition is specifically set out in the British patent. The differences in the British patent, which the appellant notes, are not here important to the one element admittedly disclosed by that patent and used by Price, namely, the shortened partition with its consequently smaller internal chamber for the outgoing fluid.
The appellant argues that the British patent’s prior disclosure of the particular element used by Price is unimportant; that the question of the novelty of the elements of a new combination taken seriatim is moot, citing Heim Grinder Co. v. Fafnir Bearing Co., D.C.Conn., 13 F.2d 408; and that the elements of a claimed combination are presumed to be old, citing Johnson Automobile Lock Co. v. Noser Instant Auto Lock Co., 8 Cir., 9 F.2d 265. As much will readily be conceded. Unquestionably, invention may be present if an element or elements priorly known are combined in such a way with other elements, either new or old, so as to produce an entirely new and useful result or function. The invention, in such circumstances, rests in the novel result produced by the combination, — a result which is entirely separate and distinct from the service performed by any or all of the elements or by a mere aggregation of them. In Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 318, 29 S.Ct. 495, 500, 53 L.Ed. 805, where the Supreme Court defined a combination as a “union of elements, which may be partly old and partly new, or wholly old or wholly new”, the court then said “But whether new or old, the combination is a means — an invention— distinct from them [the elements]”. And in H. Ward Leonard, Inc. v. Maxwell Motor Sales Corp., 252 F. 584, 593, the conception of invention growing out of a combination of elements was well expressed by the Circuit Court of Appeals for the Second Circuit where it was said that “The invention [a mechanical combination patent] consists in the act of selecting some of these elements [old in the art] for a combination which constitutes an independent entity, serviceable to the art and theretofore unknown. It is always this choice of the proper elements in combination which constitutes the invention.” (Emphasis supplied.) But when the elements are not united so as to produce a new and useful result which is the simultaneous or successive product of all of the elementary parts co-acting as a single entity, there is no invention. See Walker on Patents (Deller’s Ed.) § 41, p. 217.
Price combined nothing. By mechanical adaptation, he was able to aggregate two old elements and thus use both. Together (i. e. in combination) these elements performed no new function. The cover, as always, serves as a closure for the opening in the head, and the internal compartment, reduced because of the shortened partition, serves just as before as a chamber for the water as it comes from the tubes in the head. The adaptation involved no more than the engineering skill which the Milwaukee drawings and the British patent invited. True enough, the Milwaukee design was impracticable from a construction standpoint according to the plaintiff, but it, none the less, clearly pointed out that interference from the full length partition in the head had to be eliminated before a “manhole” cover could be utilized. The British patent showed how the partition could be shortened sufficiently to admit of the use of a “manhole” cover and it further showed that the outlet chamber, of which the partition formed one side, would be sustained in place by the greater pressure of the water in the inlet chamber. What the Supreme Court said in Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 355, 356, 59 S.Ct. 897, 899, 83 L.Ed. 1334 is particularly apposite to the claimed invention in this case, “The problem patentees set for themselves was to prevent extinguishment [of a signal torch] while preserving usefulness of the flames as warning signals. They solved it by merely bringing together the torch and cap. As before, the torch continued to produce a luminescent, undulating flame, and the cap continued to let in air for combustion, to protect the flame from wind and rain and to allow it to emerge as a warning signal. They performed no joint function. Each served as separately it had done. The patented device results from mere aggregation of two old devices and not from invention or discovery.” For the same reason, we approve the trial court’s finding of a want of invention.
The judgment of the District Court is affirmed.
Claim 1 of Price Patent 1,955,015 reads as follows:
“A heat exchanger comprising a head having a chamber therein for receiving finid under pressure and an opening for providing access to said chamber, a plurality of tubes communicating with said chamber, means for supplying fluid under pressure to said tubes, means within said chamber for causing the fluid to flow through said tubes in a plurality of passes, the said last named means comprising a partition and a partition cover detachably secured to the partition; and a cover plate for the opening in said head, the said cover plate being held against its seat by fluid pressure in said chamber.”
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_casetyp1_7-3-3
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
Vincent B. WELCH, Appellant, v. Robert W. SHERWIN et al., Appellees.
No. 16312.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 10, 1961.
Decided Feb. 8, 1962.
Mr. John A. Kendrick, Washington, D. C. , with whom Mr. E. Tillman Stirling, Washington, D. C., was on the brief, for .appellant.
Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Fried-lander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief, for appellees.
Before Edgerton, Bazelon and Fahy, Circuit Judges.
BAZELON, Circuit Judge.
This is a suit for an attorney’s fee of $12,718.41 based upon a written contract under which defendants, members of the Creditors’ Committee of an insolvent corporation, “assume[d] responsibility for payment of plaintiff’s fees * * * regardless of any arrangement the Creditors’ Committee may have or may obtain for reimbursement.” After trial, without .jury, the District Court found that a discussion between the parties which preceded execution of the contract led the defendants to understand “that in signing the agreement they would be technically liable for attorney’s fees and costs, but that * * * if the [debtor] corporation assumed [such] liability * * * the individual creditors would not be held responsible.” Finding that the corporation had assumed but had not paid the debt, the court denied recovery under the contract. Plaintiff appeals.
We think the District Court erred. There is no allegation or finding of fraud, mistake or overreaching. And the contemporaneous oral “understanding” upon which the trial court relied contradicts the plain language of the contract.
“[W]here parties enter into a written contract, their rights must be controlled thereby, and, in the absence of fraud or mistake, all evidence of any contemporaneous oral agreement on the same subject matter, contradicting, varying, modifying, or adding to the terms of the written agreement is inadmissible. Shankland v. Mayor, etc., 5 Pet. 390, 30 U.S. 390, 8 L.Ed. 166, affirming Shankland v. Corporation of Washington, Fed.Cas.No. 12,703, 3 Cranch C.C. 328; Selden v. Myers, 20 How. 506, 61 U.S. 506, 15 L.Ed. 976; Willard v. Tayloe, 8 Wall. 557, 75 U. S. 557, 19 L.Ed. 501. The written contract merges all previous negotiations and is presumed, in law, to express the final understanding of the parties. Brawley v. United States, 96 U.S. 168, 24 L.Ed. 622; Van Ness v. Mayor, etc., of City of Washington, 4 Pet. 232, 29 U.S. 232, 7 L.Ed. 842, affirming Van Ness v. United States, Fed.Cas.No. 16,868, 2 Cranch C.C. 376, 2 D.C. 376; Kinney v. Mc-Nabb, 44 App.D.C. 340” [Boomhower, Inc. v. Louis L. Lavine, 151 F.Supp. 563, 567 (D.D.C.1957).]
It follows that the instant contract must be enforced as written.
The question remaining is whether the defendants are jointly liable for the entire fee or severally liable for only a “pro rata” share. We are constrained to hold that they are jointly liable for the entire fee.
The contract provides that “the members of the Committee as such assume[d] responsibility for payment,” and contains no words of severance. The general rule is “that the obligation created by the promise of several persons is joint unless the contrary is made evident.” 2 Willis-ton, Contracts § 323 (1936). Cf. Restatement, Contracts § 112 (1932). Moreover, the contract identifies the promisors as “the members of the Committee” and discloses an undivided promise to pay the entire fee. This negates the view that each member made a separate promise to pay a pro rata share. See 4 Corbin, Contracts § 925 (1951). Compare Huff v. Doerr, 206 Mo.App. 563, 228 S.W. 849 (1921), with O’Connor v. Hooper, 102 Cal. 528, 36 P. 939 (1894). Cf. Olson v. Forster, 42 Cal.App.2d 493, 109 P.2d 388 (1941). Compare Adriatic Fire Ins. Co. v. Treadwell, 108 U.S. 361, 2 S.Ct. 772, 27 L.Ed. 754 (1883). Finally, the common object of the members of the Creditors’ Committee — to secure appellant’s legal services — suggests that their liability is joint. 4 Corbin, Contracts § 926 (1951).
Whether the members of the Creditors’ Committee are entitled to contribution inter se or from other creditors, or both, *s no^ before us.
Reversed and remanded.
. The court below awarded plaintiff $505.-83, presumably as third party beneficiary of another contract in which defendants as creditors promised to pay a portion of the Committee’s expenses based upon their share of the corporation’s debts.
. Fraud is an affirmative defense which must be pleaded. Fed.R.Civ.P. rule 8(c), 28 U.S.C.A.
Counsel admitted that defendants are experienced businessmen, well aware of the importance of written agreements. Compare Hill v. Marston, 65 App.D.C. 250, 82 F.2d 856 (1936).
. The terms joint, several, and joint and several have occasionally been confused. Co-promisors are liable (1) jointly if all of them have promised the entire performance; or (2) severally if they have promised separate performances. At common law joint promisors had to be joined in a single suit, but any one of them could be compelled to satisfy the entire judgment. 4 Corbin, Contracts §§ 920, 929 (1951). To obviate the necessity for joining all the promisors, and to avoid problems of survivorship, release of co-obligors, and the like, the promisee obtained the promisors’ agreement to be liable jointly and severally; i. e., collectively and individually liable for the whole performance.
In this jurisdiction, statutes authorize separate suits against joint promisors even if they have not agreed to be liable jointly and severally. D.C.Code §§ 13-401, 16-901 (1961). Those statutes do not determine, of course, whether each co-promisor has agreed to be liable for the entire performance or only for a part thereof. That determination is governed by the terms of the contract.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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songer_casetyp1_1-3-1
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L
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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 "criminal - federal offense".
Michael C. SANSONE, Appellant, v. UNITED STATES of America, Appellee.
No. 17399.
United States Court of Appeals Eighth Circuit.
July 17, 1964.
Certiorari Granted Oct. 26, 1964.
See 85 S.Ct. 159.
Merle L. Silverstein, St. Louis, Mo., made argument for appellant and filed brief with Stanley M. Rosenblum, of Rosenblum & Goldenhersh, St. Louis, Mo., and Thomas Wadden, Jr., Washington, D. C.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument for ap-pellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.
Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.
BLACKMUN, Circuit Judge.
Michael C. Sansone, age 41, after a plea of not guilty, was convicted by a jury of a willful and knowing attempt, in violation of 26 U.S.C. § 7201, to evade and defeat his federal income tax for the calendar year 1957. He had been charged in a 2-count indictment' with a violation of this statute for both 1956 and 1957 but was acquitted as to 1956. Judge Harper imposed a $2,000 fine and a 15-month sentence. The defendant appealed.
The case comes down to the omission from Sansone’s 1957 return of about $20,000 in long term capital gain realized upon the disposition of real estate. That the gain was realized, that it was not reported, and that it should have been reported are conceded by the defense.
The issues are (A) whether the admissible evidence established the essential element of willfulness on the part of Sansone and (B) whether he was entitled to lesser-included-offense instructions. On the first issue the admissibility of an after-the-fact affidavit executed by Sansone and given to an investigating intelligence agent assumes vital importance.
The objective facts are not in dispute. Sansome and his wife in 1956 and 1957 lived in a Saint Louis suburb. They filed joint returns for both years. Their 1957 return as filed showed adjusted gross income of $7,585 and taxable income of $2,963. The income reported consisted of Mrs. Sansone’s salary as a teacher, sums received by Mr. Sansone from the Department of the Air Force, and his net income as a securities salesman. It was stipulated that the taxpayers earned and received these items in 1957. The return disclosed no capital gain or loss and no other income.
On December 6,1955, Sansone obtained from House Hunters, Inc. an option to purchase certain land in Saint Louis County. In the following February he exercised this option and a contract for sale was signed. It ran from the vendor to the Sansones. It specified a price of $22,500, payable $17,500 in cash and $5,-000 by a purchase money deed of trust on part of the real estate.
Sansone at the same time effected a sale of a portion of the land to D-X Sun-ray Oil Company for $20,000. Land Title Insurance Co. of St. Louis handled both Sansone’s purchase and his sale to Sunray. It closed the two transactions simultaneously and issued the Sansones its check for $2,891.71. This was the amount remaining after appropriate charges and after debiting the Sansones for their $22,500 purchase price and crediting them for the $20,000 Sunray proceeds plus the deed of trust obligation. Both deeds were filed for record on March 21, 1956. This Sunray transaction resulted in 1956 gain which was not reported and which was the subject of the first and acquitted count of the indictment.
In August 1957 Sansone sold another portion of his tract. This was to Tre-marco Corporation and was for a gross price of $27,000. This time Land Title issued the Sansones its check for $21,-671.67, representing the net payable to them after vendor’s expenses and after payment of the amount due on the deed of trust. The deed to Tremarco was immediately recorded. This Tremarco transaction resulted in 1957 gain which was not reported and which was the subject of the second and convicted count of the indictment.
In summary and to repeat: The defendant purchased a tract of land in March 1956 for $22,500. He promptly sold a portion of the same land for $20,-000. In 1957 he sold another portion for $27,000. The gains realized on these respective sales were not reported in the Sansone returns for 1956 and 1957.
On the question of willfulness the government’s ease rested primarily upon the testimony of Steve Milosevich, of Revenue Agent John J. Conley, and of the defendant himself, and- upon Sansone’s own written statement hereinafter mentioned. Because of the difficulty and sensitivity of the issue, we review this evidence in some detail.
Milosevich was Mrs. Sansone’s brother. He operated a delicatessen-sandwich shop. He had had some experience as a junior accountant'. He prepared the Sansones’ 1956 and 1957 returns. He testified that at the time he prepared the 1956 return he was “not sure” he had information that the Sansones “had a real estate transaction” but “I think at that time I may have been aware that there was” one. He also said that he prepared the 1957 return from work sheets presented to him by the taxpayers; that there was no information on those sheets pertaining to any real estate transaction other than real estate taxes paid; that again he was “not sure” whether he knew at the time he prepared the return that the Sansones had sold a piece of property; and that he learned about the real estate transaction through conversations with the Sansones but' that he did not “recall exactly when it was”.
Conley was a special agent with the Intelligence Division. He and Agent Purk conferred with the Sansones in May 1960. They then lived in Phoenix, Arizona. The agents saw the defendant at his home on three successive days beginning May 3. On May 5 Conley took from the defendant a written statement subscribed and sworn to by Sansone before Conley and denominated an affidavit. ■This was prepared by Conley. It was admitted into evidence at the trial over objection. The statement twice recites that it' was made voluntarily and goes on to state that the affiant understood it, that it was made without threat or promise of immunity, and that he had been advised as to his constitutional rights. It further recites that the San-sones’ returns for 1956 and 1957 (and for 1958) were prepared by Milosevich from work papers compiled by Mrs. Sansone, and
“I did not report the 1956 sale in our 1956 joint income tax return because I thought that I was entitled to recover my entire cost before reporting any sales in my income tax ■ returns. I did not report the 1957 sale in our joint income tax return for 1957 because T was burdened with a number of financial obligations and did not feel I could raise the money to pay any tax due. It was my intention to report all sales in a future year and pay the tax due. I knew that I should have reported the 1957 sale, but my wife did not know that it should have been reported. It' was not my intention to evade the payment of our proper taxes and I intended to pay any additional taxes due when I was financially able to do so.
“My brother-in-law, Steve Milose-vich, knew that we had this real estate and had made several sales, but he did not advise us whether or not to report the 1956 and 1957 sales and the matter was not discussed with him as he merely prepared the returns from the workpaper we gave him in these years.”
Conley testified that he adjusted the 1956 return to reflect the Sunray sale; that this was a short term capital gain; that he determined basis on the part sold by allocating to it a portion of the cost of the entire tract; that this allocation was based on assessed valuations approved by the Sansones on Land Title’s closing statement; that he adjusted the 1957 return to include the long term capital gain on the sale to Tremarco; and that he used the assessed valuation method for determining basis of the Tre-marco tract.
On cross-examination Conley testified that there are a .number of approved methods for apportioning cost; that when Agent' Purk made allocations for the later actual payment of the tax he used a method based on front footage; that the Sansones produced for the agents all the documents they requested, and made a place available for them in which to work; that, apart from the omission of the sales in the returns, he found no evidence that the defendant attempted to conceal any part of these transactions; that the checks the San-sones received were deposited without concealment; that the affidavit did not cover all the discussions had with the Sarsones; that they discussed Fish Pot Creek which ran through the real estate; that, although the defendant was not present when the affidavit was typed, he had approved a rough draft and was given the opportunity to add anything he wished; that he examined the Sansones’ bank statements; that their May 1958 statement showed a balance of $9,286.74; and that Sansone had said he wanted to pay his tax.
The defense for the 1957 case is largely concerned with Fish Pot Creek. This stream ran through the Sansone property west of the portions sold to Sunray and Tremarco. The claim is that Sansone was confronted with large capital expenditures required to correct conditions which the creek had created; that these expenditures would be far greater than any gain realized in the 1957 sale; that any meaningful development was necessarily delayed until the Missouri Highway Commission concluded its plans for improvements to Manchester Road which bordered the property at the south and under which the creek flowed; that San-sone honestly believed that' he could wait until these expenditures were ascertained and then determine whether he had any gain on the entire tract; that, although he now knows this was erroneous, it nevertheless was an honest belief which he held when his returns were filed; and that he did not intend to avoid payment of any taxes.
In support of this defense Sansone himself took the stand. He testified that his own average income in 1954 through 1956 was around $3,000 to $3,200 annually; that he desired to supplement this by acquiring a piece of property to develop ; that he first saw the land in question in the winter of 1955-56 when the creek did not appear unusual; that during that winter he learned of the Commission’s plans to widen Manchester Road and to straighten the creek; that in the spring he found that the stream overflowed and contained raw sewage which created an odor and a mess; that he received many complaints that summer from the mayor; that he consulted an architect in late 1956 to inspect' the property and to see what could be done; that he was repeatedly in touch with the Highway Commission to ascertain their plans but was never able to find out what they were; that he did purchase the property and make the sales to Sunray and Tremarco; that he did not report the Sunray sale in his 1956 return because he had paid more for the property than the amount of that sale and thus had not recovered his cost'; that he was told it would take a minimum of $40,000 to correct the creek; that in 1957 the creek conditions were even worse; that he received more complaints from the mayor; that he tried to fix the creek a little himself but was unsuccessful; that he often called the Commission but remained unable to get any definite information from them; that the mayor told him that he did not have the responsibility to fix the creek until the Commission produced its final plans; that the 1957 return was prepared near the last day for filing in April 1958; that by then the Tremarco sale had been closed; and that he did not report that sale because he had been told he would have to fix the creek, because he felt the forthcoming substantial expenditure on that project was part of his cost, and because he honestly believed he didn’t have to report the sales until he had recovered his entire anticipated cost. He also testified that he had told Agent Conley of the coming expenditure on the land; that it was not true, as stated in the affidavit, that he was burdened financially and could not raise money to pay any tax due; and that he was then better off financially than he ever had been. He said that he told Conley the affidavit was not complete and that it contained inaccuracies.
An architect testified that Sansone had asked him to inspect the property; that he did so in the fall of 1956; that he quoted Sansone the $40,000 minimum figure; and that he also told him it would be “stupid” to attempt this project until it was known exactly what the Highway Commission was going to do. The mayor testified that the creek had been a constant source of complaint; that he talked with Sansone on numerous occasions and told him some corrective measures would have to be taken; that he himself had attempted to accelerate the development in that area; and that he told Sansone he did not' expect him to make the permanent improvement until the Commission determined its plans.
A consulting engineer also testified for the defense. He, through a corporation, owned an interest' in the property immediately across Manchester Road. He told of necessary corrective measures which were required, of their cost, of discussing this problem with Sansone, and of the lack of positive information from the Commission.
A. Willfulness. The defense argument is that the record is devoid of any legally significant evidence of willfulness; that Sansone’s affidavit reciting “I knew I should have reported the 1957 sale” was the only evidence indicating improper intent; and that this admission is uncorroborated and is therefore unavailable to establish the charged crime’s necessary element of willfulness.
The defense at this point presses upon us certain legal propositions :
1. An intent to evade or defeat the 1957 tax is an essential element of the crime under § 7201. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Canton v. United States, 226 F.2d 313, 322 (8 Cir. 1955), cert. denied 350 U.S. 965, 76 S.Ct. 433, 100 L.Ed. 838.
2. Willfulness is not to be inferred “from the mere understatement of income”, unaccompanied by such things as a consistent pattern of underreporting large amounts of income or the failure of the taxpayer to include all his income in his books and records. Holland v. United States, supra, p. 139 of 348 U.S., 75 S.Ct. 127; Blackwell v. United States, 244 F.2d 423, 429 (8 Cir. 1957), cert. denied 355 U.S. 838, 78 S.Ct. 49, 2 L.Ed.2d 50; Black v. United States, 309 F.2d 331, 337 (8 Cir. 1962), cert. denied 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765.
3. A defendant’s after-the-fact and out-of-court admission of an essential element of an alleged crime requires corroboration. The same is true of exculpatory or explanatory statements. And
“Each case has its own facts admitted and its own corroborative evidence, which leads to patent individualization of the opinions. However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement'. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. * * It is sufficient if the corroboration support's the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt' beyond a reasonable doubt.”
Opper v. United States, 348 U.S. 84, 89-93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). These principles are applicable to the crime of tax evasion where “thei*e is no tangible injury which can be isolated as a corpus delicti” and “where the corroborative evidence must implicate the accused in order to show that a crime has been committed” and, specifically, where the statement is given to an investigating government official. But
“It is agreed that the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that' the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty. * * All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused. * *
“Under the above standard the Government may provide the necessary corroboration by introducing substantial evidence, apart from petitioner’s admissions, tending to show that petitioner willfully understated his taxable income.”
Smith v. United States, 348 U.S. 147, 153-159, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954). See also, United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954), and Wong Sun v. United States, 371 U.S. 471, 489, 503, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
This court' has recognized these principles and, as the defense suggests, the “requirement of corroboration by substantial independent evidence has not been taken lightly by this court”. See, for example, Banks v. United States, 223 F.2d 884, 886-887 (8 Cir. 1955), cert. denied 350 U.S. 986, 76 S.Ct. 472, 100 L.Ed. 853; Canton v. United States, supra, p. 317 of 226 F.2d; Zacher v. United States, 227 F.2d 219, 223-224 (8 Cir. 1955), cert. denied 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858.
The government does not quarrel with these rules as such. The controversy, as is so often the ease, lies in their application-.
At this point we note that the defense appears to concede that if the Sansone affidavit is admissible it serves to establish every element of the government’s case not supplied by other proof. This narrows the issue and we accept for present purposes the defense statement of it:
“[U]nder a full and fair review of the entire record in this case what independent evidence is there to corroborate and make trustworthy the appellant’s admissions as to his intent with respect to his 1957 return and, if there is such independent evidence, is it truly substantial? * * [¶] ere he either stands or falls.”
We deal here with a state of mind which is a subjective element. In Blackwell v. United States, supra, Judge Van Oosterhout, in speaking for this court, said, p. 429 of 244 F.2d: “Willfulness involves a state of mind. Direct proof of willfulness is seldom available”. He made essentially the same observation in Zacher v. United States, supra, p. 224 of 227 F.2d. Many of the decided and cited cases are concerned with objective evidence and its proof. Opper, Smith, Calderon, Banks, Canton, and Zacher, all supra, are examples of this. But there are also cases which concern the subjective. See Smoot v. United States, 114 U.S.App.D.C. 154, 312 F.2d 881 (1962); United States v. Sapperstein, 312 F.2d 694 (4 Cir. 1963); Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546, 565-569 (1963), cert. denied 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077. These are significant and helpful here.
We conclude without great difficulty that, within the words quoted from the defense brief, there is independent evidence in this record “to corroborate and make trustworthy the appellant’s admissions as to his intent with respect to his 1957 return” and that such independent evidence is “truly substantial”. We find this corroboration and this substantiality in the following:
(I) The omission in the 1956 and 1957 returns of the gains realized on the real estate sales; (2) the inclusion in the 1956 return, with full description, of no less than 13 separate short term capital gains and losses on securities, thereby demonstrating the defendant’s awareness of the income character of a capital gain and of its measure; (3) the defendant’s receipt through the two real estate sales of cash totaling more than $24,500 over and beyond his cost of the entire property, that is, after satisfaction of purchase obligations and attendant expenses; (4) the omission of any reference to the sales or their proceeds in the work papers supplied to Milosevich, despite the fact that the 1957 check from Land Title was for over $21,000 and represented the Sansone’s largest cash receipt of the year; (5) the defendant’s direct testimony that his financial condition in April and May 1958 was better than it ever had been in his life; (6) his possession of an education somewhat beyond the high school level; (7) his attainment' of the rank of Major in the Air Force Reserve; (8) his experience, although not an extensive one, as a securities and real' estate salesman; (9) his holding of a Missouri real estate salesman’s license which, under Missouri law, presumes certain competency and requires an examination, V.A.M.S. § 339.040; (10) his obvious awareness of income tax details as demonstrated by the appearance in both or one of the 1956 and 1957 returns of an exemption for his mother-in-law; of percentage deductions for (a) the expense, including depreciation, of his Cadillac automobile; (b) his telephone bill, and (c) heat and electric charges for his “home office”; of a deduction for “promotion and entertainment”; of deductions for uniforms and an automobile accident'; and of the marking, in part for credit and in part for refund, of claimed overpayments due to withholding; (11) his deduction of the interest paid on the purchase money deed of trust to House Hunters, Inc. in 1956 but not in 1957 when that mortgage was paid off with the Tremarco sale resulting in the gain in question; and (12) his concession on the witness stand that he was “familiar with the reporting of capital gains”.
All this in the aggregate constitutes, in our view, independent evidence of sufficiently substantial character, which, in the language of Opper, tends “to establish the trustworthiness of the statement” in the Sansone affidavit. It' “supports the essential facts admitted sufficiently to justify a jury inference of their truth”. And it serves to fulfill the requirement of Smith that “All elements of the offense must be established by independent evidence or corroborated admissions”.
We recognize that there is some force in the defense argument (1) that the Sansones made no attempt to conceal through strawmen their participation in the real estate purchase and sales; (2) that' federal documentary stamps in appropriate amounts were apparently utilized and, at least in one instance, were affixed prior to recording; (3) that the deeds were promptly filed for record; (4) that the Sunray transaction did not gross at more than Sansone’s cost; (5) that Fish Pot Creek presented a serious pollution and route problem; (6) that Sansone was deeply concerned about this and reasonably anticipated the burden of a substantial capital expenditure for its solution; (7) that he also reasonably anticipated that the expenditure might consume all his available cash; (8) that the 1956 and 1957 returns, except for the real estate capital gains, were otherwise accepted as filed; (9) that his omitted income was confined to these two years and did not create a pattern over a longer period; (10) that it is known that a request for a refund often leads to audit and thus contraindicates willfulness; (11) that the reported 1956 securities gains and losses were simple in character and did not involve cost allocation; and (12) that Sansone’s real estate experience was not extensive and was with a very small firm. These factors and such potency as they possess are, however, for the trier of fact. They are not for us where there is substantial opposing evidence on which the jury’s verdict may properly rest. That these factors did not convince the jury on the 1957 count is. not a situation which we may undo on the record before us.
B. The lesser offense instructions. The defense claims prejudicial error in the trial court’s refusal to charge the jury that it could find the defendant guilty of lesser crimes than the one charged by the indictment under § 7201. The statutes concerned are 26 U.S.C. §§ 7203 and 7207.
1. Section 7203. As we have noted, § 7201 is directed toward a willful attempt to evade or defeat any tax or its payment. Section 7203 concerns a willful failure to pay a tax or make a return or keep records or supply information; violation thereof is a misdemeanor and lesser punishment ensues.
This court already has been confronted with this issue under both the 1939 and the 1954 Codes. In each instance it has been decided against the defense. Dillon v. United States, 218 F.2d 97, 101 (8 Cir. 1955), cert. granted 349 U.S. 914, 75 S.Ct. 603, 99 L.Ed. 1248 and dismissed 350 U.S. 906, 76 S.Ct. 191, 100 L.Ed. 796; Janko v. United States, 281 F.2d 156, 164 (8 Cir. 1960), reversed on other grounds 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846; Foley v. United States, 290 F.2d 562, 567-569 (8 Cir. 1961), cert. denied 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88.
Although the issue is not an easy one, and although in Foley, pp. 568-569 of 290 F.2d, we recognized that there may be situations where, under the evidence and § 7203, a defendant is entitled to lesser offense instructions, we conclude that this is not one of those situations. Here again the offense charged by the indictment was an affirmative act, namely, a willful attempt to evade tax by filing a false and fraudulent return in which taxable income was knowingly understated ; it did not rest on something less than positive, such as mere willful failure to file or to pay. The trial court’s instructions as to this distinction were carefully delineated. Dillon, Janko, and Foley are pertinently applicable to the facts of the present case and we adhere to our consistent rulings in those cases.
2. Section 7207. This is directed to the willful delivery or disclosure to a tax authority of any return known by the taxpayer to be fraudulent or false as to any material matter. It does not embrace in specific language, as did its antecedent, § 3616(a) of the 1939 Code, an intent to defeat or evade an assessment.
This issue, too, has been before this court and has been decided adversely to the defense. In Janko v. United States, supra, pp. 164-167 of 281 F.2d, we noted, among other things, that the lesser included offense question here was more complex than that presented by § 7203; that § 3616(a) had been held inapplicable to evasion of the income tax, Achilli v. United States, 353 U.S. 373, 77 S.Ct. 995, 1 L.Ed.2d 918 (1957); and that § 7207’s positioning in the 1954 Code and a comment in the 1954 Committee Reports were of interest. Two of us concluded, for three stated reasons, that the defendant was not entitled to a lesser offense instruction under § 7207. Judge Matthes dissented on this one issue and relied in part upon prospective comments, seemingly sympathetic with his view, which had appeared in Dillon v. United States, supra, p. 103 of 218 F.2d, and in Berra v. United States, 351 U.S. 131, 134, footnote 5, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).
The issue remains difficult and close, as we recognized in Janko, and it has not been settled by the Supreme Court. Unfortunately, from the point of view of desiring a definitive answer, the Supreme Court’s reversal of Janko, at the suggestion of the Solicitor General, on grounds of prejudicial publicity, a point on which this court' was unanimous, left the question open. We only note in passing that the Ninth Circuit seems to agree with the conclusion the Janko majority reached. Redfield v. United States, 315 F.2d 76, 82 (9 Cir. 1963), cert. denied 369 U.S. 803. So long as the Janko holding on this issue remains unreversed on the books, we regard it as the law of this circuit.
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:
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songer_appel1_1_4
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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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
LURIA BROTHERS AND COMPANY, Inc., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
Nos. 14402, 14411-14421, 14470-14472.
United States Court of Appeals Third Circuit.
Argued Jan. 21, 1966.
Decided Jan. 8, 1968.
Rehearing Denied Feb. 27, 1968.
Morris Wolf, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Nathan Silberstein, Burton Caine, Philadelphia, Pa., on the brief), for Luria Brothers and Co., Inc., petitioner in No. 14402.
Albert R. Connelly, Cravath, Swaine & Moore, New York City (Edward C. Perkins, Daniel I. Davidson, New York City, on the brief), for Bethlehem Steel Corp. et al., petitioners in No. 14414.
Howard M. Holtzmann, Holtzmann, Wise & Shepard, New York City (Mark J. Maged, New York City, on the brief), for Colorado Fuel & Iron Corp. et al., petitioners in No. 14421.
James A. Bell, Thorp, Reed & Armstrong, Pittsburgh, Pa. (C. M. Thorp, Jr., Charles Weiss, Pittsburgh, Pa., Lewis Franklin Powell, Jr., Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on the brief), for National Steel Corp., petitioner in No. 14415, Edge-water Steel Co., petitioner in No. 14416 and for Weirton Sell Co., petitioner in No. 14472.
William H. Buchanan, General Atty., United States Steel Corporation Pittsburgh, Pa. (L. L. Lewis, Merrill Russell, Pittsburgh, Pa., on the brief), for U. S. Steel Corp., petitioner in No. 14417.
Joseph A. Vieson, W. Robert Chandler, Cross, Wrock, Miller, Yieson & Kelley, Detroit, Mich., for petitioner Detroit Steel Corp.
R. H. McRoberts, Edwin S. Taylor, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner Granite City Steel Co.
Robert C. McAdoo, Morgan, Lewis & Bockius, Philadelphia, Pa., for petitioner Baldwin-Lima-Hamilton Corp.
Gilbert W. Oswald, Samuel D. Slade, Sehnader, Harrison, Segal & Lewis, Philadelphia, Pa., for petitioner Lukens Steel Co.
Arnold F. Shaw, Donohue, Kaufmann & Shaw, Washington, D. C., for petitioner Phoenix Steel Corp., successor by merger to Phoenix Iron and Steel Co. and Central Iron and Steel Co.
Lester S. Clemons, William K. McKib-bage, Quarles, Herriott & Clemons, Milwaukee, Wis., for petitioner Bucyrus-Erie Co.
Ralph M. Barley, Barley, Snyder, Cooper & Mueller, Lancaster, Pa., for petitioner Grinnell Corp., successor by merger to Columbia Malleable Castings Corp.
Dickinson, Wright, McKean & Cudlip, William B. Cudlip, T. Donald Wade, W. Gerald Warren, Detroit, Mich., for petitioner McLouth Steel Corp.
Frederick H. Mayer, Federal Trade Commission, Washington, D. C. (James Mcl. Henderson, General Counsel, J. B. Truly, Asst. General Counsel, David B. Morris, Attorney, Attorneys for Federal Trade Commission, Washington, D. C., on the brief), for respondent in all cases.
OPINION OF THE COURT
Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges.
GERALD McLAUGHLIN, Circuit Judge.
Our decision in this appeal has been delayed because of litigation pending in the United States Supreme Court concerning the power of the Federal Trade Commission (Commission) to pass upon the merits of controversies before it during the period when the Commission was composed of only three of its five members and one of those three dissented. The Supreme Court has validated the hearing and decisional status of the Commission as constituted when it heard and decided that case. Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (December 4, 1967). We have therefore considered and determined the matter before us on its merits.
The Federal Trade Commission issued its original complaint in this proceeding on January 19, 1954. This was amended and supplemented by a subsequent complaint issued on July 13, 1954. Hearings were commenced on January 12, 1955, and continued periodically until May 14, 1958. During the course of the hearings which took 113 days, the testimony of more than 250 witnesses was taken. Counsel for the Commission filed proposed findings of fact and conclusions of law on November 10, 1958. The various respondents (petitioners herein) filed their separate counter-findings of fact, conclusions of law and orders from January 5, 1959 to January 13, 1959. The hearing examiner’s initial decision was filed on March 29, 1961. Oral argument before the Commission was heard on November 21, 1961, and the Commis-. sion’s opinion, which basically adopted the hearing examiner’s initial decision, was announced on November 15, 1962. On April 11, 1963, Luria Brothers and Company, Inc. petitioned this Court, pursuant to Section 5(c) of the Federal Trade Commission Act, 38 Stat. 719 (1914), as amended 15 U.S.C. § 45(c) (1958), and to Section 11 of the Clayton Act, 38 Stat. 734 (1914), as amended 15 U.S.C. § 21(e), to review and set aside the order of the Commission dated February 13, 1963.
I. The Complaint
The complaint, as finally amended and supplemented, was in two counts. Count I in substance charged that Luria and the other petitioning mills entered into a series of agreements whereby Luria was to act as the exclusive or substantially exclusive broker for the petitioning mills. It charged that these agreements led to a restraint of trade and tended to create a monopoly in the scrap metal market in violation of Section 5 of the Federal Trade Commission Act, 15 U.S. C. § 45(a) (1). Count I also charged that the petitioning mills conspired to effect a monopoly in Luria, that Luria and others restrained trade in export scrap, that petitioners engaged in coercive tactics, and that Luria acquired various competing companies — all in violation of Section 5.
Count II specifically charged Luria with violation of Section 7 of the Clayton Act, 15 U.S.C. § 18 by the acquisition of the stock of Southwest Steel Company, a competing broker, and the stock of six other companies.
Several charges were dismissed by the hearing examiner and the Commission. Those sustained were a finding that petitioners violated Section 5 of the Federal Trade Commission Act by separate agreements whereby each mill made Luria its exclusive or substantially exclusive broker; that Luria’s participation in the sale of scrap to the purchasing agent, Office Commun des Consommateurs de Ferradle (OCCF), for the Coal and Iron Community of Western Europe was illegal ; and that Luria’s ownership of the stock of Southwest violated Section 7 of the Clayton Act.
The Commission’s order prohibited Luria from contracting or agreeing to act as the exclusive or substantially exclusive broker for any plant of any respondent mill or any other buyer of scrap iron and steel; forbad the respondent mills without limit as to time to buy all or substantially all their scrap from or through Luria, and forbad them for five years to buy more than 50 percent of their scrap from Luria except to the extent that scrap, adequate in quantity and quality, is not available from other suppliers on terms which are substantially similar and competitive; forbad Luria, directly or indirectly, to agree to act as the exclusive or substantially exclusive broker in the export of scrap; forbad Luria for five years from acquiring the business of any scrap broker or dealer without the permission of the Commission and ordered Luria to divest itself of its interest in Southwest.
It is from these findings and the foregoing order that petitioners seek review by this Court.
II. Industrial Facts
At least 98 percent of the iron and steel scrap consumed in the United States is purchased by the producers of iron and steel. Scrap and pig iron are the principal metallics used in making iron and steel. Part of the scrap used in the production process is generated as a waste product of the mills’ own activities and is referred to as “home scrap.” This constitutes about one-half of the scrap consumed by producers. The remainder must be purchased from outside sources and is referred to as “purchased scrap.” Sources of purchased scrap include railroads, industrial materials, ships, automobiles, discarded household appliances, etc.
Much scrap is collected by a vast army of junk dealers and peddlers who make regular rounds for this purpose. These junkmen usually sell their scrap to larger dealers who in turn sell directly to the consumer or to brokers. Approximately 90 percent of all scrap used is purchased either from dealers or brokers. Scrap brokers, as that term is used in the industry, has reference to persons who purchase and sell scrap for their own account, taking title to it and assuming all the risks incident to ownership. In effect they are wholesale dealers, but do not take physical possession of the material. Scrap dealers, on the other hand, operate yards where they take possession of the scrap, sort and process it. There is no hard and fast line differentiating brokers from dealers since in many instances, a dealer may act as a broker and some brokers also own yards where they operate as dealers.
Brokers derive their profit from the difference between what they pay for the scrap and what, they can get for it. In general, they aim at a differential of $1.00 a gross ton, but because of market fluctuations and varying competitive conditions, the brokerage business is highly speculative.
III. History op Luria
The Luria business began about 1889 when the grandfather and greatgrand-father of the present generation of Luri-as began to collect scrap. A small office was opened in Reading, Pennsylvania, and the business was incorporated in 1918. By 1930, Luria had opened offices in New York, Pittsburgh, Boston and Philadelphia and set up two yards in Pennsylvania. By 1946, Luria had become a substantial supplier to eleven of the petitioning mills. At the same time Luria expanded westward opening offices in Detroit, Chicago, Cleveland, Houston and St. Louis. Later Luria opened offices in Colorado, Alabama, Utah, California and Oregon. Domestically Luria is the largest scrap broker with 16 offices and 6 yards located in representative cities throughout the country. When the Korean War ended in 1953, Luria entered the export market by supplying Hugo Neu, a broker specializing in the export of scrap. In 1954, Luria and two other brokers joined forces and entered into export agreements with OCCF.
IV. The Relevant Domestic Markets
The statistical information gathered by the Commission covers the scrap purchases of practically all the steel mills in the United States since approximately 99 percent of the country’s steel mills reported their purchases to the Commission. These mills referred to as “reporting mills” account for between two-thirds and three-fourths of all the scrap consumed in the United States. As previously indicated, 90 percent of the scrap purchased by the reporting mills is obtained from broker-dealer sources. In tabulating its data the Commission properly excluded purchases from sources other than broker-dealers since the sales by industrial fabricators, railroads and shipyards do not effectively compete in the market in which Luria and other broker-dealers operate.
In evaluating the effect of Luria’s operations on the scrap market the Commission divided the country into five geographic areas, one subdivision and the nation as a whole. (1) The North Atlantic area consists of the six New England states, New York, New Jersey, Eastern Pennsylvania, Delaware, Maryland and the District of Columbia. This area contains 24 reporting mills which operate 38 plants. During the pertinent period of the investigation, the years 1947-1954, the petitioning mills accounted for 80 percent of all scrap purchased by the reporting mills from broker-dealer sources. The purchases by the reporting mills in this district accounted for approximately 20 percent of all purchases by domestic mills from broker-dealer sources. (2) The Eastern Pennsylvania district is a subdivision of the North Atlantic area in which are located 13 of the above 24 mills. The petitioning mills accounted for 84 percent of the purchases made by these 13 reporting mills. Together these 13 mills account for approximately one-half of all purchases made by all the reporting mills in the North Atlantic area. (3) The Pittsburgh-Youngstown area is a hexagonal territory extending from Johnstown on the east, through Monessen and Washington, Pennsylvania, northwest through Steubenville, Ohio, Weirton, West Virginia, Youngstown and Warren, Ohio, east through Sharon, Pennsylvania, and back to Johnstown via Butler, Pennsylvania. Twenty-three mills operating 29 plants are located within this area. In 1954, the petitioning mills accounted for 18 percent of the total purchases in that area by all reporting mills. (4) The St. Louis area includes metropolitan St. Louis and its suburban areas in Missouri and Illinois. Granite City, the only petitioner in this area, and Laclede Steel Company, a reporting mill, operate the only two mills in the area. The purchases of the two mills and three large foundries in the area represent 80 percent of all purchases in the region. Granite City alone accounts for one-half of the scrap purchased by these five companies. (5) The Rocky Mountain area includes the states of Arizona, Utah, Colorado, Wyoming, Idaho and Montana. Petitioners, C.F.&I. at Pueblo, Colorado, and U. S. Steel at Geneva, Utah, operate the only two mills in the area. (6) The Pacific Coast area contains 9 reporting mills with a total of 12 plants in this area which is comprised of the states of California, Oregon and Washington. The purchases of Bethlehem-Pacific, the sole petitioning mill in the area, total almost one-half of all the purchases of the 9 reporting mills. (7) In the United States as a whole, the petitioning mills accounted for 30 percent in 1953, and 24 percent in 1954 of total scrap purchases by all reporting mills from broker-dealer sources.
The following table clearly depicts the extent to which the practices of the petitioning mills affect the scrap markets in the various areas.
Percentage Shares of the Petitioning Mills’ Purchases from Broker-Dealer Sources in Total Purchases from Such Sources By All Reporting Mills in the Respective Areas
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 80 79 75 74 77 78 79 80
Eastern Pennsylvania 82 81 81 79 80 79 79 84
Pittsburgh-Youngstown - - - 13 15 16 16 18
St. Louis - - - 45 44 39 50 44
Rocky Mountain 100 100 100 100 100 100 100 100
Pacific Coast 40 37 38 41 43 45 52 49
United States 27 25 27 24 28 38 30 24
Luria’s percentage share in the total scrap purchases by all reporting mills from broker-dealer sources in each relevant area between 1947 and 1954 is indicated by the following tabulation,
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 34.1 38.1 46.8 54.6 62.0 68.8 73.1 74.5
Eastern Pennsylvania 48.5 51.8 58.3 72.4 72.2 74.1 78.9 83.3
Pittsburgh-Y oungstown 20.4 20.6 26.2 37.2 32.2 35.4 36.5 36.0
St. Louis 16.5 31.0 51.7 42.5 51.6 45.4
Rocky Mountain 99.3 94.0 98.6 95.2 87.2 90.6 95.5 98.9
Pacific Coast 6.6 11.7 21.2 33.3 45.8 50.6
United States 17.1 18.8 22.3 29.4 31.4 33.3 36.5 33.7
Even when the Commission confined its evaluation of Luria’s domination in the scrap industry to a comparison of the purchases made by the petitioning mills from Luria with those made by all reporting mills from all brokers and dealers, Luria’s overshadowing position was brought into focus as indicated by the following table.
Percentage Shares of the Petitioning Mills’ Purchases from Luria and Subsidiaries in Total Purchases from Broker-Dealers By All Reporting Mills
1947 1948 1949 1950 1951 1952 1953 1954
North Atlantic 29 33 40 47 56 62 68 70
Eastern Pennsylvania 41 43 50 61 61 63 73 75
Pittsburgh-Y oungstown 10 7 15 9 11 12 12 12
St. Louis 0.1 29 44 39 50 44
Rocky Mountain 100 94 99 96 87 91 96 99
Pacific Coast 2 8 16 25 39 39
United States 10 10 14 16 21 22 25 21
Luria’s position of dominance in its relations with the petitioning mills in 1953 and 1954 is indicated by the percentage of scrap requirements filled by Luria for each mill.
Percent of Total Bought from Luria
1953 1954
89.8 87.7 Lukens
96.7 94.1 B. L.H.
100.0 100.0 Columbia
98.4 95.3 C. F.&I.
100.0 100.0 Edgewater
100.0 99.4 Phoenix
100.0 100.0 Granite City
91.1 100.0 Detroit
70.2 69.8 National
89.5 93.9 U.S.S.
McLouth 71.9 74.2
Bethlehem 81.2 80.9
Bethlehem-Pacific 75.4 80.4
Bucyrus-Erie 89.1 84.2
V. The Foreign Market
In 1954, Luria directed its efforts toward securing a hold in the export market. In 1953, the European Common Market countries had formed a central buying office to purchase scrap required by foreign steel mills. This office, OCCF, contacted Luria, Schiavone-Bo-nomo, and Western Steel International Corporation for the purpose of obtaining a scrap broker in the United States. The three concerns negotiated a contract with OCCF on July 14, 1954 providing that the three would provide all scrap to be purchased by OCCF until December 31, 1954. By subsequent arrangement, the contract was extended until December 31, 1955. Between 1954 and 1956, the six Common Market countries purchased between 66 and 84 percent of the total scrap exported from the United States to Europe. In 1954, the Luria group supplied 90 percent and in 1955, 95 percent of total scrap purchased by OCCF from the United States.
The agreement with OCCF had a substantial effect on Luria’s domestic competitors since in 1954, Luria foreclosed 80 percent of the domestic scrap market in the North Atlantic area. With only 20 percent of the domestic market available, Luria’s competitors were forced to dispose of their scrap abroad. Since the six Common Market countries purchased between 66 and 84 percent of the total scrap exported to Europe in the period between 1954 and 1956, Luria’s competitors were effectively barred from both the domestic and foreign scrap markets.
VI. The Southwest Acquisition
Southwest was a scrap broker with its scrap sales concentrated in the Pittsburgh-Youngstown area. Prior to its acquisition by Luria’s purchase of all its issued and outstanding stock on February 1, 1951, Southwest was the second largest scrap broker in the area preceded only by Luria. Of the nine other principal brokers in the area, Southwest’s sales exceeded its closest competitor by two to one. Before the acquisition, Luria and Southwest combined supplied almost one-half of the total scrap purchased by the reporting mills from brokers and dealers in the area. Moreover, both companies supplied the same consumers. The record justifies the Commission’s finding that Luria and Southwest were substantial competitors in the Pittsburgh-Youngstown area.
VII. Luria’s Exclusive or Substantially Exclusive Operations with the Various Petitioners
The Commission’s finding that Luria’s practices violated Section 5 of the Federal Trade Commission Act is based on evidence that during the years 1947 through 1954, the percentage of business conducted with Luria greatly increased and Luria employed tactics in conjunction with the various petitioners designed to eliminate competing brokers. A review of the record manifestly supports the Commission’s conclusions.
Bethlehem is the largest scrap purchaser in the Eastern part of the United States where it operates four scrap consuming plants. Prior to 1950, Bethlehem’s scrap purchases from Luria for its four plants in the North Atlantic area were relatively small. After 1950, this situation strikingly changed. Between 1947 and 1949, Luria’s share rose from 15 to 32 percent while between 1950 and 1954, it increased from 40 to 83 percent. Since Bethlehem’s purchases from broker-dealer sources represented close to 50 percent of the total broker-dealer purchases in the North Atlantic area, in 1954 Luria’s competitors were foreclosed from 40 percent of the market.
Concomitant with Luria’s percentage increase, Bethlehem began to discriminate against Luria’s competitors, many of whom had been former suppliers of Bethlehem. One of these competitors was Schiavone-Bonomo Corporation, which in 1947 was Bethlehem’s second largest supplier. During the succeeding years Schiavone-Bonomo’s sales significantly decreased until in 1954, it was no longer among Bethlehem’s five largest suppliers. Bethlehem also placed restrictions on Schiavone-Bonomo by requiring it to secure scrap only from certain designated areas and by paying it less than it gave to Luria. These same practices were employed against other former suppliers to Bethlehem such as Commercial Steel and Chemical Corporation, Harcon Corporation and Louis Cohen & Sons. These and other broker-dealer concerns found that their sales to Bethlehem decreased as Luria’s increased, and they were informed by Bethlehem that it would only purchase the scrap these companies were selling if they sold through Luria. Not only did Bethlehem cease making purchases from former broker-dealers, but it channelled shipments from direct suppliers such as industrial fabricators and railroads through Luria. The record clearly supports the hearing examiner’s conclusion that “As a result of these changes, somewhere between 1950 and 1953 Luria became Bethlehem’s substantially exclusive broker.”
The relationship between Luria and Bethlehem is symptomatic of the condition that existed throughout the North Atlantic area. The same policy of increasing sales and decreasing competition existed in Luria’s relations with C.F.&I.’s four plants in the area, with Phoenix, Lukens, B-L-H and Grinnell. It is clear that Luria had established itself as the exclusive or substantially exclusive broker for the six petitioning mills in the area whose combined purchases of scrap accounted for approximately 80 percent of the total scrap purchased by all the reporting mills.
The Rocky Mountain area contains two reporting mills, one owned by C.F.&I. located at Pueblo, Colorado, and the other owned by U. S. Steel located at Geneva, Utah. C.F.&I.’s mill is the largest scrap consuming plant in the area. C.F.&I. admits that it entered into an understanding with Luria on June 1, 1946 to the effect that the latter would serve as its exclusive broker. On the same day a formal notice to that effect was issued to the trade. The understanding was. formalized by a written contract executed on August 23, 1946, to run for a term of five years. Although the formal agreement was terminated on October 9, 1946, the oral agreement continued in full force. This is indicated by the fact that except for 1951 when due to Government allocations Luria supplied 95 percent, in the years 1947 through 1954, Luria supplied 100 percent of the scrap purchased by C.F.&I. for its Pueblo plant.
In October, 1948, the Geneva plant of U. S. Steel accepted Luria’s offer to act as its exclusive broker. Notice of this was sent to the trade, and although U. S. Steel contends that the agreement terminated in 1952, this contention is not supported by the statistical evidence nor by any announcement of the alleged termination by U. S. Steel. Following the agreement, Luria supplied 95 percent of the scrap purchased from broker-dealer sources by Geneva in 1949, 90 percent in 1953 and 94 percent in 1954. Certainly if the agreement was terminated as U. S. Steel argues, its termination did not alter petitioner’s relations with Luria.
Bethlehem-Pacific, the only petitioner in the Pacific Coast area, operates three plants which account for approximately 50 percent of the scrap purchased by the reporting mills. Bethlehem-Pacific’s practices in the area closely followed those of Bethlehem’s in the North Atlantic area. For example, until 1950, its Los Angeles plant purchased scrap from numerous brokers. In October of that year, Bethlehem-Pacific entered a ten year written contract whereby it agreed to purchase the major portion of its monthly supplies from Luria. The effect of the agreement is evidenced by the fact that in 1949 Luria supplied the Los Angeles plant with only one percent of its scrap requirements where as in 1951, it increased to 57 percent and in 1953, it reached 94 percent. Furthermore, in some instances the brokers who had previously supplied the Los Angeles plant were told they would have to sell through Luria.
Luria first supplied the Seattle plant in 1949. By 1952, its sales accounted for 46 percent and by 1954, for 83 percent of the scrap purchased by the plant from broker-dealer sources. Here too, former suppliers were told they would have to sell their scrap through Luria.
Luria’s supply agreements reached such proportions that in 1954, it supplied 80 percent of Bethlehem-Paeific’s scrap requirements resulting in the foreclosure of 40 percent of the Pacific Coast market from competition.
Luria’s exclusive supply agreement for the St. Louis area is indicated by its relationship with Granite City. Prior to 1950, Luria supplied Granite City with only one percent of its scrap, the remaining 99 percent being filled by other brokers and dealers in the area. In March, 1950, Granite City and Luria agreed that the latter would supply the mill. A notice was sent to the trade announcing the “appointment of Luria Brothers & Company, Inc. of Philadelphia, Pennsylvania, as our exclusive scrap broker.” Former suppliers were told to sell through Luria. In 1953, this arrangement accounted for 50 percent of total scrap purchases by the reporting mills in the area.
The same program was carried out in the Pittsburgh-Youngstown area. Luria exhibited the same substantial growth while competitors experienced decreases and were told they must sell through Luria. In this manner Luria has become the exclusive or substantially exclusive broker for Bethlehem’s Johnstown plant, Edgewater, and Weirton, a subsidiary of National Steel. These three plants account for 18 percent of total purchases by all reporting mills in the area and by 1954, Luria accounted for 36 percent of scrap sales by all brokers and dealers in the area.
The Commission’s examination of the scrap purchasing policies of Bucyrus, Mc-Louth, and Detroit Steel, which did not fit into any of the other previously delineated areas, also revealed Luria’s exclusive or substantially exclusive scrap supplying arrangements.
On the basis of the foregoing the Commission decided that Luria’s agreements were in violation of Section 5 of the Federal Trade Commission Act. The petitioning mills challenge these findings claiming (1) the statistical data should not be limited to broker-dealer sources but should include all suppliers of scrap metal; (2) the market areas used by the hearing examiner did not comply with the standards announced by the applicable case law; (3) the agreements were terminable at will and, therefore, do not violate the anti-trust laws; (4) the decision to buy mainly from Luria was a proper business decision independently reached by the petitioning mills; (5) the mills were forced to purchase from Luria because other brokers could not meet their increasing demands; and (6) the order of the Commission is arbitrary, unreasonable and ambiguous. They also claim error in the Commission’s finding of a violation of Section 7 of the Clayton Act. We turn now to a consideration of these points.
The Federal Trade Commission Act
Petitioners urge error in the Commission’s compilation of data. They argue it should not have been restricted to purchases only from broker-dealer sources but should have included the sales of all scrap suppliers to all scrap purchasers. Several reasons justify the exclusion. First, if the Commission had attempted to obtain this information, its task would have reached enormous if not prohibiting proportions. Second, the information obtained contains the scrap purchases of practically every steel mill in the United States. These purchases account for between two-thirds and three-fourths of all the scrap used in the country and of this amount, 90 percent is purchased from broker-dealer sources. Third, the purpose of the proceeding was to open the market to Luria’s competitors who consist of other broker-dealers whose economic livelihood is directly affected by the size of the market freed from monopolistic control. The Commission was not required to include suppliers other than broker-dealers especially since their inclusion would not have substantially altered the result. Cf. United States v. Philadelphia Nat. Bank, 374 U.S. 321, 364, n. 40, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1962).
Petitioners also contend the Commission erred in its determination of the relevant market areas within which to measure the effects of Luria’s influence. The geographical divisions selected by the Commission were based on the natural gravitational effects of economic factors. The evidence indicates and the Commission was warranted in finding that transportation costs produced various clusters of scrap buyers and sellers. Cf. United States v. Philadelphia Nat. Bank, supra, 374 U.S. at page 358, 83 S.Ct. 1715; American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 398 (D.C.S.D.N.Y.1957), aff’d 259 F.2d 524 (2 Cir. 1958). As a rule sales were contained within an area having a radius of approximately 100 miles from the broker-dealer. Shipment beyond this distance became prohibitively expensive. Of course, at times sales were made to plants located more than 100 miles from the broker-dealer, but these long distance sales were an exception and occurred only when needs were such that the closer sellers were unable to meet demands.
Petitioners urge that the theory of the Government’s case was based on Section 3 of the Clayton Act, 15 U.S. C. § 14, because of the emphasis placed on proof of agreements or arrangements between the various mills. They argue, therefore, that their actions and practices must be judged in reference to the standards governing cases arising under the Clayton Act. The error in petitioners’ argument is that it is clear that the proceeding was brought under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, to enjoin an incipient monopoly which if undeterred would violate Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Section 5 of the Federal Trade Commission Act proscribes a broad area. The unfair methods of competition violative of that section are not limited to practices violative of the Sherman Act, the Clayton Act or the common law. The Federal Trade Commission Act was designed as a supplement to and has been interpreted as a complement to the Sherman and Clayton Acts. Federal Trade Commission v. Motion Picture Advertising Service Co., 344 U.S. 392, 73 S.Ct. 361, 97 L.Ed. 426 (1953), rehearing denied, 345 U.S. 914, 73 S.Ct. 638, 97 L.Ed. 1348 (1953); Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L. Ed. 1010 (1948), rehearing denied, 334 U.S. 839, 68 S.Ct.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
Answer:
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sc_decisiontype
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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 type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
OSBORN v. UNITED STATES.
No. 29.
Argued October 12-13, 1966.
Decided December 12, 1966.
Jacob Kossman argued the cause and filed briefs for petitioner.
Nathan Lewin argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson.
Herman Schwartz and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
The petitioner, a Nashville lawyer, was convicted in the United States District Court for the Middle District of Tennessee upon one count of an indictment under 18 U. S. C. § 1503, which charged him with endeavoring to bribe a member of the jury panel in a prospective federal criminal trial. The conviction was affirmed by the Court of Appeals, 350 F. 2d 497. We granted certio-rari, 382 U. S. 1023, primarily to consider whether the conviction rests upon unconstitutionally acquired evidence, although the petitioner also presses other claims.
In late 1963, James R. Hoffa was awaiting trial upon a criminal charge in the federal court in Nashville, and the petitioner, as one of Hoffa’s attorneys, was engaged in preparing for that trial. In connection with these preparations the petitioner hired a man named Robert Vick to make background investigations of the people listed on the panel from which members of the jury for the Hoffa trial were to be drawn. Vick was a member of the Nashville police department whom the petitioner had employed for similar investigative work in connection with another criminal trial of the same defendant a year earlier. What the petitioner did not know was that Vick, before applying for the job with the petitioner in 1963, had met several times with federal agents and had agreed to report to them any “illegal activities” he might observe.
The conviction which we now review was upon the charge that the petitioner “during the period from on or about November 6, 1963, up to and including November 15, 1963, . . . did unlawfully, knowingly, wilfully and corruptly endeavor to influence, obstruct and impede the due administration of justice . . in that he “did request, counsel and direct Robert D. Vick to contact Ralph A. Elliott, who was, and was known by the said Osborn to be, a member of the petit jury panel from which the petit jury to hear the [Hoffa] trial was scheduled to be drawn, and to offer and promise to pay the said Ralph A. Elliott $10,000 to induce the said Elliott to vote for an acquittal, if the said Elliott should be selected to sit on the petit jury in the said trial.” The primary evidence against the petitioner on this charge consisted of Vick’s testimony, a tape recording of a conversation between the petitioner and Vick, and admissions which the petitioner had made during the course of federal disbarment proceedings.
Vick testified that during a discussion with the petitioner at the latter’s office on November 7, he mentioned that he knew some of the prospective jurors. At this, according to Vick, the petitioner “jumped up,” and said, “You do? Why didn’t you tell me?” The two then moved outside into the adjacent alley to continue the conversation. There, Vick testified, he told the petitioner that one of the prospective jurors, Ralph Elliott, was his cousin, and the petitioner told Vick to pay a visit to Elliott to see what arrangements could be made about the case. Vick also testified to meetings with the petitioner on November 8 and November 11, when he told the petitioner, falsely, that he had visited Elliott and found him “susceptible to money for hanging this jury,” to which the petitioner responded by offering $5,000 to Elliott if he became a member of the jury and an additional $5,000 “when he hung the jury, but he would have to go all the way, and to assure Mr. Elliott that he would not be alone, that there would be some other jurors in there.”
I.
No claim is made in this case that Vick’s testimony about the petitioner’s incriminating statements was inadmissible in evidence. Cf. Hoffa v. United States, ante, p. 293; Lewis v. United States, ante, p. 206. What is challenged is the introduction in evidence of a tape recording of one of the conversations about which Vick testified, specifically the conversation which took place in the petitioner’s office on November 11. The recording of this conversation was played for the jury, and a written transcript of it was introduced in evidence. We are asked to hold that the recording should have been excluded, either upon constitutional grounds, Weeks v. United States, 232 U. S. 383, or in the exercise of our supervisory power over the federal courts. McNabb v. United States, 318 U. S. 332.
There is no question of the accuracy of the recording. The petitioner testified that it was a “substantially correct” reproduction of what took place in his office on November 11. There can be no doubt, either, of the recording’s probative relevance. It provided strong corroboration of the truth of the charge against the petitioner. The recording was made by means of a device concealed upon Vick’s person during the November 11 meeting. We thus deal here not with surreptitious surveillance of a private conversation by an outsider, cf. Silverman v. United States, 365 U. S. 505, but, as in Lopez v. United States, 373 U. S. 427, with the use by one party of a device to make an accurate record of a conversation about which that party later testified. Unless Lopez v. United States is to be disregarded, therefore, the petitioner cannot prevail.
But we need not rest our decision here upon the broad foundation of the Court’s opinion in Lopez, because it is evident that the circumstances under which the tape recording was obtained in this case fall within the narrower compass of the Lopez concurring and dissenting opinions. Accordingly, it is appropriate to set out with some precision what these circumstances were.
Immediately after his November 7 meeting with the petitioner, at which, according to Vick, the possibility of approaching the juror Elliott was first discussed, Vick reported the conversation to an agent of the United States Department of Justice. Vick was then requested to put his report in the form of a written statement under oath, which he did. The following day this sworn statement was shown by government attorneys to the two judges of the Federal District Court, Chief Judge Miller and Judge Gray. After considering this affidavit, the judges agreed to authorize agents of the Federal Bureau of Investigation to conceal a recorder on Vick’s person in order to determine from recordings of further conversations between Vick and the petitioner whether the statements in Vick’s affidavit were true. It was this judicial authorization which ultimately led to the recording here in question.
The issue here, therefore, is not the permissibility of “indiscriminate use of such devices in law enforcement,” but the permissibility of using such a device under the most precise and discriminate circumstances, circumstances which fully met the “requirement of particu- / larity” which the dissenting opinion in Lopez found necessary.
The situation which faced the two judges of the District Court when they were presented with Vick’s affidavit on November 8, and the motivations which prompted their authorization of the recorder are re-fleeted in the words of Chief Judge Miller. As he put it, “The affidavit contained information which reflected seriously upon a member of the bar of this court, who had practiced in my court ever since I have been on the bench. I decided that some action had to be taken to determine whether this information was correct or whether it was false. It was the most serious problem that I have had to deal with since I have been on the bench. I could not sweep it under the rug.”
So it was that, in response to a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice in the federal court, the judges of that court jointly authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth of the affidavit’s allegations. As the district judges recognized, it was imperative to determine whether the integrity of their court was being undermined, and highly undesirable that this determination should hinge on the inconclusive outcome of a testimonial contest between the only two people in the world' who knew the truth — one an informer, the other a lawyer of previous good repute. There could hardly be a clearer example of “ The procedure of antecedent justification before a magistrate that is central to the Fourth Amendment’ ” as “a precondition of lawful electronic surveillance.”
We hold on these facts that the use of the recording device was permissible, and consequently that the recording itself was properly admitted as evidence at the petitioner’s trial.
II.
The petitioner’s defense was one of entrapment, and he renews here the contention made in his motion for acquittal at the trial that entrapment was established as a matter of law. We cannot agree.
The validity of the entrapment defense depended upon what had transpired at the meetings between the petitioner and Vick which took place before the recorded conversation of November 11. According to the petitioner, Vick initiated the idea of making a corrupt approach to Elliott on October 28, and the petitioner at first resisted the suggestion and tried to discourage Vick from carrying it out. The petitioner conceded that he ultimately acquiesced in the scheme, out of “weakness” and because he was exhausted from overwork, but said that he never seriously intended actually to carry out the plan to bribe Elliott. But Vick’s version of what had happened was, as stated above, quite different, and the truth of the matter was for the jury to determine. Masciale v. United States, 356 U. S. 386. Surely it was not a “trap for the unwary innocent,” Sherman v. United States, 356 U. S. 369, 372, for Vick to tell the petitioner, truthfully, that he knew some of the members of the jury panel and that one of them was his cousin. And according to Vick he had said no more when the petitioner “jumped up,” went out into the alley with him, and initiated the effort to get Elliott “on our side.” At the most, Vick’s statement afforded the petitioner “opportunities or facilities” for the commission of a criminal offense, and that is a far cry from entrapment. Sherman v. United States, supra, at 372; Sorrells v. United States, 287 U. S. 435, 441.
III.
Finally, the argument is made that even if the admissibility and truth of all the evidence against the petitioner be accepted, this conviction must be set aside because his conduct did not constitute a violation of 18 U. S. C. § 1503. The basis for this argument is that since Vick never in fact approached Elliott and never intended to do so, any endeavor on the petitioner’s part was impossible of accomplishment.
We reject the argument. Whatever continuing validity the doctrine of “impossibility,” with all its subtleties, may continue to have in the law of criminal attempt, that body of law is inapplicable here. The statute under which the petitioner was convicted makes an offense of any proscribed “endeavor.” And almost 50 years ago this Court pointed out the significance of that word: “The word of the section is 'endeavor/ and by using it the section got rid of the technicalities which might be urged as besetting the word 'attempt/ and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent. . . . The section ... is not directed at success in corrupting a juror but at the 'endeavor’ to do so. Experimental approaches to the corruption of a juror are the 'endeavor’ of the section.” United States v. Russell, 255 U. S. 138, 143.
If the evidence against the petitioner be accepted, there can be no question that he corruptly endeavored to impede the due administration of justice by instructing Robert Vick to offer a bribe to a prospective juror in a federal criminal case. , „ ,
, „ , Affirmed.
Mr. Justice White took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT.
Transcript of the recording of the Vick-Osborn conversation of November 11, 1963:
“Girl: You can go in now.
“Vick: O. K. honey. Hello, Mr. Osborn.
“Osborn: Hello Bob, close the door, my friend, and let's see what's up.
“Vick: How’re you doing?
“Osborn: No good. How're you doing?
“Vick: Oh, pretty good. You want to talk in here?
“Osborn: How far did you go?
“Vick: Well, pretty far.
“Osborn: Maybe we’d better . . .
“Vick: Whatever you say. Don’t make any difference to me.
“Osborn: [Inaudible whisper.]
“Vick: I’m comfortable, but er, this chair sits good, but we’ll take off if you want to, but
“Osborn: Did you talk to him?
“Vick: Huh?
“Osborn: Did you talk to him?
“Vick: Yeah. I went down to Springfield Saturday morning and talked to er.
“Osborn: Elliott?
“Vick: Elliott.
“Osborn: [Inaudible whisper.]
“Vick: Huh?
“Osborn: Is there any chance in the world that he would report you?
“Vick: That he will report me to the FBI? Why of course, there's always a chance, but I wouldn’t got into it if I thought it was very, very great.
“Osborn: [Laughed.]
“Vick: You understand that.
“Osborn: [Laughing.] Yeah, I do know. Old Bob first.
“Vick: That’s right. 'Don’t worry. I’m gonna take care of old Bob and I know, and of course I’m depending on you to take care of old Bob if anything, if anything goes wrong.
“Osborn: I am. I am. Why certainly.
“Vick: Er, we had coffee Saturday morning and now he had previously told you that it’s the son.
“Osborn: It is?
“Vick: Yes, and not the father.
“Osborn: That’s right.
“Vick: The son is Ralph Alden Elliott and the father is Ralph Donnal. Alden is er — Marie, that’s Ralph’s wife who killed herself. That was her maiden name, Alden, see? Anyway, we had coffee and he’s been on a hung jury up here this week, see?
“Osborn: I know that.
“Vick: Well, I didn’t know that but anyway, he brought that up so he got to talking about the last Hoffa case being hung, you know, and some guy refused $10,000 to hang it, see, and he said the guy was crazy, he should’ve took it, you know, and so we talked about and so just discreetly, you know, and course I’m really playing this thing slow, that’s the reason I asked you if you wanted a lawyer down there to handle it or you wanted me to handle it, cause I’m gonna play it easy.
“Osborn: The less people, the better.
“Vick: That’s right. Well, I’m gonna play it slow and easy myself and er, anyway, we talked about er, something about five thousand now and five thousand later, see, so he did, he brought up five thousand see, and talking about about [sic] how they pay it off you know and things like that. I don’t know whether he suspected why I was there or not cause I don’t just drop out of the blue to visit him socially, you know. We’re friends, close kin, cousins, but I don’t ordinarily just, we don’t fraternize, you know, and er, so he seemed very receptive for er, to hang the thing for five now and five later. Now, er, I thought I would report back to you and see what you say.
“Osborn: That’s fine! The thing to do is set it up for a point later so you won’t be running back and forth.
“Vick: Yeah.
“Osborn: Then tell him it’s a deal.
“Vick: It’s what?
“Osborn: That it’s a deal. What we’ll have to do— when it gets down to the trial date, when we know the date, tomorrow for example if the Supreme Court rules against us, well within a week we’ll know when the trial comes. Then he has to be certain that when he gets on, he’s got to know that he’ll just be talking to you and nobody else. -
“Vick: Social strictly.
“Osborn: Oh yeah.
“Vick: I’ve got my story all fixed on that.
“Osborn: Then he will have to know where to, he will have to know where to come.
“Vick: Well, er . . .
“Osborn: And, he’ll have to know when.
“Vick: Er, do you want to see him yourself? You want me to handle it or what?
“Osborn: Uh huh. You’re gonna handle it yourself.
“Vick: All right. You want to know it when he’s ready, when I think he’s ready for the five thousand. Is that right?
“Osborn: Well no, when he gets on the panel, once he gets on the jury. Provided he gets on the panel.
“Vick: Yeah. Oh yeah. That’s right. That’s right. Well now, he’s on the number one.
“Osborn: I know, but now . . .
“Vick: But you don’t know that would be the one.
“Osborn: Well, I know this, that if we go to trial before that jury he’ll be on it but suppose the government challenges him over being on another hung jury.
“Vick: Oh, I see.
“Osborn: Where are we then?
“Vick: Oh, I see. I see.
“Osborn: So we have to be certain that he makes it on the jury.
“Vick: Well now, here’s one thing, Tommy. He’s a member of the CWA, see, and the Teamsters, or
“Osborn: Well, they’ll knock him off.
“Vick: Naw, they won’t. They’ve had a fight with the CWA, see?
“Osborn: I think everything looks perfect.
“Vick: I think it’s in our favor, see. I think that’ll work to our favor.
“Osborn: That’s why I’m so anxious that they accept him.
“Vick: I think they would, too. I don’t think they would have a reason in the world to. I don’t think that I’m under any surveillance or suspicion or anything like that.
“Osborn: I don’t think so.
“Vick: I don’t know. I don’t frankly think, since last year and since I told them I was through with the thing, I don’t think I have been. Now Fred,
“Osborn: I don’t think you have either.
“Vick: You know Fred and I may not [pause], he may be too suspicious and I may not be suspicious enough. I don’t know.
“Osborn: I think you’ve got it sized up exactly right.
“Vick: Well, I think so.
“Osborn: Now, you know you promised that fella that you would have nothing more to do with that case.
“Vick: That’s right.
“Osborn: At that time you had already checked on some of the jury that went into Miller’s court. You went ahead and did that.
“Vick: Well, here’s another thing, Tommy.
“Osborn: - church affiliations, background, occupation and that sort of thing on those that went into Miller’s court. You didn’t even touch them. You didn’t even investigate the people that were in Judge Gray’s court.
“Vick: Well, here’s the thing about it, Tommy. Soon as this damn thing’s over, they’re gonna kick my . . . out anyway, so probably Fred’s too. So, I might as well get out of it what I can. The way I look at it. I might be wrong cause the Tennessean is not gonna have anything to do with anybody that’s had anything to do with the case now or in the past, you know that. Cause they’re too close to the Kennedy’s.
“Osborn: All right, so we’ll leave it to you. The only thing to do would be to tell him, in other words your next contact with him would be to tell him if he wants that deal, he’s got it.
“Vick: O. K.
“Osborn: The only thing it depends upon is him being accepted on the jury. If the government challenges him there will be no deal.
“Vick: All right. If he is seated.
“Osborn: If he’s seated.
“Vick: He can expect five thousand then and
“Osborn: Immediately.
“Vick: Immediately and then five thousand when it’s hung. Is that right?
“Osborn: All the way, now!
“Vick: Oh, he’s got to stay all the way?
“Osborn: All the way.
“Vick: No swing. You don’t want him to swing like we discussed once before. You want him
“Osborn: Of course, he could be guided by his own b — , but that always leaves a question. The thing to do is just stick with his crowd. That way we’ll look better and maybe they’ll have to go to another trial if we get a pretty good count.
“Vick: Oh. Now, I’m going to play it just like you told me previously, to reassure him and keep him from getting panicky, you know. I have reason to believe that he won’t be alone, you know.
“Osborn: You assure him of that. 100%.
“Vick: And to keep any fears down that he might have, see?
“Osborn: Tell him there will be at least two others with him.
“Vick: Now, another thing, I want to ask you does John know anything. You know, I originally told John about me knowing.
“Osborn: He does not know one thing.
“Vick: He doesn’t know. O. K.
“Osborn: He’ll come in and recommend this man- and I’ll say well just let it alone, you know.
“Vick: Yeah. So he doesn’t know anything about this at all?
“Osborn: Nothing.
“Vick: Now he hasn’t seen me. When I first came here he was in here, see.
“Osborn: -We’ll keep it secret. The way we keep it safe is that nobody knows about it but you and me-where could they ever go?
“Vick: Well that’s it, I reckon, or I’ll probably go down there. See, I’m off tonight. I’m off Sunday and Monday, see. That’s why I talked to you yesterday. I had a notion to go down there yesterday cause I was off last night and I’m off again tonight.
“Osborn: It will be a week at least until we know the trial date.
“Vick: 0. K. You want to hold up doing anything further till we know.
“Osborn: Unless he should happen to give you a call and - something like that, then you just tell him, whenever you happen to run into him.
“Vick: Well, he’s not apt to call, cause see
“Osborn: You were very circumspect.
“Vick: Yeah. We haven’t talked really definite and I think he clearly understands. Now, he might, it seemed to me that maybe he thought I was joking or, you know.
“Osborn: That’s a good way to leave it, he’s the one that brought it up.
“Vick: That’s right.
“Osborn: -
“Vick: Well, I knew he would before I went down there.
“Osborn: Well,-
“Vick: Huh?
“Osborn: I’ll be talking to you.
“Vick: I’ll wait a day or two.
“Osborn: Yeah. I would.
“Vick: Before I contact him. Don’t want to seem anxious and er
“Osborn: -
“Vick: O. K. See you later.”
18 U. S. C. § 1503 provides as follows:
"Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
The indictment contained two other counts charging similar offenses with respect to the earlier trial of the same defendant. The Government dismissed one of these counts, and the petitioner was acquitted on the other.
A transcript of the recording is reproduced as an Appendix to this opinion.
It is argued that in Lopez the petitioner knew that the person to whom he offered a bribe was a federal officer. But, even assuming there might otherwise be some force to this distinction, it is enough to point out that in the present case the petitioner also knew he was talking to a law enforcement officer — a member of the Nashville police department.
The relevant portion of this affidavit was as follows:
“On November 7, 1963, I was in Mr. Osborn’s office going over the results of my investigation. I was aware that the jury panel which I had been investigating was the panel assigned to Judge William E. Miller. Mr. Osbom and I got into a discussion of the jury panel assigned to Judge Frank Gray, Jr. This jury panel list had previously been shown to me by John Polk, an investigator for Mr. Osborn. Polk told me at that time that he was investigating the jury panel assigned to Judge Gray. At that time, I mentioned to Polk that I knew three of the people on the jury panel. In discussing the panel with Mr. Osborn, I again mentioned that I knew three of the people on the jury panel. Mr. Osbom said, ‘You do? Why didn’t you tell me?’ I told Mr. Osbom I had told John Polk and assumed that John Polk had told him. Mr. Osborn said that Polk had not told him and suggested that we discuss the matter further. We then left Mr. Osborn’s office and walked out onto the street to discuss the matter further. Mr. Osborn asked me how well I knew the three prospective jurors. I told him that I knew Mr. Ralph A. Elliott, Springfield, Tennessee, the best since he was my cousin. Mr. Osborn asked me whether I knew him well enough to talk to him about anything. I said that I thought I did. Mr. Osborn then said, ‘Go contact him right away. Sit down and talk to him and get him on our side. We want him on the jury.’ I told Mr. Osbom that I thought Mr. Elliott was not in very good financial position and Mr. Osbom said, ‘Good, go see him right away.’ ”
The recording device did not operate properly on the occasion of Vick’s visit to the petitioner’s office on November 8, and Vick made a written statement of what occurred during that meeting. The government lawyers reported these circumstances to District Judge Miller, who then authorized the use of the recorder on November 11, under the same conditions:
“I said on that second occasion the same as I did on the first occasion: that the tape recorder should be used under proper surveillance, supervision, to see that it was not faked in any way, and to take every precaution to determine that it was used in a fair manner, so that we could get at the bottom of it and determine what the truth was.”
“I also share the opinion of Mr. Justice BrennaN that the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; that indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments; and that these considerations impose a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system. However, I do not believe that, as a result, all uses of such devices should be proscribed either as unconstitutional or as unfair law enforcement methods.” Lopez v. United States, 373 U. S., at 441 (concurring opinion of The Chief Justice).
373 U. S., at 463.
“The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment,’ Ohio ex rel. Eaton v. Price, 364 U. S. 263, 272 (separate opinion) ; see McDonald v. United States, 335 U. S. 451, 455; Abel v. United States, 362 U. S. 217, 251-252 (dissenting opinion), could be made a precondition of lawful electronic surveillance. . . .” Lopez v. United States, 373 U. S., at 464 (dissenting opinion of Mr. Justice BRENNAN).
The petitioner’s trial counsel explicitly conceded that the entrapment issue was for the jury to resolve.
The petitioner further argues, with respect to the entrapment defense, that the jury instructions were erroneous in two respects, and that government rebuttal evidence was improperly received.
It is urged that the trial judge committed error in failing to instruct the jury that if they acquitted the petitioner under Count 2 (charging an endeavor to bribe a juror at the 1962 Hoffa trial), they must not consider any evidence under that count in determining the petitioner’s guilt under Count 1. Such an instruction was not requested. Rule 30, Fed. Rules Crim. Proc. Moreover, it is settled that when the defense of entrapment is raised, evidence of prior conduct tending to show the defendant’s predisposition to commit the offense charged is admissible. See Sorrells v. United States, 287 U. S. 435, 451.
The petitioner further argues that the instructions on entrapment erroneously left to the jury the question of whether the tape recording had been obtained by lawful means. We do not so understand the trial judge’s language, and neither, apparently, did trial counsel, because no objection was made to the instructions as given. Rule 30, Fed. Rules Crim. Proc. Moreover, such an instruction would have been favorable to the petitioner, because the judge, in denying the earlier defense motion to suppress, had already ruled that the recording had been lawfully obtained.
Finally, objection is made to permitting the Government on rebuttal to introduce Vick’s November 8 affidavit and show the circumstances under which the tape recording had been authorized by the judges. But this evidence was a relevant response to the petitioner’s testimony that it was Vick who, at the instigation of the Government, had initiated the plan to approach Elliott as early as October 28.
See n. 1, supra.
Compare People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, with People v. Gardner, 144 N. Y. 119, 38 N. E. 1003. See Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col. L. Rev. 571, 578-585 (1961).
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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sc_lcdisagreement
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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 court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
QUINN v. UNITED STATES.
No. 8.
Argued April 4-5, 1955.
Decided May 23, 1955.
David Scribner and Frank J. Donner argued the cause for petitioner. With them on the brief were Arthur Kinoy and Allan B. Rosenberg.
Robert W. 'Ginnane argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and John R. Wilkins.
Mr. Chief Justice Warren
delivered the opinion of the Court.
Petitioner was convicted of contempt of Congress under 2 U. S. C. § 192 in the District Court for the District of Columbia. Section 192 provides for the punishment of any witness before a congressional committee “who . . . refuses to answer any question pertinent to the question under inquiry . ...” On appeal, the Court of Appeals for the District of Columbia Circuit reversed the conviction and remanded the case for a new trial. Claiming that the Court of Appeals should have directed an acquittal, petitioner applied to this Court for certiorari. We granted the writ because of the fundamental and recurrent character of the questions presented.
Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the Committee on Un-American Activities of the House of Representatives. Petitioner was then a member and field representative of the United Electrical, Radio and Machine Workers of America. Also subpoenaed to appear on that day were Thomas J. Fitzpatrick and Frank Panzino, two officers of the same union. At the outset of the hearings, counsel for the committee announced that the purpose of the investigation was to inquire into “the question of Communist affiliation or association of certain members” of the union and “the advisability of tightening present security requirements in industrial plants working on certain Government contracts.” All three witnesses were asked questions concerning alleged membership in the Communist Party. All three declined to answer.
Fitzpatrick was the first to be called to testify. He based his refusal to answer on “the first and fifth amendments” as well as “the first amendment to the
Constitution, supplemented by the fifth amendment.” Immediately following Fitzpatrick’s testimony, Panzino was called to the stand. In response to the identical questions put to Fitzpatrick, Panzino specifically adopted as his own the grounds relied upon by Fitzpatrick. In addition, at one point in his testimony, Panzino stated that “I think again, Mr. Chairman, under the fifth amendment, that is my own personal belief.” On the following day, petitioner, unaccompanied by counsel, was called to the stand and was also asked whether he had ever been a member of the Communist Party. Like Panzino before him, he declined to answer, specifically adopting as his own the grounds relied upon by Fitzpatrick.
On November 20, 1950, all three witnesses were indicted under § 192 for their refusals to answer. The three cases were tried before different judges, each sitting without a jury. Fitzpatrick and Panzino were acquitted. In Fitzpatrick’s case, it was held that his references to “the first and fifth amendments” and “the first amendment to the Constitution, supplemented by the fifth amendment” constituted an adequate means of invoking the Self-Incrimination Clause of the Fifth Amendment. Similarly, in Panzino’s case, it was held that his reference to “the fifth amendment” was sufficient to plead the privilege. In petitioner’s case, however, the District Court held that a witness may not incorporate the position of another witness and rejected petitioner’s defense based on the Self-Incrimination Clause. Petitioner was accordingly convicted and sentenced to a term of six months in jail and a fine of $500.
In reversing this conviction, the Court of Appeals, sitting en banc, held that “No formula or specific term or expression is required” in order to plead the privilege and that a witness may adopt as his own a plea made by a previous witness. Thus the Court of Appeals viewed the principal issue in the case as “whether Fitzpatrick did or did not claim the privilege.” On this issue, a majority of the Court of Appeals expressed no view. They agreed that a reversal without more would be in order if they “were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege.” But they were “not of that clear opinion.” The Court of Appeals therefore ordered a new trial for determination of the issue by the District Court. The Court of Appeals also directed the District Court on retrial to determine whether petitioner “was aware of the intention of his inquirer that answers were required despite his objections.” In that regard, however, it rejected petitioner’s contention that a witness cannot be convicted under § 192 for a refusal to answer unless the committee overruled his objections and specifically directed him to answer.
It is from that decision that this Court granted certiorari.
I.
There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate — including of course the authority to compel testimony, either through its own processes or through judicial trial — Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.
But the power to investigate, broad as it may be, is J also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary. Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here.
The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution — and the necessities for its preservation — are to be found in the lessons of history. As early as 1650, remembrance of the horror of Star Chamber proceedings a decade before had firmly established the privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way into various state constitutions and ultimately in 1791 into the federal Bill of Rights. The privilege, this Court has stated, “was generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions.” Coequally with our other constitutional guarantees, the Self-Incrimination Clause “must be accorded liberal construction in favor of the right it was intended to secure.” Such liberal construction is particularly warranted in a prosecution of a witness for a refusal to answer, since the respect normally accorded the privilege is then buttressed by the presumption of innocence accorded a defendant in a criminal trial. To apply the privilege narrowly or begrudgingly — to treat it as an historical relic, at most merely to be tolerated — is to ignore its development and purpose.
In the instant case petitioner was convicted for refusing to answer the committee’s question as to his alleged membership in the Communist Party. Clearly an answer to the question might have tended to incriminate him. As a consequence, petitioner was entitled to claim the privilege. The principal issue here is whether or not he did.
It is agreed by all that a claim of the privilege does not require any special combination of words. Plainly a witness need not have the skill of a lawyer to invoke the protection of the Self-Incrimination Clause. If an objection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected both by the committee and by a court in a prosecution under § 192.
Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to answer on “the first and fifth amendments” and “the first amendment to the Constitution, supplemented by the fifth amendment.” The Government concedes — as we think it must — that a witness may invoke the privilege by stating “I refuse to testify on the ground of the Fifth Amendment.” Surely, in popular parlance and even in legal literature, the term “Fifth Amendment” in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination. The Government argues, however, that the references to the Fifth Amendment in the instant case were inadequate to invoke the privilege because Fitzpatrick’s statements are more reasonably understood as invoking rights under the First Amendment. We find the Government’s argument untenable. The mere fact that Fitzpatrick and petitioner also relied on the First Amendment does not preclude their reliance on the Fifth Amendment as well. If a witness urges two constitutional objections to a committee’s line of questioning, he is not bound at his peril to choose between them. By pressing both objections, he does not lose a privilege which would have been valid if he had only relied on one.
The Government, moreover, apparently concedes that petitioner intended to invoke the privilege. In its brief the Government points out “the probability that petitioner’s ambiguous references to the Fifth Amendment . . . were phrased deliberately in such vague terms so as to enable petitioner ... to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.” But the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn’s references to the Fifth Amendment were clearly sufficient to put the committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept the claim or to ask petitioner whether he was in fact invoking the privilege. Particularly is this so if it is true, as the Government contends, that petitioner feared the stigma that might result from a forthright claim of his constitutional right to refuse to testify. It is precisely at such times — when the privilege is under attack by those who wrongly conceive of it as merely a shield for the guilty — that governmental bodies must be most scrupulous in protecting its exercise.
This ruling by no means leaves a congressional committee defenseless at the hands of a scheming witness intent on deception. When a witness declines to answer a question because of constitutional objections and the language used is not free from doubt, the way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness unequivocally and intelligently waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question. Here the committee made no attempt to have petitioner particularize his objection. Under these circumstances, we must hold that petitioner’s references to the Fifth Amendment were sufficient to invoke the privilege and that the court below erred in failing to direct a judgment of acquittal.
II.
There is yet a second ground for our decision.
Section 192, like the ordinary federal criminal statute, requires a criminal intent — in this instance, a deliberate, intentional refusal to answer. This element of the offense, like any other, must be proved beyond a reasonable doubt. Petitioner contends that such proof was not, and cannot be, made in this case.
Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under § 192. Thus if he raises an objection to a certain question — for example, lack of perti-nency or the privilege against self-incrimination — the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness’ refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal intent to violate § 192. In short, unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections, there can be no conviction under § 192 for refusal to answer that question.
Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. At best he was left to guess whether or not the committee had accepted his objection.
This ambiguity in the committee’s position is apparent from the transcript of the hearing. Immediately after petitioner stated that he was adopting Fitzpatrick’s objection, the committee chairman asked petitioner: “. . . will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?” In response to this, petitioner stated for the first time that he would not answer. He said: “I decline to discuss with the committee questions of that nature.” Committee counsel thereupon stated that further questioning “relating to those matters” was “not necessary” and proceeded upon a new line of inquiry. There is nothing in this colloquy from which petitioner could have determined with a reasonable degree of certainty that the committee demanded his answer despite his objection. Rather, the colloquy is wholly consistent with the hypothesis that the committee had in fact acquiesced in his objection.
Our view that a clear disposition of the witness’ objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts. It is further reflected in the practice of congressional committees prior to the enactment of § 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection. Against this background § 192 became law. No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness, and that a “mere substitution” of a judicial proceeding for punishment at the bar of Congress was intended. The reason for enacting § 192 went to the punishment and not the offense. It was recognized that the power of Congress to-deal with a contemnor by its own processes did not extend beyond the life of any session. By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session. But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of § 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail. In fact, the very committee involved here, the House Un-American Activities Committee, originally followed this practice and recently resumed it.
Giving a witness a fair apprisal of the committee’s ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee’s ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation.
III
Petitioner also attacks his conviction on grounds involving novel constitutional issues. He contends that the House Resolution authorizing the committee’s operations is invalid under the First Amendment. In addition, petitioner contends that the trial court erred in denying a hearing on the alleged bias of the indicting grand jury. Our disposition of the case makes it unnecessary to pass on these issues.
The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.
Reversed.
The section provides in full:
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
91 U. S. App. D. C. 344, 203 F. 2d 20.
347 U. S. 1008.
Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st Cong., 1st Sess., Part I, 541-542.
Id., at 602, 604.
Id., at 608.
Id., at 609.
Id., at 634-635:
“Mr. Quinn. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.
“Mr. Wood. And for those reasons do you decline to answer that question ?
“Mr. Quinn. I didn’t say I was declining to answer the question. Before I do answer the question I should like to say that I support the position taken by Brother Fitzpatrick yesterday.
“Mr. Wood. Did you hear his statement yesterday?
“Mr. Quinn. Yes; I did.
“Mr. Wood. Do you support it in'its entirety?
“Mr. Quinn. In its entirety.
“Mr. Wood. Is there anything else you want to add to it?
“Mr. Quinn. No; I don’t.
“Mr. Wood. Will you accept it as the expression of your views, then?
“Mr. Quinn. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don't feel I am hiding behind the Constitution, but in this case I am’ standing before it, defending it, as small as I am.
“Mr. Wood. Having made that statement and subscribed to the sentiments expressed by the witness yesterday to whom you referred, will you now answer the question whether you are now or have ever been a member of the Communist Party?
“Mr. QuiNN. I hold that the Constitution holds sacred the rights of people-
“Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?
“Mr. QuinN. I decline to discuss with the committee questions of that nature.
“Mr. Wood. Proceed, Mr. Tavenner.
“Mr. TavenNER. I believe in the light of that answer it is not necessary to ask you any further questions relating to those matters, so I will ask you this: Do you know Mr. James J. Matles?
“Mr. QuinN. Yes.”
Petitioner’s motions to dismiss the indictment were denied sub nom. United States v. Emspak, 95 F. Supp. 1010, 1012 (D. D. C.).
United States v. Fitzpatrick, 96 F. Supp. 491 (D. D. C.).
United States v. Panzino, unreported, Criminal No. 1747-50 (D.D.C.).
United States v. Quinn, unreported, Criminal No. 1744-50 (D. D. C.).
91 U. S. App. D. C. 344, 347, 203 F. 2d 20, 23.
Id., at 347, 203 F. 2d, at 23.
Id., at 348, 203 F. 2d, at 24.
Ibid.
Id., at 349, 203 F. 2d, at 25.
Ibid.
Cf. Anderson v. Dunn, 6 Wheat. 204.
In re Chapman, 166 U. S. 661.
See McGrain v. Daugherty, 273 U. S. 135, 175.
Id., at 173-174; Kilbourn v. Thompson, 103 U. S. 168, 190.
Compare United States v. Rumely, 345 U. S. 41, 46.
Kilbourn v. Thompson, 103 U. S. 168, 192-193.
The Amendment provides in pertinent part that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”
See Griswold, The Fifth Amendment Today, 2-7.
Twining v. New Jersey, 211 U. S. 78, 91. See also Boyd v. United States, 116 U. S. 616, 631-632.
Hoffman v. United States, 341 U. S. 479, 486. Cf. Counselman v. Hitchcock, 142 U. S. 547, 562.
Blau v. United States, 340 U. S. 159, specifically holding that such a question is protected by the privilege; Brunner v. United States, 343 U. S. 918, reversing 190 F. 2d 167 (C. A. 9th Cir.). See also Hoffman v. United States, 341 U. S. 479.
Compare Smith v. United States, 337 U. S. 137, where the Court characterized a witness’ statement “I want to claim privilege as to anything that I say” (p. 142) as a “definite claim of general privilege against self-incrimination” (p. 151).
As to the close relationship between the First Amendment and the privilege against self-incrimination, see Griswold, supra, note 26, at 8-9.
Brief for United States, p. 33. The Government makes the same contention as to the petitioner in No. 9, Emspak v. United States, post, p. 190.
Sinclair v. United States, 279 U. S. 263, 299. See also In re Chapman, 166 U. S. 661, 672, in which the Court, while upholding-the constitutionality of the statute, recognized deliberateness as an element of the offense.
See United States v. Kamp, 102 F. Supp. 757, 759 (D. D. C.): “Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the Committee recognizes him as being in default, and anything short of a clear cut default on the part of the witness will not sustain a conviction for contempt of Congress. The transcript of the defendant Kamp’s testimony fails to disclose such a clear cut default. The witness is not required to enter into a guessing game when called upon to appear before a committee. The burden is upon the presiding member to make clear the directions of the committee, to consider any reasonable explanations given by the witness, and then to rule on the witness’ response.” The defendant was accordingly acquitted.
On similar grounds, an acquittal was directed in United States v. Browder, unreported, Criminal No. 1784-50 (D. D. C.).
See note 8, supra.
While of course not binding on Congress or its committees, the practice in the States and other English-speaking jurisdictions is at least worthy of note.
For examples relating to recalcitrant witnesses before state legislative committees, see Ex parte McCarthy, 29 Cal. 395, 398; People v. Keeler, 99 N. Y. 463, 471, 2 N. E. 615, 617; Lowe v. Summers, 69 Mo. App. 637, 645.
Recalcitrant witnesses before investigating committees of the British House of Commons have traditionally been apprised of the disposition of their objections and given subsequent opportunity to respond before being subjected to the contempt power of the legislature. The practice has been as follows: The committee reports the failure to answer to the House. The witness is questioned about the cause of the refusal to answer before the Bar of the House. The House then votes on the validity of the objection. If the claim is rejected, the witness is specifically directed to answer. Only after a subsequent refusal is punishment imposed. See 88 Journals of the House of Commons 212, 218 (Case of Elizabeth Robinson before Select Committee on Liverpool Bribery, 1833); 90 Journals of the House of Commons 501, 504, and 29 Hans. Deb., 3d Ser., 1249, 1279-1288 (Case of William Prentice before Select Committee on Great Yar-mouth Bribery, 1835); 90 Journals of the House of Commons, 564, 571, 575 (Case of Lieutenant Colonel Fairman before Select Committee on the Orange Lodges, 1835); 152 Journals of the House of Commons 361, 365 (Case of John Kirkwood before Select Committee on Money Lending, 1897).
For Canadian practice, see the case of W. T. R. Preston before the Committee on Public Accounts, the Committee on Agriculture and Colonization, and the House of Commons. 41 Journals of the House of Commons, Canada, 298, 316, 323; 41 id., Appendix No. 2, 324-327; 41 id., Appendix No. 3, 250-251; 76 Debates, House of Commons, Canada, Session 1906, Vol. III, 4451-4535.
See Hoffman v. United States, 341 U. S. 479, 486: “It is for the court to say whether his silence is justified . . . and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ ” See also Chief Justice Marshall in United States v. Burr, 25 Fed. Cas. 38, at 40, No. 14,692e: “When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness.” The cases, both federal and state, are collected in Wigmore, Evidence, § 2271. See, e. g., Carlson v. United States, 209 F. 2d 209, 214 (C. A. 1st Cir.), and Gendron v. Burnham, 146 Me. 387, 405-406, 82 A. 2d 773, 784-785.
See, e. g., the resolution introduced by Congressman Orr proposing that one J. W. Simonton be haled before the bar of the House of Representatives for refusing to answer a question put to him by a duly-authorized committee of that body. Cong. Globe, 34th Cong., 3d Sess. 403-404 (1857). The resolution states in part:
“The committee were impressed with the materiality of the testimony withheld by the witness, as it embraced the letter and spirit of the inquiry directed by the House to be made, but were anxious to avoid any controversy with the witness. They consequently waived the interrogatory that day, to give the witness time for reflection on the consequences of his refusal, and to afford him an opportunity to look into the law and the practice of the House in such cases, notifying him that he would, on some subsequent day, be recalled. This was the 15th of January instant. On Tuesday, the 20th instant, the said J. W. Simonton was recalled, and the identical question first referred to was again propounded, after due notice to him that if he declined the committee would feel constrained to report his declination to the House, and ask that body to enforce all its powers in the premises to compel a full and complete response.” Id., at 403. See also id., 31st Cong., 1st Sess. 1716 (1850).
Act of Jan. 24, 1857, c. 19, § 1, 11 Stat. 155.
Cong. Globe, 34th Cong., 3d Sess. 427.
Anderson v. Dunn, 6 Wheat. 204, 230-231.
Cong. Globe, supra, note 40, at 405 et seq.
See, e. g., Cong. Globe, 40th Cong., 3d Sess. 771-772 (1869); id., 42d Cong., 3d Sess. 952 (1873); 4 Cong. Rec. 1705 et seq. (1876) (citation of Hallet Kilbourn, involved in Kilbourn v. Thompson, supra, note 22); 26 Cong. Rec. 6143 et seq. (1894) (citation of Elverton R. Chapman, involved in In re Chapman, supra, note 20); 65 Cong. Rec. 4785 et seq. (1924) (citation of Harry F. Sinclair, involved in Sinclair v. United States, supra, note 33); 69 Cong. Rec. 2439, 5286, 5353, 7239 (1928); 78 Cong. Rec. 1902, 1911-1914 (1934); 86 Cong. Rec. 3856 (1940); 90 Cong. Rec. 8163 (1944); 97 Cong. Rec. 499 et seq. (1951).
See, e. g., the contempt citation of George Powers at 86 Cong. Rec. 3856-3857. See also the citation of James H. Dolsen, id., at 3694-3695.
See contempt citation of Saul Grossman, 98 Cong. Rec. 8634-8637.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH’S OF PLYMOUTH, INC., Respondent.
No. 77-1497.
United States Court of Appeals, First Circuit.
Argued April 4, 1978.
Decided June 6, 1978.
Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner.
Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a)(1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board’s order which we enforce.
Promise and Grant of Benefits
Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent’s Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26.
The same day of the union’s first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costel- ■ lo discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich’s chain, not just the Plymouth branch, and would be jointly financed by management and the employees.
On May 10 Costello met with a group of 15 or 20 night shift employees. This group’s reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance.
A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees’ suggestions by stating that the company “had been advised not to go into this at this point.”
Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned.
We sustain the Board’s conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management’s expression of concern for employee welfare has an impermissible motive, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent’s favor, see id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees’ grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud.
The manner of convening the workforce adds support to the Board’s finding. Neither grievance session was a regularly scheduled event, see NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, see NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees’ proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent’s characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously.
Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union’s appearance at the Plymouth store, see NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent’s conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, see NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management’s sudden interest in it, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, see Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, id.
Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, see NLRB v. Styletek, supra, 520 F.2d at 280. The burden then shifts to the employer to justify both the fact and the timing of the increase, id.
Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, see D’Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent’s president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, see NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968).
Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were in-creased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent’s conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, see NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was “sprung on the employees in a manner calculated to influence the employees’ choice”, NLRB v. Styletek, supra, 520 F.2d at 280.
Impression of Surveillance
We are somewhat more troubled by the Board’s finding that respondent violated section 8(a)(1) by creating an impression of surveillance among its employees. Late in a working day toward the end of April, 1976, a store employee approached Aida Pereira, a union supporter, to ask for her telephone number. According to Pereira, she did not have any paper, and so wrote the number on the back of a blank union authorization card. Steven Rice, then the store manager, called Pereira aside and said, “Aida I know that you are responsible for this.” The administrative law judge concluded that although Rice’s statement was “less than explicit”, in view of the other unfair labor practices respondent had committed and the fact that a union authorization card was involved in the incident, an impression of surveillance had been created.
Part of our difficulty with this conclusion stems from the fact that this episode was short-lived and appeared to be the only one that occurred during the entire union campaign, see Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976); NLRB v. Garland Corp., supra, 396 F.2d at 709. Rice’s comment was at best vague, and contained no reference to the union, or threat of reprisals, see NLRB v. Sandy’s Stores, 398 F.2d 268 (1st Cir. 1968); NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964). Even if Rice had mentioned the union, Pereira was known to management as a union supporter, see Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977). The Act does not prevent an employer from acknowledging an employee’s union activity, without more, see NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Nevertheless, “[bjecause this finding is largely grounded on the fact finder’s judgment concerning the credibility of the witness and on unrefuted testimony, we conclude that it was supported by substantial evidence and should not be disturbed”, see Stone & Webster v. NLRB, supra, 536 F.2d at 468.
Refusal to Rehire
It is at the point of reviewing the finding that a section 8(a)(3) violation occurred that we part company with the Board. Jean Schembri, the employee in question, was one of two employees who worked at a jewelry concession in the Plymouth store. Evidence indicated that on several occasions she had expressed interest in the union to respondent’s supervisory personnel.
On July 9,1976 Schembri reported for her evening shift. Customarily a busy night, that Friday promised to be especially so, since an ear piercing clinic was to take place. Schembri approached the concession manager Mary Fontaine and the supervisor Dottie McDonald to inquire about holiday pay she had claimed, after advice from the union, but not received and to renew a complaint about a reduction in the number of hours she had been scheduled to work. When Fontaine informed her she was expected to work at an ear piercing clinic to be held the following day, Schembri protested that she had not been notified of this. Fontaine pointed out that the schedule had been posted two days earlier. Displaying some anger, McDonald suggested that she and Fontaine leave. Schembri asked to speak to McDonald and returned to her station, apparently expecting McDonald to follow. When she discovered that McDonald had left the concession without talking to her, Schembri stormed over to the service desk, announced to assistant store manager Croteau that she was quitting, and told him to find a replacement for her. After giving a substitute employee brought over from the service desk some instruction on preparation for the ear piercing clinic, Schembri left.
Soon after she returned home, Schembri informed Fontaine by telephone that she had quit. Several hours later she again called Fontaine, apologized, and asked for her job back. Fontaine responded that although Schembri had been a good employee, the matter was up to management. She agreed to relay Schembri’s desire to be rehired to McDonald, but noted that the latter was upset with Schembri because of her comments about the union. Several telephone calls with various supervisory personnel and the concession owner followed, but Schembri was not reinstated. Two days later a replacement was hired.
Both parties treat this case precisely the same as one in which there has been an allegation of an unlawful discharge and seem to have assumed that the employer had an obligation to come forward with an explanation for its failure to reinstate Schembri. That premise does not strike us as so obvious. Schembri was not discharged, impermissibly or otherwise, see, e. g. Stone & Webster v. NLRB, supra, 536 F.2d 461. Nor was it ever argued that, by walking off her job, she joined in concerted activity protected by the Act, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Bob’s Casing Crews, Inc. v. NLRB, 429 F.2d 261, after remand, 458 F.2d 1301 (5th Cir. 1972); Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965). Rather, she unilaterally and precipitously quit her job for a reason unconnected to her union sympathies, see LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4th Cir. 1969); NLRB v. J. W. Mays, Inc., 356 F.2d 693, 695 (2d Cir. 1966).
Under such circumstances Schembri’s rights seem to us to approximate more closely those of a job applicant than those of a discharged employee. Just as union membership or sympathy has not been regarded as an insurance policy for job placement, it cannot assure that an employee who quits and then changes her mind will be reinstated, see NLRB v. Plymouth Cordage Co., 381 F.2d 710, 711 n. 2 (5th Cir. 1967). An employer who refuses to reinstate an employee who voluntarily terminated is arguably in a stronger position to defend its action than one who has discharged the employee. By the same token a correspondingly heavier burden might rest on the Board to prove a section 8(a)(3) violation, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394-95 (6th Cir. 1967).
Nevertheless, we do not rest our decision on any such difference in defenses and burdens. Even assuming that in both circumstances the employee has the same right to reinstatement judged against the same standard, we conclude that the Board erred in finding that respondent’s refusal to rehire Schembri violated section 8(a)(3).
It was conceded here that management was aware of Schembri’s interest in the union movement at the time it was confronted with her request for reinstatement, compare Stone & Webster v. NLRB, supra, 536 F.2d at 464, with NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). There is also evidence that management demonstrated some hostility toward the union effort. However, management alleged, and offered supporting evidence, that it had refused to rehire Schembri not on that basis, but because she had left them in the lurch at an especially bad time. Respondent having offered a legitimate business justification for its conduct, the burden shifted to the Board to establish by substantial evidence “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one”, NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). In our repeated efforts to impress this standard upon the Board we have variously redefined it to mean that the decision would not have been made “but for” the employee’s union activity, Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293 (1st Cir. 1977), that union animus was the “dominant” reason, NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 842 (1st Cir. 1963), or the “controlling” motive, NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). By whatever phraseology, we have attempted to make it clear that “the mere existence of anti-union animus is not enough” to make out a section 8(a)(3) violation, NLRB v. Billen Shoe, supra, 397 F.2d at 803.
Here the administrative law judge, upheld by the Board, acknowledged that respondent had asserted a business reason for its conduct, but dismissed it as “improbable” and concluded that “but for” the union activity, Schembri would have been rehired. While the magic words may have been invoked, that is not enough, see Coletti’s Furniture, supra, 550 F.2d at 1293. Our standard must also be reasonably applied to the facts at issue, id. We are unable to convince ourselves that this was done.
This case is unlike Champion Papers Inc. v. NLRB, supra, 393 F.2d at 394, for example, where the asserted reason for the employer’s action, “dissatisfaction” and “attitude”, appeared unsubstantiated or inconsequential. Here respondent’s refusal to rehire Schembri had a sound basis in business judgment. The only employee at the jewelry counter, Schembri had walked out in a fit of temper at the outset of one of respondent’s busiest retail nights, requiring the supervisors to draft an untrained last minute substitute from one of the other departments. An employer’s unwillingness to rehire an employee who demonstrated such irresponsibility and lack of consideration is quite understandable. Moreover, respondent presented evidence to the administrative law judge that it had acted in accordance with a pre-existing policy of refusing to reinstate employees who quit without notice or a valid excuse.
The Board summarily dismissed the proffered reason as “improbable”, see NLRB v. Fibers Int'l Corp., supra, 439 F.2d at 1315, and assorted that respondent’s rein-
statement policy was the exact opposite of what respondent asserted it to be, i. e., that in the past respondent had always rehired employees who terminated voluntarily, and had failed to do so only in this case. The Board’s assertion is belied by the record. Of the two examples the Board relied upon to reach its conclusion, one concerns a rehired employee who had given notice prior to resigning. The other relates to a young boy who was discharged for stealing. He was indeed rehired, but only after his parents managed to persuade respondent that the boy had learned his lesson. In all instances of voluntary termination without notice or explanation cited in the record, the employees in question were not reinstated and it was noted in their personnel files that they were ineligible for rehire. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 514 (6th Cir. 1963).
In sum, Schembri genuinely quit without notice on her own volition at a pressing time over a matter wholly unrelated to any concerted activity or bargaining. The employer’s professed reason for refusing to rehire her not only is readily understandable as a matter of common sense but was in conformity with a written policy which was, contrary to the Board’s analysis, faithfully followed. While the employer knew that Schembri was a union supporter, there is nothing to indicate that she was other than rank-and-file. All that is left is that management representatives had demonstrated some hostility toward union efforts in conversations with Schembri and had committed some illegal actions in other contexts. On this record we find this to be insufficient evidence of dominant antiunion motive to overcome the legitimate business justification for respondent’s conduct, see Stone & Webster v. NLRB, supra, 526 F.2d at 465; NLRB v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (1st Cir. 1966); NLRB v. Bird Machine Co., 161 F.2d 589, 591 (1st Cir. 1947).
In Coletti’s Furniture, Inc. v. NLRB, supra, 550 F.2d at 1293, we noted that after such repeated and unambiguous interpretation “there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule”. Our rescue mission stops here. So much of the Board’s order as directs that Schembri be reinstated with back pay is set aside. That portion of the order as concerns the violation of section 8(a)(1) is enforced.
So ordered.
. It is unclear from the administrative law judge’s report whether the wage increase was implemented before or after the union filed its petition with the Board. The precise date is unimportant, for it is conceded that at the time the increase went into effect respondent was aware of the union activity in its Plymouth store, see NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969).
. The administrative law judge found that the benefits discussed at the meetings were never actually conferred, There is no claim on appeal that respondent committed a separate unfair labor practice by withholding promised benefits, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
. Whether well timed raises create a rebuttable presumption of a violation, as the Board found, or a prima facie case of misconduct, is immaterial to the disposition of this case. In either event the company was called upon to present substantial evidence in opposition to the charge, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). It failed to do so.
. This can be inferred from the fact that by Pereira’s own testimony, at some point after management’s meetings with the day and night shift employees, but before this incident, personnel manager Costello asked for her reaction to the proposal for implementing health insurance. Pereira responded that she “wanted union representation”.
. Although independently owned, the concession was operated under the supervision of Rich’s employees.
. Schembri recounted to the administrative law judge a series of conversations with the concession manager which, if believed, would have indicated some anti-union animus on the part of the supervisory personnel. Favorably im- , pressed by the manager’s demeanor, and unconvinced by Schembri’s testimony, which he termed “hostile and robot-like”, the administrative law judge disbelieved Schembri’s version of these discussions, except where corroborated by the manager.
. The briefs cite pretext dismissal cases.
. Inclusion of the phrase “but for” constitutes . the only reference in the administrative law judge’s memorandum to any standard. No decision of this court was cited, see NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), and there was no elaboration on the “but for” language.
. That Schembri had been considered a competent employee and it may arguably have been in respondent’s interest to bend policy in order to rehire her does not refute the legitimacy of respondent’s refusal to do so. The business justification was within respondent’s realm to make, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1967). It is neither the Board’s function, nor indeed ours, to second-guess business decisions. "The Act was not intended to guarantee that business decisions be sound, only that they not be the product of antiunion motivation”, Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 467 (1st Cir. 1976) (emphasis in original).
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_casetyp1_1-3-2
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E
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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 "criminal - state offense".
Manuel TALAVERA, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Defendant-Appellee.
No. 76-3595
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1977.
Rehearing Denied April 6, 1977.
Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for defendant-appellee.
Before GODBOLD, HILL 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:
On April 14, 1976, Manuel Talavera, a Florida state prisoner, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit and sentenced to a prison term of 120 years. His convictions were affirmed on direct appeal. Talavera v. State, 314 So.2d 22 (Fla.App.1975). The district court in an exhaustive opinion dismissed the petition. We vacate and remand the case for further proceedings.
Petitioner was convicted in state court of robbery and three (3) counts of false imprisonment. He contends that there was a total lack of competent evidence to sustain his convictions. However, a fingerprint found on the handcuffs used on two of the hostages was identified as that of the petitioner. Several witnesses testified that one of the robbers was wearing a grey suit. A forensic chemist found that the fibers in petitioner’s “cut-off” grey pants matched the fibers in a certain grey suit-jacket which was found in the vicinity where the getaway car was abandoned. Finally, while petitioner presented one Jerry Helms who testified that he and an unnamed accomplice had committed the robbery and not petitioner, Helms spoke with a Southern accent. The hostages testified that neither of the perpetrators had a Southern accent. Moreover, a government rebuttal witness testified that on the day that Helms had initially confessed to the crime, he had seen Helms and petitioner conversing for 30 to 45 minutes.
Matters concerning the sufficiency of the evidence are not cognizable on federal habeas corpus unless the record indicates that a state prisoner was denied due process of law. Colbroth v. Wainwright, 466 F.2d 1193, 1194 (5th Cir. 1972). However, the issue of the sufficiency of the evidence does not present a due process question where there is conflicting testimony supporting a state conviction. Jenkins v. Wainwright, 488 F.2d 136, 137 (5th Cir. 1973), cert. denied, 417 U.S. 917, 94 S.Ct. 2620, 41 L.Ed.2d 222 (1974). Since there is some evidence in this case against petitioner, there is no sufficiency of the evidence problem rising to constitutional proportions for habeas corpus relief. Dreske v. Holt, 536 F.2d 105 (5th Cir. 1976); Jackson v. State of Alabama, 534 F.2d 1136 (5th Cir. 1976).
Petitioner next challenges a search of his rental automobile as violative of his Fourth Amendment rights. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482, 96 S.Ct. at 3046. This decision of the Supreme Court was rendered subsequent to the time that the district court in the instant case considered the merits of petitioner’s claim. This case presents the question of the proper disposition of Fourth Amendment claims on the appellate level in light of this Supreme Court decision.
This court appears to have embarked upon two courses of conduct. In some cases we have undertaken on appeal to review the record to determine whether the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim. See e. g. Stinson v. State of Alabama, 545 F.2d 485 (5th Cir. 1977); Flood v. State of Louisiana, 545 F.2d 460 (5th Cir. 1977); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases we have vacated the decision of the district court and remanded so that the trial court might determine this issue in the first instance. See e. g. White v. State of Alabama, 541 F.2d 1092 (5th Cir. 1976); Caver v. State of Alabama, 537 F.2d 1333 (5th Cir. 1976). The differing courses of action appear to depend upon the circumstances and state of the record in each case.
Thus, in the first line of cases the record appears to have been sufficiently clear so as to make the issue as to whether or not the state court had provided an opportunity for full and fair litigation of Fourth Amendment claims certain beyond peradventure. A remand under these circumstances would be a futile gesture and expensive in terms of judicial economy. In the second line of cases the record appears not to have been so clear. Under these circumstances, the appropriate appellate response is to remand the case to the district court in order to allow the parties “a chance to be heard upon the legal standard announced in Stone v. Powell.” Caver v. State of Alabama, supra at 1336.
In the case sub judice the district court apparently based its conclusions with regard to the petitioner’s Fourth Amendment claim upon a review of the trial transcript. However, there were two preliminary hearings which focused on the Fourth Amendment issue that were not before the district court. In addition, of course, petitioner did not address himself to the sufficiency of the state court proceedings in his habeas' petition. Under these circumstances we conclude that the case should be remanded so that the parties might address the question of opportunity for full and fair litigation of the Fourth Amendment claim before the district court, and that court may be afforded the opportunity of determining that question.
VACATED AND REMANDED.
Question: What is the specific issue in the case within the general category of "criminal - state 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 state crimes
R. state offense, but specific crime not ascertained
Answer:
|
songer_appel1_7_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 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 the citizenship of this litigant as indicated in the opinion.
TAKAJI MUKAI v. BURNETT, District Director.
No. 6888.
Circuit Court of Appeals, Ninth Circuit.
Dec. 19, 1932.
J. Edward Keating and Theodore E. Bowen, both of Los Angeles, Cal., for appellant.
Samuel W. McNabb, U. S. Atty., and Harry G. Balter, Asst. U. S. Atty., both of Los Angeles, Cal. (Harry B. Blee, Immigration Service, of Los Angeles, Cal., on the brief), 1 for appellee.
Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
PER CURIAM.
Appellant, Takaji Mukai, entered the United States in April, 1925. At that time he had no immigration visa and was not entitled to enter the United States. Ozawa v. United States, 260 U. S. 178, 43 S. Ct. 65, 67 L. Ed. 199; section 13 (e), Immigration Act of 1924 (8 USCA 213(e). He is subject to deportation under section 14 of the Immigration Act of 19214 (8 USCA § 214). Appellant contends that the deportation proceeding is barred by reason of the fact that more than five years have expired from the time of his first entry, which occurred more than five years prior to the initiation of the deportation proceeding. In support of his contention he relies upon the provisions of section 19 of the Immigration Act of 1917 (8 USCA § 155), and the amendment contained in section 14 of the Immigration Act of 1924. This contention has been decided adversely to the appellant in Philippides v. Day, 283 U. S. 48, 51 S. Ct. 358, 75 L. Ed. 833, and U. S. v. Vanbiervliet, 284 U. S. 590, 52 S. Ct. 132, 76 L. Ed. —-. See, also, United States ex rel. Leo Stapf v. Corsi, 53 S. Ct. 40, 77 L. Ed. —-, decided by the Supreme Court November 7, 1932; Hendriksen v. Weedin, 61 F.(2d) 1030, decided by this court November 16, 1932.
Order 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)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
Harry W. NICHOALDS, Jr., Compass Corporation and Trilon Oil Company, Inc., Appellants, v. Charles E. McGLOTHLIN, Appellee.
No. 7315.
United States Court of Appeals Tenth Circuit.
April 20, 1964.
George J. Francis, Denver, Colo., for appellants.
Robert D. Means (of Holland & Means), Denver, Colo. (Robert E. Holland, Stanley H. Johnson and H. A. Nikkel, Denver, Colo., on the brief), for appellee.
Before LEWIS and SETH, Circuit Judges, and KERR, District Judge.
KERR, District Judge.
Appellee instituted this diversity action in the United States District Court for Colorado against Harry W. Nichoalds, Jr., Compass Corporation and Trilon Oil Company, Inc., seeking judgment in the amount of $13,600.00.
The complaint was in three counts. The first count avers that misrepresentations were made by Nichoalds to induce appellee to enter into an agreement for the purchase and sale of stock, and that on February 2, 1961, McGlothlin elected to rescind the transaction, tendered his stock in Compass Corporation to Nichoalds and asked for the return of his money. The second and third counts, made in the alternative, are also grounded in misrepresentation. McGlothlin alleges that subsequent to his giving notice of rescission, defendants proceeded to sell all the assets in the Compass Corporation in which McGlothlin had purchased shares of stock, and that this transfer was done without giving notice to MeGlothlin and without complying with corporate laws, all in furtherance of a conspiracy to deprive McGlothlin of, his equity in the Compass Corporation. The third count demands an accounting and other equitable relief.
The following salient facts are established by the evidence: Compass Corporation owned the ranch properties involved in this dispute. All of the shares of stock of Compass were owned by Nichoalds, who was its principal officer. In addition to Compass Corporation, Nichoalds was the principal officer and in control of Trilon Oil Company, Inc., owning 15,000 of the 25,000 outstanding shares of Trilon stock. Nichoalds conducted his business operations by this three-cornered arrangement, using Trilon to finance Compass. Loans were made by Trilon to Compass for operating expenses of the ranch. The corporate activities were actions of Nichoalds, who had the full and complete control of both corporations.
At one time McGlothlin was employed by the United States Forest Service. Having had experience in ranching, though little business experience, Mc-Glothlin wished to invest his savings in ranch property. He met Nichoalds through a Billings, Montana, realtor, with whom Nichoalds had listed for sale the ranch property located near Lame Deer, Montana. The list price was $89,-000.00. At the time of the proposed sale, title to the ranch was in the name of Compass Corporation. Following preliminary negotiations McGlothlin examined the ranch property, the cattle, and the equipment, and then consulted Nichoalds regarding the ranch holdings. Nichoalds stated that he valued the entire property at $140,000.00 or $145,000.00. He represented that the liabilities against the ranch consisted of $36,666.00 owed to the seller of the ranch; $2,000.00 payment due on 440 acres of additional lands acquired after the purchase of the ranch; and $1,000.00 balance due on recently acquired bulls. He further represented that there was adequate money to pay all expenses.
McGlothlin offered $15,000.00 which Nichoalds accepted and a contract for sale was' executed December 20, 1960. Under the terms of the agreement 2,310 shares of Compass Corporation stock, valued at $6.50 per share, were issued to McGlothlin for the $15,000 agreed upon but not yet paid. The balance of 5,690 shares of Compass stock were placed in escrow to assure McGlothlin that 50% of the shares would become his property. Nichoalds retained 8,000 shares in accordance with the intention that each party would eventually own 50 % of the Compass Corporation.
Following these negotiations and the execution of the contract McGlothlin learned from Nichoalds that there was an additional loan of $27,000.00 due a bank in Hardin, Montana, which Nichoalds had not previously disclosed. Mc-Glothlin learned that even when the parties were negotiating for the sale of the property Nichoalds was dealing with the Farm Home Association for a loan to pay off the $27,000.00 obligation. McGlothlin protested to Nichoalds regarding this undisclosed indebtedness and Nichoalds thereupon re-evaluated the stock from $6.50 to $4.85 per share.
On December 30, 1960, McGlothlin delivered his first check to Nichoalds in the amount of $12,000.00 and took over as manager of the ranch at a salary of $250.00 per month, plus housing allowance. Immediately thereafter McGlothlin learned that a herd of cattle, purchased by Nichoalds in Nebraska, had been branded with the ranch brand and were pledged to the bank at Hardin, Montana, as security for the $27,000.00 loan. McGlothlin testified that he had been led to believe that the cattle were owned by the Compass Corporation. The evidence revealed, however, that the cattle had been acquired by Nichoalds in his own name. Shortly after McGlothlin took over the management of the ranch numerous bills arrived, among which were a lumber bill for $900.00, a bill for $1,-000.00 due on bulls, and $3,300.00 due on ranch equipment.
In January 1961 McGlothlin learned for the first time that Compass Corporation had no cash and that operating expenses had to be paid from the funds of the Trilon Company. Contrary to Nichoalds’ previous representations that there was adequate money to operate the ranch, he finally admitted on February 2, 1961, that there was not enough money to operate the ranch and that further stock would have to be issued. McGlothlin then told Nichoalds that he wished to rescind the agreement for the purchase and sale of stock, and that he wanted his money returned to him. On February 12, 1961, Nichoalds and McGlothlin met in Sheridan, Wyoming, and prepared a written Memorandum Agreement for McGlothlin’s withdrawal from the ranch and corporate operations, Nichoalds agreeing to return the $13,600.00 on or before November 15, 1961. Nichoalds took the agreement to consult with his own lawyer, but never returned it to McGlothlin and did not sign it. On February 13, 1961, McGlothlin’s attorney notified Nichoalds of his rescission of the agreement, offered to return the stock, and demanded return of the purchase price. At the time the Memorandum was drawn up, McGlothlin agreed to leave the ranch one week after March 9, 1961. He fulfilled his part of the agreement though he did not hear from Nichoalds until the following May.
The crux of the decision is whether the misrepresentations were such as to justify rescission. There is little doubt that Nichoalds failed to fully and fairly disclose a number of important material facts. There was no disclosure of the $27,000.00 obligation, nor of the debts which McGlothlin discovered after making the initial payment. After McGlothlin discovered the true conditions he gave notice of his election to rescind. Rescission is, of course, a proper remedy where, as here, the contract has been induced by misrepresentation and fraud. In Brown v. Alkire, 295 F.2d 411, at page 414, 10 Cir., the court stated:
“* * * Generally, fraud consists of some deceitful practice or willful device resorted to for the purpose of inducing another, in reliance upon it, to surrender property or legal rights. 37 C.J.S. Fraud § 1 (1943); 23 Am. Jur. Fraud and Deceit § 2 (1939); Black’s Law Dictionary 788, (4th Ed. 1951). It connotes perjury, falsification, concealment and misrepresentation. Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500.”
To the same effect, in Junius Const. Co. v. Cohen, 257 N.Y. 393, 178 N.E. 672, at page 674, Judge Cardozo, Chief Justice of the New York Court of Appeals, said:
“ -* * * ipjjg se]jer was not at liberty in good conscience to list among the incumbrances the two unopened streets, which, even if opened, would leave the value unimpaired, and, while listing these, suppress the existence of a third unopened street, which, if opened, would destroy the value for the use intended by the buyer. No one can say with reason that the plaintiff would have signed this contract if informed of the likelihood that its factory, when built, would be bisected by a street, to say nothing of the possibility that a permit to build would be denied altogether. Misrepresentation, if there was any, as to a risk so vital was something that went to the very essence of the bargain. We do not say that the seller was under a duty to mention the projected streets at all. That question is not here. What we say is merely this, that having undertaken or professed to mention them, he could not fairly stop halfway, listing those that were unimportant and keeping silent as to the other. The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase. The result is the same whether the silence of the seller as to the presence of a bisecting street was innocent or deceitful. Misrepresentation, even though innocent, sustains the rescission of the contract * *
We think the evidence and legal principles support only one conclusion, namely, that Nichoalds concealed from McGlothlin material facts which equity and good conscience required him to disclose fully and honestly. Nichoalds entered into and closed the transaction without revealing knowledge of certain facts while partially disclosing other facts. McGlothlin acted without full knowledge of all the facts, to his damage. This constitutes fraud under Colorado law. See Morrison v. Goodspeed, et al., 100 Colo. 470, 68 P.2d 458.
There is another reason for concluding that a judgment of rescission was correctly entered. Nichoalds discharged McGlothlin as ranch manager. Naturally, when McGlothlin departed from the ranch he expected the return of the purchase price which he paid for stock in the Compass Corporation. Nichoalds treated the contract as rescinded as he Immediately transferred the ranch property out of Compass Corporation into the El Sol Corporation, another corporation controlled by Nichoalds. From the day McGlothlin was discharged as manager of the ranch, Nichoalds treated the property as his own. He is now precluded from denying that the contract was rescinded, and McGlothlin is entitled to the return of the money he paid to defendants.
There is substantial evidence to support the findings of the trial court.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond2_1_3
|
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 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.
ZIBELL et al. v. MEACHAM & BABCOCK SHIPBUILDING CO. et al.
(Court of Appeals of District of Columbia.
Submitted October 7, 1926.
Decided December 6, 1926.)
No. 4411.
1. Bankruptcy <§=>18-1/2 — Petition in suit for appointment of receiver of shipbuilding company held properly dismissed, in view of appointment of receiver in bankruptcy in another jurisdiction and . other facts.
Petition in creditors’ suit in District of Columbia for appointment of receiver for shipbuilding company, whose principal asset was a claim against the United States Shipping Board and Emergency Fleet Corporation, held properly dismissed, in view of nature of plaintiff’s claim, appointment of receiver in bankruptcy for shipbuilding company in another jurisdiction, and noncompliance with Code, § 1587, relating to service of process on foreign corporations.
2. Appeal and error <§=»I043(4) — Hearing evidence on motion to dismiss petition in suit for appointment of receiver held not prejudicial error.
That court heard evidence in support of motion to dismiss petition in suit for appointment of receiver for want of jurisdiction held not prejudicial error.
Appeal from the Supreme Court of the District of Columbia.
. Action by William F. Zibell, trustee in bankruptcy of Michael P. Kraffmiller and others, against the Meacham & Babcock Shipbuilding Company and others. From a decree dismissing the original and supplemental bills, plaintiffs appeal.
Affirmed.
Edward Stafford, J. I. Peyser, and G. E. Edelin, all of Washington, D. C., for appellants.
F. E. Scott, Peyton Gordon, and L. A. Rover, all of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
This is an appeal from a decree of the lower court dismissing the original bill and the amended and supplemental bill of the plaintiff upon motions filed by the defendants.
In the original bill of complaint, filed on January 2, 1925, the plaintiff alleged that on February 6, 1924, he was appointed and qualified as trustee in bankruptcy of Michael P. Kraffmiller by the United States District Court for the Northern District of Illinois, and he brings this suit in that capacity; that the defendant Meacham & Babcock Shipbuilding Company is a corporation organized under the laws of the state of Washington, with its principal office in the city of Seattle in that state, but having an attorney or agent, to wit, the defendant Thomas Lyle, either in the District of Columbia or about to return immediately thereto; that the other defendants are respectively the commissioners of the United States Shipping Board, the United States Shipping Board Emergency Fleet Corporation, and the president and treasurer thereof, the Secretary of the Treasury, and the Treasurer of the United States. The plaintiff alleges that the Meacham & Babcock Shipbuilding Company became indebted to Kraffmiller prior to his bankruptcy in various sums of money loaned by him to the company, which debts are due and unpaid; and that on June 14, 1921, the company had a certain large daim for money pending before the United States Shipping Board, growing out of the building of certain wooden ships for the Emergency Fleet Corporation during the World War, and that the Shipbuilding Company on that day employed Kraffmiller, who was a public accountant and auditor in Washington, D. C., to present and “handle exclusively” its said claim before the board, for which services he was to be paid a present retainer fee of $5,000, and “in the event that the settlement referred to realized payment to the Shipbuilding Company of a sum of money not exceeding $750,000, payment to you [Kraffmiller] of 10 per cent, thereof,” and similarly 25 per cent, of any sum collected in excess of $750,000; that Kraffmiller fáithfully rendered the services required of him by the contract, both before and since his bankruptcy, but no part of the claim has yet been collected, nor has any amount ever been determined as due from the United States Shipping Board on account of said claim; that the defendant Shipbuilding Company has ceased to engage in active business and has no valuable asset, except its said pending claim, which accordingly is the only asset from which the plaintiff can realize his claim against the company for services rendered under the aforesaid contract; that plaintiff is not at liberty to attach or garnishee the said fund, if specifically set aside, and consequently is without remedy at law to enforce his rights, and must depend upon a court of equity for relief in the premises;’ that'the several officers of the Shipbuilding .Company have disagreed • among themselves concerning the management of said claim, and have refused to co-operate with Kraffmiller in the collection thereof, and that the affairs of the company are being grossly mismanaged, and its assets will be dissipated, unless relief in equity be granted to the plaintiff; that there are outstanding obligations, exceeding $260,000, against the company now past due, exclusive of plaintiff's claims; and plaintiff avers that it is the intention of the Shipping Board to disregard the rights of plaintiff and Kraffmiller to collect the funds set up in the said claim, and it is the intention of the officers of the Shipbuilding Company, in case of the payment of the claim to them, to remove the funds from this District and dissipate the same m payment of extravagant salaries and favored claims; that any attempt by plaintiff to enforce his claim against the company would lead to similar action by other creditors, resulting in wasteful strife and controversy. Wherefore plaintiff prayed for the appointment of a receiver by the court, with full authority to collect all the assets of the Shipbuilding Company and to fully liquidate its business, and that in the meantime the defendants, together with all stockholders, creditors, and other parties in interest be enjoined from interfering with the control of said assets by such receiver, and for all general relief.
After the filing of the foregoing bill, to wit, on January 13, 1925, Tracy E. Griffin was appointed and qualified as receiver in bankruptcy for said Meaeham & Babcock Shipbuilding Company, by the United States District Court for the Western District of the state of Washington, and was expressly ordered by the court to proceed through other representatives with the prosecution of the claim of the bankrupt against the United States Shipping Board. The plaintiff then filed an amended and supplemental bill of complaint, alleging said appointment’ and making the receiver a party defendant to the bill; also repeating in substance the allegations and prayers of the original bill.
Thereupon the defendants the Meaeham & Babcock Shipbuilding Company and Tracy E. Griffin, receiver in bankruptcy, appeared specially in the suit and moved the court to vacate the alleged service of summons in the ease, showing by affidavits therewith filed that service was attempted to be made in the state of Washington upon Thomas Lyle as the agent of said company, whereas in fact Lyle was not an officer or agent of the company at the time, and that no other serivee of summons was ever made upon the company in this suit.
The defendants United States Shipping Board, the United States Shipping Board Emergency Eleet Corporation, the Secretary of the Treasury, and the Treasurer of the United States filed a motion to dismiss the bill of complaint, upon the ground that the suit was against the Shipping Board, and therefore one against the United States, which is not a party to the suit, and has not consented to be sued in the proceedings; also that the plaintiff is attempting to attach, by way of garnishment, funds in the Treasury of the United States. A certificate was also filed by the United States Shipping Board, reciting the disallowance on April 10, 1923, of the claim presented to the board by the Shipbuilding Company, being the claim underlying this suit. The lower court sustained the motions to dismiss the original and the amended and supplemental bills of complaint, and so decreed. This appeal was then taken.
We think the ruling of the lower court was right. The object of the present suit, as set out in the bill of complaint, was the liquidation of the affairs of the Meaeham & Babcock Shipbuilding Company, by the appointment of a receiver who was to take exclusive possession of all of its assets and finally administer upon them under the orders of the court in this ease. Such general relief, however, could in no event be granted until after jurisdiction was acquired by the court over the company by a lawful service of summons upon it. Section 1537, Code D. C., provides the method of service upon foreign corporations within the District of Columbia, but none of its requirements was complied with in this ease. The record discloses that no lawful service was ever made upon the company, and no effective service for the purposes of this case can be made, owing to the bankruptcy proceedings begun in another court having full jurisdiction.
If, on the other hand, the present suit be regarded simply as one for the enforcement of an alleged lien in favor of Kraffmiller upon the proceeds of the claim pending before the Shipping Board, it is a sufficient answer to say that the plaintiff, of course, cannot claim such a lien as security for the money loaned by Kraffmiller to the Shipbuilding Company on notes and accounts, and as to the claim pending before the Shipping Board, no part thereof has been allowed or collected, and consequently no part of the contingent fee provided for by the contract has accrued to Kraffmiller. The pending claim in fact has been rejected and disallowed by the Shipping Board. The plaintiff complains that officers of the Shipbuilding Company have not aided Kraffmiller in his prosecution of the claim, as they were bound to do under the contract, and that others have since been called in without his consent to prosecute the claim. We think that the terms of Kraffmiller’s contract gave him no lien capable of enforcement under these circumstances. De Winter v. Thomas, 34 App. D. C. 84, 27 L. R. A. (N. S.) 634.
Moreover, the appointment of a receiver in bankruptcy for the Meacham & Babcock Shipbuilding Company, made at a time when the lower court had not acquired jurisdiction over the company, together with the order of the bankruptcy court upon the receiver in bankruptcy to proceed with the collection of the claim against the Shipping Board, renders ineffectual any orders such as are sought by the plaintiff in this suit, even if granted; for the bankrupt estate, including the pending claim, must necessarily be administered in the bankruptcy court. In re Watts & Sachs, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933.
The appellant contends that it was error for the lower court to hear evidence in support of the motion to dismiss for want of jurisdiction. We do not think this was prejudicial error.
With these conclusions in mind, we find it unnecessary to discuss the various other questions presented by the case. The decree of the lower court is affirmed, with costs.
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_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. Richard Henry BECK, Defendant-Appellant.
No. 72-2528
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 4, 1973.
James C. Bonner, Jr., Decatur, Ga. (Court appointed), for defendant-appellant.
John W. Stokes, Jr., U. S. Atty., George H. Connell, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This is a direct appeal from Richard Henry Beck’s conviction for possession and forgery of a stolen United States Treasury check in violation of 18 U.S.C. §§ 1708 and 495. The criminal activity occurred about May 8, 1969. While in a county jail on other state charges some time in February of 1970, federal authorities indicated their interest in Beck to state officials. On April 27, 1970, federal agents questioned Beck who admitted possessing and endorsing the cheek by using the name of John R. Kelly; he also provided the agents with a handwriting sample. On May 11, 1970, federal authorities issued a formal complaint and lodged a detain-er against him since he was still in state custody. Beck wrote to the United States Attorney or District Court on at least three occasions in an effort to lift the detainer. However, Beck was not indicted until February 7, 1972. Thus 21 months elapsed between the formal detainer and the indictment.
Appellant states in his brief that the “one issue presented for appeal concerns the District Court’s denial of Appellant’s motion under Rule 48(b), Federal Rules of Criminal Procedure, seeking dismissal of the indictment for unnecessary and oppresive [sic] delay of 21 months in presenting the charges, lodged against him in prison as a detainer, to the grand jury.”
Rule 48(b) provides discretionary authority in the District Judge: “If there is unnecessary delay in presenting the charge to a grand jury . . ., the court may dismiss the indictment, information or complaint.” According to our recent decision in United States v. Judice, 5 Cir., 1972, 457 F.2d 414, 415 n. 1, a “timely indictment under the limitation statute is not ‘unnecessary delay’ under Rule 48(b).” Here Beck was indicted well within the 5-year statute of limitations specified by 18 U.S.C. § 3282. Furthermore, upon a review of the record and circumstances presented here, we do not believe the Trial Judge abused his discretion by refusing to dismiss the indictment.
Affirmed.
. Beck’s violations of state and federal law include a conviction on March 3, 1970, of a federal offense for illegal possession and transferal of guns, resulting in a sentence for 18 months of imprisonment. On March 10, 1970, he was convicted by the State of Georgia on drug charges and sentenced to 2 years of imprisonment. His convictions in the present case occurred on June 6, 1972, resulting in 6 more months to be served concurrently with his prior sentences.
Beck first served the state sentence, and then was transferred to federal custody. Imprisonment for both the gun violations and the present Treasury check violations has already ended. Nevertheless, this case is not moot because of possible collateral consequences. See generally Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Murray v. Wainwright, 5 Cir., 1971, 450 F.2d 465, 468.
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:
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sc_casesource
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031
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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.
NATIONAL LABOR RELATIONS BOARD v. PLASTERERS’ LOCAL UNION NO. 79, OPERATIVE PLASTERERS’ & CEMENT MASONS’ INTERNATIONAL ASSN., AFL-CIO, et al.
No. 70-63.
Argued October 13, 1971
Decided December 6, 1971
Norton J. Come argued the cause for petitioner in No. 70-63. With him on the brief were Solicitor General Griswold, Richard B. Stone, Arnold Ordman, Dominick L. Manoli, and Marvin Roth. Wayne S. Bishop argued the cause and filed a brief for petitioners in No. 70-65.
Donald J. Capuano argued the cause for respondents. With him on the brief were Martin F. O’Donoghue and Patrick C. O’Donoghue.
Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. On the brief was Thomas E. Harris.
Briefs of amici curiae urging reversal were filed by Joseph M. Stone, George L. Plumb, and Betty Southard Murphy for Associated General Contractors of America et al.; by Robert J. Connerton, Arthur M. Schiller, and Jules Bernstein for the Laborers’ International Union of North America, AFL-CIO; and by Albert E. Jenner, Jr., and Chester T. Kamin for the Scientific Apparatus Makers Assn.
Louis Sherman and Elihu I. Leifer filed a brief for the Building and Construction Trades Department, AFL-CIO, as amicus curiae urging affirmance.
Together with No. 70-65, Texas State Tile & Terrazzo Co., Inc., et al. v. Plasterers’ Local Union No. 79, Operative Plasterers’ & Cement Masons' International Assn., AFL-CIO, et al., also on certiorari to the same court.
Mr. Justice White
delivered the opinion of the Court.
When a charge is filed under § 8 (b) (4) (D) of the National Labor Relations Act, as amended, the provision banning so-called jurisdictional disputes, the Board must under § 10 (k) “hear and determine the dispute out of which [the] unfair labor practice shall have arisen, unless . . . the parties to such dispute” adjust or agree upon a method for the voluntary adjustment of the dispute. The issue here is whether an employer, picketed to force reassignment of work, is a “party” to the “dispute” for purposes of § 10 (k). When the two unions involved, but not the employer, have agreed upon a method of settlement, must the Board dismiss the § 10 (k) proceedings or must it proceed to determine the dispute with the employer being afforded a chance to participate?
I
Texas State Tile & Terrazzo Co. (Texas State) and Martini Tile & Terrazzo Co. (Martini) are contractors in Houston, Texas, engaged in the business of installing tile and terrazzo. Both have collective-bargaining agreements with the Tile, Terrazzo and Marble Setters Local Union No. 20 (Tile Setters) and have characteristically used members of the Tile Setters union for laying tile and also for work described in the collective-bargaining contract as applying “a coat or coats of mortar, prepared to proper tolerance to receive tile on floors, walls and ceiling regardless of whether the mortar coat is wet or dry at the time the tile is applied to it.”
This case arose when Plasterers’ Local Union No. 79, Operative Plasterers’ and Cement Masons’ International Association of Houston, Texas (Plasterers), picketed the job sites of Texas State and Martini claiming that the work of applying the mortar to receive tile was the work of the Plasterers’ union and not of the Tile Setters. Neither Texas State nor Martini had a collective-bargaining contract with the Plasterers or regularly employed workers represented by that union.
Before the Texas State picketing began, the Plasterers submitted their claim to the disputed work to the National Joint Board for Settlement of Jurisdictional Disputes (Joint Board), a body established by the Building Trades Department, AFL-CIO, and by certain employer groups. Both the Plasterers’ and the Tile Setters’ locals were bound by Joint Board decisions because their international unions were members of the AFL-CIO’s Building Trades Department. Neither Texas State nor Martini had agreed to be bound by Joint Board procedures and decisions, however. The Joint Board found the work in dispute to be covered by an agreement of August 1917, between the two international unions, and awarded the work to the Plasterers. When Texas State and the Tile Setters refused to acquiesce in the Joint Board decision and change the work assignment, the Plasterers began the picketing of Texas State which formed the basis for the § 8 (b) (4) (D) charges. The Plasterers also picketed a jobsite where Martini employees, members of the Tile Setters, were installing tile, although this dispute had not been submitted to the Joint Board.
Martini and Southwestern Construction Co., the general contractor that had hired Texas State, filed § 8 (b) (4) (D) unfair labor practice charges against the Plasterers, and the NLRB’s Regional Director noticed a consolidated § 10 (k) hearing to determine the dispute. Southwestern, Texas State, Martini, and the two unions participated in the hearing. A panel of the Board noted that the Tile Setters admitted being bound by Joint Board procedures, but deemed the Joint Board decision to lack controlling weight, and “after taking into account and balancing all relevant factors” awarded the work to the Tile Setters. When the Plasterers refused to indicate that they would abide by the Board’s award, a § 8 (b) (4) (D) complaint was issued against them, and they were found to have committed an unfair labor practice by picketing to force Texas State and Martini to assign the disputed work to them. In making both the § 10 (k) and § 8 (b) (4) (D) decisions, the Board rejected the Plasterers’ contention that even though the employer had not agreed to be bound by the Joint Board decision, the provisions of § 10 (k) precluded a subsequent Board decision because the competing unions had agreed upon a voluntary method of adjustment.
On petition to review by the Plasterers and cross petition to enforce by the Board, a divided panel of the Court of Appeals set aside the order of the Board. It held that: “It is not the employer but the rival unions (or other employee groups) who are the parties to the jurisdictional dispute contesting which employees are entitled to seek the work in question.” It concluded that the Board may not make a § 10 (k) determination of a jurisdictional dispute where the opposing unions have agreed to settle their differences through binding arbitration. Both the Board and the employers petitioned for certiorari, and we granted the petitions.
II
Section 8 (b) (4) (D) makes it an unfair labor practice for a labor organization to strike or threaten or coerce an employer or other person in order to force or require an employer to assign particular work to one group of employees rather than to another, unless the employer is refusing to honor a representation order of the Board. On its face, the section would appear to cover any union challenge to an employer work assignment where the prohibited means are employed. NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U. S. 573, 576 (1961) (hereinafter CBS). As the charging or intervening party, the employer would normally be a party to any proceedings under that section. Section 8 (b) (4) (D), however, must be read in light of § 10 (k) with which it is interlocked. CBS, supra, at 576. When a § 8 (b) (4) (D) charge is filed and there is reasonable cause to believe that an unfair labor practice has been committed, issuance of the complaint is withheld until the provisions of § 10 (k) have been satisfied. That section directs the Board to “hear and determine” the dispute out of which the alleged unfair labor practice arose; the Board is required to decide which union or group of employees is entitled to the disputed work in accordance with acceptable, Board-developed standards, unless the parties to the underlying dispute settle the case or agree upon a method for settlement. Whether the § 8 (b) (4) (D) charge will be sustained or dismissed is thus dependent on the outcome of the § 10 (k) proceeding. The Board allows an employer to fully participate in a § 10 (k) proceeding as a party. If the employer prefers the employees to whom he has assigned the work, his right to later relief against the other union’s picketing is conditioned upon his ability to convince the Board in the § 10 (k) proceeding that his original assignment is valid under the criteria employed by the Board.
The alleged unfair labor practice in this- cause was the picketing of the jobsites by the Plasterers, and the dispute giving rise to this picketing was the disagreement over whether Plasterers or Tile Setters were to lay the final plaster coat. This dispute was a three-cornered one. The Plasterers made demands on both Texas State and the Tile Setters and on both Martini and the Tile Setters. In both cases, the employers’ refusal to accede to the Plasterers’ demands inevitably and inextricably involved them with the Tile Setters against the Plasterers. It was this triangular dispute that the § 10 (k) proceeding was intended to resolve.
It may be that in some cases employers have no stake in how a jurisdictional dispute is settled and are interested only in prompt settlement. Other employers, as shown by this cause, are not neutral and have substantial economic interests in the outcome of the § 10 (k) proceeding. A change in work assignment may result in different terms or conditions of employment, a new union to bargain with, higher wages or costs, and lower efficiency or quality of work. In the construction industry, in particular, where employers frequently calculate bids on very narrow margins, small cost differences are likely to be extremely important. In the present cause, both employers had collective-bargaining contracts with the Tile Setters specifically covering the work at issue; neither had contracts with the Plasterers nor employed Plasterers regularly. Both employers determined it to be in their best interests to participate vigorously in the Board’s § 10 (k) proceeding. The employers contended it was more efficient and less costly to use the same craft for applying the last coat of plaster, putting on the bonding coat, and laying the tile and that it was more consistent with industry practice to use the Tile Setters as they did. Both companies claimed that their costs would be substantially increased if the award went to the Plasterers, and that without collective-bargaining contracts with the Plasterers, they would lose 30%-40% of their work to plastering contractors. It is obvious, therefore, that both Texas State and Martini had substantial stakes in the outcome of the § 10 (k) proceeding.
The phrase “parties to the dispute” giving rise to the picketing must be given its commonsense meaning corresponding to the actual interests involved here. Cf. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Local 286 v. Scofield, 382 U. S. 205, 220 (1965). Section 10 (k) does not expressly or impliedly deny party status to an employer, and since the section’s adoption in 1947, the Board has regularly accorded party status to the employer and has refused to dismiss the proceeding when the unions, but not the employer, have agreed to settle.
The Court of Appeals rejected this construction of § 10 (k). Its reasoning, which we find unpersuasive, was that because the employer is not bound by the § 10 (k) decision, he should have no right to insist upon participation. But the § 10 (k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10 (k) decision is felt in the § 8 (b) (4) (D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10 (k) decision and the employer does not comply, the employer’s § 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10 (k) decision, but both will lose their § 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10 (k) decision.
We do not find that the legislative history of § 8 (b) (4) (D) and § 10 (k) requires a different conclusion. The Court of Appeals and the Plasterers rely upon various statements in the legislative history of the two sections, particularly the remarks of Senator Morse, referring to jurisdictional disputes as controversies between two labor unions, and a passage in the House Conference Report referring to § 10 (k) as directing the Board to "hear and determine disputes between unions giving rise to unfair labor practices under section 8 (b)(4)(D).” Nothing in these remarks or in the other relevant legislative documents indicates an affirmative intent to exclude an interested employer from participating in a § 10 (k) proceeding. The usual focus of the legislative debates was on ways of protecting the employer from the economic havoc of jurisdictional strikes. But it does not follow from statements condemning the economically deleterious effects of inter-union strife that Congress intended an employer to have no say in a decision that may, practically, affect his business in a radical way. Congress did not expressly focus on the non-neutral employer, but there is nothing in the legislative history that negatives employer standing; and in referring to the “parties to the dispute,” Congress used terminology that would ordinarily include the employer in cases such as these.
The Court has frequently cautioned that “[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” Girouard v. United States, 328 U. S. 61, 69 (1946); Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U. S. 235, 241 (1970). It is clear that Congress intended to protect employers and the public from the detrimental economic impact of “indefensible” jurisdictional strikes. It would therefore be myopic to transform a procedure that was meant to protect employer interests into a device that could injure them. In the absence of an “unmistakable directive,” the Court has refused to construe legislation aimed to protect a certain class in a fashion that will run counter to the goals Congress clearly intended to effectuate. FTC v. Fred Meyer, Inc., 390 U. S. 341, 349 (1968). We conclude, therefore, that these sections were enacted to protect employers who are partisan in a jurisdictional dispute as well as those who are neutral.
Nothing in CBS, supra, mandates a different conclusion. Until that case, the Board's practice had been to decide against the striking or picketing union unless it was entitled to the work pursuant to a Board certification or a collective-bargaining contract. The Court found the Board to have taken too narrow a view of its task and held that the Board, employing broader, more inclusive criteria with respect to entitlement, must make an affirmative award to one union or the other. In the course of its opinion, the Court referred to § 10 (k)’s phrase “the dispute out of which such unfair labor practice shall have arisen” as having “no other meaning except a jurisdictional dispute under § 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.” 364 U. S., at 579. Again, we have no quarrel with the view that § 10 (k) is designed to decide which union is entitled to the work. But the issue before us is whether the employer is also a party to that dispute and to the proceeding that decides that question. The Court in CBS did not have before it a case in which the employer was particularly interested in which union did the work, since it had collective-bargaining contracts with both unions and since both unions were able to do the disputed work with equal skill, expense, and efficiency. The Court recognized that there, “as in most instances” the quarrel was of “so little interest to the employer that he seems perfectly willing to assign work to either [union] if the other will just let him alone.” Ibid. (emphasis added). We have no doubt, therefore, that the Court had no intention of deciding the case now before us.
If employers must be considered parties to the dispute that the Board must decide under § 10 (k), absent private agreement, they must also be deemed parties to the adjustment or agreement to settle that will abort the § 10 (k) proceedings. It is insisted that so holding will encourage employers to avoid private arbitration, whereas holding union agreement alone sufficient to foreclose Board action will pressure employers to become part of private settlement mechanisms productive of sound result and much swifter decision.
The difficulties with this argument are several. First of all, if union agreements to arbitrate are sufficient to terminate § 10 (k) proceedings, there is no assurance that these private procedures will always be open to employer participation, that an employer will be afforded a meaningful chance to participate, or that all relevant factors will be properly considered.
Second, the argument for regarding the employer as a dispensable neutral is reminiscent of the position taken by the Board and rejected by the Court in the CBS case. There, the Board sought to justify a narrow view of its function and its failure to make affirmative awards as generating pressure to settle or arbitrate privately. As § 10 (k) passed the Senate, it directed the Board to decide the dispute or to order arbitration, but the arbitration alternative was deleted in Conference, and the amended bill was passed by the Senate over the strenuous objections of Senator Morse and others. By this amendment, the Court in CBS held that Congress had expressed a clear preference for Board decision as compared with compelled arbitration, and that this policy preference must be respected. 364 U. S., at 581-582. Although this Court has frequently approved an expansive role for private arbitration in the settlement of labor disputes, this enforcement of arbitration agreements and settlements has been predicated on the view that the parties have voluntarily bound themselves to such a mechanism at the bargaining table. In both Carey v. Westinghouse Electric Corp., 375 U. S. 261, 262 (1964) and Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U. S., at 238, the employers had acceded to binding arbitration as the terminal step of the grievance procedure. This concession is not present in the instant case; the employers here did not even have a collective-bargaining contract with the Plasterers. Section 10 (k) contemplates only a voluntary agreement as a bar to a Board decision. As in CBS, we decline to narrow the Board's powers under § 10 (k) so that employers are coerced to accept compulsory private arbitration when Congress has declined to adopt such a policy.
There remains the matter of the so-called Safeway rule announced by the Board in 1962 and followed since. Under this rule, the Board has held that if one of the unions claiming work effectively renounces its claim, § 10 (k) proceedings are aborted despite legitimate interests an employer may have in securing a Board decision. It is urged that if union agreement prevents a § 10 (k) decision in such a situation, the employer cannot be considered a party to the § 10 (k) dispute when the unions but not the employer have agreed upon a method of settlement. As we understand the Safeway doctrine, however, when one union disclaims the work, § 10 (k) proceedings terminate, not because all “parties” to the dispute have settled or agreed to settle within the meaning of the statute, but on the ground that, in the words of the Board’s brief in this case, “the Board has power, under Section 10 (k), only to hear and determine the merits of a jurisdictional dispute and ... by definition, such a dispute cannot exist unless there are rival claims to the work. . . .” Concededly, an employer may be a third party to disputes over work assignments, but when the other two parties settle their differences and one union declines the work assigned to it, the inter-union conflict that §§ 8 (b) (4) (D) and 10 (k) were designed to eliminate disappears. A § 10 (k) hearing is a comparative proceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work. Similarly, the applicability of § 8 (b) (4) (D) is premised on conflicting claims of unions or groups of employees for the same job; absent such an actual conflict, it would be futile to proceed under that section unless the employer replaces the disclaiming employees by a new third group of employees when they reject the work assignment, and the disfavored union resumes picketing.
If union settlement followed by disclaimer ends the § 10 (k) case, some of the argument about the employer’s party status becomes academic; for whether the employer is a party or not, the two unions alone can prevent a Board decision. But recognizing the employer’s party status insures his right to participate when the unions do not agree and the Board must come to a decision. Further, the Board’s Safeway rule applies only where the inter-union conflict is effectively settled and the employer no longer faces conflicting claims to the work. As this case demonstrates, the Board does not apply the Safeway rule to unimplemented agreements to arbitrate between the unions alone, and it does not consider it applicable where employees continue on the job after their international union loses an arbitration proceeding and renounces the work. These de facto disputes are real, and they deserve Board resolution if the purposes of § 10 (k) are to be .achieved. Cf. CBS, supra, at 579-580.
The Court of Appeals would extend the Safeway rule to foreclose Board
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205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_usc1
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15
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
AVNET, INC., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
No. 73-1399.
United States Court of Appeals, Seventh Circuit.
Argued April 10, 1974.
Decided Feb. 28, 1975.
Howard P. Willens, Washington, D. C-, for petitioner.
Gerald Harwood, Acting Asst. Gen. Counsel, F. T. C., Washington, D. C., for respondent.
Before FAIRCHILD, Chief Judge, and PELL and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
The Commission held that the acquisition by Avnet of two competing manufacturers of parts which are sold to re-builders of automotive electrical units violated § 7 of the Clayton Act, as amended. Avnet argues that it did not have a fair opportunity to meet the Commission’s prima facie case because it did not anticipate the Commission’s narrow definition of the relevant product market, and, in any event, that the evidence is insufficient to satisfy the Commission’s initial burden on the relevant market issue. We find no unfairness in the way the case was tried and have no difficulty in concluding that the evidence adequately supports the Commission’s findings.
As a preface to our discussion of Av-net’s principal contentions, we shall briefly summarize the Commission’s description of the industry, review the history of the proceedings, and identify the evidence which, according to Avnet, it was unable to present.
I.
Among the automobile parts which may need to be replaced or repaired as a car ages are electrical units, such as generators, alternators, starters and voltage regulators. These “automotive electrical units,” (“AEU’s”) are made by original equipment manufacturers (“OEM’s”) and by rebuilders. OEM’s include the major automobile companies and other firms that produce equipment for installation on new vehicles. They sell replacement units to warehouse distributors (“WD’s”), who in turn resell individual units, as well as components of such units, to retailers such as repair shops, service stations, garages and car dealers.
The record in this case demonstrates that the prices at which WD’s sell new AEU’s are significantly higher than the prices at which comparable AEU’s can be rebuilt and sold at a profit. A used unit may be dismantled, cleaned and reassembled with such substitute components as may be needed. Such rebuilding may take place in repair shops where one unit at a time is put back in working order for an individual customer (“custom rebuilding”), or in a production-line operation where units are rebuilt in large quantities and then sold to jobbers for distribution to the retail trade (“production-line rebuilding”). There are about 150 or 200 production-line rebuilders in the entire country.
The “rebuilders supply industry” includes the firms which sell new components to rebuilders of AEU’s. Counsel for the - Commission consistently contended that the industry is composed of only 16 or 17 principal manufacturers with aggregate annual sales of about $20 million. The alleged violation resulted from the combination of IPM, the largest, and Valley Forge, the third largest, of these firms. Before the combination, IPM had sales of over $11 million and Valley Forge’s were almost $2 million. Avnet acquired the assets of Valley Forge as of July 31, 1964, and those of IPM as of January 31, 1965. After the second acquisition, Avnet’s sales represented about two-thirds of the total in the market as viewed by the Commission.
II.
Both the complaint, which issued on April 1, 1969, and the amended complaint of December 1, 1969, alleged that 16 firms, of which IPM and Valley Forge were the largest and third largest, supplied virtually the total value of equipment and parts furnished to rebuilders.
The evidentiary hearing commenced on February 1, 1971. During the preceding 16 months, the parties conducted pretrial discovery, argued about the adequacy of Avnet’s compliance with discovery orders, stipulated about certain facts and issues, and agreed that, in advanee of trial, each would provide the other with a list of witnesses and copies of proposed exhibits.
From the outset Avnet disputed the Commission’s position that the market was composed of 16 principal firms. It attempted, in three different ways, to develop evidence that the 16 firms have so many competitors that their sales do not comprise a relevant market or sub-market. First, Avnet requested the Hearing Examiner to issue subpoenas to the 14 competitors of IPM and Valley Forge calling for disclosure of their customer lists, and thereafter to subpoena all those customers to learn their sources of supply. The Hearing Examiner quite properly rejected this request and directed Avnet, at least as an initial matter, to make its own inquiries of the customers of IPM and Valley Forge. Second, according to Avnet’s counsel, Avnet did attempt to develop evidence by a study of its own records and by interviewing its customers; presumably the results of those efforts were later incorporated in Avnet’s presentation of evidence at the trial. Third, well after the trial was under way, through conversations with its sales personnel and through an independent market research study, Avnet sought to prove that the volume of business handled by custom rebuilders was so enormous that, by inference, there must be such a significant total volume of sales by rebuilder suppliers that the statistics relating to the 16 firms identified by the Commission should be disregarded as essentially meaningless. The Hearing Examiner excluded the market study for procedural reasons.
On the basis of the voluminous evidence in the record, the Hearing Examiner concluded that the acquisition violated § 7 of the Clayton Act and recommended an order requiring Avnet to divest IPM. He found that the relevant market included the sale of new components by rebuilder suppliers to rebuilders and that the contours of the market were fairly delineated by the sales of the 16 principal suppliers to 150 to 200 production-line rebuilders. In so finding, he resolved the “sharp disagreement between the parties over the meaning of the term ‘rebuilder’ as used in paragraph 1(b) of the complaint.” His market analysis and conclusion summarizing competitive impact of the acquisition were corroborated in large part by an opinion expressed by a Valley Forge executive in memoranda outlining the advantages to Avnet of the acquisition of IPM.
In a carefully prepared opinion by Chairman Kirkpatrick, the Commission approved the findings and order proposed by the Hearing Examiner. Commissioner Dennison dissented on the ground that complaint counsel had not met their burden of demonstrating the size and dimensions of the relevant line of commerce.
III.
The record contains a great deal of testimony by rebuilder suppliers and by production-line rebuilders. It is clear that the production-line rebuilders could not survive without an adequate source of supply of new parts. Because the prices charged by OEM’s and WD’s are so high, the production-line rebuilders must obtain such parts from rebuilder suppliers. The testimony indicates that they relied primarily on IPM, Valley Forge and two other suppliers for these parts.
Unlike production-line rebuilders, who operate at a manufacturing level and sell largely to jobbers, custom rebuilders operate at the retail level dealing directly with consumers. At that level, particularly since their charges cover their labor and specialized expertise, they can afford to purchase OEM parts from WD’s. They may, of course, also purchase new, used, or rebuilt components from other sources, including rebuilder suppliers. We know that some of the rebuilder suppliers sell either nothing, or at most very little, to custom rebuilders, and we also know that IPM makes some sales to custom rebuilders. But the record does not tell us what portion of the rebuilder suppliers’ total sales, or even what portion of IPM’s or Valley Forge’s total sales, were to custom rebuilders rather than production-line rebuilders.
Avnet contends that such information is of critical importance in appraising the Commission’s definition of the relevant market, and that it was prevented from developing such evidence as well as any other evidence identifying the dimension of the business of supplying custom re-builders throughout the country, by the Commission’s failure to give it adequate notice that the Hearing Examiner, and ultimately the Commission, would decide that the term “rebuilders” includes only production-line operators and excludes custom rebuilders. As we understand Avnet’s principal argument, which is phrased in terms of a “denial of administrative due process,” if its counsel had understood the theory of complaint counsel’s case they would have proved (a) that for the purposes of this case, any distinction between production-line re-builders and custom rebuilders is invalid, and (b) that the inclusion of sales to custom rebuilders would so enlarge the relevant market as to undermine completely the Commission’s prima facie case. Specifically, Avnet contends that it would not have waited so long (1) to develop evidence from its own sales personnel describing the 3,300 customers of IPM who are not production-line re-builders, and (2) to obtain a market study delineating the volume done by custom rebuilders.
IV.
We find Avnet’s “administrative due process” argument unpersuasive. It relies largely on the fact that both the amended complaint and a trade practice rule promulgated by the Commission contain a functional definition of the term “rebuilder” which can be read to include custom rebuilding as well as production-line rebuilding, and on the further fact that the amended complaint described the demand side of the market as “highly fragmented,” and referred to IPM’s sales “to over 5,000 independent distributors and rebuilders.”
Avnet had no reason to rely on the trade practice rule as significant in this proceeding. The rule relates to the manner in which rebuilt units must be labeled when they are sold. Since, by hypothesis, custom rebuilding does not involve the sale of any such unit, but rather the reconstruction of the customer’s property, the rule is, in terms, inapplicable to the issue here.
Avnet’s reading of the complaint was, however, reasonable. The reference to “over 5,000” customers of IPM certainly implied that all of IPM’s sales were intended to be treated as within the relevant market; since presumably some of those sales were to custom rebuilders, one might well infer that the market was intended to include all custom re-builders. But even if Avnet’s counsel did originally assume that complaint counsel intended to treat all sales to custom rebuilders as part of the relevant market, it soon became manifest that the critical question in the case was whether or not counsel was correct in using the list of 16 firms to outline a relevant market. Arguably, but by no means necessarily, the answer to that question would be affected by the definition of the term “rebuilder” and, more narrowly, by whether sales to custom rebuilders would be treated as relevant. For that reason, as the Examiner found, a “sharp dispute” between the parties developed over the proper definition of that term. The portions of the record which are before us do not indicate precisely when that dispute developed. We are not at all persuaded, however, that the dispute arose so late in the proceeding that Av-net was powerless to muster evidence or argument to meet complaint counsel’s case.
We note that Avnet’s argument before the Hearing Examiner anticipated complaint counsel’s position that only sales to production-line rebuilders were relevant. We also find no discussion in Chairman Kirkpatrick’s opinion for the Commission of any claim that Avnet was surprised by the definition of the term “rebuilder.” The Commission did explain in detail its agreement with the Examiner’s exclusion of custom rebuilding from the demand side of the market and with his procedural and evidentiary rulings. But Chairman Kirkpatrick’s opinion does not even mention the inadequate notice argument that Avnet advances in this court.
Without further belaboring the point, we merely state that our review of the record convinces us that Avnet’s counsel had sufficient understanding of the issues, and sufficient time to prepare Av-net’s defense, to require rejection of the argument that they were denied administrative due process when the Hearing Examiner accepted complaint counsel’s definition of the term “rebuilder.” The test of fairness as stated in Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), cert. denied, 347 U.S. 1016, 74 S.Ct. 864, 98 L.Ed. 1138, and L. G. Balfour Company v. F. T. C., 442 F.2d 1, 17 — 19 (7th Cir. 1971), was easily met.
V.
We also find no merit in the argument that the Commission relieved complaint counsel of the burden of proving the size of the relevant market and thereby deprived Avnet of administrative due process. The Examiner did not purport to make any such ruling. On the contrary, he found that the census data, the industry witnesses’ testimony, the sales data for the 16 principal rebuilder suppliers, and the corroborating expressions of opinion in memoranda prepared by the witness Fischer, an executive of Valley Forge, constituted sufficient evidence on which to predicate the conclusion that complaint counsel had met their burden of proof.
VI.
At pages 42-57 of its brief, Avnet argues that the Commission erred on the merits by artificially limiting the relevant market in two respects: first, by excluding sales to customer rebuilders, and second, by excluding sales of used and rebuilt parts.
The second exclusion was manifestly correct. The Commission found that prices for rebuilt or reconditioned used components varied from 25% to 50% below the prices for comparable new items. Moreover, it noted the absence of any substantial interaction in price between the two lines. These factors are sufficient to support the finding that they should be placed in different sub-markets. See Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510; United States v. Aluminum Company of America, 377 U.S. 271, 276, 84 S.Ct. 1283, 12 L.Ed.2d 314; cf. United States v. Aluminum Company of America, 148 F.2d 416, 425 (2d Cir. 1945).
We are also persuaded that the omission of sales to custom rebuilders was not error. The Commission, of course, has the initial burden of explaining why a particular group of buyers or sellers should not be included within the relevant market. In this case the Commission met that burden by proving that custom rebuilders and production-line re-builders perform significantly different functions and operate at significantly different levels of distribution within the overall market for the repair or replacement of AEU’s. The custom rebuilder is primarly a retailer of services; the production-line rebuilder is a manufacturer of products which are sold largely to jobbers, and presumably to retailers as well. In our opinion, the clear functional difference between the two groups of rebuilders provides an adequate prima facie basis for placing them in different submarkets.
It is, of course, entirely possible that the rebuilder suppliers may sell sufficient quantities of parts to custom re-builders at prices comparable to those charged to production-line rebuilders to support the conclusion that such sales should be treated as part of the relevant market. If that be the fact, however, since the Commission satisfied its initial burden it was incumbent upon Avnet to prove that the custom rebuilders made purchases from competitors of IPM and Valley Forge in significant volume. That burden could not be discharged by evidence concerning purchases of used or rebuilt parts, or by evidence of purchases of OEM parts from WD’s. The testimony of the industry witnesses indicated that the volume of purchases by custom rebuilders from the principal rebuilder suppliers was not significant. It therefore seems improbable that detailed evidence concerning the volume of sales of new parts to custom rebuilders by re-builder suppliers would be significant. But even assuming that it might be, Av-net did not make a timely, or a complete, offer of proof showing the amount of its own, or of any of its competitors’, sales to custom rebuilders. Quite clearly, Av-net did not overcome the Commission’s prima facie showing that purchases by custom rebuilders were not part of the relevant market.
The Commission’s analysis of this aspect of the case is corroborated by statements made by a vice-president and director of Avnet in a pre-acquisition memorandum. That memorandum states, in part:
The acquisition of IPM would serve chiefly to remove our most major competitor from the scene. This would reduce to an overwhelming extent the price competition that is a major factor in the industry. In many cases severe competition has held profit margins on key items to a reduced level owing to the ability of two firms to offer substantially the same item at the same price. IPM has been very active in offering preferential discounts to large customers which Valley Forge has been obliged to meet. It is recognized by both Valley Forge and IPM that we must retain a reasonable share of the business from the larger users for they represent the primary target of any substantial tooling. We both recognize that large customers are necessary for our continued growth. This has produced a situation where the large customer has used his position to play off one against the other. In this situation Maremont has been the chief offender and has used their purchasing power in the most effective manner.
Quite plainly this comment supports the inference that competition for the patronage of the production-line rebuilders was of paramount importance to the re-builder suppliers and tends to justify discounting the significance of their sales to custom rebuilders.
VII.
Finally, Avnet objects to the portions of the order which require (1) divestiture of IPM rather than Valley Forge, and (2) Commission approval of any acquisition by Avnet of a supplier of used or rebuilt parts during the next 10 years.
Deference must be accorded to the Commission in fashioning the appropriate remedy. See Papercraft Corp. v. F. T. C., 472 F.2d 927 (7th Cir. 1973), and cases cited at 933 n. 17. Since it was the acquisition of IPM, rather than the earlier acquisition of Valley Forge, which violated the statute, and since the record indicates that Avnet has caused Valley Forge to emphasize expansion in its ignition parts business rather than the re-builders supply business, it was manifestly appropriate for the Commission to order divestiture of IPM.
We are also persuaded that even though the competition between used or rebuilt parts and new parts is not sufficiently intense to require the former to be treated as part of the relevant market for purposes of determining whether a violation occurred, it was nevertheless permissible for the Commission to consider the significance of that competition, together with Avnet’s past history of acquisitions, in defining the scope of Avnet’s obligation to obtain Commission approval of future acquisitions. We are unwilling to say that this portion of the remedy does not have a “reasonable relation to the unlawful practices found to exist.” Federal Trade Commission v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 1 L.Ed.2d 438.
Accordingly, we affirm and enter judgment enforcing the order of the Commission.
. The pertinent portion of Section 7 of the amended Clayton Act, 64 Stat. 1125 (1950), 15 U.S.C. § 18 (1970), provides:
“No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
The Commission’s decision is reported at 82 F.T.C. 444 (1973). ,
. The substitute components may themselves be either new or used or rebuilt.
. The parties agree that the relevant geographic market in this case is nationwide.
. The following table lists the firms in complaint counsel’s market with their sales to rebuilders. It will be noted that the Hearing Examiner has included 17 firms, although complaint counsel initially contended that only 16 were sufficiently significant to be relevant.
In addition, the Hearing Examiner and the Commission both noted that in 1964, Ford, Chrysler and General Motors had sales to authorized rebuilders which amounted to about 3% of the foregoing total.
. The amendment excluded from the relevant line of commerce (1) the supply of used (as opposed to new) parts for rebuilt AEU’s, and (2) the sale of parts by OEM’s to “authorized rebuilders.” An “authorized rebuilder” is one, who, pursuant to specific agreement with an OEM, is authorized to rebuild that firm’s units. Although Avnet challenged the latter exclusion, the Commission noted that it related to only about 3% of total industry sales.
. Avnet’s answer denied the allegations in paragraph 15 of the complaint. Moreover, Avnet stipulated that one of the contested issues was: “Whether sixteen firms supplied virtually the total volume of equipment and new parts furnished to rebuilders in 1964?”
. See Papercraft Corp. v. F. T. C., 472 F.2d 927, 930 (7th Cir. 1973).
. The pretrial order required Avnet to list its exhibits by January 25, 1971. The Commission completed its case on February 25, 1971, and the trial was then recessed until May 6, 1971, to give Avnet time for additional discovery and preparation. On April 19, 1971, Avnet employed United States Testing Company, Inc. to conduct a survey, but made no disclosure of that fact until July 9, 1971, when it moved to amend its list of proposed exhibits. The Hearing Examiner denied the motion as untimely, emphasizing Avnet’s past failure to act with appropriate diligence and candor in the preparation of the matter for trial.
. See findings 18^10, 82 F.T.C. at 402-407, where the Examiner substantially equates the terms “rebuilder” and “production-line re-builders,” on the one hand, and “repair shops” and “custom rebuilders,” on the other, to exclude custom rebuilders from the demand side of the market.
. The testimony of some representatives of the rebuilder suppliers made it quite clear that their sales to custom rebuilders were not significant. See, for example, the testimony of the witnesses Flynn (App. 591-592, 593-594), Kamber (App. 617), Green (App. 602), Winters (App. 663), and McCullough (App. 686).
. Since IPM has a list of 3,500 customers and since there are only 150 or 200 production-line rebuilders in the country, it is fair to infer that at least some of IPM’s customers were custom rebuilders. Of course, the number of customers tells us little about their volume of purchases. There is a stipulation in the record describing IPM’s sales to 49 customers with individual annual purchases ranging from $23.25 to $5,165.44. These figures are to be contrasted with IPM’s total sales of over $11 million. We have not found any evidence, or any offer of proof, by either party establishing the dollar value of sales by IPM or Valley Forge to production-line and custom rebuilders, respectively.
. In its brief at page 28 and footnote 22, Avnet states:
“First, because Avnet lacked adequate notice, it was unable to develop and present vital evidence to support its contention that sales to all the kinds of rebuilders reflected on IPM’s list of 3,500 active customers should be included in the relevant market. If the Commission’s Amended Complaint had charged that only sales to a definite class of ‘production-line rebuilders’ were to be included in the market, Avnet would have had the opportunity to survey its active customers to ascertain which among them fit the Commission’s definition of production-line rebuilders, to ascertain its sales to such rebuilders, to elicit evidence regarding their other suppliers, to demonstrate that these rebuilders compete directly with other kinds of rebuilders, and to conduct those additional inquiries which would be reasonably expected to yield relevant evidence regarding the validity of the Commission’s restrictive definition of the term ‘rebuilder.’ No such discovery efforts were undertaken by Avnet — for the sole reason that it was not given fair notice by the Commission that such inquiries were either required or relevant.
Fragmentary evidence on many of these issues is contained in the record. Av-net maintains, for example, that the record demonstrates the existence of real competition for the ultimate consumer’s dollar between custom rebuilt and production-line rebuilt electrical units, (see, e. g., RPF 215-22, App. Vol. IV,. and the transcript references contained therein.) The point in the text, however, is that Avnet was denied any opportunity during the prehearing stages of this proceeding to develop the kind of comprehensive evidence necessary to demonstrate the invalidity of the arbitrary definition of rebuilder subsequently adopted by the Hearing Examiner and the Commission.”
. Avnet contends that its survey would have shown a market for new, rebuilt and used parts of more than $300 million and, if admitted, would have rebutted the Commission’s evidence tending to prove a relevant market of only about $20 million. We have examined the study identified as Respondent’s Exhibit 88 (Rejected); we find no offer of supplementary expert oral testimony. For at least three reasons, the rejected exhibit does not appear to us to be inconsistent with the Commission’s analysis of the market. First, it apparently includes sales of rebuilt AEU’s which include used and rebuilt, as well as new, components; second, it apparently includes sales of custom rebuilt units which include components purchased from WD’s and, therefore, indirectly from OEM’s; and third, its price analysis is directed to the retail market, whereas IPM, Valley Forge, and their competitors were selling to companies engaged in the manufacturing business who sold largely to jobbers, who in turn would resell to retailers. We find nothing in the study shedding any light on the magnitude of sales at the level at which IPM and Valley Forge sold. We are inclined to attach greater significance to Avnet’s failure to make a timely offer of a breakdown of its own sales to custom rebuilders and production-line rebuilders than to any extrapolation suggested by the rejected offer.
. The FTC rule provides that a product cannot be identified as “rebuilt” or “remanufactured” unless it has been
“dismantled and reconstructed as necessary, all of its internal and external parts cleaned and made free from rust and corrosion, all impaired, defective or substantially worn parts restored to a sound condition or replaced with new, rebuilt or unimpaired used parts, all missing parts replaced with new, rebuilt or unimpaired used parts, and such rewinding or machining and other operations performed as are necessary to put the industry product in sound working condition.” 16 C.F.R. § 62.3(b) (1974) (footnotes omitted).
The rule also provides that units can be sold as “rebuilt” only after they have undergone this process and are labeled as rebuilt. Units which are not sold, or are not sold “to the trade,” need not be labeled if it is “clearly understood by all purchasers . . . that the products, or parts thereof . . . have been used.” 16 C.F.R. § 62.1(b)(1).
. See App. 220.
. See 82 F.T.C. at 448 et seq. The Commission stated:
“Throughout the proceeding below and on appeal, respondent has contended that the term ‘rebuilder’ refers to all firms that engage in the physical operation of disassembling a unit, cleaning, testing, replacing or reconditioning defective or worn parts, and reassembling and testing the finished product.” 82 F.T.C. at 449 (Emphasis added).
This statement provides a sufficient basis for distinguishing Rodale Press, Inc. v. F. T. C., 132 U.S.App.D.C. 317, 407 F.2d 1252, 1255-6 (1968), and Bendix Corporation v. F. T. C., 450 F.2d 534 (6th Cir. 1971), both of which involved a complete change in theory at the Commission level.
. See 82 F.T.C. at 468-473.
. In Celia we stated:
“In an administrative proceeding it is only necessary that the one proceeded against be reasonably apprised of the issues in controversy, and any such notice is adequate in the absence of a showing that a party was misled.”
In Balfour we stated:
“As the Commission case against petitioners unfolded, there was a ‘reasonable opportunity to know the claims of the opposing party and to meet them.’ ” 442 F.2d at 19.
. In United States v. Connecticut National Bank, 418 U.S. 656, 94 S.Ct. 2788, 41 L.Ed.2d 1016 (1974), the Supreme Court characterized the quality of the government’s burden of proving the contours of the relevant geographic market as its “role to come forward with evidence delineating the rough approximation of localized banking markets . . .” 418 U.S. at 669, 94 S.Ct. at 279. Presumably a similar “rough approximation” may be sufficient to make out a prima facie case on the relevant product market issue.
. Respondent is incorrect in its statement that the Commission ignored the fact that the commonly quoted “exchange price” for rebuilt parts includes a used core as part of the purchase price. Avnet’s brief at page 55. See Commission opinion at 82 F.T.C. 457--158.
. As the Commission noted in its opinion: “The facts found by the judge demonstrate that production-line rebuilders sell a product, not a service, to entirely different classes of customers at different distribution levels using completely different pricing methods.” 82 F.T.C. at 450.
. This conclusion is buttressed by the fact, as stated by the Commission, that “while production-line rebuilders could not operate without a supply of new parts from rebuilder suppliers, custom rebuilders buy their new parts primarily from OEM wholesale distributors at prices 20-40 percent higher than those charged by the rebuilder suppliers.” 82 F.T.C. at 450. The Commission added the following footnote at this point in its opinion:
“13 Although the judge in his initial decision made no finding as to the differential, between the prices charged to rebuilders by wholesalers and those charged by rebuilder suppliers, the testimony cited by the judge demonstrates that WD prices to rebuilders were at least 20-40 percent higher than rebuilder supplier prices. For example, the President of Precision Field Coil noted that WD prices for General Motors’ field coils were $4.41 while Precision sold to rebuilders at $2.76. (Tr. 538-39). One of the nation’s largest rebuilders testified that IPM’s prices were at least 20 percent cheaper than WD prices. (Tr. 843). The President of Valley Forge indicated that Valley Forge and IPM generally sold at a price 70 percent off OEM list price while jobbers sold at a 50 percent discount. (CX 37e). Thus, jobbers sold at prices over 60 percent greater than those of rebuilder suppliers.”
Unquestionably the substantial price differentials make it appropriate to exclude the sales by OEM distributors to custom rebuilders from the market under study in this case. It necessarily follows, therefore, that it would have been inappropriate to include all sales to custom rebuilders in the relevant market.
. See, e. g„ App. 591-592, 594, 602, 617, 663, 686.
. Accordingly, the IPM assets have been “held . . contrary to the provisions of [§ 7 of the Clayton Act].” See United States v. ITT Continental Baking Co., 420 U.S. 223 at 240, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975), and cases cited therein.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_respond1_1_4
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F
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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 "other". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMIMENT, INC., Respondent.
No. 19271.
United States Court of Appeals, Third Circuit.
Argued June 24, 1971.
Decided Nov. 9, 1971.
Biggs, Circuit Judge, dissented and filed opinion.
John D. Burgoyne, Asst. Counsel, N. L. R. B., Washington, D. C. (Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, David E. Rosenbaum, Atty., N. L. R. B., on the brief), for petitioner.
Irving D. Lipkowitz, Lipkowitz, Plaut, Salberg & Harris, New York City (Melvin Salberg, David Kramer, New York City, on the brief), for respondent.
Before BIGGS and ROSENN, Circuit Judges, and KRAFT, District Judge.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The National Labor Relations Board has applied to this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued against respondent Tamiment, Inc., for violating Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1)) by refusing to allow access to its premises for union representatives attempting to organize its workers. The opinion of the Board is reported at 180 N.L.R.B. No. 171.
The sole issue raised is whether the union has made an adequate showing that there are no reasonable alternative means for generating face to face contact with workers without having access to the employer’s property. In view of the nature of the issue, the operations of Tamiment’s resort should be described.
Tamiment, Inc., is an adult summer camp operated from approximately the beginning of May to the end of September each year in the Pocono Mountains of Eastern Pennsylvania. It is about four and a half miles from Bushkill, Pennsylvania, and thirteen miles from the larger town of East Stroudsburg, Pennsylvania.
The resort is a largely self-contained entity. Its 2200 acres, 475 of which are developed, are totally enclosed by a barbed wire fence. The main entrance to the hotel is a private road, approximately “four city blocks long,” leading from the highway to the entry gate. A guardhouse stands at the gate and controls all entry to the property. There is an employee parking lot just outside the entrance gate with a capacity for 200 cars. Although no general solicitation is permitted on the property, members of the public are permitted to enter to look around on one hour passes. Once inside the gate a guest can move freely around the property.
The resort has almost all the living and recreational facilities that its guests and the 85% of the staff who live on the premises need. Besides a dining room, there are lakes, swimming pools, golf, nightclubs and other activities. There is also a United States Post Office on the premises that will send and receive mail for guests and staff.
The staff live in cottages spread throughout the grounds. They are given all their meals free which they take in their commissary, or in the main dining room before the guests eat. They have available a laundromat, and they can use all the recreational facilities of the hotel except in peak vacation periods and on weekends. There are no private telephones in the staff cottages, although there are public telephones at various locations. Those members of the staff who wish can bring food in to cook on hotplates in their rooms. Staff who live off the premises are given the meals served during their work hours without charge.
On their free time, employees frequent the Log Cabin, a bar and grill about one mile down the road from Tamiment, and other bars and restaurants in the area. They also go to the racetrack nearby and to other resorts in the Poconos. The nearest cinema is in East Stroudsburg, twelve to fourteen miles away. When the employees are on duty, most of them, with the exception of administrative and golf personnel, wear uniforms, but the management encourages them to wear regular clothes during their off-duty hours.
The staff is transitory. During the season the number of employees varies from about 300 in the slow spring and fall periods to a peak of about 435 during the summer. They are recruited from Florida, New York, New Jersey, and Pennsylvania. Job advertisements are sent to state and federal employment agencies and to many colleges. A large number of the work force are students employed during their summer vacations. Many workers stay only a few weeks, and most do not last the entire five month season. Although the management writes each winter to the past season’s employees to ascertain if they wish to return to Tamiment for the upcoming season, only about 25% to 30% of the staff do so.
The employees work a variety of shifts. Some departments of the resort, such as reservations and maintenance, are on a twenty-four hour basis; others operate for eight to sixteen hours a day. Most people are on a six day week, although some waiters and waitresses are expected to work seven days weekly. An eight hour day is standard, but the dining room and beverage people have periods on and off duty throughout the day coinciding with meal hours and the operation of the nightclub. The housekeeping staff is also employed on a staggered work day basis.
During the spring of 1969, Local 558 of the Hotel and Restaurant Employees Union began an organizing campaign throughout resorts in the Pocono Mountains. Harvey Morse, the international trustee in charge of the local (Local 558 is in trusteeship) and its local organizer, Serge Schuster, had responsibility for winning representation of the employees at Tamiment.
On or about April 1, 1969, Morse and Schuster went, to Tamiment and talked with Victor H. Gerard, the Managing Director of the resort, and an associate, Alex Blaker. Morse suggested that because of a fire which had damaged Unity House, a nearby hotel owned by the International Ladies Garment Workers Union, it would be helpful for Tamiment’s business if it were unionized. Gerard rejected the offer.
On May 12, the day before the season began in 1969, Schuster appeared at the gate to Tamiment, but was denied admission by the guard unless he had a permit from the management. He departed without meeting anyone and returned the next day, stationing himself near the employees’ parking lot. He talked with four members of the staff. They signed authorization cards and at their request were given additional cards for other employees to sign. Schuster arranged to meet with them in a week. During the same visit Schuster also put union literature on various cars in the parking lot without interference by the guards.
Schuster again returned a day or two later and talked with Allen Menell, Administrative Manager of the hotel, who told him that if he wanted access to the employees he would have to have the permission of the management of Tamiment in New York. On May 15, the union sent such a letter, but it was never answered. On the following day, Schus-ter attempted to hand out leaflets just outside the gate, but Menell asked him to leave because traffic was heavy that Friday afternoon and he was causing congestion.
A few days later Schuster again returned. He did not find the four employees to whom he had previously talked, but he attempted to sign up three other workers just outside the guardhouse area. The guards interfered and refused to allow solicitation there.
On May 22, Schuster returned to Tamiment but was told by the guards that he could not come up to the guardhouse nor could he use the private road from the highway. Schuster noted that now there were “no trespassing” signs posted along the road. On May 28, Morse and Schuster met with Gerard, the Managing Director, to ask for permission to enter the grounds. Their request was rejected.
Thereafter, Schuster began going to the Log Cabin, a nearby bar and grill, and to another tavern in Bushkill, for the purpose of meeting employees. He continued to visit these places approximately twice a week until Tamiment closed at the end of September.
Mr. Schuster’s final attempt to enter the property was a visit in mid-June as a guest during a meeting of two Philadelphia Cap and Millinery Union locals. Shortly after Schuster’s arrival, Gerard and Menell received reports that he was talking to employees who were on duty and passing out literature. They sought him out and asked him to act like a guest or leave the premises. Schuster claims that he was then followed closely by security personnel and began to feel extremely uncomfortable even though he was not talking to employees. About two hours after the conversation, he decided to leave and checked out.
In sum, Schuster could claim that after a summer’s effort he had spoken to about 25 employees and handed out about 150 authorization cards. He had secured only 12 signed cards.
On this record, the trial examiner found that management had violated Section 8(a) (1) of the National Labor Relations Act by excluding non-employee organizers from the premises when there were no effective off-premises channels of communication available to the union. He noted that the resort is a completely self-contained community, whose employees rarely need to leave. The staggered shifts and the lack of telephones make communication difficult. In his opinion, the union had made reasonable efforts to reach employees through the normal channels of communication, but such efforts were “doomed to failure.” The only effective means was direct access to the premises. The Labor Board affirmed the trial examiner’s findings.
If Tamiment’s employees had undertaken this drive, there would be no question as to their right to campaign on its grounds. We are concerned with a different situation: the right of non-employee representatives of a union to have access to an employer’s private property for the purpose of organizing his workers.
The Supreme Court laid down the fundamental test for determining when non-employee organizers should be allowed to enter company property in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). It held that “when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.” (Emphasis ours.)
Has the union in the case sub judice made sufficient reasonable attempts to satisfy that test? In cases involving self-contained resorts where the employees live on the premises, union organizers face a more difficult task in communication with the workers than they do in the ordinary plant situation, where employees leave daily and return to their homes. This problem is particularly acute in organizing where many believe that there is no substitute for some face to face contact between the union organizer and workers during the campaign. National Steel Corp., etc. v. NLRB, 415 F.2d 1231 (6th Cir.1969). However, these needs and problems do not require that the employer forego his right to limit access to his property in a non-discriminatory fashion, absent a showing that the union could not take alternative measures to generate face to face contact.
Respondent has pointed out that the Labor Board has recently suggested that union organizers should endeavor to use newspapers, television and radio before being allowed to enter company property (Falk Corp., 192 N.L.R.B. No. 100, p. 11, 77 L.R.R.M. 1916, 1920-1 (1971); NLRB v. Kutscher’s Hotel, 427 F.2d 200, 201 (2nd Cir.1970)). We doubt that television and radio would have been an effective and reasonable alternative means of communication in this situation. In a hotel resort with employees working staggered shifts over a seven day work week, it is unlikely that a significant proportion of the work force would be able to listen to broadcast appeals at any one time. NLRB v. S & H Grossinger’s, Inc., 372 F.2d 26, 29 (2nd Cir.1967). On the other hand, as we discuss later, newspapers might have served a limited useful purpose.
The union must make reasonable efforts to communicate with workers through alternative means and arrangements when seeking face to face contact. The first and most obvious procedure for the union to follow would be to attempt diligently to reach workers when they are off company property. In this case Schuster tried to talk to workers outside the gate leading to Tamiment, and when told that such activities were not permitted because the guardhouse and employees’ parking lot were on private property, he repaired to nearby taverns, hoping to meet employees there.
We cannot agree with the Labor Board that the failure of Schuster’s efforts to bear fruit is sufficient to amount to an adequate basis for a finding that the union lacked reasonable channels of communication off-premises with Tamiment’s employees. While it may be difficult to describe generally what would amount to an effective effort to communicate with employees and generate face to face contact, there are certain obvious and relatively inexpensive additional steps that Schuster and Morse should have attempted to undertake.
They made no effort to obtain a list of all the employees of Tamiment so that the union could send mail directly to them. Although mail is no substitute for face to face contact (NLRB v. United Aircraft Corp., 324 F.2d 128, 130 (2nd Cir. 1963), cert. denied 376 U.S. 951, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964)) the Board has found letter writing a useful first step in communicating with employees. (Falk Corp., supra). While management need not provide such a list in advance of a Labor Board sponsored election (Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966)), it is free to do so if it wishes, and it may be particularly willing to yield to this request to retain the atmosphere of quiet and serenity at its resort hotel. Counsel for management at oral argument noted that Tamiment would have given the union such a list, that a United States post office facility was located on the property, and that the employer would not have interfered with any mail addressed to its employees by the union. This concession distinguished in part this case from S. & H. Grossinger’s, Inc., supra, where the Second Circuit enforced the Board’s order to admit union organizers after a request for a list had been turned down.
The union did not request the right to post notices of any sort at various staff facilities on company property or on the employees’ parking lot. While such notices may be of only marginal utility in stimulating interest in the union, the failure to make such a request does reflect on the union’s lack of initiative in devising techniques to meet with Tamiment’s employees.
Finally, the union failed to arrange for any meetings for employees. It neither extended an invitation for such a meeting through using a mailing list or through the employees it had already signed up, nor made announcements in the local newspaper. It is reasonable to expect that any employees interested in organizing would be willing to make some effort to attend a meeting sponsored by the union during their leisure time. (E. g., Falk Corp., supra, at 1920). Although the staggered shifts and seven day work weeks of some of the people at Tamiment might have limited the number of those in attendance, the union should have attempted to set up such meetings.
It is only after the union has made a showing that it used reasonable efforts to utilize “other available channels of communication” that the Board should proceed to consider the total effectiveness of these efforts and the countervailing inconvenience and injury to the employer having union organizers on his premises. Were the union to have made the necessary showing in this case, it seems clear that such additional questions would have been proper for the Board’s consideration.
Neither of the previous cases decided by the Second Circuit dealing with entry by non-employee organizers to rural resorts is dispositive in this case. In S. & H. Grossinger’s, supra, the Second Circuit upheld the Board’s order for entry because the union engaged in considerably greater efforts at organizing than at Tamiment and was met by outright management hostility. (S. & H. Grossinger’s, supra, 372 F.2d at 29). In essence that decision was based on considerations of effectiveness we do not reach because of the union’s failure to show a lack of any reasonable effort to utilize alternative channels of communication. Conversely, in Kutscher’s Hotel, supra, where the union had direct face to face contact with the employees each day because ninety-five percent of them had to cross a public road to get from their living quarters to the hotel, the court found that the alternative means were adequate.
The record in this case shows nothing more than minimal efforts to communicate with respondent’s employees. We are not satisfied that there is “substantial evidence on the record as a whole” to warrant an invasion of private property by non-employees for union organizational purposes.
The petition to enforce the order of the Board dated February 4, 1970 will be denied.
BIGGS, Circuit Judge
. 29 U.S.C. § 158(a) (1) provides:
“(a) It shall be an unfair labor practice for an employer—
1. to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; ”
. This case is one of a growing number of cases involving unionization of self-contained resorts (NLRB v. Kutscher’s Hotel, 427 F.2d 200 (2nd Cir. 1970) ; NLRB v. S. & H. Grossinger’s, Inc., 372 F.2d 26 (2nd Cir. 1967) ; New Pines, Inc., 191 N.L.R.B. No. 144 (1971) ; H & G Operating Corp., 191 N.L.R.B. No. 110 (1971), in which the Labor Board has attempted to accommodate the employee’s rights to organize under Section 7 of the National Labor Relations Act (29 U.S. O. § 157) with the employer’s right to control his property.
. We have examined the entire record pursuant to the mandate in Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) where the Court taught that: “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”
. We do not hold that an employer must provide a list of its employees to union organizers.
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:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine 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.
POPE & TALBOT, a corporation, Appellant, v. MATSON NAVIGATION COMPANY, a corporation, Appellee.
No. 19712.
United States Court of Appeals Ninth Circuit.
June 7, 1965.
George W. Hellyer, Jr., Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellant.
Alan B. Aldwell, Brobeck, Phleger & Harrison, San Francisco, Cal., for appellee.
Before POPE, BROWNING and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
Appellant, Pope & Talbot, Inc., brought this proceeding in admiralty seeking indemnity. It is the owner of a ship which it chartered to appellee, Matson Navigation Company. Matson used the vessel to carry a cargo of bulk sugar for California & Hawaii Sugar Refining Corporation, Ltd., (C&H)’from the Hawaiian Islands to Galveston, Texas. Part of the sugar was damaged in transit and C&H made claim against both Pope & Talbot and Matson for $78,058.23. This claim was ultimately settled for a total of $65,000, of which Pope & Talbot paid $63,000 and Matson paid $2,000. It was agreed between them that these payments were without prejudice to the right of either to seek contribution from the other. Pope & Talbot then brought this action to obtain a contribution from Matson and Matson cross claimed against Pope & Talbot for the $2,000 that it had advanced. The trial court denied relief to either party, and Pope & Talbot appeals.
In the trial court the parties filed a stipulation of facts. This stipulation states, among other things, that “[t]he amount of loss and damage sustained by [C&H], computed * * * in accordance with usual rules applicable to the calculation of loss and damage to shipments of merchandise at sea, is $63,190 * * *” It further states that “primary liability for such damages may be assumed to fall on” Pope & Talbot.
The stipulation also shows that the claim of C&H for $78,058.23 was predicated upon the provisions of a sugar freighting agreement between Matson and C&H, to which Pope & Talbot was not a party, establishing a different method of computing liability. The stipulation does not, however, state that the amount of C&H’s claim as set forth in the stipulation is correct, or is correctly computed, nor does the stipulation state that if Pope & Talbot were required to pay more than the $63,190 for which it was primarily liable, Matson would be obliged to indemnify Pope & Talbot against any such excess payment. In this court, however, the parties seem to be agreed that Matson would be so liable to Pope & Talbot.
On this appeal Pope & Talbot asserts that, while it would be primarily liable for the $63,190, Matson would be primarily liable for the difference between that figure and the $78,058.23 claimed by C&H, that when the settlement was effected, both parties were benefited by it, and that under “well established principles,” Matson should contribute to the settlement in proportion to the benefits realized. It suggests the following as a formula for apportioning the loss: Mat-son’s risk was $14,868.23 and Pope & Talbot’s was $63,190; the total loss was discounted, in the $65,000 settlement, by 17%; Pope & Talbot should therefore receive from Matson enough money to reduce Pope & Talbot’s $63,190 liability by 17%.
The trouble with the foregoing contention is that the record does not compel any such result. The stipulation indicates that the $63,190 liability of Pope & Talbot is primary. As previously indicated, the parties seem to agree that Matson would have borne the ultimate liability for the remaining $14,868.23. However, the most that can be said is that the record shows that this amount was claimed by C&H, that the liability was denied by both Pope & Talbot and Matson, and that the existence of the claim had some effect upon the settlement. How much of an effect is entirely problematical. For all that appears from this record, Pope & Talbot and Matson may both have felt that there was no way by which they could defeat $63,190 of C&H’s claim, that they might well be able to defeat the balance of C&H’s claim and that, if they were not successful in doing so, Pope & Talbot, if it paid, might succeed in collecting the difference from Matson. The $2,000 paid by Mat-son over and above the $63,000 paid by Pope & Talbot could be both parties’ estimate of the value of C&H’s excess claim. The fact that this amount was paid by Matson, whereas Pope & Talbot put up all but $190 of the $63,190, strongly indicates that this was the case. This is reinforced by the statement in the stipulation that Pope & Talbot was primarily liable for the $63,190. The trial court could well have concluded that the settlement was based upon the fact that Pope & Talbot was so primarily liable and could collect from Matson only for anything that it might have to pay over that figure. The opinion of the trial court states, in substance, that the facts presented to it afford no ascertainable standards whatever upon which the court might form a judgment allocating the loss between the parties, in a manner different from what they themselves did in the settlement. In this we think the court was entirely correct.
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:
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songer_summary
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D
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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 the appropriateness of summary judgment or the denial of summary judgment 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".
Orlando W. HODGE, Petitioner-Appellant, v. T. W. MARKLEY, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellee.
No. 14563.
United States Court of Appeals Seventh Circuit.
Jan. 11, 1965.
Holland C. Capper, Chicago, 111., for appellant.
Richard P. Stein, U. S. Atty., Robert W. Geddes, Indianapolis, Ind., for appel-lee.
Before DUFFY and KNOCH, Circuit Judges, and MAJOR, Senior Circuit Judge.
DUFFY, Circuit Judge.
The petitioner who is confined in the United States penitentiary at Terre Haute, Indiana, petitioned the United States District Court for the Southern District of Indiana for the issuance of a writ of habeas corpus. Petitioner claims his constitutional rights were violated because he was effectively denied counsel and the opportunity to present testimony of voluntary witnesses at his parole revocation hearing which was held far from his home and the place of the alleged parole violation. The District Court, without hearing evidence, denied the application for the writ of habeas corpus. Petitioner appealed to this Court in forma pauperis. We appointed counsel to represent him on this appeal.
Petitioner was convicted of a violation of the federal narcotic laws. He was sentenced to serve a three to nine year term. After six years confinement, he was mandatorily released, having served his full term less time earned for good behavior. In accordance with federal law, he was placed on parole for the remainder of his term less 180 days.
After petitioner was released from prison in 1961, he resided in Columbus, Ohio, where his mother lived. His parole officer was named Williams. In February 1963, petitioner .was convicted in a state court for petty larceny and reckleás operation of a motor vehicle. Parole Officer Williams knew of the incident but did not feel it necessary “to violate” the petitioner who continued on parole until arrested on June 29, 1963 for alleged parole violation. This arrest followed a report dated June 3, 1963 by Parole Officer Miller with whom petitioner had had no previous contact.
Petitioner was not afforded a hearing in Columbus, Ohio, his place of residence, and the place of the alleged parole violation. Instead, he was transported to the United States penitentiary at Terre Haute, Indiana. A hearing was there held. Petitioner was told he could have counsel of his own choosing and present voluntary witnesses at a revocation hearing to be held in October. However, he signed a waiver and thus obtained an immediate hearing.
We have, this day, handed down our opinion and decision in Richardson v. Markley, 339 F.2d 967. In that case, the petitioner filed a petition for a writ of habeas corpus seeking release from the federal penitentiary at Terre Haute, Indiana. He alleged the invalidity of the proceedings resulting in the revocation of • his parole. In Richardson, we described and discussed in considerable detail, the applicable federal statutes, and also various practices, rules and proceedings of the United States Board of Parole. In the instant opinion, we incorporate by reference, our statements in Richardson with reference to such statutes, rules, practices and proceedings.
As pointed out in our decision in Richardson v. Markley, 339 F.2d 967, the Board of Parole amended its rules on August 24, 1962, so that each parolee or mandatorily released violator would be advised that he may, upon request, be represented by counsel and call voluntary witnesses having relevant and material information; and that after the Hyser decision, the Board of Parole, on October 5, 1963, again amended its rule to provide the parolee with a hearing prior to his transfer to a federal institution, if requested, and if the parolee had not been convicted of a crime while under community supervision.
Our comments in Richardson v. Mark-ley on the decision in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, are applicable here. In Hyser, the Court did not say that the failure to provide petitioner with a preliminary hearing or any of the other steps mentioned, was a violation of the parolee’s constitutional rights.
We hold in the case at bar that petitioner’s confinement is not unlawful because he was not furnished counsel at the revocation proceedings, or because preliminary hearing was not granted in the district of the alleged parole violation.
One of the points principally stressed by petitioner is that nine years (his maximum sentence) have expired since his commitment on November 18, 1955; that inasmuch as his full term expired on November 17, 1964, he was entitled to be released on that date and that inasmuch as release was not granted, habeas corpus should issue.
Title 18, United States Code, Section 4205 provides: “Retaking parole violator under warrant; time to serve undiminished. A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
Petitioner insists, however, the courts have misconstrued the applicable statute; that properly interpreted, the statute does not permit incarceration past the expiration date of the maximum sentence. If the statute is so interpreted, petitioner says it offends against the Fifth Amendment to the United States Constitution forbidding double jeopardy for one offense.
Petitioner argues that the words “ * * * the time the prisoner was on parole shall not diminish the time he was sentenced to serve” simply means that such a parole prisoner does not earn good time while on parole; that accordingly, if arrested for parole violation, he faces imprisonment for the total unexpired term of his maximum sentence, but not beyond.
In Dolan v. Swope, 7 Cir., 138 F.2d 301, this Court held that the predecessor statute to § 4205 hereinbefore quoted is not unconstitutional as increasing sentence and thereby subjecting a prisoner to double jeopardy. The decision in Do-lan v. Swope has met approval in other Circuits. It is still the law in this Circuit, and applies to revocations of parole under Section 4205.
The Court of Appeals for the District of Columbia, in construing a provision of the District of Columbia Code (D.C.Code 1981, § 24-206), which is similar to 18 U.S.C. § 4205, in a comparatively recent decision, has held that a prisoner was not entitled, on return to prison following the revocation of parole, to credit against the remaining sentence for time spent on parole. The Court stated at page 312: “The language of the statute is clear and the import of similar language under the general federal parole statute has been acknowledged in many cases.” Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963).
In Van Horn v. Maguire, 5 Cir., 328 F.2d 585, 586, which involved the same issue, the Court stated: “This appeal from denial of habeas corpus borders on the frivolous.”
Consistent with our holding in Dolan, and in accord with all of the published decisions on this point of which we are aware, we hold the petitioner was not entitled to credit on his original sentence for the time which he spent on parole.
We have considered other points raised by petitioner herein, but do not think that they merit further discussion.
Holland C. Capper, Esquire, of the Chicago Bar, was court-appointed counsel upon this appeal. We thank Mr. Cap-per for his diligent and competent efforts upon behalf of the petitioner.
Judgment
Affirmed.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_2
|
B
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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)". 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".
FRIENDS OF THE PAYETTE, and Idaho Rivers United, Inc., Plaintiffs-Appellants, v. HORSESHOE BEND HYDROELECTRIC CO.; United States Army Corps of Engineers; Robert Volz, District Engineer of United States Army Corps of Engineers, Defendants-Appellees.
No. 92-36611.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 5, 1993.
Decided March 19, 1993.
Jim Jones, Boise, ID, for plaintiffs-appellants.
D. Marc Haws, Asst. U.S. Atty., Boise, ID, David P. Hirschi, Salt Lake City, UT, for defendants-appellees.
Before: WRIGHT, Senior Circuit Judge, and FARRIS and KLEINFELD, Circuit Judges.
EUGENE A. WRIGHT, Senior Circuit Judge:
Two environmental groups allege that the Army Corps of Engineers violated the National Environmental Policy Act by issuing a dredge-and-fill permit for a hydroelectric project without preparing an environmental impact statement. Because we conclude that the Corps’ action was not arbitrary and capricious, we affirm the district court’s dismissal of the action.
I
On March 10, 1992, the Horseshoe Bend Hydroelectric Company began construction of a 9.5-megawatt hydroelectric generating facility on the Payette River near Horseshoe Bend, Idaho. When completed, the facility will work as follows: An inflatable bladder diversion dam will divert up to 3,500 cubic feet of water per second from a four-and-a-half-mile stretch of the river, routing the water down a diversion canal to a power house. The water will then pass over the powerhouse turbines before returning to the river. A minimum flow of 400 cfs will remain in the river channel, also known as the bypass stretch.
The facility is being built at the site of a decommissioned run-of-the-river hydroelectric project, which operated from 1902 to 1954. The new project will expand and use the old project’s diversion canal, which had contained valuable wetlands. Project construction has almost completely destroyed those wetlands.
Before starting construction, HBHC and its predecessor in interest, the Boise Cascade Corporation, had to obtain the approval of several state and federal agencies. In July 1986, the Federal Energy Regulatory Commission issued a license for the project to Boise Cascade. Before doing so, FERC prepared an environmental assessment in August 1984 and a supplemental EA in April 1986. Both concluded that the project would not significantly affect the environment. In April 1987, FERC approved Boise Cascade’s transfer of its license to HBHC.
HBHC then obtained the necessary state permits allowing it to appropriate water from the river, gain construction access to state-owned lands and build the dam. Lastly, HBHC needed to secure a dredge- and-fill permit from the Army Corps of Engineers. The permit, required by section 404 of the Clean Water Act, would allow HBHC to place dredged or fill material in the river. See 33 U.S.C. § 1344 (1988). HBHC applied for the permit on December 9, 1991. The Corps issued it on March 30, 1992. Although interested parties requested a public hearing, the Corps did not hold one.
Like FERC, the Corps found that the project would not significantly impact the environment within the meaning of the National Environmental Policy Act. Therefore, the agency did not prepare an EIS, but issued instead an EA and a finding of no significant impact. The § 404 permit has 17 conditions designed to mitigate environmental harm.
Friends of the Payette and Idaho Rivers United, Inc., two environmental organizations, filed suit, claiming that the Corps’ actions violated NEPA and the Clean Water Act. They sought a declaration that the Corps had not complied with NEPA and the CWA and an injunction halting the project pending preparation of an EIS.
The district court set the case for trial. Because it found that admission of almost all extra-record evidence was unwarranted, however, the court disallowed the testimony of 13 of Payette’s 14 proposed witnesses. It reviewed the Corps’ actions based solely on the administrative record and the testimony of William McDonald, the Corps employee who prepared the EA. The court dismissed the suit, holding that the Corps’ decision was reasonable.
Payette raises four issues on appeal: (1) whether the Corps’ failure to prepare an EIS was reasonable, (2) whether the court erred in holding that the agency’s jurisdiction over wetlands in the diversion canal was moot, (3) whether the Corps’ permit-granting procedure was flawed for failure to allow adequate public comment and (4) whether the court erred by refusing to allow extra-record evidence. Payette also asks for attorneys fees.
II
A. Decision Not to Prepare EIS
NEPA requires federal agencies to prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (1988). The Corps concedes that the project constitutes a major Federal action. The issue is whether the Corps properly determined that the project will not significantly affect the environment.
After the district court's June 1992 order dismissing the action, we adopted a new standard for reviewing an agency's decision not to prepare an EIS. We no longer employ a "reasonableness" standard. In Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992), we held that "when a litigant challenges an agency determination on grounds that, in essence, allege that the agency's `expert review ... was incomplete, inconclusive, or inaccurate,' ... the arbitrary and capricious standard is appropriate." (quoting Marsh v. Oregon Natural Resources Council, 490 U.s. 360, 376-77, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989)). We still must ensure that an agency has taken a "hard look" at the environmental consequences of its action and that its decision is "founded on a reasoned evaluation `of the relevant factors.'" Id. at 1350 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. at 1861). If we are convinced that its discretion is truly informed, however, we must defer to that discretion. Id.
Fayette cites ten bases for its contention that the Corps' decision not to prepare an EIS was erroneous. We reject the contention, but will discuss each basis in turn.
1. Wetlands
Fayette contends that the Corps erroneously determined that wetlands will not be affected significantly. The Corps concluded that the mitigation measures required by the permit compensated for any adverse impacts.
We can consider the effect of mitigation measures in determining whether preparation of an EIS is necessary. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). If significant measures are taken to "`mitigate the project's effects,' they need not completely compensate for adverse environmental impacts." Id. (quoting Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1982)).
The Corps verified an environmental consultant's estimate that 69.45 acres of wetlands were within the project area. Without mitigation, 30.99 acres of riparian habitat would be lost. Strategic placement of boulders to raise the river stage and irrigation flows from uphill mitigation lands would reduce the loss to 24.69 acres. To compensate for this loss, the Corps required HBHC to implement a mitigation plan that would create 66.64 acres in new wetlands through use of water channels, grass seeding, and tree and shrub planting. The plan also requires monitoring and supplemental mitigation measures if revegetation goals are not met.
Although the measures may not compensate completely for adverse impacts, they are significant. The Corps' conclusion that wetlands would not be affected significantly was not arbitrary and capricious.
2. Water Quality
Fayette asserts that the Corps relied inappropriately on the Idaho Department of Environmental Quality's certification of compliance with state water quality standards. IDEQ granted the certification after HBHC agreed to implement a three-year water quality monitoring program following project construction. If monitoring indicates violations of state standards, HBHC must adopt a mitigation plan. Fay-ette contends that this after-the-fact monitoring cannot supplant before-the-fact evaluation and discussion of mitigation measures. It argues that the project will have a significant impact on water quality due to a decrease in oxygen and increases in temperature, light penetration and aquatic plant stimulation.
The district court noted that although the Corps cannot know exactly how the project will affect water quality, the Corps had reviewed studies attempting to model project impacts. The Corps' reliance on these studies and on a monitoring program that should identify problems before they become serious is not arbitrary and capricious.
3. Fisheries
Next, Fayette argues that the EA did not adequately consider the project's impact on the fishery in the bypass stretch. The Corps concedes that decreased flows and power turbines will kill fish and that although the power canal will provide run habitat, it will lack other diversity. The Corps’ permit, however, requires mitigation measures to compensate for these losses. These measures include (1) a plan to enhance fish habitat in nearby Shaffer Creek, (2) an improved monitoring plan, and (3) additional mandatory mitigation measures if monitoring shows that the mitigation plan has not achieved acceptable results. The measures were strengthened at the insistence of the Fish and Wildlife Service, which approved the project. The Corps’ determination that the project would not significantly affect fisheries was not arbitrary and capricious.
4. Endangered Species
Payette contends that the Corps did not evaluate the project’s impact on the bald eagles that winter in the project area. We disagree. The Corps, in consultation with the FWS, included two permit conditions designed to protect the eagles and their habitat. First, every five years for the life of the project, HBHC must provide the Corps with a report on the status of the riparian cottonwood forest in the project area. The forest provides eagle habitat. If project impacts prevent the forest from maintaining itself naturally, HBHC must plant cottonwood tubelings as required by the Corps. Second, the permit requires that power transmission lines be designed to minimize shock hazard to bald eagles. Also, the EA notes that “eagles would still be able to use other riparian zones along the Payette River in the immediate vicinity for their wintering activities.” We find no fault with the Corps’ conclusion that the project would not significantly affect endangered species.
5. Recreation
Payette also contends that the Corps gave insufficient consideration to recreation issues other than those relating to an agreement between HBHC and the Western Wildwater Association. We disagree. Project plans call for these mitigation measures: a boat ramp upstream from the dam, a portage path at the dam, a water bypass for boats and flotation devices and the removal of the diversion bladder to allow jet boats to use the main channel during annual races. In addition, HBHC, in consultation with state resource agencies, will place boulders in the bypass reach to increase the river’s width. All of these mitigation measures are significant. The Corps’ conclusion that the project would not significantly affect recreational activities was not arbitrary and capricious.
6. Aesthetics
Payette argues that the Corps did not consider adequately the project’s impact on aesthetics, particularly the unsightliness of the reduced water flow in the bypass stretch. Article 29 of HBHC’s FERC license requires the company, in consultation with the Idaho Department of Parks and Recreation, to “design the readily visible surface of the project facilities to preserve or enhance the existing visual environment.” Pursuant to this requirement, HBHC consultants prepared a “Visual Resources Plan.” It calls for revegetation of affected areas with native plant species, installation of troughs to capture runoff for irrigation of replanted areas during droughts, use of earthtones to hide from view the partially-buried powerhouse and . grading to restore the natural contours of the landscape. After considering these mitigative measures and the record as a whole, we agree that the Corps did not act arbitrarily and capriciously in determining that the project would not have a significant impact on aesthetics.
7. Icing
Next, Payette maintains that the Corps did not consider adequately the possibility that water diversion would increase the potential for ice formation, ice jams and flooding. The EA acknowledges that potential ice-jam flooding is a risk in that area of the Payette River. The Corps’ hydrology branch, however, evaluated the issue and concluded that the project would not result in an increased flood hazard. Upstream, the dam would trap frazil ice (ice crystals formed in turbulent water) causing ice formation. Although the ice cover would raise the water surface up to eight feet above the normal winter low water mark, the Corps concluded that no damage would occur because the lowest upstream structure is 12 feet above the mark. Although the reduced flow could increase ice formation downstream, it would cause ice jams only rarely.
8. Cumulative Impacts
Corps regulations require it to evaluate a project’s cumulative impacts. 33 C.F.R. § 320.4(a)(1) (1992). The Corps concluded that the project would not have a substantial cumulative impact on the aquatic environment. In doing so, the Corps relied primarily on FERC’s analysis of the impact of past and future hydroelectric projects within the Payette River Basin. That analysis, the sole subject of FERC’s supplemental EA, concluded that the project would not contribute to cumulative adverse impacts on important resources. We agree with the district court that the Corps sufficiently considered the project’s cumulative impacts.
9. Alternatives Analysis
Payette also asserts that the Corps’ alternatives analysis was inadequate. Section 404(b)(1) guidelines provide that no dredge-and-fill permit shall be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. § 230.10(a). “An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). NEPA guidelines require an EA to include brief discussions of alternatives. 40 C.F.R. § 1508.-9(b). Agencies must “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of ■ available resources.” 42 U.S.C. § 4332(2)(E) (1988).
The Corps’ EA discusses these alternatives: taking no action, increasing bypass flow, relocating the powerhouse, eliminating an excavation section and providing flushing flows to eliminate the riparian habitat loss. The Corps’ alternatives analysis satisfies both CWA and NEPA requirements.
10.Corps’ Reliance on the FERC EA
Lastly, Payette argues that the Corps improperly relied on FERC’s EA and supplemental EA. Both EPA and FWS highlighted inadequacies in the earlier studies, upon which FERC’s EAs were based. The Corps responds that it justifiably relied on the FERC documents based on a memorandum of understanding giving FERC lead agency status for environmental matters involving hydroelectric project licensing. Under the memorandum, the Corps must accept FERC’s resolution of environmental issues.
We find no error in the Corps’ approach. The Corps reviewed the studies and then conducted its own independent analysis of the project’s environmental impacts. The Corps responded to FWS and EPA concerns by requiring HBHC to alter aspects of the project to lessen its impacts and by including specific agency concerns as conditions of the final permit. We also find significant the agencies’ approval of the project and their refusal to veto the Corps’ decision to issue the permit.
B. Characterization of Canal Wetlands
Next, Payette argues that the Corps concluded erroneously that the canal wetlands were not within its jurisdiction for purposes of the § 404 permit process and, consequently, did not require adequate mitigation for their destruction. The district court found that because project construction had already destroyed the wetlands, the mitigation issue was moot.
1. Mootness
The Corps’ “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). A controversy is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir.1989) (quoting Northwest Envtl. Defense Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988)). We review de novo questions of mootness. Williams v. United States General Servs. Admin., 905 F.2d 308, 310 (9th Cir.1990).
The district court erred in part in finding this issue moot. Payette sought an injunction to stop the project until the Corps complied with NEPA and the CWA. It did not seek to stop destruction of the wetlands. Rather, it challenged the Corps’ determination that the wetlands were not within its jurisdiction. That issue became moot for NEPA purposes, see Headwaters, 893 F.2d at 1015, but not for CWA purposes. If the wetlands were within the Corps’ jurisdiction, the § 404 permit might contain insufficient mitigation measures to compensate for wetlands loss.
2. Corps Jurisdiction
The Corps determined that because the canal wetlands were maintained by irrigation water, they were not subject to its jurisdiction. Generally, the Corps does not consider “[ajrtificially irrigated areas which would revert to upland if the irrigation ceased” as subject to § 404 permit requirements. See 51 Fed.Reg. 41,217, § 328.3 (1986) (discussion of public comments and changes accompanying final regulations for Corps regulatory programs). The Corps may, in its discretion and on a case-by-case basis, determine that a body of water within this category is within its jurisdiction. Id.
Payette has presented no evidence showing that the canal wetlands would remain wetlands if irrigation stopped. The Corps’ classification of the wetlands as “non-jurisdictional” was not arbitrary and capricious. See Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir.1992). We also find it significant that the FERC license requires mitigation for destruction of these wetlands.
C. Corps Process
Payette maintains that the Corps’ decision-making process was flawed because the Corps was racing to meet the March 12th construction deadline mandated by HBHC’s FERC license. Consequently, Payette asserts, public notice was deficient, the public comment period was inadequate and the Corps abused its discretion by not holding a public hearing. We disagree.
1. Public Notice
The public notice provided “sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment” as required by Corps regulations. 33 C.F.R. § 325.3(a). It described the project, discussed wetlands impacts and fish habitat mitigation, and notified the public of the Corps’ intent to consult with other agencies regarding potential effects on endangered species, cultural resources and water quality.
2. Public Comment Period
The Corps filed the notice on December 18, 1991, and, at the request of agencies and interested individuals, subsequently extended the public comment period from January 17 to January 31, 1992. This six-week period provided sufficient time for interested parties to comment.
3. Public Hearing
The Corps’ § 404 permit regulations require it to hold a public hearing, upon proper request, “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.” 33 C.F.R. § 327.4(b).
The Corps received more than 250 requests for a hearing. District Engineer Volz denied one saying, “Many technical issues have been raised ... and to hold a public hearing or to further extend the comment period is not considered warranted to gather more technical data.” He noted that public meetings held by HBHC and several governmental bodies and the Corps’ notice adequately informed the public. Volz concluded that a hearing would be useful only as a forum to enable project proponents and opponents to air their views. He also concluded that because the Corps was aware of strong support on both sides, a hearing was unnecessary.
In light of the facts identified by Volz and his thorough analysis of all the relevant factors, we hold that the Corps did not abuse its discretion in denying requests for a public hearing.
D. District Court Exclusion of Extra-Record Evidence
Finally, Payette argues that the district court erred by refusing to admit its experts’ testimony and affidavits regarding the project’s effects on water quality, fisheries, bald eagles, recreation and aesthetics. We review for abuse of discretion the court’s decision to exclude evidence. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir.1988).
Generally, review of agency action, including review under NEPA, is limited to the administrative record but may be expanded beyond the record if necessary to explain agency decisions. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). When a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency’s decisions. Id. The extra-record inquiry is limited to determining whether the agency has considered all relevant factors and has explained its decision. Id. The district court may also look outside the record when the agency has relied on documents not in the record and when supplementing the record is necessary to explain technical terms or complex subject matter. Id.
The court excluded the testimony of 13 of Payette’s 14 proposed witnesses but allowed William McDonald, the Corps employee who wrote the document, to testify about the agency’s review of HBHC’s application. The court did not abuse its discretion in excluding the proffered evidence. Much of it addressed concerns that the same witnesses had already raised during the public comment period. The administrative record sufficiently explained the Corps’ decision and showed that the agency considered the relevant factors. No additional information was necessary for the court’s review.
Ill
We conclude that the district court did not err in dismissing this action. It did err in holding that whether the Corps had jurisdiction over the canal wetlands was moot. Because the Corps’ decision that the wetlands were non-jurisdictional was not arbitrary and capricious, however, we need not remand for further proceedings.
We AFFIRM the district court on all issues except the mootness issue on which we REVERSE. Because Payette and Idaho Rivers are not prevailing parties, we deny their request for attorneys fees.
. The Idaho Division of Environmental Quality and FERC were defendants. The action against IDEQ was dismissed by stipulation. The district court dismissed FERC after finding that we have exclusive jurisdiction over appeals from FERC decisions.
. The canal has been used as an irrigation canal since power production ended in 1954.
. The record contains a January 1983 letter from Russel Manwaring, an Agriculture Department district conservationist, to Boise Cascade. Manwaring writes that "parts of the canal ... are wet throughout the year and may have standing water of up to 3 feet in depth.” (emphasis added). He adds that the water comes from "various sources, such as runoff into the canal, springs, and Kennedy's (an individual with water rights to the canal) irrigation water.” This does not necessarily contradict the Corps’ conclusion that the area would revert to upland if irrigation ceased.
. NEPA regulations require agencies to hold a public hearing when required by statutes applicable to the agency. 40 C.F.R. § 1506.6(c).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_civproc2
|
58
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
In re FORSTNER CHAIN CORPORATION, Petitioner. FORSTNER CHAIN CORPORATION v. MARVEL JEWELRY MFG. CO.
Nos. 4421 Orig., 4425.
United States Court of Appeals First Circuit.
Nov. 10, 1949.
See, also, 82 F.Supp. 243.
Nathaniel Frucht, Providence, R. I., for petitioner, appellant.
James J. Corrigan, Providence, R. I., for intervenor, appellee.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.
MAGRUDER, Chief Judge.
No. 4425 presents an unusual situation. The appeal is from a ruling or order denying a motion to enter final judgment dismissing a complaint in a patent suit, this motion having been made by the losing plaintiff, Forstner Chain Corporation, on the theory that the granting of such motion was a prerequisite to the taking of an appeal. At first blush, an order of this sort might seem not to be a “final decision” appealable under 28 U.S.C.A. § 1291. Under the special circumstances, which we shall summarize below, we hold that the order is a “final decision”. However, on the merits, we have concluded that the appeal must fail.
In No. 4421 Original, Forstner Chain Corporation sought as a cautionary measure to bring the same question to us by another procedural road, namely, a petition for a writ of mandamus directed to the district judge. We granted leave to file the petition and directed respondent to show cause why a writ of mandamus should not issue requiring respondent to order entry of a final judgment in the aforementioned patent suit. Respondent filed his return, showing cause. Marvel Jewelry Mfg. Company, defendant in the patent suit, and appellee in No. 4425, obtained leave to intervene in the mandamus proceedings and filed an answer to the petition. We shall dismiss the petition for a writ of mandamus, in view of our conclusion that the remedy of appeal is available to petitioner and has been properly availed of in No. 4425.
The complaint in the patent suit filed June 9, 1947, by Forstner Chain Corporation sought relief by way of injunction and an accounting for infringement of U.S. Letters Patent No. 2,401,297. In reply to defendant’s motion for further particulars, plaintiff stated that its reliance was upon Claim 1 of the patent as being infringed by a certain described bracelet manufactured and sold by defendant. On February 1, 1949, the district judge filed in the office of the clerk a document entitled “Opinion”, reaching the conclusion that Claim 1 of the patent was invalid for lack of invention. At the very end of this “Opinion” appeared the following language: “Judgment may be entered for the defendant for costs.” D.C., 82 F.Supp. 243, 248. No separate formal document labeled “Judgment” or “Final Decree” was prepared and filed either by the district judge or by the clerk. However, under date of February 1, 1949, the clerk made the following notation at the appropriate place in his civil docket: “Opinion filed. (Copy given to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.) Judgment entered for the defendant for costs. (Notice of entry of said judgment mailed to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.)”
A deputy in the office of the clerk testified that on February 1, 1949, he mailed notices to the attorneys for both parties reading: "In accordance with Rule 77(d) of the Fedéral Rules of Civil Procedure you are hereby notified that judgment has been entered in the above entitled cause. Neale D. Murphy, Clerk”; and that neither of said notices had come back to the clerk’s office undelivered. It appears that the attorney for the defendant received such notice; but the attorney for the plaintiff testified that the notice was not received by him either through the mail or otherwise. However, it is provided in Rule 77(d), 28 U.S.C.A., that mailing of such notice by the clerk “is sufficient notice for all purposes for which notice of the entry of an order is required by these rules”. And further: “Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a).” The latter rule provides that “the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Such a motion for a 30-day extension was made by plaintiff, and denied by the district judge on the ground that there had been “no showing of excusable negligence based on failure of plaintiff learning of judgment.” The denial of this motion is not before us for review; nor are we, for present purposes, concerned with whether plaintiff’s counsel actually received the notice of entry of judgment or not.
On March 17, 1949, plaintiff filed a motion “that the Court approve the attached final Decree.” This proposed final decree, after the usual preliminary recitals, ordered, adjudged and decreed that “Claim 1 of U. S. Letters Patent No. 2,401,297 is invalid”; that “The complaint is dismissed” ; and that “Costs be awarded to the defendant.” After hearing on this motion, the court on March 21, 1949, denied the same, on the ground that final judgment in the case had already been duly entered on February 1, 1949, and that the time for taking an appeal had expired.
The present appeal is from the order of the district court denying plaintiff’s aforesaid motion to enter final judgment.
There is first the question whether the order appealed from is a “final decision” within 28 U.S.C.A. § 1291. The requirement of finality, as embodied in that section, is based upon a strong general policy against allowing piecemeal appeals. But here, from the point of view of the district judge he had already finally disposed of the case, and the motion to enter final judgment called upon him to do a superfluous and meaningless act. His denial of the motion had the element of finality, because he was through with the case and did not, after denying the motion, reserve jurisdiction for the purpose of adjudicating further questions yet undetermined. If the present appeal is entertained by us, it will not be of the piecemeal variety, with the prospect of subsequent appeals from orders or judgments issued by the court below at later stages in the proceeding. This is certainly true, if we should affirm the order on the merits. If we should reverse the order, accepting appellant’s view that no final judgment in the patent suit has been rendered or entered, then the case would have to be remanded for entry of such final judgment, and no doubt would come back to us on appeal therefrom. The latter consideration has given us some pause, for, on appellant’s premise that the district judge has not completed final action in the patent case, does it not logically follow that the order appealed from necessarily is interlocutory? But upon the whole it seems more sensible to test the finality by what the district judge thought he was doing. In the order now appealed from he made what he must have regarded as the proper disposition of the plaintiff’s motion, and in that view there were no further proceedings in the case to be had before him. If he should be told on appeal that his order denying the motion was erroneous, and upon reversal and remand should find the case back in his lap for further proceedings, that is no more than happens in any case of a final judgment which is upset on appeal—it was “final” enough to be appealed from, but like the “permanent” wave, it lasted only six months. We have had that experience with final judgments of our own which were reversed by the Supreme Court.
In respect of finality, the order appealed from is not unlike an order denying a motion under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A., for correction of an allegedly illegal sentence, a type of order which we held appealable, as a “final decision”, in Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380. It is also not unlike the order we held appealable in Parker v. United States, 1 Cir., 1946, 153 F.2d 66, 69, 163 A.L.R. 379.
For the foregoing reasons, we think we have jurisdiction in the present case, and we proceed to consider the merits.
Appeals may be taken under 28 U.S.C.A. § 1291 only from “final decisions”. The word “decision” is equivalent to “judgment”, broadly defined in Rule 54(a) as including “a decree and any order from which an appeal lies.” Ex parte Tiffany, 1920, 252 U.S. 32, 36, 40 S.Ct. 239, 64 L.Ed. 443. Appeal may not be taken from an opinion as such; nor even from a judgment, until it is “entered”, for Rule 58 provides that “the judgment is not effective before such entry”, and under the presently applicable provision of Rule 73(a), “the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from”. What is meant by “entry” of the judgment is stated in Rule 58: “The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment”. The provision of Rule 79(a) thus referred to requires the clerk to make a notation of “the substance of each order or judgment of the court”, showing the date on which such notation is made, on the folio of the civil docket assigned to the action and marked with its file number. Rule 79(b) requires the clerk also to keep “a correct copy of every final judgment or appealable order” in such form and manner as the Director of the Administrative Office shall prescribe.
The foregoing provisions of the rules differentiate between a judgment and the “entry” of the judgment, with the implication that the judgment must pre-exist before the clerk can perform the clerical ■or ministerial act of entering it.
As stated in Commissioner of Internal Revenue v. Bedford’s Estate, 1945, 325 U.S. 283, 286, 65 S.Ct. 1157, 89 L.Ed. 1611: “A judgment ‘is the act of the court’, Ex parte Morgan, 114 U.S. 174, 175, 5 S.Ct. 825, 29 L.Ed. 135, even though a clerk does all of the ministerial acts, as here, in conformity with his court’s standing instructions.” A final judgment is the concluding judicial act or pronouncement of the court disposing of the matter before it. But neither by statute nor by rule is there a requirement that judgment be pronounced in any particular way, or embodied in written form in a separate formal document entitled “Judgment”. See United States v. Hark, 1944, 320 U.S. 531, 534, 64 S.Ct. 359, 88 L.Ed. 290. Whether such a judgment has been rendered depends primarily upon the intention of the court, as gathered from the record as a whole, illumined' perhaps by local rule or practice. Commissioner of Internal Revenue v. Bedford’s Estate, supra.
A judgment may be pronounced orally from the bench. Thus if the judge should say, “It is the judgment of the court that the complaint in this case be dismissed”, that statement may be meant as the final judicial act, the rendition of judgment; and when the clerk, pursuant to ad hoc or standing instructions, later notes such judgment, or the substance of it, in the civil docket, the time for talcing an appeal commences to run. An opinion is not itself a judgment, even though it contains conclusions of fact or of law, and foreshadows how the judge intends to dispose of the case. Not infrequently, however, there is tacked on at the end of an opinion a sentence in mandatory language such as.: “The complaint is dismissed.” In the understanding and practice of the particular court, this concluding sentence may be the final judgment, the concluding judicial act or pronouncement disposing of the case, to be entered by the clerk forthwith. But not necessarily so. See Commissioner of Internal Revenue v. Bedford’s Estate, supra, 325 U.S. at page 286, 65 S.Ct. at page 1158. If it is the practice of the court to pronounce judgment in a more formal manner, in a separate document entitled “Judgment”, then the concluding sentence at the end of the opinion amounts to no more than a direction to the clerk for the preparation of the final judgment on behalf of the court; the formal judgment will then be signed or initialed by the judge or issued in the name of the court under the attestation of the clerk (whatever is the local practice), and not until then will the clerk make the entry of the judgment in the civil docket in accordance with Rule 79(a).
In the case at bar, the judge said at the end of his opinion: “Judgment may be entered for the defendant for costs.” Since this was a case in which the judge had decided to deny all relief to the plaintiff, it is clear under the local practice that the judge did not have in contemplation any subsequent judicial act of pronouncing judgment in a more formal manner. The sentence quoted does not direct the clerk to prepare a form of judgment for the judge to sign; it is at once the judgment itself (the final judicial act pronouncing the disposition of the case) and a direction to the clerk to enter such judgment without more. The judge and clerk were following a procedure specifically sanctioned by Rule 58: “When the court directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.” We have examined the cases cited by appellant, In re D’Arcy, 3 Cir., 1944, 142 F.2d 313; St. Louis Amusement Co. v. Paramount Film Distributing Corp., 8 Cir., 1946, 156 F.2d 400; St. Louis Amusement Co. v. Paramount Film Distributing Corp., 8 Cir., 1946, 158 F.2d 30. While not necessarily agreeing with all the language in the opinions in these cases, we think they were decided correctly on their facts and are not inconsistent with the view we take in the present case. In each of the cases cited, even though, as we think, a final judgment may have been pronounced by the judge, there was still the further difficulty that the clerk had failed to make due entry of such judgment as required by Rule 79(a), so that the appeal was premature. In Wright v. Gibson, 9 Cir., 1942, 128 F.2d 865, 866, also cited by appellant, a written opinion on motion to dismiss concluded with the statement, “The motion * * * is granted.” The clerk entered a notation that an opinion had been filed and that pursuant thereto the motion was granted. We agree with the court that no final judgment had been entered in the case, though not on the ground that the concluding sentence of the opinion could not be a judgment or order. It seems to us that such sentence constituted an order, but that it was an interlocutory one, because, as the. court noted later in its opinion : “An order which merely grants a motion to dismiss an action is not a final decision and is not appealable.” The reason is, as pointed out in City and County of San Francisco v. McLaughlin, 9 Cir., 1925, 9 F.2d 390, that the mere granting of a motion to dismiss amounts to no more than a determination on the part of the court that the complaint is open to one more of the objections urged against it, but the action remains pending, with the complaint open to the possibility of amendment, until the entry of a final judgment dismissing the complaint.
Appellant’s final -and perhaps most insistent point is that “Judgment for the defendant for costs” is not a final adjudication of the merits. Rule 54(d) provides that “costs shall he allowed as of course to the prevailing party unless the court otherwise directs”. This means that the court has a wide discretion in awarding costs; it may withhold costs from either party, or divide the costs, or even, in appropriate circumstances, award costs to the losing party. The argument, therefore, is, that the judgment rendered and entered here does no more than adjudicate the subsidiary question of the awarding of costs, leaving the merits of the claim for patent infringement undetermined.
We think the foregoing argument is an over-refined technicality, at variance with the manifest intention of the district judge, as may be gathered from the opinion which built up to the conclusion that the patent claim in suit was invalid. The argument would concededly not be available if the judgment had read: “Judgment for the defendant, with costs”, or if it had merely read: “Judgment for the defendant”, which would have automatically carried costs to the prevailing party under Rule 54(d). The common-sense interpretation of the judgment is that the defendant wins on the merits, with costs thrown in, though it could be more clearly expressed. Counsel for the plaintiff could hardly have been misled by the form of the judgment, for the district judge used substantially the same form in Bellavance v. Frank Morrow Co., Inc., 1 Cir., 1944, 141 F.2d 378, certiorari denied 1944, 322 U.S. 742, 64 S.Ct. 1144, 88 L.Ed. 1575. That was also a suit for patent infringement in which the opinion of the court [49 F.Supp. 576, 580] concluded with the sentence: “Judgment is, therefore, entered for the defendant for costs”, and on the same day the clerk made the notation in his civil docket: “Opinion filed (Copy given to Mr. Frucht and Mr. Boyajian) Judgment for Defendant for costs, entered and filed”. We entertained an appeal from that judgment, and it was not suggested to us by counsel for appellee in that case (who is now counsel for appellant in the case at bar), that the judgment was not a “final decision”.
Furthermore, even if the judgment was technically defective in form, it seems to us that the defendant, the prevailing party, is the only one who could properly object that the ambiguity in the judgment may complicate its subsequent use by the defendant as a collateral estoppel against the plaintiff on the use of validity of the patent. The judgment, however, was obviously intended by the judge as his final disposition of the case, and the plaintiff’s real grievance, which it could have urged by a timely appeal, was that the judgment did not give the plaintiff the affirmative relief it sought in the complaint.
Our conclusion is, therefore, that a final judgment was rendered in the patent suit, and that upon its entry plaintiff could have taken an appeal therefrom. Final judgment having already been entered and the time for taking the appeal having expired, the court did not err in denying plaintiff’s motion for the entry of final judgment.
In No. 4421 Original, the petition for writ of mandamus is dismissed.
In No. 4425, the order of the District Court is affirmed.
. The mere fact that under the old learning an opinion was not part of a common law record, England v. Gebhardt, 1884, 112 U.S. 502, 504, 5 S.Ct. 287, 28 L.Ed. 811, does not compel the conelusion that “a statement in an opinion of the conclusion reached by the court, even though couched in mandatory terms, cannot serve as the order or judgment of the court.” In re D’Arcy, 3 Cir., 1944, 142 F.2d 313, 315. There being no requirement of statute or rule that judgment must be pronounced in any particular form, we see no reason why the court may not, if it chooses, embody its judgment in a sentence appended at the end of an opinion. This sentence, as the judgment, would then be part of a common law record, even though the preceding opinion might not be. The old technicalities of a common law record would be inapplicable to the present case anyway, since the complaint here is in the nature of a bill in equity for an injunction and an accounting. Furthermore, law and equity are merged under the Federal Rules of Civil Procedure. Under Rule 75(g) it is prescribed that the opinion shall be certified and transmitted as part of the record on appeal.
. It can hardly be doubted today that an opinion may be examined for the purpose of determining, in a ease of doubt,' what was adjudicated by the judgment. Cf. footnote 1 supra. See Loeb v. Trustees of Columbia Township, 1900, 179 U.S. 472, 481-485, 21 S.Ct. 174, 45 L.Ed. 280; Nalle v. Oyster, 1910, 36 App.D.C. 36, 41, and on appeal 1913, 230 U.S. 165, 181, 33 S.Ct. 1043, 57 L.Ed. 1439. In Am. L. Inst. Restatement of Judgments § 68, Comment k, it is stated that for purposes of res judicata and collateral estoppel, extrinsic evidence may be resorted to for the purpose of determining what was ¿djudieated by a judgment in a previous case. Frequently an opinion will be incorporated in a judgment by specific reference—a practice which has much to commend it.
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_sentence
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E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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".
CONSOLIDATION COAL COMPANY, Petitioner, v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Respondent.
Nos. 76-1690, 76-1859, 76-1862, 76-1912, 76-1981, 76-1982, 76-2019, 76-2020, 76-2059, 76-2145 to 76-2147, 77-1474, 77-1490, 77-1491, 77-1534, 77-1592 to 77-1594, 77-1828, 77-1845, 77-1892, 77-1893, 77- 1957, 77-1989, 77-1990 and 77-2088.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1978.
Decided June 25, 1979.
George C. Freeman, Jr., Richmond, Va. (Michael B. Barr, Hunton & Williams, Richmond, Va., on brief), for National Coal Association.
Theodore L. Garrett, Washington, D. C. (Covington & Burling, Washington, D. C., on brief), for Cedar Coal Company, Central Appalachian Coal Company, Central Coal Company, Central Ohio Coal Company, Southern Appalachian Coal Company, Southern Ohio Coal Company and Windsor Power House Coal Company.
Lawrence A. Demase, Pittsburgh, Pa. (Michael G. Kushnick, Washington, D. C., Ronald S. Cusano, Rose, Schmidt, Dixon, Hasley & Whythe, Pittsburgh, Pa., on brief), for Consolidation Coal Company and Bethlehem Steel Corporation.
Patrick McGinley, Pittsburgh, Pa. (John Philip Williams, East Tennessee Research Corporation, Lafollette, Tenn., on brief), for Citizen Environmental Group, petitioners.
K. W. James Rochow, Asst. Atty. Gen., Harrisburgh, Pa. (Gary Waxman, Asst. Atty. Gen., Harrisburgh, Pa., on brief), for Commonwealth of Pennsylvania, Department of Environmental Resources.
James A. Rogers, Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C. (Joan Z. Bernstein, Gen. Counsel, Environmental Protection Agency, James W. Moorman, Asst. Atty. Gen., Angus Macbeth and Lee R. Tyner, Attys., Dept, of Justice, Washington, D. C., on brief), for respondent.
Robert F. Stauffer, Gen. Counsel, Washington, D. C., on brief, for National Coal Association.
Thos. E. Cahill, Evansville, Ind., and Thomas F. Linn, St. Louis, Mo., on brief, for Peabody Coal Company.
George L. Raymond, Indianapolis, Ind., on brief, for AMAX, Inc. and Gibralter Coal Corporation.
Peter G. Veeder, Frank J. Clements, Thorp, Reed & Armstrong, Pittsburgh, Pa., on brief, for National Steel Corporation, Republic Steel Corporation and United States Steel Corporation.
William B. Long, Tuscaloosa, Ala., on brief, for The Drummond Company.
Jerry A. Fullmer, Ronald R. Janke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, on brief, for The North American Coal Corporation.
Before BUTZNER, WIDENER and HALL, Circuit Judges.
Bethlehem Steel Corp. v. Costle; National Coal Assn. v. Costle; West Virginia Citizen Action Group v. Peabody Coal Co.; Gibralter Coal Corp. v. Costle; Amax, Inc. v. Costle; Drum-mond Co. v. Costle; Save Our Cumberland Mountains, Inc. v. Costle; North American Coal Corp. v. Costle; National Steel Corp. v. Environmental Protection Agency; Republic Steel Corp. v. Environmental Protection Agency; U. S. Steel Corp. v. Environmental Protection Agency; National Coal Assn. v. Costle; Consolidation Coal Co. v. Costle; Bethlehem Steel Corp. v. Costle; Drummond Company v. Costle; National Steel Corp. v. Costle; Republic Steel Corp. v. Costle; U. S. Steel Corp. v. Costle; Peabody Coal Co. v. Environmental Protection Agency; West Virginia-Citizen Action Group, Inc. v. Costle; Save our Cumberland Mountains, Inc. v. Costle; North American Coal Corp. v. Costle; Cedar Coal Co. v. Environmental Protection Agency; Amax, Inc. v. Costle; Gibraltar Coal Corp. v. Costle; Commonwealth of Pennsylvania v. Environmental Protection Agency
BUTZNER, Circuit Judge:
In 27 consolidated cases, 17 coal producers, their trade association, 5 citizens’ environmental associations, and the Commonwealth of Pennsylvania seek review, pursuant to 33 U.S.C. § 1369(b)(1)(E), of water pollution control regulations for existing facilities in the coal industry promulgated by the administrator of the Environmental Protection Agency. We uphold the regulations with the exception of a clause establishing criteria for variances.
I
The Federal Water Pollution Control Act of 1972 is a legislative mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The Act sets a national goal to eliminate the discharge of pollutants into the navigable waters by 1985.
As the first step toward the 1985 goal, Congress provided in § 301(b)(1)(A) of the Act that
there shall be achieved . . . not later than July 1, 1977, effluent limitations for point sources [of water pollution], other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator [of the Environmental Protection Agency] pursuant to § 304(b) ....
This provision for effluent limitations marked a major change from prior law. Before the 1972 Act, water pollution control had been based upon water quality standards specifying the acceptable levels of pollution in the navigable waters. The program proved ineffective in part because the standards focused on the tolerable effects rather than the preventable causes of water pollution. Effluent limitations eliminate this problem because they directly restrict the concentrations of pollutants that may be discharged by any plant in a given industrial subcategory.
Section 304(b)(1) requires the Administrator to publish regulations which must identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources . and specify factors to be taken into account in determining the control measures and practices to be applicable to point sources . . . within such categories or classes.
The administrator promulgated final water pollution control regulations for existing plants in the coal industry on April 26,1977. The regulations divide the industry into two categories — (1) coal mines and (2) coal preparation plants and associated areas. These categories are each subdivided according to acidic and alkaline discharges. For each of the resulting subcategories, the regulations establish maximum concentrations of iron and total suspended solids. They also limit the permissible range of acidity and alkalinity of discharge water, and they restrict manganese concentrations in acidic drainage. None of the petitions before us challenges these maxima. The petitions question the validity of seven aspects of the regulations vyhich we will discuss in parts II-VIII of this opinion.
Our review is governed by § 10(e)(2) of the Administrative Procedure Act. We must set aside any portion of the 1977 effluent limitations that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” is in excess of statutory authority; or is “without observance of procedure required by law.” The ultimate standard of review is narrow. This court is not empowered to substitute its judgment for that of the agency. The Federal Water Pollution Control Act is to be given the broadest possible reading consistent with the commerce clause, and ambiguities as to the administrator’s powers under the Act are to be resolved in his favor. Congress has required the agency to act quickly and decisively despite a recognized absence of exact data on pollution control technology, and we must hesitate to draw substantive conclusions differing from those of the agency in this area of imprecise knowledge. An overly expansive exercise of the judicial review power can impede accomplishment of the Act’s goal of eliminating water pollution *and thwart its requirement of national uniformity in effluent reduction technology-
II. Variance — Statutory Factors
The industrial petitioners challenge the “fundamentally different factors” variance clause contained in the regulations complaining that this provision fails to require the permit issuer to consider the factors set forth in §§ 304(b)(1)(B) and 301(c) of the Act.
An identical variance clause was before the court in National Crushed Stone Association v. EPA, which controls our disposition of this issue. National Crushed Stone holds that the clause is unduly restrictive, relying on Appalachian Power Co. v. EPA. Accordingly, we set aside the variance clauses contained in 40 C.F.R. §§ 434.22, 434.32, and 434.42 and remand them for revision to conform with National Crushed Stone.
III. Variance — Environmental Benefits
The industrial petitioners also insist that the regulations dealing with variances *must be disapproved because they fail to require the agency to consider the environmental benefits of applying the effluent limitations to a particular source of pollution. The only specific error they attribute to the regulations is the absence of a provision requiring the agency to take into account the quality of the receiving water when it decides whether to grant a variance.
At the outset, we reject the agency’s argument that consideration of this aspect of the variance regulations would be premature. In a recent adjudicatory proceeding, the administrator unequivocally ruled that the Act and, consequently, the regulations, do not authorize him to grant a variance to an industrial discharger by providing “relief from technology-based effluent limitations guidelines due solely to the characteristics of particular receiving waters . . . .” Since the administrator's interpretation of the regulations precludes any speculation about its meaning, review is not premature. We therefore turn to the merits of the petition.
The pertinent regulations authorize the administrator to allow deviations from the national effluent limitations if factors peculiar to a specific source of pollution are fundamentally different from the factors considered in the establishment of the guidelines. The precise issue, therefore, is whether the factors peculiar to a source of pollution must include comparison of the expected improvements in the receiving water with the cost of achieving them. We dealt with this issue in Appalachian Power, where, in response to Consolidated Edison’s request to be relieved of the effluent guidelines, we said:
[S]o far as its petition may be read as a request for leniency because of the already polluted condition of the harbor, it must be rejected. The 1972 amendments to the statute changed the system from that of control of the quality of the body of water to effluent limitations as we have before noted.
The Court of Appeals for the District of Columbia Circuit also examined this issue in Weyerhaeuser Co. v. Costle, and affirmed the administrator’s refusal to consider receiving water quality in setting limitations.
These decisions recognize that after many years of experimenting with pollution control laws, Congress determined that emphasis on receiving water quality instead of effluent reduction technology was unacceptable for control of private sources of pollution. With exceptions not germane to this opinion, Congress has now mandated that even if the application of the best practicable control technology to a specific source of pollution results in no significant improvement in the quality of the receiving water, that technology must still be applied. Commenting on the change in the scheme for elimination of pollution, the Supreme Court said:
[A] discharger’s performance is now measured against strict technology-based effluent limitations — specified levels of treatment — to which it must conform, rather than against limitation^ derived from water quality standards to which it and other polluters must collectively conform.
Any possible doubt about congressional intent to preclude consideration of receiving water quality in industrial variance rulings was put to rest in 1977. While considering legislation necessary for mid-course corrections in the federal water pollution control program, Congress heard evidence about the asserted inequity of technology-based standards. In the resulting amendments, Congress permitted consideration of receiving water quality as a basis for less stringent discharge standards in one situation: discharges from publicly owned treatment works into marine waters. The intent to restrict this exception to municipalities is clear from the amendments and their legislative history.
We therefore conclude that the variance regulations as interpreted by the administrator properly exclude consideration of the quality of the receiving water. We recognize, however, that elements of the environment apart from receiving water may be affected by enforcement of the effluent limitations, and in an appropriate case, these elements might warrant a variance.
IV. Deadline
The industrial petitioners next argue that because the standards for the coal industry were promulgated barely two months before the statutory deadline for application of the best practicable control technology, they are in part unachievable, and therefore invalid, as to certain facilities. The petitioners suggest that the July 1, 1977, deadline for compliance with effluent limitations may not be enforced because the administrator did not promulgate final regulations until long after the Act required him to do so.
Congress addressed this problem when it passed the 1977 amendments to the Act. Section 309(a)(5)(B), added by those amendments, authorizes the administrator to extend the deadline up to April 1, 1979, for companies that, despite good faith efforts to comply with the best practicable control technology standards, were unable to do so by July 1,1977. This new provision speaks in general terms of persons who have violated the Act or who otherwise have not complied with its requirements. It does not specifically mention compliance problems caused by the administrator’s delay in promulgating effluent limitations guidelines. Nevertheless, the legislative history establishes that the amendment is intended to afford relief in such situations to companies that satisfy its requirements.
Industry also contends that an extension pursuant to § 309(a)(5)(B) will not prevent suits by private citizens pursuant to § 505 of the Act against companies that are unable to meet the statutory deadline. The courts, however, retain equitable discretion to determine whether and to what extent sanctions should be allowed against coal operators who qualify for relief under the amendment.
Congress has adequately dealt with any dilemma that may confront a coal operator due to the agency’s delay. Accordingly, the regulations are not invalidated by the short lead time.
V. Western Coal Mines
The industrial petitioners next challenge the administrator’s decision to exclude mines in six western states from the coverage of the maximum total suspended solids level applicable to mine drainage. Concerned that the administrator will promulgate more stringent standards for the western mines, the petitioners emphasize two assignments of error. First, they assert that the postponement of suspended solids limitations for the western mines violates the Act’s requirement of uniformity in effluent limitations. Second, they point out that the limits for suspended solids, as proposed in 1976, applied to all mines in the country. They assert that they were not given adequate notice or opportunity to comment on the Agency’s exclusion of these six states in its final regulations, in violation of the Administrative Procedure Act and sections 101(e) and 304 of the Federal Water Pollution Control Act.
The agency’s interim effluent limitations guidelines, published October 17, 1975, and May 13, 1976, dealt with total suspended solids on a national, rather than regional, basis. The interim guidelines prescribed a maximum limitation for any one day of 70 milligrams of total suspended solids per liter of water (mg/1) and a maximum average daily value for 30 consecutive days of 35 mg/1. The final regulations, promulgated April 26, 1977, retain these values, but provide that the national suspended solids limitations do not apply in Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming. In these states, the agency ruled, total suspended solids limitations will be determined on a case-by-case basis. In the preamble to its final regulations, published April 26,1977, the agency explained its reasons for excluding these western states as follows:
Western Coal Mines. The Effluent Guidelines Division of EPA has received a substantial body of information from EPA Region VIII (located in Denver, Colorado) with respect to the limitations on discharges from coal mines in the Western United States. Representatives of that Region believe more stringent numbers are appropriate in light of actual experiences with those mines. These data appear to support effluent limitations guidelines for a number of parameters significantly more stringent than the limitations announced today. The reasons for the apparent ability of Western coal mines to discharge pollutants in less concentration than is the case of Eastern coal mines are many, and certainly include the relatively more even topography of Western coal mines, the emphasis on recycle of relatively scarce water supplies, and the relatively lower concentration of pollutants in the geologic formations being exploited. The Agency is undertaking a thorough evaluation of the information being supplied from permit-granting authorities in the Western United States. It is anticipated that consideration will be given to proposal of a separate subcategory with respect to all pollutant parameters for those coal mining operations located in the Western United States which have attributes such that they are able to meet more stringent effluent limitations.
The Agency has determined not to promulgate national TSS limitations for mines in some Western States. Until national limitations guidelines are published which address Western mines and TSS, NPDES permit writers shall calculate TSS restrictions utilizing the same discretion and with the same deference to statutory factors as they have in the past.
We find no violation of the Act. In the first place, we note that the administrator has not exempted these mines from applying the best practicable technology to reach prescribed effluent limitations. Doing so would have violated the Act. In contrast to outright exemption, the Act authorizes the administrator to create appropriate subcategories and to consider a broad range of factors when establishing the standards for facilities within such subcategories. Thus, the Act does not prohibit the administrator from creating a subcategory based on geographic location if geological, topographical, or other technical factors justify it.
The administrator, however, has not utilized the Act to create a formal subcategory for the western mines. The issue therefore is whether the administrator has authority to take an interim step toward creating a subcategory by declining to apply the total suspended solid effluent limitations to a designated region pending further study.
While the resolution of the question is not free from doubt, we believe the administrator is empowered to defer establishment of the suspended solids limitation for mines in the western states. The information that the administrator received during the rule-making proceedings indicated that, with the same pollution control equipment, western mines could be operated with more stringent limitations on the discharge of suspended solids than the eastern mines. There is therefore no apparent technological justification for applying the limitations that were appropriate for the rest of the country.
At the same time, the agency had not received and studied sufficient data to create a separate subcategory with specific limitations. Consequently, the administrator applied to the western mines all national criteria except the single limitation for which he lacked sufficient data. He then temporarily authorized state and federal officials to set levels of suspended solid effluents on a case-by-case basis. This practice will generally require the western mines to continue to conform to more strict suspended solids limitations than those for eastern mines during the administrator’s study of the data.
Referring to an analogous issue concerning the same statute, Judge Leventhal cautioned courts to exercise restraint for reasons that are pertinent here:
The courts cannot responsibly mandate flat guideline deadlines when the Administrator demonstrates that additional time is necessary to insure that the guidelines are rooted in an understanding of the relative merits of available control technologies. The delay required to give meaningful consideration to the technical intricacies of promising control mechanisms may well speed achievement of the goal of pollution abatement by obviating the need for time-consuming corrective measures at a later date.
A regulatory agency frequently needs to address problems step by step. It should not always be required to answer every question simultaneously. The administrator’s deferral of limitations for suspended solids in the west pending further study was prudent and lawful.
The petitioners also point out that the limits on suspended solids, when initially promulgated in the notice of rulemaking, applied to all mines, and they protest that they were not given adequate opportunity to comment on the agency’s exclusion of the western mines in its final regulations. They argue that this omission violated the notice and comment provisions of the Administrative Procedure Act and the requirement of public participation found in the Federal Water Pollution Control Act.
A notice of proposed rulemaking “ ‘must be sufficient to fairly apprise interested parties of the issue involved . . ,’ but it need not specify ‘every precise proposal which [the agency] may ultimately adopt as a rule.’ ” Moreover, “[t]he requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions.”
Tested by these familiar principles, the administrator’s procedure fully complied with both statutes. The Federal Water Pollution Control Act placed the industrial petitioners on notice that individual discharge permits might contain suspended solids standards that were more stringent than the national limitations. The administrator’s 1975 notice of interim rulemaking advised that effluent limitations would take account of total suspended solids; that the agency had considered geographic locations during its study of effluents; that the quality of raw water discharged from coal mining activities varies significantly; and that regional geology may be a determinaht of the variations. Therefore, it is apparent that the administrator’s deferral of a limitation for suspended solids for the western mines pending further study dealt with problems that were mentioned in the notice. Moreover, the final regulations did not require the western mines to cease the discharge of any pollutant other than those mentioned in the notice. In this respect the administrator’s action differs from procedures that were criticized in cases on which the petitioners rely.
For all of these reasons, we conclude that the exclusion of the mines in the western states does not invalidate the suspended solids limitation.
VI. Coal Preparation Plants
The industrial petitioners’ final complaint concerns the regulations dealing with coal preparation plants and associated areas. They claim that these regulations are im-permissibly vague; that they fail to distinguish between point sources and non-point sources; and that they do not adequately notify mining companies which of their activities are covered.
The Act restricts the administrator’s authority to the regulation of discharges from point sources. Non-point sources are subject only to analysis, study, and publication of information. The Act defines a point source as follows:
The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, [or] rolling stock . . . from which pollutants are or may be discharged.
This definition excludes unchanneled and uncollected surface waters.
The regulations under attack establish the concentration of specific pollutants “which may be discharged by a point source” after application of best practicable control technology. They define a point source in conformity with the statute. Their definitions of coal preparation plant and coal preparation plant associated areas are as follows:
The term “coal preparation plant” means a facility where coal is crushed, screened, sized, cleaned, dried, or otherwise prepared and loaded for transit to a consuming facility.
The term “coal preparation plant associated areas” means the coal preparation plant yards, immediate access roads, slurry ponds, drainage ponds, coal refuse piles, and coal storage piles and facilities.
The subsection which the petitioners criticize as vague provides:
The provisions of this subpart are applicable to discharges from coal preparation plants and associated areas, including discharges which are pumped, siphoned or drained from coal storage, refuse storage and coal preparation plant ancillary areas related to the cleaning or beneficiation of coal of any rank including but not limited to bituminous, lignite and anthracite.
The petitioners argue that this regulation could be interpreted to apply to surface runoff that does not fit within the statutory definition of a point source.
We do not share the petitioners’ concern. The subsection about which the petitioners particularly complain, read in context with other pertinent parts of the regulations, applies only to discharges from point sources. Stripped to its bare bones, the petitioners’ complaint is directed at the statutory definition of a point source, which the agency is powerless to change. How the agency will apply its regulations to actual situations presents issues which cannot be satisfactorily resolved in the absence of a full factual background. They can only be determined through the permit-issuing process, including the administrative and judicial review that is available to the petitioners.
We find no defect in the regulations for coal preparation plants and associated areas.
VII. Post-Mining Discharges
The Commonwealth of Pennsylvania and several citizens’ environmental associations petition for review of the administrator’s exclusion of point source discharges from inactive surface mines during reclamation and revegetation and from underground mines after coal production ceases. These petitioners charge that the administrator’s decision to exclude these aspects of the coal industry was arbitrary and capricious, and therefore illegal. They emphasize that the deadline imposed by Congress passed without the promulgation of any regulations for these discharges. Pennsylvania additionally complains that the absence, or even the postponement, of rules pertaining to post-mining discharges will hinder its regulation of inactive mines by encouraging the industry to concentrate its operations in states with lower environmental standards.
The administrator, supported on this occasion by the industrial petitioners, claims that he has insufficient data, particularly on costs in relation to benefits, to draft the necessary regulations. Pennsylvania and the environmental groups insist, however, that one of the agency’s development documents, the comments received by the agency during rulemaking, and the laws and regulations of several states disclose sufficient data for the promulgation of pertinent regulations.
The record amply supports the petitioners’ claim that post-mining pollution abatement is an integral part of coal production. In two sections of the Act, Congress explicitly recognized the problem of polluted drainage from abandoned mines. Coal mining, whether on the surface or underground, necessitates massive excavations that change the drainage characteristics of the land. Drainage of precipitation and surface water over coal waste — rather than water actually used for coal mining — causes the bulk of the water pollution from coal mines. Ceasing active mining operations does not necessarily reduce water pollution from the site. Pollution may continue indefinitely or even increase in intensity if proper mining methods and control technology are not employed. Pollution from post-mining sites may come from point source discharges.
Much of our discussion in Part V about the western coal mines is pertinent to this issue. The administrator cannot exempt post-mining point source discharges from the application of the best practicable control technology. Section 301(e) of the Act requires that pertinent effluent limitations must be applied to all point sources without exception. The administrator may, however, subcategorize the coal industry for the purpose of prescribing effluent limitation guidelines under § 304(b).
Here, the administrator has created a subcategory for active mines. He accomplished this by defining a coal mine as “an active mining area.” This phrase was defined in turn as follows:
[A] place where work or other activity related to the extraction, removal, or recovery of coal is being conducted, except, with respect to surface mines, any area of land on or in which grading has been completed to return the earth to desired contour and reclamation work has begun.
To eliminate any question about the exclusion of post-mining operations the regulations also provide:
Drainage which is not from an active mining area shall not be required to meet [these] limitations ... as long as such drainage is not commingled with untreated mine drainage which is subject to the limitations . . ,
The administrator rightly decided that regulations for active mines might prove to be inappropriate for inactive mines. Indeed, Congress has demonstrated its belief that inactive mines require pollution controls that are quite different from those for active mines. By enacting the Surface Mining Control and Reclamation Act of 1977, Congress recognized that the Federal Water Pollution Control Act is inadequate to eliminate pollution from inactive mines. The surface mining act addresses many of the issues raised by the environmental groups and Pennsylvania. It requires a surface mine operator to restore vegetation, prevent erosion, and curtail water pollution after active mining has ceased. It also requires underground mine operators to take specified measures during and after mining to reduce water pollution.
Since we have concluded that the administrator acted properly in treating active mines as a subcategory that excluded inactive mines, the remaining issue becomes quite narrow. It is whether, in view of'the administrator’s failure to meet the deadline for promulgating regulations dealing with post-mining discharges, we should remand the regulations for prompt inclusion of inactive mines. The administrative record established that techniques for reducing pollution from inactive mines are generally known in the industry and that they are successfully utilized by some mining companies. The record, however, does not disclose data concerning the “total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” The agency must consider this information in assessing the best practicable control technology currently available.
The passage of the Surface Mining Control and Reclamation Act of 1977 also must be taken into account in determining whether the administrator acted arbitrarily by deferring regulation of post-mining discharges. That statute does not supersede or modify the Federal Water Control Pollution Act; therefore, the administrator remains responsible for promulgating regulations concerning effluent limitations for point source discharges from post-mining areas in accordance with §§ 301 and 304 of the water pollution control act. But the surface mining act requires the Environmental Protection Agency to cooperate “[t]o the greatest extent practicable” with the Secretary of the Interior. Conversely, the Secretary is also required to cooperate with the agency. The purpose of this cooperation is “to minimize duplication of inspections, enforcement and administration.” We therefore conclude that the administrator responsibly decided to gather further data before issuing the regulations that must be consistent with the Secretary’s enforcement and administration of the surface mining act.
A third factor bearing on the propriety of the administrator’s exclusion of post-mining discharges is the extent to which this aspect of the industry is regulated without his direct intervention. Even in the absence of national standards, the administrator may issue permits on a case-by-case basis for post-mining discharges. Moreover, since there are no national standards for post-mining point source discharges, effluent limitations certified by a state must be incorporated in a discharge permit.
A suit to challenge the administrator’s action on the basis of information not in the record, or for the imposition of a judicial deadline for the promulgation of post-mining regulations, would more appropriately be brought in a district court where matters not disclosed by the administrative record could be offered in evidence. We hold only, on» the record presented in these petitions for review, that the final regulations are not invalidated by the absence of provisions dealing with post-mining discharges.
VIII. Catastrophic Rainfall Exemption
The citizen environmental petitioners and Pennsylvania challenge a provision, contained in §§ 434.22(c), 434.32(b), and 434.-42(b) of the regulations, which is intended to allow overflow of untreated water from pollution control facilities in extraordinary circumstances. At the time these cases were briefed and argued, the regulations provided as follows:
Any untreated overflow, increase in volume of a point source discharge, or discharge from a bypass system from facilities designed, constructed, and maintained to contain or treat the discharges from the facilities and areas covered by this subpart which would result from a 10-year 24-hour precipitation event, shall not be subject to the limitations set forth in paragraph (a) of this section.
This means that after a storm or other natural event that forces an overflow from a facility designed, constructed, and maintained to contain a 10-year 24-hour precipitation event, the overflow will be permitted. The record discloses that this provision is similar in many respects to safety standards previously promulgated by the Department of the Interior for water im-poundment facilities at existing coal mines.
The petitioners do not dispute the necessity for a catastrophic rainfall exemption, nor do they question a criterion of the heaviest 24-hour precipitation that can be expected to fall in a decade. Their principal complaint is that the administrator arbitrarily and capriciously based the exemption on the design, construction, and maintenance of the pollution control facilities rather than on the magnitude of actual precipitation. They prefer the regulation to specify that the exemption will apply only when the 10-year 24-hour rainfall actually occurs. They point out that in the catastrophic rainfall regulations applicable to other industries, the agency has used the criterion of actual performance, rather than design, construction, and maintenance.
After oral argument of these cases, the administrator promulgated final regulations clarifying 40 C.F.R. §§ 434.22(c), 434.32(b), and 434.42(b). These provisions now expressly allow only discharges from properly designed and constructed facilities that “result[] from a 10 year/24 hour or larger precipitation event or from a snow melt of equivalent volume.”
We consider the law in effect at the time we render our decision. See Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281-83, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). EPA’s change in the language of the exemption disposes of the criticism of Pennsylvania and the environmental petitioners.
The lack of provisions specifying the details of necessary design, construction, and maintenance does not invalidate the regulations. In all of the regulations under review, the administrator has avoided dictating engineering specifications. Instead, he has properly concentrated on prescribing limitations on the amount of pollutants that may be discharged regardless of the construction or treatment techniques that are employed. Using the 10-year 24-hour engineering standard without detailed specifications for impoundment facilities is consistent with this approach.
The petitions to set aside the regulations are denied with the exception of the regulations dealing with variances, which are remanded to the agency for reconsideration:
. See E. I duPont de Nemours & Co. v. Train, 430 U.S. 112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), for a discussion of the jurisdiction of courts of appeals to review these regulations.
. 33 U.S.C. §§ 1251-1376.
. 33 U.S.C. § 1251(a).
. The Act contemplates a two-phase reduction in pollutant discharges. Second-phase standards (§ 301(b)(2) [33 U.S.C. § 1311(b)(2)]) are not in issue here.
. 33 U.S.C. § 1311(b)(1)(A).
. EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-05, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).
. 33 U.S.C. § 1314(b)(1).
. 42 Fed.Reg. 21380-21390 (April 26, 1977), adding certain parts of 40 C.F.R. Part 43,4. Regulations governing “new source” coal production facilities were promulgated separately and are not before us in these cases. See 44 Fed.Reg. 2586-2592 (Jan. 12, 1979).
. The administrator’s brief states that this is the first case brought to review best practicable control technology standards in which the numerical national limitations have not been attacked. •
. 5 U.S.C. § 706(2). See Weyerhaeuser Co. v. Costle, 190 U.S.App.D.C. 309, 322-26, 590 F.2d 1011, 1024-28 (1978); see generally D. Currie, Judicial Review under Federal Pollution Laws, 62 Iowa L.Rev. 1221 (1
Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
HOT SHOT QUALITY PRODUCTS, INC., Plaintiff-Appellant, v. SIFERS CHEMICALS, INC., Defendant-Appellee.
No. 71-1088.
United States Court of Appeals, Tenth Circuit.
Dec. 29, 1971.
Lewis S. Garner, Chicago Ill. (John H. Widdowson, Wichita, Kan., was with him on the brief), for plaintiff-appellant.
Robert D. Hovey, Kansas City, Mo. (Donald E. Johnson of Schmidt, Johnson, Hovey & Williams, Kansas City, Mo., George Maier, Jr., of Weeks, Thomas, Lysaught, Bingham & Johnston, Kansas City, Kan., of counsel; were with him on the brief), for defendant-appellee.
Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
PER CURIAM.
This is a trademark infringement and unfair competition action brought by plaintiff, Hot Shot Quality Products, Inc., as the manufacturer of an insecticide marketed under the registered trademark “Hot Shot.” Plaintiff sought injunctive relief against defendant as the manufacturer of a carpet stain remover marketed under the registered trademark “Spot Shot.” Plaintiff’s registration was obtained in 1956, defendant’s in 1967, and both products are now enjoying quite wide distribution and sales throughout the nation. After trial in the District Court for the District of Kansas, submitted in large part upon stipulated facts, that court entered judgment for defendant, supported by findings and conclusions contrary to plaintiff’s contentions on all determinative issues. This appeal followed, plaintiff-appellant contending that the court erred in finding
(a) the trademark Hot Shot was descriptive in nature and had acquired no secondary meaning, and
(b) the trademark Spot Shot for a carpet stain remover was not likely to cause confusion of source with the product Hot Shot brand of insecticide.
We do not think disposition of this case requires specific consideration of plaintiff’s contention that the trial court erred in finding the trademark Hot Shot to be descriptive of its product, an insecticide. Even assuming that this trademark is not weakened as being one of functional description, the judgment below is clearly sustained by the further finding that no likelihood of buyer confusion exists as to product or source. Likelihood of confusion in either regard is a question of ultimate fact to be determined, in this case, by allowable inference from undisputed evidence. This court will not disturb such a finding absent clear error. Drexel Enterprises, Inc. v. Richardson, 10 Cir., 312 E.2d 525, and cases cited.
The record contains no evidence of actual buyer confusion and plaintiff relies substantially upon the phoenetic similarity between the two trademarks and the fact that both products are packaged in aerosol cans and are retailed through similar outlets such as supermarkets. However many products are so packaged and so marketed and the subject products are distinctly labeled and in clearly distinguishable containers. Plaintiff makes no appellate claim concerning product confusion and thus is left with the burden of persuading us that the record establishes that the trademark Hot Shot brings to the mind of the consuming public not a product but a producer. We are not so persuaded, for as the trial court noted, and, contrary to plaintiff’s present argument, properly emphasized, thirteen other registrations for the trademark Hot Shot have been issued by the Patent Office to separate registrants for products varying greatly in nature.
Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
GATEWAY STRUCTURES, INC., Plaintiff-Appellant, v. CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, and Carpenters Local No. 701, Defendants-Appellees.
No. 84-1645.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 15, 1985.
Decided Dec. 26, 1985.
Spencer H. Hipp, Littler, Mendelson, Fas-tiff & Tichy, Fresno, Cal., for plaintiff-appellant.
Blythe Mickelson, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for defendants-appellees.
Before SNEED, KENNEDY, and BOOCHEVER, Circuit Judges.
SNEED, Circuit Judge:
This is an appeal from the district court’s enforcement of a labor arbitration award. We affirm.
I.
FACTS
This case arises from the construction in 1981-82 of a shopping center in Fresno, California. Two general contractors worked on the project, North American Investments (NAI) and Gateway Structures, Inc. (Gateway). Both of these corporations are controlled, though not wholly owned, by John Langford. NAI has never signed a labor agreement with any union. Gateway signed an agreement with the Carpenters Union (the Union) in July 1981. John Langford also signed that agreement; it is not clear whether he signed it as an individual or as a representative of Gateway. His contractor license number appears on the agreement. That agreement incorporates by reference the 1980 Master Agreement between the Northern California Contractors Council, Inc., and the Carpenters 46 Northern California Counties Conference Board of the United Brotherhood of Carpenters and Joiners (the Master Agreement).
The pension trust funds operated by the Union financed construction of Von’s Market, one of the stores in the shopping center. The terms of that financing required that Union labor be used in the construction of Von’s Market. NAI, the general contractor on the entire project, did not want to sign a labor agreement. Accordingly, it formed Gateway to build Von’s Market and to enter into an agreement with the Union.
During the same period of time, NAI also was involved in negotiations with the Union. NAI agreed to enter into a collective bargaining agreement with the Union if the Union’s pension trust funds would make a takeout (or permanent) loan on the shopping center. That financing never materialized; NAI never signed any agreement with the Union. NAI did, however, use some Union labor to construct its portion of the shopping center.
The facts out of which the grievance arose are in dispute. A few things are clear, however. Langford did not maintain a formal separation between Gateway and NAI. Trust fund contributions for employees of one company were paid by the other. Paychecks for employees of one company were written on accounts of the other company. Most importantly, employees dispatched by the Union to one company performed work for the other company.
On August 17, 1981, the Union filed a grievance against NAI and Gateway claiming that NAI and Gateway were using nonunion labor to build the shopping center. The parties admit that NAI was using nonunion labor. The Master Agreement contained a union security clause, which prohibits employers bound by the agreement from using nonunion labor. The Union claimed that Gateway and NAI should be treated as one entity and accordingly that the agreement required both companies to use only Union labor. Under the terms of the agreement, the dispute was submitted to arbitration.
Before the arbitration hearing, two proceedings were filed before the NLRB. First, on August 25, the Union filed an unfair labor practice charge. Second, Gateway filed a unit clarification petition. Gateway asked the arbitrator to defer to the NLRB. The arbitrator refused. After a hearing at which the parties introduced considerable evidence about the relationship between Gateway and NAI, the arbitrator found in favor of the Union. Gateway appealed to the District Court. Chief Judge Peckham granted summary judgment for the Union on a counterclaim for enforcement of the arbitration award. On appeal here, Gateway raises two claims: first, that the arbitrator should not have decided the merits of the dispute; and second, that we should not enforce the arbitrator’s decision.
II.
DISCUSSION
A. Arbitrability
Gateway argues that it was improper for the arbitrator to decide this case for two reasons. First, it claims that the issue was not submitted to the arbitrator. Second, it claims that arbitrators do not have power to decide unit representation issues. Neither reason has merit.
1. Submission to Arbitration. We commence with a point that is beyond dispute: an issue is arbitrable only if the parties have agreed to arbitration. E.g., George Day Construction Co. v. United Brotherhood of Carpenters, 722 F.2d 1471, 1474-75 (9th Cir.1984). Section 51 of the Master Agreement, which provides for arbitration, applies to “[a]ny dispute concerning the relationship of the parties [and] any application or interpretation of this Agreement.” Excerpt of Record at 20 [hereinafter cited as E.R.]. Interpreting similar language in a collective bargaining agreement, the Supreme Court has said, “There is nothing to limit the sweep of this language or to except any dispute or class of disputes from arbitration. In that circumstance, we must conclude that the parties meant what they said — that ‘any difference’ ... should be referred to the arbitrator for decision.” International Union of Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710, 1712, 32 L.Ed.2d 248 (1972).
In this case, the Union relies on section 9 of the Master Agreement, which provides:
This Agreement is binding upon each individual employer regardless of whether or not he or it changes the name or style or address of his or its business.
Each individual employer, corporate or other legal entity, or its successor, shall be liable under, subject to, and bound by this Agreement.
E.R. at 10 (emphasis added). The Union asserts that this language binds NAI to the Master Agreement and, thus, to section 51 of the Master Agreement, the arbitration clause. It is clear that this assertion, when rejected by NAI, constitutes a “dispute” within the meaning of section 51 of the Master Agreement. Accordingly, the issue was arbitrable.
2. The Power of Arbitrators. A bit of background is necessary to explicate Gateway’s claim that arbitrators do not have power to decide representation issues. The Union’s effort to apply the agreement with Gateway to NAI, a nonsignatory employer, can prevail under either of two doctrines — the “alter ego” doctrine or the “single employer” doctrine. Under the alter ego doctrine, the court considers the interrelation of operations, common management, centralized control of labor relations, and common ownership. If these factors show that the transaction is a sham designed to avoid the obligations of a collective bargaining agreement, the nonsignato-ry employer will be bound. See Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1276-77 (9th Cir.1984). Under the single-employer doctrine, the same factors are considered. To bind the nonsig-natory under this doctrine, however, the two employers must be shown to constitute a single bargaining unit. See id. at 1276.
It is this requirement upon which Gateway grounds its argument. It points to Brotherhood of Teamsters v. California Consolidators, Inc., 693 F.2d 81 (9th Cir.1982) (per curiam), in which this court held that a district court has jurisdiction to decide single-employer issues but does not have jurisdiction to decide the bargaining unit issue in such cases, id. at 83; see South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (per curiam) (holding that federal courts cannot make initial findings on unit-representation issues, but must defer to the NLRB). It follows, Gateway claims, that California Consolidators precludes arbitrators from imposing the obligations of labor agreements on nonsigna-tory employers like NAI.
We disagree. First, the arbitrator’s decision could rest on the alter ego doctrine, which does not require a unit-representation determination. Cf. Northwest Administrators, Inc. v. Con Iverson Trucking, Inc., 749 F.2d 1338, 1340 (9th Cir.1984) (holding that a district court has jurisdiction over alter ego claims). Second, it probably would be permissible for the arbitrator to make a unit-representation determination even though the district court would be precluded from making such a determination in the first instance. See Carey v. Westinghouse Electric Corp., 375 U.S. 261, 266-72, 84 S.Ct. 401, 406-09, 11 L.Ed.2d 320 (1964) (holding that arbitrators can decide certain representational issues); Stevens, 743 F.2d at 1278-79 & n. 11 (reconciling Carey and South Prairie).
Accordingly, we hold that it was proper for the arbitrator to proceed to decision of this dispute.
B. Enforcement of the Arbitrator’s Decision
Finally, Gateway argues that we should refuse to enforce the arbitrator’s decision. The law by which we must be guided is clear:
Where the decision involves contractual interpretation, we must defer as to any decision which draws its essence from the agreement. Therefore, if on its face, the award represents a plausible interpretation of the contract, judicial inquiry ceases and the award must be enforced. This remains so even if the basis for the decision is ambiguous and notwithstanding the erroneousness of any factual findings or legal conclusions, absent a manifest disregard of the law.
However, we are not bound to defer to an award which actually violates the law or any explicit, well defined and dominant public policy.
George Day Construction Co. v. United Brotherhood of Carpenters, 722 F.2d 1471, 1477 (9th Cir.1984) (citations omitted); see Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir.1984) (refusing to enforce an arbitration award that conflicted with the NLRB’s resolution of the same controversy). Gateway suggests four defects in the arbitration award, none of which are sufficient to preclude enforcement of the award.
First, Gateway asserts that the arbitrator’s decision should not be enforced because the arbitrator did not apply NLRB case law on the single-employer or alter ego doctrines. Gateway tries to bolster this claim by pointing to section 10 of the Master Agreement, which provides that “interpretation of ... this Agreement is ... intended to apply no broader [sic] than that permitted by law.” E.R. at 11. We are unpersuaded. First, as appellant’s own brief adequately demonstrates, the record contained evidence that could have persuaded the arbitrator that the NLRB requirements were satisfied. See Opening Brief for Petitioner/Appellant Gateway Structures, Inc. at 16-22. More importantly, however, George Day makes it clear that parties who bargain for arbitration do not bargain for an award identical to judicial determination. To assert that the arbitrator misapplied a fact-specific test like the alter ego doctrine does not justify a refusal to enforce the arbitration award.
Second, Gateway argues that enforcement would interfere with the rights of NAI employees by subjecting them to a collective bargaining agreement without any showing of majority support or a determination of the appropriate representational unit. No such inquiry is required. As the Supreme Court explained in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), “the possibility of conflict [with a subsequent NLRB ruling] is no barrier to resort to a tribunal other than the Board.” Id. at 272, 84 S.Ct. at 409. If such an NLRB ruling comes,
the Board’s ruling would, of course, take precedence; and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301.
... The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area.
Id. Although this circuit has never specifically adopted this reasoning, see Stevens, 743 F.2d at 1280 & n. 12 (noting the issue), other circuits have, see id. at 1280 n. 12. We agree that it would be improper to allow the speculative possibility of subsequent NLRB decisions to prevent enforcement of the arbitrator’s 'award against Gateway.
Third, Gateway contends that we should not enforce the arbitration award on the ground that the arbitrator did not explain his result with sufficient specificity. At the arbitration hearing, the parties agreed that the arbitrator should issue an award promptly and prepare a full opinion later. In the district court proceedings, both parties agreed to continue the case until the arbitrator provided the full opinion. Finally, the arbitrator provided a statement that he adopted his original four-page award as his full opinion.
We reject Gateway’s contention. The arbitrator’s opinion fairly outlines the basis of his decision — NAI and Gateway operated their companies as essentially one business. Absent a specific provision in the agreement of the parties, we think it is irrelevant that the opinion does not, for instance, discuss the relevant NLRB case law. See George Day Construction Co. v. United Brotherhood of Carpenters, 722 F.2d 1471, 1477 (9th Cir.1984) (noting that a court must enforce an arbitration award even if “the decision is ambiguous and notwithstanding the erroneousness of any factual findings or legal conclusions” (citations omitted)).
Finally, Gateway claims that the decision does not comport with the terms of its memorandum agreement with the Union. Although there was conflicting testimony, see, e.g., Supplemental Excerpt of Record at 32, 54, we will assume arguendo that the parties agreed that Gateway alone would be bound by the agreement and that Gateway would work only on Yon’s Market. Unfortunately, this assumed parol agreement is not clearly reflected in the written agreement, which does not define the scope of work to be covered. E.R. at 7. Moreover, the written memorandum agreement, like the Master Agreement, refers to the individual employer and the name and style under which he conducts business. It would be reasonable for the arbitrator to conclude that this language referred to John Langford (who signed the agreement and controlled both NAI and Gateway) rather than to Gateway, and that Langford conducted business under the names NAI and Gateway. Langford’s signature on the agreement supports this construction. He did not clearly indicate that he signed only in a representative capacity. His signature could be construed as that of a second individual employer. See E.R. at 7. In brief, although the basis for the arbitrator’s decision is unclear, we hold it to be a plausible decision. It is not our place to substitute our judgment for that of the arbitrator; the parties bargained for his decision, not ours.
As Chief Judge Peckham pointed out, “The arbitrator’s conclusion did not directly conflict with any clause of the 1981 agreement.” E.R. at 70. Accordingly, the district court’s conclusion that the arbitration award should be enforced is affirmed.
AFFIRMED.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Virginia WORSHAM, Appellant, v. T. E. DUKE and Christine Duke, Appellees.
No. 12257.
United States Court of Appeals, Sixth Circuit.
March 21, 1955.
Joe B. Orr, Bowling Green, Ky. (Richardson & Barickman, Glasgow, Ky., Bell & Orr, Bowling Green, Ky., Ralph Bru-met, Bristol, Va., on the brief), for appellant.
G. Duncan Milliken, Jr. (Milliken & Milliken, Bowling Green, Ky., on the brief), for appellees.
Before MARTIN, MILLER and STEWART, Circuit Judges.
MILLER, Circuit Judge.
Appellant, Virginia Worsham, brought this action to recover damages for personal injuries suffered by her in an automobile accident on August 28, 1952 near Edmonton, Kentucky. The District Judge directed a verdict in favor of the appellees, from which ruling this appeal was taken.
At the time of the accident, appellant was a passenger in an automobile owned by the appellee T. E. Duke, which was being driven by his wife appellee Christine Duke. The automobile had stopped at a gas station in Edmonton and had proceeded some 5 or 10 miles therefrom. It had negotiated a curve and was traveling on the righthand side of the road on a straight stretch of road, on which there was no traffic either in front or behind. Appellant’s testimony about the accident was as follows: “We were riding along and at a low rate of speed, not fast, and all of a sudden or seemed to be — 1 don’t know why — the car went from one side of the road to the other so fast — it went so fast that I don’t know what happened and the next thing we went over a bank and the next thing that I recall I was standing on my feet holding my head, my eye, which was bleeding.” She further testified that the car was traveling at approximately 30 miles an hour, that she did not see Mrs. Duke put on the brakes or turn the car to the right or to the left, or accelerate the car or slow the car down just prior to the accident. She testified —“I just don’t remember. I was just riding along and I don’t remember anything in that respect.” She was asked, “Do you know of any reason why the car should suddenly swerve, as you have indicated here by your testimony, and go over an embankment? Did you see or notice anything that would have caused it to have done that,” to which she answered, “It was just one of those things I was only a passenger and I just — it is just one of those things — it happened so fast.” She was then asked, “In other words, you don’t know what caused it. Is that correct?” to which she answered, “No sir, I don’t. It happened so fast, so quick, that I don’t — I just don’t know.”
The appellant further testified that she didn’t examine the car, which was a 1951 Oldsmobile, but as far as she knew or could see it was in good condition, that it was a misty sort of a day, that the highway was of black-top construction, and as far as she could tell it did not seem to have any bumps in it.
At the conclusion of the appellant’s case, the District Judge, being of the opinion that the foregoing evidence did not establish any negligence on the part of the operator of the automobile and was not sufficient to take the case to the jury on the theory of res ipsa loquitur, sustained appellees’ motion for a directed verdict. Supporting Kentucky authority for the ruling was not cited. Appellant contends that the case was one for the application of the res ipsa loquitur doctrine and should have been submitted to the jury.
Appellant relies chiefly upon Thompson v. Kost, 298 Ky. 32, 181 S.W.2d 445, and Reibert v. Thompson, 302 Ky. 688, 194 S.W.2d 974, being two appeals in the same case, in which the factual situation was very similar to the present case. In that case, while Miss Thompson was driving on the main highway from Cincinnati to Louisville, at a reasonable rate of speed and in a careful manner, and with no interfering traffic, the car suddenly swerved to the left, then to the right, and then off the road. The three occupants of the wrecked car were rendered unconscious, and none of them had any recollection of how the accident happened. In the first opinion the Court said [298 Ky. 32, 181 S.W.2d 446]: “The facts in this case bring it within the res ipsa loquitur doctrine since the automobile which caused the injury was shown to be under defendant’s control and the accident was such that in the ordinary course of events it would not have happened if she had used ordinary care, and the mere proof of the happening of the accident is sufficient evidence that it was caused by negligence on defendánt’s part unless she showed that the accident was attributable to some other cause.” It ruled that the question of defendant’s negligence should have been submitted to the jury.
On the appeal, following the second trial, the Court again held that the res ipsa loquitur doctrine applied, giving the following explanation for its ruling [302 Ky. 688, 194 S.W.2d 976]: “There is no dispute but that the car, or instrumentality, was under the management and control of Miss Thompson. It follows that in that assumption of control a basis for liability exists as it will lead to reliance by others upon its proper exercise. ' The swerving of the car first to the left and then to the right in the ordinary course of driving a car does not happen if the person having management of the same exercises proper care. In the absence of explanation, or proof of intervening agency, or contributory negligence, it affords reasonable evidence that the accident arose from want of care. It is true that the presumption may be overcome by evidence showing the cause of the occurrence, or that the cause is attributable to some intervening act or thing, but here there are no facts which tend to support a contradictory or inconsistent inference, nor is there a basis in the proven facts to deduce even a probability of some intervening cause. * * * We conclude, therefore, under the circumstances as set forth in the instant case, that in the absence of any explanation of the accident consistent with freedom from negligence, the court should have peremptorily instructed the jury to-find for the plaintiffs, leaving the amount in damages to be assessed by the jury.”
The appellees rely upon the following eases as sustaining their contention that where the evidence shows that the accident resulted from a condition of the road and not from any negligence of the driver no liability results, since it is-common knowledge that an automobile-may skid on a slippery highway without any negligence upon the part of the-operator, and the mere fact that an automobile skids upon a slippery road does-not of itself prove negligence so as te render applicable the doctrine of res ipsa, loquitur: Tente v. Jaglowicz, 241 Ky. 720, 44 S.W.2d 845; O’Neil & Hearne v. Bray’s Adm’x, 262 Ky. 377, 90 S.W.2d 353; Gilreath v. Blue & Gray Transportation Co., 269 Ky. 787, 108 S.W.2d 1002;. Atlantic Greyhound Corp v. Franklin, 301 Ky. 867, 192 S.W.2d 753; Head v. Lucas* 313 Ky. 356, 358-359, 231 S.W.2d 81. The principles applicable to an accident-resulting from skidding on an icy or slippery road are so stated in the opinions-in those cases, but it will be noticed that in the first three of the eases cited it was-held that the trial judge properly left it. to the jury to determine whether the skidding of an automobile on an icy or slippery road was superinduced or accelerated by the negligence of the driver* and that in Head v. Lucas, supra, the Court held that other facts in the case were sufficient to require a directed verdict of liability against the defendant. The case of Atlantic Greyhound Corp. v. Franklin, supra, would be fairly close in point, if the present case involved skidding on an icy road. That case, as well as the others, involved skidding on an icy or slippery road, which is an entirely different factual situation from the case at bar, as will be pointed out.
Appellees assume that the evidence shows their automobile skidded because of the slippery condition of the road. Numerous statements to that effect are contained in their brief, supported by page references to the record. The depositions of the appellant and of both appellees were taken as if upon cross-examination and are contained in the record now before us. They contain testimony about seepage out of a rock in a mountain beside the road, the slick condition of the road which resembled “a slick satin ribbon,” and that the car skidded because of the slick spot in the road, to which reference is made. But the contention is made by appellant, for the first time in the oral argument on appeal, that these depositions were not used in the trial, that such testimony was not before the trial judge, and is not before us on this review. This contention is well taken. No attempt was made to use the depositions as provided by Rule 26(d), Rules of Civil Procedure, 28 U.S.C.A. Accordingly, we look to appellant’s testimony at the trial for the evidence on this question. On her direct examination her testimony was as follows:
“Q. Do you recall what the weather conditions were that day? A. It was misty.
“Q. Had it been misting long? A. I don’t recall how long.
“Q. Was the highway slick? A. I couldn’t say. I was—
“Q. Go ahead. A. (continuing) —I was just riding along. I didn’t notice.”
On cross-examination, her testimony was as follows:
“Q. As you left the filling station, I believe that you say that it was a misty sort of a day. Is that right ? A. As far as I can remember, it seemed.
“Q. In other words, a sort of a misty rain. Misty drizzle? A. Misty, yes, sir.
“Q. Which had made the roads wet? A. I don’t remember. I could not say about the road.”
•x- * -x- * * *
“Q. And as you were going along 30 miles an hour, on the righthand side of the road, with no traffic either way, going straight at approximately 30 miles per hour, you say the car began to slip and slide off the road. Is that what you stated ? A. It was —it happened so fast. It went from one side of the road to the other.”
It will be noticed that the witness refused to state that the road was wet or slippery, or that the car slipped or slid off the road. There was no testimony before the Court that the car skidded because of the slippery condition of the road.
Considering appellant’s testimony, as it was actually given before the jury, we are of the opinion that this case is controlled by Thompson v. Kost, supra, 298 Ky. 32, 181 S.W.2d 445, and Reibert v. Thompson, supra, 302 Ky. 688, 194 S.W.2d 974, rather than by Atlantic Greyhound Corp. v. Franklin, supra, 301 Ky. 867, 192 S.W.2d 753, and that the directed verdict should not have been given. If there is conflict between them, Reibert v. Thompson, supra, is the most recent ruling.
The case of Cox v. Wilson, Ky., 267 S.W.2d 83, also relied upon by appellees, contains a good analysis of the res ipsa loquitur doctrine and its application to an automobile accident. But the undisputed evidence in that case showed that the cause of the skidding which resulted in the accident was the blowout of a tire. This was the “intervening agency,” or the “explanation of the accident consistent with freedom from negligence” which the Court referred to in Reibert v. Thompson, supra, as preventing the application of the res ipsa loquitur doctrine. Such an “intervening agency” was not shown by the evidence in the present case.
The judgment is reversed and the case remanded to the District Court for a new trial.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
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songer_genapel2
|
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 second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Thomas A. BEARDSHALL and Annamae Beardshall, his wife v. MINUTEMAN PRESS INTERNATIONAL, INC., Appellant.
No. 81-1387.
United States Court of Appeals, Third Circuit.
Argued Oct. 14, 1981.
Decided Nov. 17, 1981.
Rehearing and Rehearing In Banc Denied Dec. 22, 1981.
Robert L. Potter (argued), Titus Marcus & Shapira, Pittsburgh, Pa., for appellant; Andre Weitzman, Braiterman & Johnson, P. A., Baltimore, Md., of counsel.
Maurice A. Nernberg, Jr. (argued), Nernberg & Laffey, Pittsburgh, Pa., for appellees.
Before HUNTER, ROSENN, and WEIS, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The twin issues on appeal in this diversity case stem from the instructions of the trial court to the jury. The plaintiffs, Thomas A. Beardshall. and his wife Annamae, brought suit in the United States District Court for the Western District of Pennsylvania charging the defendant, Minuteman Press International, Inc. (Minuteman), a nationwide franchisor, with having committed common law fraud under Pennsylvania law when it entered into a franchise agreement with the Beardshalls. The jury returned a verdict for plaintiffs in the sum of $70,000. The defendant filed a motion for a new trial and the plaintiffs filed a motion for a new trial on damages. The district court denied both motions and Minuteman has appealed. We reverse.
I.
In March 1978 Thomas Beardshall attended a start-your-own-business trade show in Pittsburgh where he spoke to a Minuteman representative. Beardshall, a college graduate, testified at trial that the representative gave him promotional literature, told him of the opportunities in the printing business, and showed him a financial statement of a company operated store which the representative described as a “typical mid-range operation.” The company representative further informed Beardshall that a Minuteman franchise would carry its own operating expenses from the start, and should turn a profit in three to six months and provide a reasonable income within six to twelve months. Subsequently, Beards-hall communicated with Minuteman’s offices in Pittsburgh and visited a recently opened franchise in the area with another Minuteman representative who reviewed Beardshall’s projected calculations on volume and profit.
The Beardshalls indicated their interest in obtaining a franchise in Pittsburgh, signed a preliminary agreement and made a deposit. Later, they decided to move to Savannah, Georgia. Minuteman officials tried to discourage them because they thought a Pittsburgh location had better potential. The Beardshalls, however, pressed for a location in Savannah and ultimately executed a franchise agreement with Minuteman for a Savannah location. After a two week training period they opened for business on July 31, 1978.
Dissatisfied with their first month’s business and their projections as to future earnings, the Beardshalls wrote to Minuteman on September 5,1978, and sought rescission of the agreement. Minuteman refused. The Beardshalls closed the shop on November 23, 1978, and returned to Pittsburgh. They thereupon instituted this lawsuit against Minuteman.
H.
In his instructions to the jury, the trial judge charged, inter alia, that the plaintiffs bore the burden of proving their case “by a fair preponderance of the evidence.” He defined at length what was meant by this burden of proof and also instructed the jury fully on the common law of fraud. Defense counsel at the time, replaced on this appeal, took no exceptions and stated that he had no objections to the charge. After a full day of deliberation, the jury informed the court that it was “hung.” The court released the jurors for the day with instructions to resume their deliberations the next morning. The following morning the jury sent this message to the court: “Could you repeat the six points of fraud we are supposed to go by? In writing? ” The trial judge thereupon had a statement typed containing the jury’s question and the six elements of fraud, displayed it to counsel for the parties, and advised them that he intended to submit the document to the jury. Defense counsel objected to the submission on the ground that repetition of a section of the charge might emphasize an aspect which could be prejudicial to the defendant, especially if in writing. Despite the objection, the court had the writing delivered to the jury. Shortly thereafter, it returned its verdict for the plaintiffs.
On appeal, Minuteman contends that the district court reversibly erred in two aspects of its instructions. First, the court committed plain and fundamental error in instructing the jury that the plaintiffs must prove their case by a preponderance of the evidence when, under the applicable Pennsylvania common law, they were obligated to meet the much higher standard of proving fraud “by clear and convincing evidence.” Second, it erred when, having given entirely oral instructions to the jury, it submitted to them over defendant’s objection a typewritten, highly condensed statement of the substantive law of fraud which necessarily emphasized plaintiffs’ theory of the case.
III.
In determining whether the instructions on the burden of proof warrant reversal, we must first decide what burden Pennsylvania law places on those attempting to prove fraud. Then, if the charge was erroneous, we must determine whether the defendant can on this record raise the error on appeal and whether the error is so grave as to justify reversal.
In a recent decision the Supreme Court of Pennsylvania held that fraud or intent to defraud must be proved by “ ‘evidence that is clear, precise and convincing.’ ” Snell v. Pennsylvania, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980) (citations omitted). In earlier cases the terminology varied. For example, in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 73, 97 A.2d 71, 74 (1953), two formulations for the burden of proof were used, “clear and convincing or ... clear, precise and indubitable.” Whatever the formulation, it is evident that under Pennsylvania law fraud must be proved by a higher standard than the preponderance of the evidence standard charged by the trial judge.
The plaintiffs contend that the “clear, precise, and convincing” standard enunciated by the cases is one only to be applied by the trial judge in deciding whether the case should be submitted to the jury. Once it is submitted to the jury, argue the plaintiffs, the jury’s sole function is to determine which evidence is true. Therefore, the trial court having submitted this case to the jury, the plaintiffs conclude it committed no error when it instructed the jury that the plaintiffs had to prove their case by a fair preponderance of the evidence. This argument is implausible and must be rejected. Plaintiffs misread the cases they cite. Those cases stand only for the proposition that the trial judge must decide as a matter of law before he submits a case to the jury whether plaintiffs’ evidence attempting to prove fraud is sufficiently clear, precise and convincing to make out a prima facie case; they do not hold that once that burden is met, the jury may apply a lesser standard of proof in determining which evidence is true. Thus, if the trial judge determines there is sufficient evidence from which the jury could reasonably find that the plaintiffs have proven fraud according to this standard of proof, the judge may then submit the case to the jury. “ ‘Whether the evidence is true is a question of fact ... but whether it meets the required standard which justifies its submission to the jury ... is always a question of law ....’” Aliquippa National Bank ex rel. Woodlawn Trust Co. v. Harvey, 340 Pa. 223, 231, 16 A.2d 409, 414 (1940), quoted in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 68, 97 A.2d 71, 72 (1953); M. H. Davis Estate Oil Co. v. Sure Way Oil Co., 266 Pa.Super. 64, 68, 403 A.2d 95, 97 (1979). The trial judge still has the duty to instruct the jury as to the proper burden of proof which plaintiffs must meet under the applicable law.
The elements of fraud were central to this case and the proper standard of proof to be applied was critical. Thus, the district court’s erroneous jury instructions would normally require reversal. The troublesome question posed by the plaintiffs, however, is that counsel for Minuteman did not raise the issue of the erroneous charge during the trial; he took no exceptions and in fact acquiesced in the charge. The plaintiffs, therefore, assert that the defendant is precluded by Federal Rule of Civil Procedure 51 from raising it now. Rule 51 reads in part, “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”
There is, however, a judicially created exception to Rule 51, the “plain error” doctrine, which this circuit recognizes. For example, in McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir.1960), this court found that the trial court in its jury instructions had failed to explain the application of the principles of law to the various possible factual conclusions. The court determined that Rule 51 did not preclude the raising of this issue on appeal, though no objection had been made to the trial court’s instructions, because the error was fundamental. This court’s application of the plain error doctrine was explicated in United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978) (footnote omitted), rev’d on other grounds, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979):
[W]e have the discretion to review instructions sua sponte if the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice.
Plaintiffs’ argument that the error in the charge is not plain or fundamental error is refuted by this court’s ruling in Ratay v. Lincoln National Life Insurance Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). In Ratay, we unequivocally held the trial judge’s charge that under Pennsylvania law the elements of fraud must be proved by a preponderance of the evidence was fundamental error. Although counsel at trial had taken a general exception to the charge, we observed that his failure to object specifically to the erroneous burden of proof would under Rule 51 ordinarily have barred consideration of that error on appeal. But because the error related to a critical issue, as it does here, and because it did not affirmatively appear from the record that the error was not prejudicial, this court determined that a new trial was necessary. Applying this reasoning to the instant case compels us to reach the same result.
Plaintiffs, however, assert that because the Pennsylvania Supreme Court in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1976), abandoned the plain error doctrine, this court may no longer apply the doctrine in cases governed by Pennsylvania substantive law. But at least three circuits have indicated that the failure to object to jury instructions and the consequences thereof are procedural and are to be governed by federal law. In Stewart v. Ford Motor Co., 553 F.2d 130, 139-40 n.9 (D.C.Cir.1977), Judge Skelly Wright, in writing for the court, noted:
It is well established that, in federal courts, allegations of failure to object to jury instructions and the consequences of such failures are procedural and not substantive issues and, accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 1962).
We agree with the characterization of the failure to object to the instruction as procedural and hold that a new trial is necessary because of fundamental error committed in the charge on the burden of proving fraud.
IV.
Because this case must be remanded to the district court for a new trial, we believe that we should offer some guidelines on the second issue raised by the defendant, the supplemental condensed written instruction. In the oral charge on the elements of common law fraud, the court laid down the six elements and- then carefully explained them. His explanation set forth qualifications to the elements of fraud and these embodied the defendant’s theory of its case. For example, the oral charge carefully explained the distinction between factual misrepresentation, which may be actionable, and statements of opinion or mere “puffery” or salesmanship. The written submission merely set forth a skeletal, abstract outline of the elements of fraud; it made no allusion to qualifications or the defendant’s theory of the case. Minuteman complains that inclusion of the explanatory material would have been necessary to avoid misleading the jury. The defendant further hypothesizes that the written instruction tended to mute the oral instruction in the memory of the jury and thus effectively displaced the explanation of terms of art and the defendant’s theory found in the oral instructions, thereby prejudicing the defendant’s case.
Giving supplemental instructions to the jury is usually a delicate and sensitive task requiring the exercise of judgment and skill. The task becomes even more delicate when the principal charge is oral and the supplemental instructions are in writing because of the risk of accentuating a segment of the charge by reducing it to writing. But as the plaintiffs argue, the court has a duty to respond to a jury’s request for specific instructions and the form and extent of supplemental instructions are within the sound discretion of the court. In Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir. 1975), cited by the plaintiffs, the court noted that supplemental instruction, when requested by the jury in whole or in part, “seems to be almost universally upheld in the Courts of Appeals.” The court further held that the failure of the district court to respond to the jury’s question as to the effect of plaintiff’s contributory negligence on defendant’s liability in a personal injury action was reversible error. But in so holding, the court explained some of the precautions to be observed which are of relevance here.
An aspect of an overall charge can be amplified and explained, in response to a jury’s inquiry, without prejudicially emphasizing any one aspect of the case. Ordinarily the district judge need not repeat the entire charge. He can remind the jury of the other aspects of the case covered by his charge and he should caution them that the aspect of the charge which he amplifies and explains should not be given undue weight and should be considered in the light of his other instructions.
Id. at 1037 (emphasis supplied).
In First Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (5th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), the court found no error in a written supplemental outline to the jury of the elements which the plaintiff had to prove in his case. The court, however, noted that it found no reversible error because the district court had “specifically and repeatedly instructed the jury ... that the elements written down were contested and constituted only an outline of those items on which [the plaintiff] bore the burden of proof.” Id. The court thus implied that had the district court failed to qualify and explain the skeletal nature of the instructions, the resulting prejudice to the defendant could have constituted reversible error.
In the case at bar, the written statement to the jury listing seriatim the “bare bones” elements of fraud contained no qualifying instructions and lacked the amplification of the original oral charge. As submitted, the writing listed the elements of the Beardshalls’ case and, therefore, emphasized their theory of the case. Furthermore, there is the risk that the jury might have used the writing as a checklist, relying solely on its language for content and ignoring the more elaborate and explanatory oral instructions. Although we do not disapprove a limited supplemental instruction to the jury in writing, especially when the jury requests that it be in writing, the practice has risks. If it is used, trial courts should avoid prejudicial emphasis on part of the case by carefully reminding the jury of other aspects of the original charge and cautioning them that the segment of the charge which is amplified or explained should be considered in the light of the other instructions and is not to be given undue weight.
The judgment of the district court will be reversed and the case remanded to the district court with directions to award the defendant a new trial.
. The plaintiffs are Pennsylvania citizens residing in Pittsburgh. The defendant is a corporation chartered under the laws of New York which has its principal offices in Farmingdale, New York.
. The trial court applied Pennsylvania law. On appeal, the parties agree that Pennsylvania law governs.
. The pertinent portion of defense counsel’s objection to the written supplementary instruction was:
I’m objecting to the submission of a written answer to the plaintiffs’ questions. I, also, object to a portion of the Court’s charge being singled out and repeated, and repeated in writing. I think it’s possibly prejudicial. It may highlight some particular point or section of the charge that I don’t think is proper to highlight, and I’m objecting to the submission of this written answer by the Court.
. The cases cited by plaintiffs are Highmont Music Corp. v. J. M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363, 366 (1959); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71, 72 (1953); Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604, 606 (1976); Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A.2d 658, 661 (1971).
. On remand the district court, relying on an intervening state court opinion, again applied the “fair preponderance of the evidence” rule. On subsequent appeal, this court held that the district court had misread the intervening decision of the Supreme Court of Pennsylvania and reaffirmed the principle that fraud in the making of a contract must be established by proof which is “clear, precise and indubitable.” We noted that the Supreme Court of Pennsylvania recognized the basic difference between the two standards of proof and indicated, as we had held, that “in Pennsylvania the difference between the two standards of proof is a matter of substantial significance and not a mere verbal variation.” Ratay v. Lincoln Nat’l Life Ins. Co., 405 F.2d 286, 290 (3d Cir. 1968).
. The Fifth Circuit disapproves of the practice of furnishing the jury with a written copy of the court’s instructions. United States v. Perez, 648 F.2d 219 (5th Cir. 1981); United States v. Hooper, 575 F.2d 496 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978). The Seventh Circuit apparently approves of the practice. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for 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:
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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 "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
CONTINENTAL INSURANCE COMPANIES, Appellee, v. NORTHEASTERN PHARMACEUTICAL AND CHEMICAL COMPANY, INC., Milton Turkel, Edwin B. Michaels and John W. Lee, Appellees, State of Missouri, Intervenor-Appellant.
No. 85-1940.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 15, 1986.
Decided Jan. 22, 1987.
Rehearing En Banc Granted March 30,1987.
Shelley A. Woods, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Karen Florini, Washington, D.C. for amicus — U.S.
Gary R. Long, Kansas City, Mo., for Continental Ins. Co.
Thomas W. Brunner, Washington, D.C., for amicus American Ins. Association.
William D. Iverson, Washington, D.C., for amicus IBM.
Jerome T. Wolf, Carl H. Helmstetter, James T. Price, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus AT&T Technologies, Inc.
Before HEANEY and McMILLIAN, Circuit Judges, and MURPHY, District Judge.
Order published at 815 F.2d 51.
The Honorable DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation.
HEANEY, Circuit Judge.
This appeal raises the question of whether hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9657 (1982) (CERCLA) are recoverable under a liability policy that covers “property damage” that “occurs” during the life of the policy, where disposal and environmental contamination took place during the policy period but cleanup costs were incurred later. We reverse the district court’s order on Count I of Continental’s complaint, affirm its dismissal of the State of Missouri’s counterclaim, and hold that state and federal governments suffer “property damage” at the time hazardous wastes are improperly “released” into their environment and that cleanup costs are a recoverable measure of damages for this environmental property damage. We also affirm the district court’s dismissal without prejudice of Count II of Continental Insurance Company’s complaint relating to coverage for private individuals’ personal and property damage due to improper hazardous waste disposal.
I. FACTS.
From 1970 to 1972, the Northeastern Pharmaceutical and Chemical Company (NEPACCO) produced hexachlorophene at a chemical plant in Verona, Missouri. The process produced a variety of wastes, among which was dioxin, a highly toxic chemical. In July, 1971, NEPACCO made arrangements to dispose of at least eighty-five fifty-five-gallon drums of these wastes in a trench on a farm near Verona, Missouri (the “Denny farm” site). When the deteriorated drums were dumped in the trench in July, 1971, a “strong odor” shortly emerged, persisting for several months. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823, 828-30 (W.D. Mo.1984). Later in 1971 or 1972, NEPACCO hired Independent Petrochemical Corporation (IPC) which, in turn, hired Russell Bliss to dispose of more dioxin-contaminated wastes. In 1971, 1972, and 1973, Bliss allegedly spread thousands of gallons of these wastes on the premises of the Bubbling Springs Stables in Fenton, Missouri, and on the roads of Times Beach, Missouri. Later, in 1974, a Mr. Minker purchased twenty truckloads of contaminated dirt from the Bubbling Springs Ranch and used it as landfill on his property at West Rock Creek Road, Missouri (the “Minker/Stout/Romaine Creek” site).
During the two-year period from 1970 to 1972 that NEPACCO was in business, it was insured under a Comprehensive General Liability Policy (CGL), issued by Continental. Three somewhat different policies were in effect from August 5, 1970, to August 5, 1971; August 5, 1971, to August 5, 1972; and August 5, 1972, to November 5, 1972. Each policy requires Continental to:
pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies caused by an occurrence,[] and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.
All three provide that: “[tjhis insurance applies only to bodily injury or property damage which occurs during the policy period.”
In 1980, the EPA investigated the Denny farm site and found that the NEPACCO wastes in the trench and underlying soil contained “alarming[ly] high concentrations of dioxin.” Id. at 831. It cleaned up the site, and then sought to recover its costs through a lawsuit against NEPACCO and others. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823 (the “EPA ” suit). The district court found NEPACCO and the other defendants jointly and severally liable under CERCLA for the cost of the cleanup. A separate appeal in that action is now pending before another panel of this Court.
On March 7, 1983, a number of former residents of Times Beach and Imperial, Missouri, filed an action against NEPACCO and others which seeks recovery for personal injuries and property damage allegedly caused by the dumping of NEPACCO’s wastes at the Minker/Stout/Romaine Creek site and on the streets of Times Beach. Capstick v. Independent Petrochemical Corp., No. 832-0453 (Cir.Ct., City of St. Louis, Mo. filed Mar. 7, 1983) (the “Capstick ” suit).
To protect against potential liability arising out of its status as insurance carrier for NEPACCO during the time NEPACCO’s hazardous wastes were improperly disposed of, Continental filed this action against NEPACCO and its former officers and directors. Count I seeks a declaration that Continental is under no duty to defend or indemnify NEPACCO for liability arising out of the EPA suit. Count II seeks the same declaration with respect to the Capstick suit. On November 14, 1984, Continental moved for summary judgment. NEPACCO and the other defendants failed to enter an appearance or file an answer.
The State of Missouri was then granted leave to intervene to protect its interests arising out of claims that it had made against NEPACCO and the other defendants in a third hazardous-waste lawsuit filed in the United States District Court for the Eastern District of Missouri. Missouri v. Independent Petrochemical Corp., No. 83-3670 (E.D.Mo. filed Nov. 23, 1983) (the “IPC ” suit). The complaint in IPC alleges that NEPACCO, its officers, and others are liable under CERCLA for costs incurred by the state in excavating and removing dioxin-contaminated soil from the Mink-er/Stout/Romaine Creek site. The state filed an answer to Continental’s complaint and a counterclaim alleging that Continental is obligated to indemnify the state for the amount of any judgment imposed on NEPACCO in the underlying IPC lawsuit.
On June 25, 1985, the district court granted summary judgment to Continental on Count I of its complaint (no insurance coverage for the EPA claims), and against the state on its counterclaim (no coverage for the IPC claims). The court reasoned that the cleanup costs sought by the United States and the state in the EPA and IPC suits are not “property damage” as that term is defined in the CGL policies and that “no * * * damages were incurred by the government entities during the policies’ effective dates” because the policies were only in effect from 1970 to 1972, and the cleanup costs were incurred later. The court also granted Continental’s motion to dismiss without prejudice Count II of its complaint (the Capstick claims), stating that “more specific findings of bodily injury and property damage” were needed first. The State of Missouri appeals.
II. DISCUSSION.
A. EPA and IPC Claims.
The first issue is whether the district court erred in holding that cleanup costs under CERCLA are not “property damage” as defined in the CGL policies. Although the district court cited no case and gave no explanation for its holding, Continental and amicus AIA advance two arguments in support.
Continental argues that only the actual owners of the land on which hazardous wastes are improperly disposed of sustain “property damage,” and that any injury suffered by governmental entities from the improper disposal is merely an economic injury. We disagree.
The Supreme Court of the United States has held that state and federal governments suffer injury to their “quasi-sovereign” interests when pollutants are released into the soil, water, and air within their jurisdiction. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed.2d 1038, 1044 (1907) (state); cf. Illinois v. City of Milwaukee, 406 U.S. 91, 101-07, 92 S.Ct. 1385, 1391-94, 31 L.Ed.2d 712, 722-26 (1972) (federal). The question here is whether this injury to governmental “quasi-sovereign” interests constitutes “property damage” within the meaning of an insurance policy. Although the Supreme Court has not squarely confronted the issue, two thoughts expressed in cases decided by the Court lead us to reject Continental’s argument. First, it has implied that an injury to a government’s quasi-sovereign interest in natural resources is a form of property damage. Second, it has held that the government has power, in its quasi-sovereign capacity, to seek redress for the environmental property damage suffered by the actual owners of the land affected by pollution.
In Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, for example, the State of Georgia brought suit against certain Tennessee copper companies to enjoin the discharge of noxious gases over its territory. In holding that it had jurisdiction and that Georgia was entitled to an injunction, the Court stated:
The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make-weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.
206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed. at 1044.
The Court’s discussion of a governmental interest in “title” to all the soil, water, and air within its jurisdiction suggests that the government has a property interest in natural resources. A similar implication arises from Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where the Court held that Missouri was permitted to sue as parens patriae to enjoin the discharge of sewage from Chicago, Illinois, into the Illinois and Mississippi rivers: “impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river * * * would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 844, 45 L.Ed. at 512. The Court suggested that although a dispute between states over interstate waters may not involve “direct property rights” of a state, the injury to the state’s “quasi-sovereign” rights is akin to an injury to state property rights. Id. Furthermore, the Court stressed that in environmental damage suits, a state has the power to seek redress in court for the property damage caused to the general public. Id.; see also Maryland v. Louisiana, 451 U.S. 725, 766, 101 S.Ct. 2114, 2139, 68 L.Ed.2d 576, 608 (1981) (Rehnquist, J., dissenting on other grounds) (pointing out that when a state sues to advance its quasi-sovereign interests, it is not suing simply to protect the economic interests of its citizens). Similarly, in Toomer v. Witsell, 334 U.S. 385, 408, 68 S.Ct. 1156, 1168, 92 L.Ed. 1460 (1948), Mr. Justice Frankfurter, joined by Mr. Justice Jackson, concurring, stated:
A state may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the state may for the common good exercise all the authority that technical ownership ordinarily confers.
This conclusion is supported by statements in a wide array of cases and statutes that state and federal governments have property interests in wildlife, inter- and intrastate waters, and natural resources in general. Moreover, state and federal governments have “direct property interests” in public land holdings which may be damaged by environmental contamination.
In light of these extensive statements of governmental property interests in environmental resources, it does not seem unreasonable to assume that an insurance company, providing liability coverage for a chemical producer, would contemplate environmental damage as a form of covered “property damage for which governments may seek recovery.” See Lansco, Inc. v. Department of Envtl. Protection, 138 N.J. Super. 275, 350 A.2d 520, 524-25 (1975), aff'd, 145 N.J.Super. 433, 368 A.2d 363 (1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). The policies’ definition of “property damage” as damage to “tangible property” or “physical injury” seems to contemplate damage to tangible property such as land, trees, air, and water. Supportive of this is the inclusion in the latter two of the three policies at issue of clauses generally excluding environmental damage from coverage for property damage. See Port of Portland v. Water Quality Ins. Syndicate, 549 F.Supp. 233, 235 (D.Ore.1982) (The pollution exclusion clause “itself states that ‘property damage’ may result from the discharge of pollutants.”).
Finally, all of the cases which have squarely considered Continental’s argument have rejected it. In Mraz v. American Universal Ins. Co., 616 F.Supp. 1173 (D.Md.1985), for example, the court rejected as “untenable” the insuror’s claim that state and federal governments do not sustain “property damage” for insurance policy purposes when hazardous wastes are improperly disposed of and ultimately cleaned up by the government. A similar conclusion was reached in Lansco, 350 A.2d at 524-25, and Kutsher’s Country Club Corp. v. Lincoln Ins. Co., 119 Misc.2d 889, 465 N.Y.S.2d 136, 139 (N.Y.Sup.Ct.1983).
In sum, we agree with the position taken in Mraz, Lansco, and Kutsher’s that the improper release of toxic wastes may cause “property damage” not only to the actual owner of the land, water, or air, but also to state and federal governments because of their “interest independent of and behind the titles of its citizens in all the earth and air within [their] domain.” Tennessee Copper Co., 206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed.2d at 1044.
Amicus AIA assumes, at least for purposes of argument, that environmental contamination may cause “property damage” for which state and federal governments may seek relief. However, it argues that while the governments might be able to recover for the diminution in value of environmental resources, cleanup costs themselves are not recoverable. It bases this argument on the language of section 107 of CERCLA which provides:
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release.
42 U.S.C. § 9607(a)(4).
A close reading of this section fails to support AIA’s argument that only an action under the last subsection, section 9607(a)(4)(C), is an action for “property-damage.” It seems clear to us that, although subsection (C) directly provides for recovery for damage to natural resources, subsections (A) and (B) are also measures of the damages which governmental entities may recoup for hazardous waste damage to natural resources. This conclusion is supported by all of the on-point cases cited by the parties or revealed by our independent research. See, e.g., Askew v. American Waterways Operators, 411 U.S. 325, 331, 93 S.Ct. 1590, 1595, 36 L.Ed.2d 280, 286 (1973) (In discussing the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. §§ 1161 et seq. (1972), and a similar Florida Act, the Court stated, “While the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage.”); Riehl v. Travelers Ins. Co., 22 Env’t Rep.Cas. (BNA) 1544, 1546 (W.D.Pa. Aug. 7, 1984), rev’d on other grounds, 772 F.2d 19 (3d Cir.1985) (Measure of damages to ground water and streams caused by seepage of wastes from insured’s landfill “is not precisely calculable but includes abatement costs relative to preventing further pollution.”); Port of Portland, 549 F.Supp. at 235 (Cost of cleaning up oil spill is recoverable “property damage” under CGL policy.); Chem. Application Co. v. Home Indem. Co., 425 F.Supp. 777, 778 (D.Mass.1977) (Cleanup and removal expenses incurred by insured measure the “damages” for which indemnification is available.); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 72 N.C.App. 80, 323 S.E.2d 726, 735 (N.C.App.1984), rev’d on other grounds, 315 N.C. 688, 340 S.E.2d 374 (1986) (Cleanup costs are “essentially compensatory damages for injury to common property,” the ground water of the State of North Carolina.); Kutsher’s Country Club Corp., 465 N.Y.S.2d at 139 (“The cost of cleanup * * * is clearly reflective of the state’s power to establish damages with respect to legislation designed to preserve the sovereign state’s interest in the preservation of natural resources.”); Lansco, Inc. v. Department of Envtl. Protection, 350 A.2d at 525 (Measure of damages for pollution discharge in river is “the cost of eliminating the harmful substance from the waters of the state.”). But cf. Atlantic City Mun. Util. Auth., No. A-1320-94TF (N.J.Super.Ct.App.Div.1985); Linda Walls, No. 2-83-418 (E.D.Tenn. Oct. 11, 1983).
Finally, the language of the CGL policies at issue supports the view that cleanup costs are a measure of recoverable damages for injury to environmental resources. The language of the policies specifically require Continental to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of property damage.” This language suggests that once there is property damage — here, environmental contamination — then the damages that flow from that property damage— here, cleanup costs — are recoverable.
In sum, the cases, the CGL policy language, the common meaning of “property damage,” and section 107 of CERCLA .all support the governments’ argument that cleanup costs under CERCLA are compensatory damages for “property damage” within the meaning of the CGL policies. Accordingly, we adopt this view.
The remaining issue is whether the district court erred in holding that the governments did not suffer an “occurrence” of property damage during the policy period because, although the improper waste disposal occurred during the policy period, the cleanup costs were not incurred until long after the policies expired. We hold that it did and adopt the majority view that environmental damage occurs at the moment that hazardous wastes are improperly released into the environment and that a liability policy in effect at the time this damage is caused provides coverage for the subsequently incurred costs of cleaning up the wastes. In Mraz, 616 F.Supp. at 1179, for example, the court rejected the same argument made by the insurer here and held that further fact findings were called for on an allegation that “environmental damage began to take place immediately in 1969 upon dumping at the Leslie site creating the potential for liability within the scope of the 1969 policy.” A similar conclusion has been reached in numerous other cases. See, e.g. Payne, 625 F.Supp. at 1103 (Implicitly finding that improper disposal of hazardous wastes during policy period is an “occurrence” of “property damage” at the time of release into the environment.); Mercury Refining Co. v. Hartford Fire Ins. Co., No. 84-CU-495, (N.D.N.Y. July 19, 1985) (same); Riehl, 22 Envtl.Rep.Cas. (BNA) at 1546, rev’d and remanded on other grounds for further findings, 772 F.2d 19 (3d Cir.1985) (same); Buckeye Union Ins. Co., 477 N.E.2d at 1233 (Insurer during the time period when hazardous wastes were “released” into surrounding soil and groundwater has duty to defend CERCLA cleanup suit under CGL policy.); CPS Chem. Co., 489 A.2d at 1269 (“Time of discovery of the accident does not determine when [damage] took place. The complaint alleges damages commencing with the date of dumpings.”).
Quite similar to this line of decisions are cases involving insurance coverage for “progressive diseases” where exposure to a harmful substance occurred during the policy period but the disease or illness developed later after the policy expired. The majority of federal cases on this issue have found coverage by adopting the “exposure,” or the “continuous exposure,” theory of when injury occurs. These decisions rest on the view that exposure to the dangerous substance at issue during the policy period caused immediate, albeit undetectable, physical harm which ultimately led to disease or physical impairment after the expiration of the policy period. For example, in Forty-Eight Insulations, 633 F.2d at 1223, the Court, in finding coverage for a progressive disease which manifested itself after the policy period, stated, “We see nothing in the policy which requires that the underlying cause of action accrue within the policy period. There exists a clear distinction between when bodily injury occurs and when the bodily injury that has occurred becomes compensable.” Accord Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 878 (1981).
These cases are distinguishable from cases where a negligent act was committed during the policy period but an accident or injury did not occur until after the policy expired. For example, if one negligently fails to shovel snow off his sidewalk during the policy period, there is no compensable accident until and if someone slips and injures himself during the policy period. This distinction was discussed in Mueller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J.Super. 564, 232 A.2d 168, 175 (N.J.Super.Ct.App.Div.1967), a case involving insurance coverage for a claim of malicious prosecution, where the court wrote:
The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. In a claim based on malicious prosecution the damage begins to flow from the very commencement of the tortious conduct — the making of the criminal complaint. The wrong and damage are practically contemporaneous * * *.
It seems to us that in the case of improper hazardous waste disposal, the wrong and the resulting damage may also be practically contemporaneous.
The decision in Kissel v. Aetna Cas. & Sur. Co., 380 S.W.2d 497 (Mo.Ct.App.1964), is particularly relevant on the crucial question of how the Missouri courts would likely rule on the question of when property damage occurs for purposes of insurance coverage. In Kissel, a building contractor hired to build a school employed a subcontractor to dig the foundation and to do landscaping work. During the excavation work in 1952, a series of pressure cracks developed in the ground around the school. The cracks were filled in with dirt and the school construction and landscaping were completed in 1953. The contractor carried a comprehensive general liability policy which covered property damage done by itself and its subcontractors in the course of their construction work. The CGL policy expired in late 1952. In 1957, the cracks reappeared and spread to several pieces of property adjoining the school. Five owners of these pieces of property brought suit, and the construction company instituted suit seeking a declaration that the CGL policy in effect in 1952 covered the damage which occurred in 1957. The insurance carrier argued “that the accident in question occurred in 1957, and not during the policy period, which was November 1951 to November 1952. Under those circumstances, * * * it cannot be held responsible for the damages shown in evidence.” 380 S.W.2d at 507. The court rejected this contention, noting that there was not merely an act of negligent excavation during the policy period, but that this negligence also caused immediate property damage during the policy period which, by 1957, after the policy period, spread to adjoining property. “We agree * * * that the accident mentioned in the policy may be a process and the evidence in the instant case is sufficient to show that the process started during the term of the policy and progressed until the filing of the lawsuits. We rule this point against defendant.” Id. at 509. We find that the Kissel case clearly indicates that Missouri would follow the majority view of the courts which have ruled that “property damage,” within the meaning of a CGL policy, generally occurs at the time hazardous wastes are improperly disposed of and that the insurer at that time may be held liable for cleanup costs incurred after the policy expired.
Applying these principles, it is clear that the “property damage” proved in the EPA case, 579 F.Supp. at 830, first occurred in July, 1971, during the period of time when the first insurance policy issued by Continental to NEPACCO was in effect. EPA, 579 F.Supp. at 830 (noting that NEPACCO’s agents dumped leaking, deteriorated barrels into the trench at the Denny Farm site and that, upon dumping of the wastes, a “strong odor emitted” and “continued for several months, maybe years.”). Under Kissel, it is also clear that Continental may additionally be liable for the continuing spread of the “property damage” at and around the Denny farm site, which first began in July, 1971. Kissel, 380 S.W.2d at 509. Accordingly, we reverse the district court’s order with respect to Count I of Continental’s complaint and remand for resolution of the remaining issues which must be resolved before it can be determined whether Continental must indemnify NEPACCO for the damages awarded in the EPA suit.
It also follows, however, from our holding on the question of the time of the relevant “property damage” “occurrence,” that Continental is not liable to defend or indemnify NEPACCO for liability arising from the IPC suit. The complaint in IPC alleges that in 1971 or 1972, Russell Bliss, pursuant to an agreement with IPC and NEPACCO, transported dioxin-contaminated waste oil from the NEPACCO plant in Verona, Missouri, and spread the contaminated oil on the premises of the Bubbling Springs Stable in Fenton, Missouri. This would be the relevant time of the “property damage” “occurrence” for purposes of cleaning up the Bubbling Springs Stable. However, the IPC complaint does not seek to recover costs for cleaning up the Bubbling Springs Ranch, nor does it seek recovery for the diminution in the value of resources at or around the Bubbling Springs Ranch and its watershed. Instead, the state seeks to recover the costs of cleaning up the Minker/Stout/Romaine Creek site which was contaminated when twenty loads of contaminated fill dirt from the Bubbling Springs Ranch were deposited there in 1974, after the CGL policies had expired. Because the damage at the Minker/Stout/Romaine Creek site first occurred after the last CGL policy’s effective date, we find that it would be beyond the reach of the reasoning in Kissel to hold Continental liable for this damage which began after the policy lapsed. Accordingly, we affirm the district court’s finding on the state’s counterclaim that Continental has no duty to defend or indemnify NEPACCO for potential liability in the pending IPC suit.
B. Capstick Claims.
The State of Missouri contends that the district court erred in dismissing, without prejudice, Count II of Continental’s complaint which seeks a declaration of no duty to defend or indemnify NEPACCO in the Capstick lawsuit. The Capstick suit differs in several respects from the EPA and IPC suits. The latter involve governmental cleanup cost recoveries under CERCLA; the former involves claims by private individuals for personal and property damage arising out of improper disposal of NEPACCO’s hazardous wastes. We agree with the trial court that resolution of the insurance coverage issues in Capstick requires additional fact finding and analysis, see Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., Civ. No. 83-3347, (D.D.C., filed Feb. 4, 1986), which may be pursued most effectively in a different proceeding. Accordingly, the district court’s decision granting Continental’s motion to voluntarily dismiss Count II without prejudice is affirmed.
. Times Beach was a town of approximately 2,200 people located twenty-five miles southwest of St. Louis. Soil samples taken there by the EPA in the early 1980’s revealed soil dioxin levels in excess of one hundred times the Center for Disease Control’s recommended maximum soil dioxin level for residential areas. In February, 1983, the EPA announced that the government would purchase the entire town of Times Beach using $33.7 million from the federal Superfund. The State of Missouri contributed an additional $3.3 million to the buy-out.
. The drafting history and background of the standard-form CGL policy is discussed in American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1500-03 (S.D.N.Y.1983), aff'd as modified, 748 F.2d 760 (2d Cir.1984).
. The latter two policies, covering the period August 5, 1971, to November 17, 1972, contain the following "pollution and contamination” exclusion clause:
It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.
The United States Court of Appeals for the First Circuit has held that coverage for damages caused by hazardous wastes improperly disposed of by the plaintiff in the regular course of its business is excluded by the same "pollution exclusion” clause. Great Lakes Container Corp. v. National Union Fire Ins. Co., 121 F.2d 30 (1st Cir.1984); see also Travelers Indemn. Co. v. Dingwell, 414 A.2d 220 (Me.1980). Other courts have reached the opposite conclusion where the hazardous waste discharge was sudden or accidental or the wastes were negligently
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
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
LARTER & SONS, Inc. v. DINKLER HOTELS CO., Inc. et al.
No. 14224.
United States Court of Appeals Fifth Circuit.
Nov. 15, 1952.
Ogden Doremus and Estes Doremus,. Atlanta, Ga., for appellant.
Edward E. Dorsey, James N. Frazer and! Hamilton Douglas, Atlanta, Ga., for appellee.
Before BORAH, STRUM and RIVES,. Circuit Judges.
RIVES, Circuit Judge.
This appeal is from a judgment-dismissing the action. The motion to dismiss was filed by one of the defendants, Dinkier Hotels Company, Inc. So far as-the record shows, the other defendant,. Atlanta Baggage & Cafo Company, did not enter an appearance. As to that defendant, it is apparent that the dismissal was inadvertent, and that the judgment must be reversed insofar as it is concerned.
Dinkier Hotels Company’s motion to dismiss was based upon two grounds: one, the general ground that the complaint fails to state a claim against this defendant upon which relief can be granted; and two, upon the further ground that all matters and issues in the action were res judicata, having been finally adjudicated and settled in a prior action in the Civil Court of Fulton County, Georgia, brought by the plaintiff on the same cause of action against the same defendants or their privies.
The general ground of failure to state a claim upon which relief can be granted is not seriously urged. The plaintiff was a jewelry salesman. lie was checking out of the hotel, and a hotel porter had given to him the baggage company’s claim check for a trunk loaded with jewelry to be transported by the baggage company to the railroad station. While the trunk and jewelry were on the sidewalk adjacent to' the hotel awaiting transportation, they were stolen. The complaint fixes their value at $41,376.-11. The plaintiff claims that the hotel company was the agent of the baggage company for the purpose of handling its claim checks, and of delivering to it baggage of guests for transportation to railroad stations, and that both defendants were negligent resulting in the loss of the plaintiff’s trunk and jewelry.
The hotel company insists that the issue of res judicata was properly raised by its motion and that the record facts show that the action had been finally adjudicated in the Civil Court of Fulton County, Georgia. With respect to a specific affirmative defense such as res judicata, the rule seems to foe that if the facts are admitted or are not controverted -or are conclusively established so that nothing further can be developed by a trial of the issue, the matter may be disposed of upon a motion to dismiss whether the decision of the District Court be considered as having been arrived at under the provisons of Rule 12(b) (6) or Rule 56(c), F.R.C.P., 28 U.S.C.A. 2 Moore’s Federal Practice (2nd Ed.) 1698, 2256, 2257; Chappell v. Goltsman, 5 Cir., 186 F.2d 215, 218.
In response to requests for admission under Rule 36, the plaintiff admitted that there had been a suit in the Civil Court of Fulton County, Georgia, by the same plaintiff against the same two defendants or their privies asserting the same cause of action as asserted in this case, that no appeal had been taken from the order of said State court in the prior case and that the time for appeal had expired. The plaintiff’s admission stated “that - it took no appeal for the reason that it affirmatively appears from said order that its suit in the Civil Court of Fulton County, was dismissed by plaintiff without prejudice before the entering of said order.” A copy of the order of the Civil Court of Fulton County is attached as Appendix A to this opinion. There is vigorously debated between the parties the question of state practice and procedure as to whether that suit was effectively dismissed by the plaintiff so as to deprive the Court of jurisdiction to enter its order, and many state cases are cited in support of the respective contentions of the parties.
We do not think that this Court has any authority to pass upon that question of state practice. The State court had the parties before it and invited them to remain while it determined the issues in the case which included the question of that Court’s jurisdiction or power to enter any order after the plaintiff’s attempt to dismiss the action. The plaintiff retired from the State courtroom at its own peril. Thereafter the court adjudged that it did have jurisdiction to enter the order, and that the plaintiff’s petition stood dismissed as of a date prior to its attempted voluntary non-suit. The merits or demerits of the decision of the Civil Court of Fulton County cannot be put in issue here. American Surety Company v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231; Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
In Georgia, “A ruling on a general demurrer to a petition is a judgment on the merits of the case.” Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701. The final judgment of the State court is conclusive in this court. Jarrard v. Southeastern Shipbuilding Corp., 5 Cir., 163 F.2d 960. The dismissal of the action against Dinkier Hotels Company, Inc. is affirmed; its dismissal against Atlanta Baggage & Cab Company is reversed; the costs of appeal are taxed against the appellant.
Affirmed in part and reversed in part.
Appendix “A” “Civil Court of Fulton County. “Larter & Sons, vs. No. 237470. “Ansley Hotel Operating Company.
“Order.
“On November 26, 1951, this 'Court entered an order sustaining the defendant Ansley Hotel Operating Company’s general demurrer to' count two of the plaintiff’s petition, without leave to the plaintiff to amend, and sustaining the defendant Ansley Hotel Operating Company’s general demurrer to count one of the petition with ten days leave to amend. The order recited that if the plaintiff failed to amend within the stated period, the plaintiff’s petition ‘shall stand dismissed’. The ten day period allowed was later extended for an additional five days.
“On December 11, 1951, which date was within the period allowed by the Court for amendment, the plaintiff tendered an amendment to his petition which was conditionally allowed and ordered filed by the Court.
“After plaintiff tendered this amendment, defendant Ansley Hotel Operating Company filed defensive pleadings by way of a written motion to dismiss the amendment, objections to, the allowance and filing of the amendment, and general demurrers thereto. Defendant took the position in its objections that the amendment failed to meet the requirements of the Courts order of November 26, 1951.
“The motion to dismiss, objections and demurrers, just referred to, were set down for'a hearing on February 1, 1952. The case was regularly sent out to this division of the Court. When the case was called for hearing in this division, plaintiff’s counsel stated that he then and there dismissed the action and wrote upon the original petition a statement of dismissal. Counsel was invited by the Court to remain during determination by the Court of the issues in the case,' but counsel retiréd from the Courtroom, contending that the action had been dismissed.
“The defendant Ansley Hotel Operating Company then made an oral motion to strike the purported dismissal by plaintiff and to expunge the writing of plaintiff’s counsel from the pleadings, and also to expunge any similar entries from the dockéts and other records of the Court. The Court then proceeded to hear argument upon the oral motion and upon the written defensive pleadings referred to above. After consideration, the Court concludes that the plaintiff’s amendment of December 11, 1951, failed to meet the requirements of the order of November 26, 1951, and, further, that the petition as amended failed to meet the original general demurrer of this defendant. Therefore, since plaintiff undertook to comply with the Court’s order of November 26, 1951, and failed to do so, the Court considers that the plaintiff’s petition stood dismissed as of December 11, 1951, the order of November 26, 1951 having provided for dismissal upon plaintiff’s failure to amend the petition with respect to the rulings in Section 3 of that order. The pleadings being in this state, there was nothing for the plaintiff to dismiss.
“It is, therefore, decreed, ordered and adjudged that the plaintiff’s petition stood dismissed as of December 11, 1951; all other and further proceedings by the plaintiff in said case were null and void; the defendant Ansley Hotel Operating Company’s formal motion to dismiss said attempted amendment of the plaintiff is sustained; the defendant Ansley Hotel Operating Company’s formal objection to the allowance and filing of the plaintiff’s amendment is sustained; the defendant Ansley Hotel Operating Company’s motion to expunge from the record all writings and entries on the pleadings, dockets and other records of this Court relative to the plaintiff’s attempted dismissal is sustained, and all such writings and entries on the pleadings, dockets and other records of this Court are hereby ordered expunged and physically stricken from the records of this Court.
“The cost of the proceedings are cast on the plaintiff.
“This 12th day of February, 1952.
Sam F. Lowe, Jr., Judge, Civil Court of Fulton County.”
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_usc2sect
|
1593
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 19. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
RICH et al. v. UNITED STATES.
No. 2729.
Circuit Court of Appeals, First Circuit.
Jan. 10, 1933.
Essex S. Abbott, of Boston, Mass. (Jacob H. Berman, of Portland, Me., and Joseph V. Carroll, of Boston, Mass., on the brief), for appellants.
William W. Gallagher, Asst. U. S. Atty., of Portland, Me. (Frederick R. Dyer, U. S. Atty., of Portland, Me., on the brief), for the United States.
Before BINGHAM, WILSON and MORTON, Circuit Judges.
MORTON, Circuit Judge.
The defendants were indicted for conspiring to possess intoxicating liquor in violation of the National Prohibition Act, tit. 2, § 3 (27 USCA § 12); for conspiring to transport intoxicating liquor unlawfully in violation of the same section; and for conspiring to violate the Tariff Act of 1930, § 593 (b) (19 USCA § 1593 (b), by fraudulently facilitating the transportation of intoxicating liquor knowing the same to have been unlawfully imported into the United States. The District Judge directed the government to elect between the two counts relating to possession and transportation under the National Prohibition Act; and the government elected to stand on the first count. The defendants were convicted on that count for a conspiracy for illegal possession, and on the third count relating to the Tariff Act for a conspiracy to facilitate the transportation of smuggled liquor.
The first point made for the defendants is that the presiding judge erred in permitting conviction on both these counts. The contention is that there was only one conspiracy, and that it could not be split np into different conspiracies according to the .statutes which were violated. The jury were instructed that the two counts charged different conspiracies. By their verdict they found that both conspiracies had been proved. The sentence was general, and was not in excess of what might have been imposed upon conviction under either count. It is well settled that under such circumstances, if the conviction can be supported under either count, the sentence will not be disturbed. Abrams v. United States, 250 U. S. 616, at page 619, 40 S. Ct. 17, 63 L. Ed. 1173; Yucas v. United States (C. C. A.) 283 F. 20. It is therefore unnecessary to decide whether the evidence warranted the finding that there were two different conspiracies.
The next assignment of error which calls for comment brings up the refusal of the presiding judge to direct a verdict of not guilty as to Rich. The other persons alleged to have been in the conspiracy with him were, according to the evidence, on board a motorboat which came near the shore in York river at night and there discharged a cargo of liquor. Rich was on the shore at the time, and was taken into custody. Statements then made by him to the officers, which we think were admissible against him, warranted the inference that he was interested in the shipment. The jury were carefully cautioned that he eould not be convicted unless he was party to a conspiracy which included the men on the boat. The jury found that he was party to such a conspiracy. It was for them to say.
Many exceptions were taken to rulings on evidence. Seventeen assignments of error were based upon them. The first of these exceptions which has been insisted on is to the admission of statements by Rich not made in the presence of the other defendants. The jury were explicitly instructed, however, “that the conversations with Rich should not be used at all in respect to anybody but Rich, because unless you find conspiracy against these four men from the evidence, that occurred independently from Rich, you would have to find there was no conspiracy at all.” So limited, the conversations were plainly admissible. The testimony of McKenna aid Morawski (the chemist) that the liquor was of -foreign origin was objected to as hearsay and as going beyond any knowledge which the witness had. As the question is not likely to be of general importance, it is not necessary to state the evidence in detail. We are of opinion that the material parts of it were properly admitted. The other assignments of error based on rulings as to evidence—which have not been waived—have been examined. They seem to us not well founded. We think the rulings of the presiding judge were correct.
The defendant further contended in effect that the overt acts, if proved, eould not be considered as proof of the conspiracy. The presiding judge ruled that the doing of the overt acts alleged, or some of them, must be proved; that the acts, if proved, might be considered on the question whether there was such a conspiracy as was charged. We think this was correct. An overt act is by definition something done in the course of the conspiracy. The allegation of it as an overt act does not take it out of its place in the chain of evidential facts.
As to reasonable doubt the jury were instructed : “From the facts established no other reasonable conclusion than the guilt of the defendant must be possible. That is, the facts found must be consistent with the guilt of the defendants and consistent with nothing else in order to convict them. The defendants cannot be convicted upon suspicion, surmise, or conjecture, nor upon what the jury consider probability of guilt of the offence charged, even though the probability be a strong one.” This is the rule under which the jury must have felt they were to act; and it is a sufficiently correct definition of the burden of proof which rested upon the government. The instructions on this point, taken as a whole, were as favorable to the defendants as those approved in Commonwealth v. Leach, 160 Mass. 542, 546, 36 N. E. 471.
The defendant’s criticism of the bill of exceptions which he was required to present is justified. It is unnecessarily long, and, does not conform to Rule 8 of the Supreme Court. It was, however, proper to compel the inclusion of the charge to the jury, which is often of great assistance by showing the lines on which the case was finally submitted to the jury.
The judgment of the District Court is affirmed.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 19? Answer with a number.
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
REESE v. LOUISVILLE TRUST CO.
No. 6138.
Circuit Court of Appeals, Sixth Circuit.
May 13, 1932.
■ R. Ruthenburg, of Louisville, Ky., for appellant.
H. H. Nettelroth, of Louisville, Ky. (Robert G. Gordon, Squire R. Ogden, and Gordon, Laurent & Ogden, all of Louisville, Ky., on the brief), for appellee.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
PER CURIAM.
The state eourt, having appointed a receiver for the Louisville Trust Company, terminated the receivership upon a plan of reorganization being carried into effeet. Appellant appeared in such proceeding and objected to the termination of the receivership. His objections were overruled and he appealed to the Court of Appeals of 'Kentucky, where the decree of the lower eourt was affirmed. Thereupon he instituted the present action in the District Court, suing in behalf of himself and all others similarly situated and claiming that the judgment of the Court of Appeals of Kentucky, affirming the decree of the circuit court of that state, deprived plaintiff of his property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. No other ground of jurisdiction appearing, plaintiff’s appeal wa$ dismissed upon appropriate motion.
We are not here concerned with the merits of plaintiff’s other contentions, viz., that he is entitled to restitution of certain trust funds alleged to have been illegally invested by the appellee and to the appointment of a receiver to effeet such restitution. No contention was made that the state courts did not have jurisdiction in originally appointing the receiver or in the conduct of such receivership, including its termination. The only contention is that in the exercise of such jurisdiction the state eourt erred in granting the relief sought by other parties to such action and in denying relief to appellant. Under such circumstances the District Court has no jurisdiction to entertain an action on appellant’s behalf in effect to set aside the judgments of the state courts whether such judgments involved the decision of constitutional questions or otherwise. Rooker et al. v. Fidelity Trust Co. et al., 263 U. S. 413, 44 S. Ct. 149, 68 L. Ed. 362.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_r_natpr
|
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 "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.
HOSPAH COAL COMPANY, a Delaware corporation, Santa Fe Industries, Inc., a Delaware corporation, The Atchison, Topeka & Santa Fe Railway Company, a Delaware corporation, and Santa Fe Mining, Inc., a Kansas corporation, Plaintiffs-Appellees, v. CHACO ENERGY COMPANY, a New Mexico corporation, and Texas Utilities Company, a Texas corporation, Defendants-Appellants.
No. 82-1149.
United States Court of Appeals, Tenth Circuit.
March 29, 1982.
Certiorari Denied June 1, 1982.
See 102 S.Ct. 2299.
John R. Cooney of Modrall Sperling Roehl Harris & Sisk, Albuquerque, N. M. (Gus Svolos, Chicago, Ill., and Allen C. Dewey, Peter J. Adang, and John S. Thai of Modrail Sperling Roehl Harris & Sisk, Albuquerque, N. M., with him on the brief), for plaintiffs-appellees.
Gordon B. Spivack of Lord, Day & Lord, New York City (M. D. Sampels, Richard L. Adams, and Max E. Freeman II of Worsham, Forsythe & Sampels, Dallas, Tex., John N. McBaine, Jonathan M. Jacobson, Jonathan E. Clune, and Elinor R. Hoffmann of Lord, Day & Lord, New York City, James C. Ritchie and Rex Throckmorton of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., and Walter A. Steele of White & Steele, P. C., Denver, Colo., with him on the briefs), for defendants-appellants.
Before BARRETT, DOYLE and McKAY, Circuit Judges.
BARRETT, Circuit Judge.
This is an appeal from a grant of a preliminary injunction by the United States District Court for the District of New Mexico. The pertinent facts follow:
On December 18, 1981 Chaco Energy Company (Chaco) and Texas Utilities Company (TUC), defendants-appellants herein, filed suit in the United States District Court for the Northern District of Texas naming as defendants, among others with whom we áre not now concerned, Santa Fe Industries, Inc. (SFI), the Atchison, Topeka and Santa Fe Railway Co. (SFR) and Santa Fe Mining, Inc. (SFM). The complaint in the Texas action alleged a conspiracy on the part of SFI, SFR, SFM and others amounting to a violation of the federal and New Mexico antitrust laws. The complaint further alleged common law fraud in the inducement and sought declaratory judgment, rescission of contracts, treble damages and injunctive relief.
Three days later, on December 21, 1981, SFI, SFR, SFM and Hospah Coal Company, a non-party defendant, co-conspirator in the Texas action, filed a declaratory judgment action in the United States District Court for the District of New Mexico, naming TUC and Chaco as defendants. The complaint in the New Mexico action requested a declaration that the plaintiffs had not violated the antitrust laws and it sought an injunction against TUC and Chaco to prohibit them from proceeding, with the Texas action. The basis for the requested preliminary injunction was a venue selection clause in a certain coal lease placing venue in New Mexico for all suits “arising out of or relating to” the coal lease. The coal lease was signed by Hospah Coal Company and Chaco. A surety agreement between TUC and Hos-pah purportedly adopted the venue selection clause of the coal lease. It should be noted that Hospah Coal Company, SFM and SFR are all subsidiaries of SFI. Chaco is a subsidiary of TUC.
Service of process was accomplished in the New Mexico action prior to service in the Texas action. In response to the filing of the New Mexico action, TUC and Chaco sought a temporary restraining order against SFM, SFR, SFI and Hospah in the Texas district court. The Texas court declined to issue the TRO.
Thereafter, on January 11,1982, the New Mexico district court issued a preliminary injunction enjoining TUC and Chaco from proceeding further in the Texas action. On January 14, 1982, Hospah, SFI, SFM and SFR filed a motion to stay or in the alternative to dismiss the Texas action in the Texas court. They did so in light of the New Mexico injunction. The Texas court issued an order requiring TUC and Chaco to respond to the motion to stay. TUC and Chaco then filed in the New Mexico court a motion to suspend the preliminary injunction in order to allow them an opportunity to respond to the stay motion in the Texas action. The New Mexico court denied the motion to suspend the injunction. Thereupon, TUC and Chaco filed this appeal, together with a motion to stay the New Mexico injunction pending appeal and a motion to expedite hearing of the appeal. We granted the motion to stay the injunction pending appeal and we expedited the hearing.
Prior to the denial of the motion to suspend the injunction in the New Mexico court, TUC and Chaco filed another suit in the same New Mexico court raising the same allegations as . those in the Texas action. TUC and Chaco also filed an answer and a counterclaim in the original New Mexico action. In all of their New Mexico filings, TUC and Chaco reserved their rights to object to venue.
The ultimate issue to be resolved is which court should exercise venue and hear the case. Thus, the issue before us is which court should make the determination on the ultimate issue of venue.
Both parties recognize the general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case. O’Hare International Bank v. Lambert, 459 F.2d 328 (10th Cir. 1972), and cases cited therein. The parties disagree, however, as to where jurisdiction first attached. TUC and Chaco contend that the Texas court obtained jurisdiction first because the complaint was filed in that court prior to the filing of the complaint in the New Mexico court. Hospah, SFI, SFR and SFM contend that because service of process was accomplished first in the New Mexico action, jurisdiction attached first in the New Mexico court.
This circuit has adopted the rule announced in Barber Greene Company v. Blaw-Knox Company, 239 F.2d 774, 778 (6th Cir. 1957) that, “in both in rem and in personam actions, jurisdiction relates back to the filing of the complaint.” Accord, Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42 (10th Cir. 1970). The rule that jurisdiction relates back to the filing of the complaint gives effect to Fed.Rules Civ.Proc. rule 3, 28 U.S.C.A., which provides that, “[a] civil action is commenced by filing a complaint with the court.” Accordingly we must hold that jurisdiction over the parties and issues herein attached first in the Texas district court.
In O’Hare International Bank v. Lambert, supra at 331, we recognized this exception to the first-to-file rule: “[t]he only justification for employment of injunctive power by a court in a case such as this is to prevent a misuse of litigation in the nature of vexatious and oppressive foreign suits.” The New Mexico district court ruled that the Texas action was vexatious, and the injunction was issued on that basis. Apparently, the New Mexico court perceived the Texas action as an attempt by TUC and Chaco to circumvent the venue selection clause in the coal lease.
The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum. The applicability of the venue selection clause is an issue of fact in and of itself. We do not consider it vexatious for a party to raise this issue in a forum other than the one designated in the venue selection clause.
Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A., requires a party to assert a defense of improper venue by way of motion or responsive pleading. If we were to permit a party to object to venue by filing suit for injunctive relief in a separate forum, we would, in essence, be rendering rule 12(b) a nullity. The fact that a venue selection clause is involved does not negate the requirements of rule 12(b). Were it otherwise, a party to such a contract would be invading the province of the courts to decide issues of venue. Such an interpretation of the effect of a venue selection clause generated the initial dislike of the courts for such clauses. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).
In a similar vein, § 1404(a), 28 U.S.C.A. establishes a procedure whereby a party may request a change of venue. If we were to allow a party who desires or asserts a right to litigate his suit in a court other than that where the challenged suit is first filed, we would render the procedures outlined in § 1404(a) little more than an exercise in futility.
Hospah, SFI, SFR and SFM chose to totally ignore the requirements of Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A. and failed to avail themselves to the procedures outlined in § 1404(a), 28 U.S.C.A. Instead they went directly to the New Mexico court and asked for an injunction.
The authorities relied upon by Hospah, SFI, SFR, and SFM to support their procedure, Columbia Plaza Corp. v. Security Nat. Bank, 525 F.2d 620 (D.C.Cir.1975), William Gluckin Co. v. International Platex Corp., 407 F.2d 177 (2d Cir. 1969), among others, in turn rely upon Kerotest Mfg. Co. v. C-0-Two Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952) for the proposition that the first-to-file rule is not entitled to “mechanical application”. We agree to the extent we find that Kerotest stands for the proposition that simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. However, in Kerotest the Court pays great deference to the district court’s ability to decide if it should accept venue. We believe that Kerotest is in line with our view that the court which first obtains jurisdiction should be allowed to first decide issues of venue.
The manufacturer who is charged with infringing a patent cannot stretch the Federal Declaratory Judgments Act to give him a paramount right, to choose the forum for trying out questions of infringement and validity. He is given an equal start in the race to the courthouse, not a headstart. " If he is forehanded, subsequent suits against him by the patentee can within the trial court’s discretion be enjoined pending determination of the declaratory judgment suit, and a judgment in his favor bars suits against his customers. If he is anticipated, the court’s discretion is broad enough to protect him from harassment of his customers. If the patentee’s suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute a declaratory action against the patentee elsewhere. And if the manufacturer is joined as an unwilling defendant in a forum non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judicial Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a).
342 U.S. at pp. 185, 186, 72 S.Ct. at p. 222 [Emphasis supplied]. [Footnotes omitted].
In summary, the declaratory judgment action cannot be used as a substitute for the rules of civil procedure in response to a pending lawsuit, Public Service Comm’n. v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), Product Engineering and Manufacturing, Inc. v. Barnes, supra nor can declaratory judgment be used as yet another weapon in a game of procedural warfare. Kerotest Mfg. Co. v. C-0-Two Co., supra.
The motion to dismiss this appeal as moot filed February 19,1982, by plaintiffs-appellees is denied. The motion to reinstate preliminary injunction pending appeal filed February 19, 1982, by plaintiffs-appellees is denied.
The cause is remanded to the district court with instruction to dismiss the preliminary injunction.
. Hospah, SFI, SFR and SFM also asserted that the Texas action should not be allowed to proceed because Hospah was an indispensable party to that action. Inasmuch as the New Mexico court did not specifically address that issue, but rather issued the injunction upon finding that the venue selection clause controlled, we do not deem it necessary to address that issue. In any event, the defense of failure to join an indispensable party is properly the subject of a rule 12(b) motion, FRCP, 28 U.S.C.A.
. While we are not here in a position to rule on the applicability of the venue selection clause, we are of the view that the case presents a genuine issue of fact in that regard. In light of the fact that the Texas complaint alleges a conspiracy commencing on or about 1974 and the lease containing the selection clause was not entered into until 1977 it is not clear to us that the venue selection clause controls. Furthermore, it is not readily apparent to us that the lease is binding on parties to this lawsuit who are not parties to the lease. These are factors for the district court to consider.
. Hospah, SFI, SFM and SFR intimated throughout that because the outcome of this litigation would affect Texas consumers, their rights may not be adequately protected in the Texas courts. The Court in Kerotest addressed a similar argument. There, the Court said, “Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.” 342 U.S. at p. 185, 72 S.Ct. at p. 222.
. Although these cases involve federal-state relationships, the underlying principles are equally applicable tp comity between the federal courts.
Question: What is the total number of respondents 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.
CENTER FOR AUTO SAFETY, et al., Appellants, v. Elizabeth H. DOLE, Secretary, Department of Transportation, et al.
No. 86-5436.
United States Court of Appeals, District of Columbia Circuit.
Argued April 7, 1987.
Decided May 24, 1988.
Howard A. Heffron, with whom Clarence M. Ditlow III, Mary H. Dunlap and Evan W. Johnson, Washington, D.C., were on the brief for appellants. Messrs. Heffron, Dit-low and Johnson were on the supplemental brief on rehearing.
David W. Allen, Asst. Chief Counsel, Nat. Highway Traffic Safety Admin., Richard K. Willard, Asst. Atty. Gen. at the time of filing, Douglas Letter, Appellate Litigation Counsel, Dept, of Justice, Erika Z. Jones, Chief Counsel, Enid Rubenstein and Eileen T. Leahy, Attys., Nat. Highway Traffic Safety Admin., Washington, D.C., were on the brief for appellees. James M. Spears, Acting Asst. Atty. Gen., Allen, Letter and Jeffrey Clair, Atty., U.S. Dept, of Justice, and Jones, Leahy “and Ruben-stein”, Washington, D.C., were on the petition for rehearing and the supplemental brief on rehearing.
Before WALD, Chief Judge, MIKVA and EDWARDS, Circuit Judges.
Circuit Judge Edwards was randomly selected as a member of this panel following Judge Bork’s resignation from the Court.
Opinion PER CURIAM.
Dissenting opinion filed by Chief Judge WALD.
PER CURIAM:
This case concerns the reviewability of the Secretary of Transportation’s decision (through the Administrator of the National Highway Traffic Safety Administration) (“NHTSA”) not to reopen an investigation into alleged safety defects in Ford automobiles built between 1966 and 1979. The relevant statute provides that “[a]ny interested person may file with the Secretary a petition requesting [her]” to commence an investigation. 15 U.S.C. § 1410a(a) (1982). The NHTSA regulations direct the agency to grant the petition if, after a “technical review,” it finds that “there is a reasonable possibility that the requested order will be issued at the conclusion of the appropriate proceeding.” 49 C.F.R. §§ 552.6 and 552.8 (1987).
The case was originally decided by a sharply divided panel. The court reversed the decision of the district court denying and limiting review of the NHTSA’s order, and held that appellants were entitled to plenary review of the administrative decision. The majority concluded that the court should scrutinize “not merely the statement of reasons given by the Administrator, but the evidence compiled in the ‘technical review’ on which the agency relies in making its decision.” Center for Auto Safety v. Dole, 828 F.2d 799, 801 (D.C. Cir.1987). Judge Bork, who subsequently resigned from this court, dissented. While explaining his view that Congress intended to entirely preclude review of denials of citizen petitions, he rested on his conclusion that the scope of review should be limited to an examination of the agency’s statement of reasons.
NHTSA petitioned for rehearing by the panel. The panel, with another member replacing Judge Bork, agreed to reconsider the decision. The parties submitted requested briefing on a discrete issue that was not a matter of dispute among the original panel members-whether the NHTSA regulation at issue permitted agency consideration of non-safety factors in deciding whether to grant a petition to investigate. We now hold that the agency’s applicable regulation-49 C.F.R. § 552.8-fails to provide the court with a judicially manageable standard that would enable us to review the agency’s decision.
I.
We have previously held that regulations promulgated by an administrative agency in carrying out its statutory mandate can provide standards for judicial review of agency action. Such self-imposed constraints may supply the “law to apply” under Heckler v. Chaney, 470 U.S. 821,105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), to overcome the presumption against reviewing administrative agency inaction, including nonenforcement decisions. See Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987); Robbins v. Reagan, 780 F.2d 37 D.C.Cir.1985). NHTSA has not persuaded us that these previous holdings should be reexamined. Just as Congress can provide the basis for judicial review of nonenforcement decisions by spelling out statutory factors to be measured by the courts, so an agency can provide such factors by regulation. When an agency chooses to so fetter its discretion, the presumption against reviewability recognized in Chaney must give way. The Supreme Court has never deviated from the position it set forth in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957):
“While it is of course true that under [the relevant statute] the Secretary was not obliged to impose upon himself these more rigorous substantive and procedural standards, neither was he prohibited from doing so, ... and having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.”
Id. at 388, ’ll S.Ct. at 1165. In Service the Court scrutinized a decision that violated a self-imposed regulatory limitation superimposed on a broad statutory grant of discretion. The Service decision makes plain that an intent to proscribe judicial review of agency adherence to its own legally binding standards should not be inferred from a statute conferring broad discretion. Rather, there must be a much more definitive expression of Congress’ intent to immunize an administrative decision otherwise amenable to review.
II.
We thus adhere to our previous views that the Motor Vehicle Safety Act* (“the Act”) does not operate to preclude judicial review in this case. See Center for Auto Safety v. Dole, 828 F.2d at 804-05. At the outset, we stress that there is nothing in the Act remotely resembling an express preclusion of review of decisions not to grant citizen petitions. Compelling legislative history or a law’s own structure may manifest a Congressional intent to deny review when the statute itself is silent < on the matter. See Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). But appellees have pointed to no “clear and convincing’’^ evidence, see Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986), that Congress meant to take this unusual step with this Act.
The foregoing analysis, however, does not carry the day for appellants’ request for this court’s review. Other considerations bear on whether, notwithstanding the presumption of reviewability of agency compliance with legally binding regulations, this court may review the NHTSA’s decision to deny the citizen petition in this case. The rebriefing has persuaded us that the regulation to which appellants refer us for “law to apply” does not limit the agency’s discretion in a way that enables us to conduct a meaningful review of the agency’s compliance. While safety is an indispensable element of the decision not to investigate, NHTSA can and does consider such “nonsafety” factors as its available resources, enforcement priorities, the likelihood of uncovering sufficient evidence to establish the existence of a defect, and the prospect of ultimately succeeding in any necessary enforcement litigation. The regulation sub judice provides the court no way to second-guess the weight or priority to be assigned these elements. In particular, it would be unwise, and inconsistent with the broad mandate of the agency under the governing statute, to infer a mandatory allocation of the agency’s limited resources from the regulation at issue. We must thus conclude that NHTSA’s decision governed by this regulation is not reviewable.
III.
We find no need to further address the difficulties this Court previously encountered in delimiting the depth and scope of our review of the agency’s refusal to investigate. The earlier opinions in this case labored long and hard to determine whether the court’s review was confined solely to the reasons expressed by the agency or whether the whole administrative record was to be considered. The perplexities of whether and how to apply the teachings of Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), which divided the original panel in this case, are not relevant to our decision not to review.
The petition for rehearing is granted. The earlier decision of this court is vacated. For the reasons stated above the order of the district court denying review is 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:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Son H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
No. 86-8476.
United States Court of Appeals, Eleventh Circuit.
Jan. 27, 1988.
Kathryn O’Shields Shapiro, Powell, Gold-stein, Frazer & Murphy, Kenneth A. Shapiro, Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for petitioner-appellant.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before FAY, JOHNSON and CLARK, Circuit Judges.
PER CURIAM:
Son H. Fleming was scheduled for execution on June 27, 1986. On June 25, 1986, the United States District Court for the Middle District of Georgia dismissed Fleming’s second federal habeas corpus petition on “abuse of the writ” grounds and thus refused to grant Fleming a stay of execution. Fleming v. Kemp, 637 F.Supp. 1547 (M.D.Ga.1986). On June 27,1986, this panel stayed Fleming’s execution because he presented at least one substantial ground properly before this Court upon which he might be entitled to relief. Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986). Without reaching the merits of Fleming’s petition, this panel stayed Fleming’s execution pending the Supreme Court’s decision in Griffith v. Kentucky, — U.S.-, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). We now reach the merits and affirm the district court.
I.
Fleming was convicted of murdering the police chief of a small South Georgia town and sentenced to death in 1977. On direct appeal, the Georgia Supreme Court reversed the death sentence because the trial judge erred in instructing the jury in the sentencing phase. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). In a second sentencing trial a jury again recommended the death penalty and the court sentenced Fleming accordingly.
After Fleming failed to win further relief on direct appeal, see Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979), and in state postconviction proceedings, he filed his first federal habeas corpus application with the United States District Court for the Middle District of Georgia. That court denied the writ, Fleming v. Zant, 560 F.Supp. 525 (M.D.Ga.1983), and on appeal a divided panel of this Court affirmed. Fleming v. Kemp, 748 F.2d 1435 (11th Cir.1984), reh’g en banc denied, 765 F.2d 1123 (11th Cir.1985). The Supreme Court denied certiorari, Fleming v. Kemp, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), and rehearing. Fleming v. Kemp, 475 U.S. 1132, 106 S.Ct. 1665, 90 L.Ed.2d 206 (1986).
The Superior Court of Butts County, Georgia, thereafter denied Fleming’s second state habeas application, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. Fleming then filed his second federal habeas petition, giving rise to the present case.
II.
A. Michigan v. Jackson Claim
Fleming argues that his Sixth and Fourteenth Amendment rights were violated when at his resentencing the prosecutor presented statements obtained in police interrogation after Fleming was formally charged and had requested the assistance of counsel. Fleming argues that Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), applies retroactively and thus provides “new law” precluding an abuse of the writ finding. On the merits, Fleming argues he has established a Jackson violation. The district court held that even if Jackson represented a change in law, Fleming had not shown a Jackson violation. 637 F.Supp. at 1553. We affirm the district court.
1. Abuse of the Writ?
Fleming raised this claim in his first federal habeas petition before the district court, but did not pursue the claim on appeal. In staying Fleming’s execution, this panel determined that these facts mean that this petition is a successive petition. Fleming, 794 F.2d at 1482-83. This panel also set forth the test for determining whether abuse of the writ is present and whether the “ends of justice” excuse that abuse:
If the ground was previously addressed in a federal habeas proceeding, the petitioner must demonstrate that the decision was not on the merits or the ends of justice would be served by reconsideration of the merits. The “ends of justice” are defined by objective factors, such as whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the applicable law.
Id. at 1481-82 (quoting Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985)).
No doubt exists that this ground was raised in a previous proceeding and that the decision was on the merits. Thus, abuse is excused only if the “ends of justice” so require. No doubt exists that as to this claim there was a full and fair hearing on the original petition and that no intervening change in the facts of the case has occurred.
Fleming argues, however, that the Supreme Court decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), presents an “intervening change in the applicable law,” thus excusing any abuse of the writ problems. This Court must determine (a) if Jackson did indeed “change the law” and (b) if so, whether Jackson applies retroactively to Fleming’s case.
a. Intervening Change in Law?
In Jackson, the Supreme Court held that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 106 S.Ct. at 1411. This holding represented a recognition that the decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which was based on the Fifth Amendment, applied with even “greater force” to Sixth Amendment claims. Jackson, 106 S.Ct. at 1411. Jackson thus provides a “bright-line” rule that differs from prior Sixth Amendment cases which focused on whether defendants validly waived their right to counsel. Id. at 1408. This suffices to constitute an intervening change in the law.
b. Jackson’s Retroactivity
Having established that Jackson represents an intervening change in the law, the question arises whether Jackson applies retroactively to Fleming’s case—a case of collateral attack. Supreme Court decisions concerning retroactivity exhibit a dichotomy depending upon whether the case is final (i.e., under collateral attack) or pending on direct review. Last Term, the Court provided a “bright-line” rule that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (emphasis added). Because Fleming’s case is final, Griffith provides no support.
The Supreme Court has continued to apply a three-prong test in determining whether new constitutional rules governing criminal prosecutions should apply retroactively for cases on collateral review: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards.
In Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), the Court applied the three-prong test and held that Edwards does not apply retroactively to cases on collateral review. Although Jackson is an extension of Edwards into the Sixth Amendment context, Stumes does not a fortiori require a holding of nonretroactivity for Jackson
i. Purpose Served by the New Standard
In Stumes, the Court recognized that it has consistently held retroactive new rules going to the “heart of the truthfinding function.” 465 U.S. at 645, 104 S.Ct. at 1343. The Stumes Court noted that although Edwards was not entirely unrelated to the accuracy of the final result, Edwards only set forth a prophylactic rule designed to implement preexisting rights, a type of rule usually not applied retroactively. Id. at 644-45, 104 S.Ct. at 1342. Jackson has similar purposes; it creates a prophylactic rule designed to implement preexisting rights. Consequently, under this prong, retroactivity appears disfavored.
ii. Prior Law Enforcement Reliance
In Stumes, the Court found Edwards not to have been “clearly” or “distinctly” foreshadowed, even though it was not a “clear break” with the past. The Court thus found the reliance interest of law enforcement officials compelling. Id. at 649-50, 104 S.Ct. at 1344-45. Similarly, Jackson did not represent a “clear break.” Jackson, however, was clearly foreshadowed by Edwards, especially because Edwards heavily relied on Sixth Amendment precedent. Thus the reliance interest is considerably less with Jackson and retroactivity seems favored.
iii. Administrative Effect
In Stumes, the Court asserted that “a disruptive effect on the administration of justice ... [w]e can only guess at” counseled against retroactivity. Id. at 650, 104 S.Ct. at 1345. Given that Jackson was foreshadowed and given that police officials are aware of how difficult it is to introduce statements once a defendant has asserted his right to counsel before a judicial officer, few cases likely will raise this issue. Cf. Jackson, 106 S.Ct. at 1413 (Rehnquist, J., dissenting) (“The Court does not even suggest that the police commonly deny defendants their Sixth Amendment right to counsel. Nor, I suspect, would such a claim likely be borne out by empirical evidence.”). Consequently, this limited “disruptive effect” supports holding Jackson retroactive.
Whether to apply Jackson retroactively inevitably involves a balancing process. In light of the “presumption of retroactivity,” Stumes, 465 U.S. at 642, 104 S.Ct. at 1341, this Court could hold that Jackson applies retroactively to all cases. Such a broad holding, however, is unnecessary. Rather, the conclusion here is tailored to the facts peculiar to Fleming’s petition. Fleming made four statements to police officials: (1) a February 12, 1976 oral statement to Detective Register and Sheriff Gaskins; (2) a February 15 tape-recorded statement to Agent Greeson; (3) a February 16 tape-recorded statement to Detective Register and Sheriff Gaskins; and (4) a subsequent February 16 oral, unrecorded statement to Sheriff Alderman. Only the second and third statements are at issue. Fleming gave the February 12 statement before he had allegedly asserted his right to counsel at an adverse judicial proceeding. Fleming, rather than the police, initiated the interrogation leading to the fourth statement. See Tucker v. Kemp, 818 F.2d 749, 751 (11th Cir.), cert. denied, — U.S.-, 107 S.Ct. 2209, 95 L.Ed.2d 863 (1987).
The State elicited testimony about the second and third statements only at Fleming’s new sentencing trial on December 5-6, 1977, and not at the guilt phase in January 1977. Consequently, Fleming’s petition presents the narrow question of whether Jackson should apply retroactively where the statements subject to a Jackson challenge were before the jury at the sentencing phase only.
iv. Purpose Served by the New Standard
Jackson establishes a prophylactic rule designed to protect a defendant’s right to counsel. When a defendant invokes his right to counsel, this invocation is tantamount to his admission “that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.” State v. Jackson, 421 Mich. 39, 63-64, 365 N.W.2d 56, 67 (1984), quoted with approval in Jackson, 106 S.Ct. at 1410 n. 7.
Jackson thus sets forth a “bright-line” rule when statements must be suppressed. As Stumes noted, the Court does not favor retroactivity for prophylactic rules. The facts peculiar to Fleming’s petition, however, support holding Jackson retroactive. The Supreme Court favors retroactivity for decisions going to the “truth-seeking” function of the jury. In capital cases, determining whether a defendant receives a life sentence or a death sentence is akin to the jury’s truth-seeking role during the guilt phase.
The Supreme Court has drawn a distinction between capital and noncapital cases in sentencing determinations. In Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), the Court held that a black defendant accused of committing a capital crime against a white victim is constitutionally entitled to have veniremen examined as to racial bias. In so holding, the Court refused to extend Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), to capital cases. Ristaino held that an examination of veniremen regarding racial bias is not constitutionally required when such questioning is requested by a defendant accused of a noncapital interracial violent crime.
In Turner, the Court remanded for a new sentencing determination. A four-Justice plurality stressed the unique role played by the jury at the sentencing phase in a capital case, and stressed the qualitative difference between death and other forms of punishment. Similar policies are implicated by Fleming’s case. Consequently, this “purpose” factor counsels that Jackson should apply retroactively to sentencing determinations in capital cases.
Such a conclusion would comport with holdings giving retroactive effect to cases affecting the evidence available to juries when they make death sentence determinations. For example, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), applies retroactively. See Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (en banc), cert. denied, — U.S.-, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). See also Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987) (applying Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) retroactively), cert. filed (July 20, 1987).
v. Prior Law Enforcement Reliance
The facts of Fleming’s petition do not favor retroactivity on this point. The statement at issue here was taken in February 1976. At that point, the Supreme Court had clearly articulated that “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972) (plurality opinion) (citing nine Supreme Court precedents). The Court defined a “formal charge, preliminary hearing, indictment, information, or arraignment” as forms of “adversary judicial proceedings.” Id. at 689, 92 S.Ct. at 1882. Likewise, at the time of Fleming’s arrest in 1976, it was also clear that statements taken in violation of a person’s Sixth Amendment rights could not be used against that person at trial. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
But at the time of Fleming’s resentenc-ing in December 1977, the Supreme Court had recently indicated that even if the Sixth Amendment right to counsel had attached, a person could waive it. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (“[I]t was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938))). Indeed, the Williams Court observed, “The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.” 430 U.S. at 405-06, 97 S.Ct. at 1243 (footnote omitted) (emphasis in original). Thus, the Williams Court declined the chance to fashion the prophylactic rule ultimately adopted in Jackson.
vi. Administrative Effect
As noted when examining Jackson’s re-troactivity to all cases, the “disruptive effect” was small. Limiting Jackson’s re-troactivity to the sentencing phase of capital cases lessens this effect even more. In addition, the Stumes Court worried “[t]hat investigation, and the possible retrial, would be hampered by problems of lost evidence, faulty memory, and missing witnesses.” 465 U.S. at 650, 104 S.Ct. at 1345. Such concern is lessened here because Fleming’s petition seeks only a new sentencing determination. Consequently, re-troactivity is favored.
In conclusion, whether to apply Jackson retroactively to the facts in Fleming’s petition involves a balancing process. The qualitative difference between death and other forms of punishment, the unique role played by juries in death sentence determinations, the importance of protecting the Sixth Amendment right to counsel, and the limited disruptive effect on the administration of justice caused by retroactivity favor holding Jackson retroactive. Reliance by law enforcement officials suggests otherwise. The reliance effect, however, should not play that large a role because the Sixth Amendment aims mainly to protect an individual’s right to counsel; it does not, unlike the Fourth Amendment, aim mainly to deter police misconduct. Consequently, Jackson applies retroactively to the facts of Fleming’s petition. Jackson thus provides an intervening change in law and applies retroactively to excuse Fleming’s abuse of the writ.
2. The Merits of the Jackson Claim
Fleming was arrested in the early morning hours of February 12, 1976. That day, he appeared before a Justice of the Peace, who, according to the prosecutor, advised Fleming of the three charges (robbery, kidnapping, and murder) that had been lodged against him, of his right to counsel, of his right to a committal hearing, and of other rights to which he was entitled. The Justice of the Peace set no bond. Fleming advised the Justice of the Peace that he would get his own attorney rather than have the state appoint one for him. On February 15 and 16, the police initiated interrogation and obtained the statements at issue here.
As noted above, the Supreme Court held in Jackson that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 106 S.Ct. at 1411. In the present case, Kemp argues that: (1) Fleming did not assert his right to counsel, and (2) even if Fleming did assert his right to counsel, he did not assert it at an “arraignment or similar proceeding.”
a. Asserting the Right
In Jackson, the defendants at their arraignment had asked for counsel to be appointed for them. Kemp argues that because Fleming only said he was going to get his own attorney, Fleming did not “assert” his right to counsel.
This argument is without merit. In Jackson, the Court noted that courts should “give a broad, rather than a narrow, interpretation to a defendant’s request for counsel—[courts should] presume that the defendant requests the lawyer’s services at every critical stage of the prosecution.” 106 S.Ct. at 1409. Fleming’s invocation certainly fits within this broad interpretation, especially because invoking the right to counsel indicates that the defendant recognizes that he cannot deal with his adversaries singlehandedly.
b. Type of Proceeding
Kemp argues that nothing in the record indicates that Fleming made any appearance before a judicial officer on February 12 except for the statement of the investigating detective who attended the proceeding. He then argues that even if a proceeding occurred, it was not a formal arraignment and thus falls outside of Jackson 's holding.
These arguments are also without merit. First, the detective's testimony clearly establishes that Fleming appeared before a judicial officer on February 12. (Indeed, the detective even termed the proceeding an arraignment.) Second, although Kemp is correct that formal arraignment had not occurred, Jackson's holding is not so limited. The Jackson Court focused on a time “after a formal accusation has been made —and a person who had previously been just a ‘suspect’ has become an ‘accused’ within the meaning of the Sixth Amendment.” 106 S.Ct. at 1409. Fleming’s hearing fits within Kirby’s definition of an, adverse judicial proceeding — Fleming certainly had been formally charged by the time he asserted his right to counsel before a judicial officer. Consequently, a Jackson violation occurred under the facts of Fleming’s petition.
3. Harmless Error
Although a Michigan v. Jackson violation occurred, we examine whether admitting evidence attributable to that violation was harmless error. In the guilt/innocence context, the harmless error standard is whether, absent the unconstitutional conduct, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). This standard applies to the sentencing context as well: Absent the testimony concerning the statements obtained in violation of Jackson, is it clear beyond a reasonable doubt that the jury would have returned a sentence of death? Although we hesitate to hold that the jury would have determined a death sentence absent the two statements at issue, our review of the record nonetheless leads us to that conclusion. Accordingly, we affirm the district court as to Fleming’s Michigan v. Jackson claim.
We note from the outset that the statements at issue were introduced only at the penalty phase and were not introduced during the guilt phase. In addition, we note that at the resentencing on December 5-6, 1977, Fleming had already been convicted for the murder of James Edward Giddens, the police chief of Ray City, and that the sentencing jury started from the guilt phase jury’s conclusion. At the end of the resentencing, the jury unanimously made the following determination:
JURY FOREMAN: We find the following aggravating circumstances, Number one, the offense of murder was committed against Police Chief James Edward Giddens, a peace officer while he was engaged in the performance of his duties. We also found Number two, the offense of murder was committed while the Defendant was engaged in the commission of another capital felony, to-wit: the kidnapping in Berrien County, Georgia and bodily injury to James Edward Giddens a human being. We recommend that the Defendant be punished by death this 6th day of December, 1977....
(Respondent’s Exhibit Number One, Volume III: 493-94).
We have undertaken a careful review of Fleming’s resentencing transcript and conclude that even if the statements at issue were excluded, the jury still would have found the two aggravating circumstances quoted above. First, the statements at issue had no bearing on the aggravating circumstance of whether Giddens was murdered while he was a peace officer engaging in the performance of his duties, and even if the statements at issue had bearing on the second aggravating circumstance, testimony by Ira Bass was most damaging on this point (as well as on Fleming’s conviction for murder). Because Bass was unavailable to testify at the re-sentencing (although his probation required that he inform the State of his whereabouts), the State read Bass’s testimony from the guilt phase into evidence at the resentencing. Bass testified on direct examination as follows:
A Yeah, he [Son Fleming] said that he was driving — that he was the only one that had a — any license.
Q He told you that? He told you that he was the only one that had any license?
A Yes, sir and he said that they ain’t nobody knew that he was in the car. Said nobody couldn’t identify him. And he said they left there and headed out towards Ray City and the police stopped him over there. He got out to talk to the policeman. There were houses around there and he said he got out to talk to the policeman and the policeman laid the license on the car to do something or other. I don’t know what he was going to do. But anyway one of the others had jumped him and the policeman tried to get his gun out and they all got — they all three got on to him then. They were all three fighting for the gun — or you know, trying to take the gun away from him. And they finally got it away and got him in the car. They started to leave there and Son had forgot his license and he went back after his license. He drove on out. He said he wasn’t sure just where he was going but they rode around some of these roads out there and come down this country lane or country road. And said they stopped and got out of the car and they had a little scuffle there. And he took the gun from Larry — the .38 and said when the police officer started to run he shot him. Said then by then the officer was in the water.
(Vol. II: 284). We are left with the impression that Bass’s testimony, rather than Fleming’s statements at issue here, was critical to the jury’s determination.
Second, as set forth in the appendix, the substance of the challenged February 15 statement as testified to by Agent Greeson is identical to the substance of the unchallenged February 12 statement as testified to by Detective Register and Sheriff Gas-kins. As also set forth in the appendix, the substance of the challenged February 16 statement as testified to on direct and cross examination by Detective Register and Sheriff Gaskins is identical to the substance of the unchallenged February 16 statement as testified to by Sheriff Aider-man. Consequently, our review of the record convinces us that the use of Fleming’s statements during his resentencing constituted harmless error.
B. No Assistance of Counsel
Fleming contends that his Sixth and Fourteenth Amendment rights were violated because he lacked assistance of counsel at his committal hearing. We affirm the district court because this claim fails as an abuse of the writ and because the prior panel of this Court did not commit “plain error” in rejecting this claim.
No doubt exists that this ground was raised in Fleming’s first petition and that the decision was on the merits. Thus, abuse is excused only if the “ends of justice” so require. No doubt exists that there was a full and fair hearing on the original petition and that no intervening change in the applicable law has occurred.
Fleming argues, however, that an affidavit from the probate judge presiding over Fleming’s hearing is “new evidence” (i.e., “an intervening change in the facts of the case”). This claim is without merit. No intervening change occurred; the evidence was available at the time of the first petition and Fleming should have presented it then. See Adams v. Wainwright, 804 F.2d 1526, 1534 n. 10 (11th Cir.1986) (new reports are not evidence justifying reconsideration of claim because, inter alia, they are drawn from information available at time of first petition), cert. filed (July 20, 1987); Young v. Kemp, 758 F.2d 514, 519 (11th Cir.1985) (adopting district court conclusion that “new” evidence concerned facts available before first petition filed); Henry v. Wainwright, 743 F.2d 761, 762 (11th Cir.1984) (abuse of writ where facts underlying claim were known or reasonably should have been known to defendant and his counsel years ago); Smith v. Kemp, 715 F.2d 1459, 1469 (11th Cir.) (abuse of writ precludes consideration of merits when claim is based on additional conclusions drawn from same records available to petitioner when same claim was made to and adjudicated by previous courts), cert. denied, 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983).
An exception does exist if a petitioner proffers a justifiable reason for delay in presenting the evidence. See, e.g., Henry, 743 F.2d at 762. Fleming claims that the affidavit was not provided to the district court because no issue existed as to whether Fleming had assistance until the district court determined that he had. Even if this is true, Fleming never sought to supplement the record on appeal or present the affidavit to the district court in a motion for reconsideration.
Fleming also contends that this panel can reexamine the prior decision because it was in “plain error.” See Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982). The issue received full consideration before the prior panel, especially because Judge Tuttle’s dissent highlighted the opposing view. See Fleming, 748 F.2d at 1442-45. Rehearing en banc at the suggestion of a member of this Court was denied. 765 F.2d 1123 (11th Cir.1985). Finally, the Supreme Court, with Justice Marshall arguing that Fleming lacked assistance of counsel, denied certiorari. 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986). The Supreme Court then denied Fleming’s petition for rehearing. 475 U.S. 1132, 106 S.Ct. 1665, 90 L.Ed.2d 206 (1986). In light of the extensive consideration that this issue has already received without a change in result from the original panel opinion, we cannot say the first panel committed “plain error.”
Accordingly, AFFIRMED.
APPENDIX
MR. BILLY REGISTER, called as a witness in behalf of the State, after first being duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. BAR-NICK:
Q State your name, please.
A Billy E. Register.
Q Mr. Register, what is your employment?
A Detective Captain with the Valdosta Police Department.
Q All right, now what was your — you indicated that you interviewed the suspects. What were the circumstances of that interview and where was it held?
A The interview was held in the Sheriffs Office in the Berrien County Courthouse. It was the morning of the 12th, the morning following the incident.
Q All right now, do you recall who was present during the interview?
A Sheriff Gaskins was present. There were several other people in and out of the office during the interview, sir.
Q He was the only participant in the interview — is that what you’re saying?
A That’s correct, sir.
Q All right, would you please tell us the substance of that interview with Son Fleming?
A The interview that happened that morning, sir — the story that Mr. Fleming told me was that he was in Valdosta when this incident occurred, at the home of King West, or with a gentleman named King West who lives in Valdosta.
Q What else did he indicate about knowledge of the events of the night of February 11th?
A At that particular morning, sir referring to the morning of February 12, he had no knowledge of what happened — that he indicated to me.
Q All right. Did you have any other occasion to interview Son Fleming?
A Yes, I did, sir.
Q And, what was the date?
A I don’t recall the date, sir, it was on the following Monday after the 12th. I believe it was the 16th, I’m not sure.
Q Somewhere around the 16th, of February?
A Yes, sir.
Q All right, now where was that interview held?
A Again, at the courthouse in Berrien County, sir.
Q And, who was present during that interview?
A Sheriff Gaskins and myself and Deputy Swanson, sir.
Q All right now, to the interview itself, what did Son Fleming tell you?
A I reduced the general gist to a typed statement. Would you like me to read that?
Q Well, yes, I think it will be alright for you to read it.
A The statement says that on Wednesday, February 11, 1976, around 8:30 p.m., “I Son Fleming along with my nephew Larry and another boy whom I don’t know left Moultrie in a car I had borrowed from a boy named Terry. We drove to Valdosta and then to Adele. We stopped in Adele and Larry and this other put me out of the car at a car lot on the main street and they drove off. A few minutes later they came back and picked me up and we left Adele. And they asked me where
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL UNION 34, AFL-CIO, Appellee, v. GENERAL PIPE COVERING, INC., Western Insulation Services, Inc., Thermal Insulation Supply Corp., Donna M. Dingley and Sheldon L. Dingley, Appellants.
No. 85-5319.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 14, 1986.
Decided May 15, 1986.
J. Dennis O’Brien, Minneapolis, Minn., for appellants.
Stephen D. Gordon, Minneapolis, Minn., for appellee.
Before HEANEY 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.
HEANEY, Circuit Judge.
General Pipe Covering, Inc. (General Pipe), appeals from a district court order, 613 F.Supp. 858 (1985), granting appellee’s motion to confirm an arbitration award.
General Pipe, a commercial insulation business owned by Donna and Sheldon Dingley, was a member of the Thermal Insulation Contractors’ Association (TICA) and, as such, was bound by a collective bargaining agreement (Trade Agreement or Agreement) between TICA and the International Association of Heat and Frost Insulators and Asbestos Workers Local No. 34 (Local 34). The Trade Agreement covered the rates of pay, rules, and working conditions of the insulation workers, and established a grievance and arbitration procedure. It created a six-person “Trade Board,” consisting of three employer and three union members, which had the power to investigate the labor operations of the parties, hear trade disputes, and impose fines or penalties for violations of the Agreement.
On February 12, 1985, Local 34 filed a grievance with the Trade Board alleging that General Pipe had violated the Trade Agreement by diverting union work to Western Insulation Services, Inc. (Western Insulation), a nonunion shop also owned by the Dingleys. Although General Pipe had notice that the Trade Board planned to consider the matter at its March 15, 1985, meeting, it did not send a representative and, instead, wrote a letter stating that “[a]s of February 28, 1985, General Pipe Covering, Inc. will be ceasing operation. All union personnel will be laid off.” Appellants’ Appendix at 82. The Trade Board found that General Pipe had violated the Trade Agreement, causing a loss to Local 34 members of wages and benefits worth approximately $75,000. It ordered General Pipe to pay that amount to the American Lung Association on behalf of Local 34, pursuant to the Trade Agreement. General Pipe did not comply with the order. Accordingly, on April 11, 1985, Local 34 filed suit in district court against General Pipe, Western Insulation, Thermal Insulation Supply Corporation,1 and the Dingleys, seeking to enforce the arbitration award. It also filed a motion for a temporary injunction and a writ of attachment. General Pipe filed motions to stay proceedings, compel additional arbitration, and vacate the arbitration award. The district court denied General Pipe’s motions. It granted Local 34’s motions to confirm the arbitration award, denied its motions for injunctive relief and for a writ of attachment, and awarded it attorneys’ fees. This appeal followed.
1. JURISDICTION.
General Pipe argues that the district court did not have jurisdiction to confirm the Trade Board’s award pursuant to 9 U.S.C. § 9, because the Trade Agreement did not provide that “a judgment of the court shall be entered upon the award made pursuant to the arbitration.” We need not reach this issue, as Local 34 also claimed jurisdiction under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, which also authorizes federal courts to enforce arbitration awards. See General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519, 83 S.Ct. 789, 791, 9 L.Ed.2d 918 (1963) (award of Joint Area Cartage Committee); Rallen v. District 1199, National Union of Hospital and Health Care Employees, 574 F.2d 723, 725 (2d Cir.1978) (jurisdiction independent of 9 U.S.C. § 9).
General Pipe also argues that the district court lacked jurisdiction because there was no final and binding award by a neutral arbitrator. Federal courts have approved the use of trade boards to resolve disputes under collective bargaining agreements. See e.g., Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); General Drivers, 372 U.S. at 519, 83 S.Ct. at 791; NLRB v. Wolff & Munier, Inc., 747 F.2d 156 (3d Cir.1984); Early v. Eastern Transfer, 699 F.2d 552 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); Teamsters Freight Employees Local Union No. 480 v. Bowling Green Express, 707 F.2d 254 (6th Cir.1983); Chicago Cartage Co. v. International Brotherhood of Teamsters, 659 F.2d 825 (7th Cir.1981); Barrentine v. Arkansas-Best Freight System, 615 F.2d 1194 (8th Cir.1980), rev’d on other grounds, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). As this Court stated in Barrentine, however,
[a] forceable argument can be made * * * that the kind of arbitration in question is subject to grave abuses, including, notably, collusive secret agreements between employers and unions as a result of which the interests of individual * * * grievants may be sacrificed to arrangements that management and union labor may consider to be in their own broader interests.
Barrentine, 615 F.2d at 1201.
Courts have not hesitated to set aside awards of joint employer/union committees where they have found that the committee members had interests adverse to those of the grievants. See Morales v. Vega, 579 F.2d 677 (1st Cir.1978) (courts should consider allegations that members of committee conspired to deprive grievant of first-amendment rights); Kirkland v. Arkansas-Best Freight System, 475 F.Supp. 180 (E.D.Ark.1979) (award set aside where union members of committee did not fairly represent all employees and where process violated fundamental rules of fairness), affd in part, rev’d in part on other grounds, 629 F.2d 538 (8th Cir.1980) (reversed only as to damages), cert. denied, 450 U.S. 980,101 S.Ct. 1514, 67 L.Ed.2d 814 (1981); Allsbrook v. Consolidated Freightways, 100 L.R.R.M. (BNA) 2153 (E.D.Pa. 1978) (use of arbitration procedure not required where adverse interests). General Pipe has failed to show, however, that the proceedings were fundamentally unfair. Accordingly, if the award of the Trade Board “is under the collective bargaining agreement final and binding, the District Court has jurisdiction under § 301 to enforce it.” See General Drivers, 372 U.S. at 519, 83 S.Ct. at 791.
General Pipe contends that the award was not final and binding because, under the Trade Agreement, General Pipe was entitled to a subsequent proceeding before a neutral arbitrator. Article IV, section 2 of the Agreement states: “Any controversy which cannot be settled informally by the Trade Board parties shall be referred to a neutral arbitrator chosen by mutual agreement of the parties.” Appellants’ Appendix at 70. A question thus arises as to the meaning of “Trade Board parties.” If, as General Pipe argues, it refers to the parties to the Trade Agreement, General Pipe’s refusal to participate in the Trade Board proceeding and to abide by the Trade Board’s decision could arguably entitle it to a further proceeding before a neutral arbitrator. If, on the other hand, “Trade Board parties” refers to the members of the Trade Board itself, General Pipe would have been entitled to a neutral arbitrator only if the Trade Board had not been able to reach a decision by a majority vote.
We agree with the Trade Board and the district court that the latter is the correct interpretation. The Trade Board’s treatment of its award as final is persuasive. “Because the authority of arbitrators is a subject of collective bargaining, just as is any other contractual provision, the scope of the arbitrator’s authority is itself a question of contract interpretation that the parties have delegated to the arbitrator.” W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). Additionally, any other interpretation would be illogical. As the district court points out, if either party could ignore the decisions of the Trade Board, the Trade Board would be a “toothless organism.” Order at 5. More importantly, the Trade Agreement expressly provides for “cases where the parties to [the] Agreement fail to agree;” in those cases “the matter in dispute shall be referred to the Joint Trade Board.” Appellants’ Appendix at 69. We therefore conclude that the Trade Board’s award was final and binding and that the district court had jurisdiction to confirm it under section 301.
II. STANDARD OF REVIEW.
Since we find that the district court had jurisdiction to confirm the arbitration award, we must consider whether it applied the correct standard of review. Federal labor policy encourages arbitration as one major method of achieving industrial peace. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).
Under well-established standards for the review of labor arbitration awards, a federal court may not overrule an arbitrator’s decision simply because the court believes its own interpretation of the contract would be the better one. When the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbitral decision does not “dra[w] its essence from the collective bargaining agreement,” a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. This remains so even when the basis for the arbitrator’s decision may be ambiguous.
W.R. Grace, 461 U.S. at 764, 103 S.Ct. at 2182 (citations omitted).
This Court’s review, therefore, is limited to determining whether the Trade Agreement gave the Trade Board authority to make its award. Zeviar v. Local No. 2747, Airline, Aerospace and Allied Employees, IBT, 733 F.2d 556, 559 (8th Cir.1984); see 9 U.S.C. § 10(d). We “must broadly construe the agreement and resolve all doubts in favor of the [Trade] Board’s authority.” Zeviar, 733 F.2d at 559.
General Pipe argues that this Court should vacate the Trade Board’s award because the Trade Agreement did not authorize the award of punitive damages. This argument is clearly without merit even though, as General Pipe points out, the award was punitive in nature. Although punitive arbitration awards are generally disfavored, see, e.g., Westinghouse Electric Corp. v. I.B.E.W. Local 1805, 561 F.2d 521, 523 (4th Cir.1977), cert. denied, 434 U.S. 1036, 98 S.Ct. 771, 54 L.Ed.2d 783 (1978), courts enforce them where they are authorized by the collective bargaining agreement, see, e.g., United Electrical, Radio & Machine Workers v. Litton Microwave Cooking Products, 728 F.2d 970 (8th Cir.1984); Bonner v. Prichard, 661 F.2d 1206 (11th Cir.1981). In this case, the Agreement expressly stated that where either party violated any of its provisions, “[t]he Trade Board [would] have the power to impose fines or other penalties.” Appellants’ Appendix at 70. The Agreement further authorized the Trade Board to collect any fines or penalties and donate them to charity. Id. As the district court found, therefore, the Trade Board had the authority to assess a fine against General Pipe.
Although the Trade Board had the general authority to assess a fine, our inquiry must go one step further, as there may be merit to General Pipe’s argument that the Trade Board exceeded its authority in fining General Pipe $75,000. The Supreme Court has stated that “an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). General Pipe argues that since the fine imposed was substantially greater than the Trade Board’s usual award of $5,000 per infraction, the fine did not draw its essence from the Trade Agreement. It contends that United Steelworkers v. War rior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), requires the Trade Board’s previous practice of limiting its awards to $5,000 to be incorporated into the Agreement. We do not agree with this application of the rule in Warrior. Although the Warrior Court did state that “the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it,” id. at 581-82, 80 S.Ct. at 1352-53, the Court formulated this rule to extend the reach of the arbitrator, not to limit it. This was in keeping with the Court’s central premise that “[d]oubts should be resolved in favor of coverage.” See id. at 583, 80 S.Ct. at 1353. Additionally, the record does not clearly demonstrate either that the $5,000 limit had been an established practice, or that the $75,000 award violated any $5,000 per infraction limit that may have been established.
Because the district court decided only that the Agreement authorized punitive awards, and did not consider whether the size of the award took the award outside of the Trade Board’s authorization, we must reverse the district court to the extent that it confirmed the award, and remand for a consideration of the award’s size. On remand, there are a number of points that the district court should consider. The Supreme Court has stated:
The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. * * * ******
* * * A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award.
Enterprise Corp., 363 U.S. at 596-98, 80 S.Ct. at 1360-61.
On the other hand, an arbitrator “cannot assume existence of facts central to the award if there is no support therefor in the record.” See Manhattan Coffee Co. v. International Brotherhood of Teamsters, Local No. 688, 743 F.2d 621, 623 (8th Cir.), cert. denied, — U.S.-, 105 S.Ct. 2323, 85 L.Ed.2d 842 (1985). Finally,
[although an arbitrator is not required to make formalized findings or to offer reasons for his decisions, when he does so, a court may properly consider them. A court may also consider other evidence extrinsic to the award that will assist it in determining whether the award draws its essence from the collective bargaining agreement.
United Electrical, 704 F.2d at 397 (citations omitted).
The district court may, therefore, allow both parties to present evidence, including, but not limited to, evidence regarding the Trade Board’s previous awards and General Pipe’s violations of the Trade Agreement.
III. ATTORNEY’S FEES.
General Pipe argues that the district court should not have awarded to Local 34 the attorneys’ fees it incurred in bringing its motion to confirm the arbitration award. It contends that, under the circumstances, its challenge of the Trade Board’s award was justified.
Attorneys’ fees are ordinarily not recoverable by the prevailing party in federal litigation unless authorized by statute or justified by circumstances in which the losing party has acted in bad faith. Attorneys’ fees are not authorized by statute in suits to enforce arbitration awards.
Lackawanna Leather Co. v. United Tool & Commercial Workers International Union, 706 F.2d 228, 232 (8th Cir.1983) (en banc) (citations omitted).
Although “[a]n unjustified refusal to abide by an arbitrator’s award may constitute bad faith for the purpose of awarding attorneys’ fees,” International Union, United Automobile, Aerospace & Agricultural Implement Workers v. United Farm Tools, Inc., Speedy Mfg. Division, 762 F.2d 76, 77 (8th Cir.1985), General Pipe's challenge of the award was justified, as shown by the necessity for a remand. We must, therefore, reverse the district court’s award of attorneys’ fees.
Accordingly, we affirm the district court to the extent that it accepted jurisdiction over this matter and found that the Trade Board had authority to impose a fine against General Pipe. We reverse and remand to the extent that the district court confirmed the arbitration award, with directions to consider whether the amount of the award took it beyond the Trade Board’s authority, and reverse the award of attorneys’ fees.
. The Trade Agreement, Article VI, states:
Section 1. No subcontracting by Employer. No contracting by Employees. The Employers agree that they will not sublet or contract out any work described in Article XI and the Union agrees not to contract, subcontract or estimate on work nor allow its membership to do so nor to act in any trade capacity other than that of workman. It is also agreed that no member of a firm or officer of a corporation or their representative or agents shall execute any part of the work of application of materials and in no case shall any member of the Union estimate on or give any labor figures.
Section 2. In order to protect and preserve, for the employees covered by this agreement, all work heretofore performed by them as specified under Article XI of this Agreement, it is agreed: that if and/or when an Employer shall perform work covered by this Agreement, under its own name, or is involved in any type of business enterprise performing such work, this Agreement shall be applicable to all such work performed.
Appellants’ Appendix at 66.
. On February 27, 1985, Western Insulation was merged into Thermal Insulation Supply Corporation, another firm incorporated by the Dingleys. Appellants’ Supplemental Appendix at 45, 50.
. 9 U.S.C. § 9 provides, in pertinent part:
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.
. Because the district court had jurisdiction under 29 U.S.C. § 185, we also need not consider General Pipe’s argument that applications to confirm under 9 U.S.C. § 9 must be made and heard as a motion to the court.
. We note, however, that a more likely consequence of General Pipe’s total refusal to participate in the proceedings would have been its abandonment of any rights it may have had to a neutral arbitrator.
. While we do not agree that the $5,000 limit became a binding part of the Agreement through the Trade Board’s past practice, it is one factor which may be considered in determining whether the fine imposed was within the essence of the Agreement.
. Notwithstanding the fact that General Pipe, through its refusal to participate in the arbitration proceeding, may be responsible for the scanty record of which it now complains, we believe that justice will best be served by allowing it an opportunity to present its evidence on these matters.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_casetyp2_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.
There are two main issues in this case. The first issue is labor relations - collective bargaining. Your task is to determine the second issue in the case. 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".
John P. O’CONNELL, R. A. Gallo and Charles Doyle, etc., et al., Plaintiffs-Appellees, Wayne W. Delaney, Dorrence E. Neu, Glen L. Thompson and John A. Bish, etc., et al., Intervenors-Plaintiffs-Appellees, v. ERIE LACKAWANNA RAILROAD COMPANY, a corporation, Defendant, and Brotherhood of Railroad Trainmen, an Unincorporated Association et al., Defendants-Appellants.
No. 244, Docket 31809.
United States Court of Appeals Second Circuit.
Argued Jan. 3, 1968.
Decided March 5, 1968.
Lee Leibik, Chicago, 111. (Ruth Wey- and, Chicago, 111., on the brief), for plaintiffs-appellees and intervenorsplaintiffs-appellees.
Arnold B. Elkind, New York City, for defendants-appellants.
Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.
LUMBARD, Chief Judge:
Defendants appeal from a judgment which found strict union shop clauses in a railroad collective bargaining agreement void and enjoined the appellants from requiring membership in the appellant union as a condition of continued employment. Appellees successfully argued on motion for preliminary injunction before Judge Herlands, 268 F.Supp. 397 (S.D.N.Y.1967), and on motion for summary judgment and a permanent injunction before Judge Palmieri, that the union shop clause appellants negotiated with the railroad violates the clear language of Section 2, Eleventh of the Railway Labor Act, 45 U.S.C. 152, Eleventh, and that the union and railroad could not lawfully condition employment upon membership in appellant union even though the union is the sole bargaining agent for all of the railroad’s employees. Jurisdiction is based upon 28 U.S.C. § 1337 and the Declaratory Judgment Act, 28 U.S.C. § 2201.
Appellants concede that if the words of Section 2, Eleventh of the Railway Labor Act are given their natural meaning, the agreement is invalid. However, they ask the court to avoid “the melancholy irrationalism of interpreting subsection (c) literally.” We agree with Judge Herlands that there is no compelling indication of legislative intent contrary to the clear words of the statute, nor are the results of construing the words as they were written so absurd as to require the strained construction for which appellants contend. We affirm.
The suit was brought by the Switch-men’s Union- of North America, AFL-CIO, and three yard service employees of the Erie Lackawanna Railroad Company on behalf of the more than 500 members of the Switchmen’s Union employed by the Erie Lackawanna against defendant-appellant Brotherhood of Railway Trainmen and Erie Lackawanna.
Prior to the merger of the Delaware, Lackawanna & Western R.R. Co. and the Erie Railroad in 1960, plaintiff Switch-men’s Union had been the recognized bargaining representative of the yard foremen, helpers and switch-tenders employed by the Lackawanna Railroad. Appellant Brotherhood represented these same crafts and classes on the Erie Railroad.
Following enactment of the Union Shop Amendment to the Railway Labor Act in January 1951, both unions entered union shop contracts with the railroads with which they had collective bargaining agreements. They incorporated into the contracts the language of Section 2, Eleventh of the Railway Labor Act as amended, 45 U.S.C. 152, Eleventh (1964), and construed the union shop provisions so that membership in either Switchmen’s Union or Order of Railway Conductors satisfied the membership requirement of the Brotherhood’s contract and membership in the Brotherhood satisfied the membership and requirement of the Switchmen’s contract.
When the two railroads merged in 1960, the National Mediation Board conducted an election among all the yard service employees of the merged railroads. The Brotherhood won from the Switchmen’s Union by 43 votes out of a total of 1943 votes cast. In a representation election in November 1967 the Brotherhood received 941 votes to the Switchmen’s Union’s 695. From 1960 until March 1967, appellant Union and defendant railroad construed and applied the union shop provisions of the contract so that membership in either the Switch-men’s Union or Order of Railway Conductors satisfied the membership requirement.
On March 14, 1967 the Erie Lackawanna and appellant entered a collective bargaining agreement which provided:
“It is agreed, as a condition of continued employment, that within sixty calendar days following the beginning of such employment, all conductors, ticket collectors, baggagemen, and trainmen of the Erie Lackawanna Railroad Company, former DL&W District, yard service employees engaged in yard service in the New York Terminal Yards * * * represented by the Brotherhood of Railroad Trainmen (Eastern District) shall become and remain members of the said Brotherhood: Provided, that this agreement shall not require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership has been denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership in the Brotherhood of Railroad Trainmen.”
On April 4,1967 the same parties entered a similar contract with respect to employees of the Erie District requiring them to become and remain members of appellant union as a condition of continued employment.
In granting a preliminary injunction against enforcement of this union shop provision, Judge Herlands found that the union shop agreements entered in 1967 violated the Railway Labor Act because they failed to permit employees to satisfy the membership requirements of the contract through membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board. 268 F.Supp. 397 (SDNY 1967). After the preliminary injunction was granted, the Order of Railway Conductors and Brakemen and four of its members suing on behalf of the more than 225 members of the Order employed by the Erie Lackawanna were granted leave to intervene. On July 25, 1967, Judge Palmieri granted plaintiffs’ motion for summary judgment and subsequently issued a permanent injunction. He denied defendants’ cross-motion for summary judgment and entered judgment for plaintiff on appellant’s counterclaim.
We believe that the legislative history of the section shows that it was meant to permit membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board to satisfy the union shop requirement of a contract pursuant to section 2, Eleventh of the Railway Labor Act.
The Seventh Circuit recently has reached the same conclusion, Birkholz v. Dirks, 391 F.2d 289 (7th Cir. Feb. 12, 1968).
In 1934 the railway unions agreed to amendments to the Railway Labor Act which prohibited all union shop agreements in order to reduce the strength of company unions. S.Rep.No. 2262, 81st Cong., 2d Sess., pp. 2-3 (1950); U. S. Code Congressional Service 1950, p. 4319; Hearings on H.R. 7789 before Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., pp. 3-4, 7-8, 16-17 (1950). See Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 489, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957). By 1950 with the virtual elimination of company unions, the situation had changed so that twenty-one railway labor organizations, acting through the Railway Labor Executives Association, sponsored a bill to permit railway unions to enter union shop agreements similar to those authorized under the National Labor Relations Act, 29 U.S.C. §§ 157, 158.
The bill which was originally introduced, S. 3295, 81st Cong., 2d Sess., H.R. 7789, 81st Cong., 2d Sess. (1950), contained only one limitation: that the contracting labor organization must not deny any employee membership or expel him because of membership in any other labor organization. George M. Harrison, spokesman for the Association, testified that the reason for the provision was to permit an employee to retain membership in the union representing the craft or class in which he was mainly employed after temporary promotion or demotion to a different craft or class. He said:
“Unlike most collective-bargaining representatives in outside industry, there are those in the railroad industry which recognize and protect the rights of employees who, because of the nature of their work, move back and forth across craft or class lines, and consequently move from the rules and working conditions of one collective-bargaining agreement to another. Good examples are those employees in the firemen’s craft or class and those in the engineers’ craft or class. The ordinary line of promotion for a fireman is to the position of engineer, and in a reduction of forces the engineer returns to a fireman’s position. These two crafts or classes usually are represented by different organizations. Conceivably, either the firemen’s or engineers’ organizations, or any other organization concerned with the movement of employees back and forth from one craft or class to another, could deny membership to employees who are members of another labor organization, and under a union-shop agreement endeavor to compel a carrier to discharge an employee whom the union would not accept because of his membership in another union.
“[I]t was deemed advisable to make this restriction absolutely clear so that employment could not be denied because a union refused to accept an employee into membership because he belonged to another union. That is the purpose of the phrase on lines 14 and 15 of page 2.”
Hearings on S. 3295 Before a Subcomm. of the Comm. on Labor and Public Welfare, 81st Cong., 2d Sess., 18-19. See also Hearings on H.R. 7789 before the Comm. on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 13.
However, this wording still created a problem for the railroad operating unions and they opposed the bill because it would have permitted a union to demand that employees working in the craft or class which the union represented belong to the union which was their bargaining representative as well as to the union to which they already belonged. As Mr. Justice Harlan said in Penn. RR v. Rychlik, 352 U.S. 480, 490, 77 S.Ct. 421, 426, 1 L.Ed.2d 480 (1957):
“[T]he hearings on the bill revealed a problem, peculiar to the railroad industry, in establishing the union shop. Labor in this industry is organized largely on craft rather than industrial lines. Engineers, firemen, trainmen, switchmen, brakemen, and conductors, for example, each are separately organized for the purposes of bargaining. And normally different unions represent different crafts; thus, on the same railroad, firemen might be represented by the Brotherhood of Firemen and Enginemen, and engineers by the Brotherhood of Locomotive Engineers. Yet seasonal and other factors produce a high degree of job mobility for individual employees in the industry, that is, of shuttling back and forth between crafts. For example, a fireman may be temporarily promoted to engineer for a short time, or a conductor might have to serve temporarily as brakeman. Under the ordinary union-shop contract, such a change from craft to craft, even though .temporary, would mean that the employee would either have to belong to two unions — one representing each of the crafts — or would have to shuttle between unions as he shuttles between jobs. The former alternative would, of course, be expensive and sometimes impossible, while the latter would be complicated and might mean loss of seniority and union benefits.”
Defendant Trainmen’s Union proposed an amendment to the bill to provide for inter-craft mobility without dual-unionism:
“provided that when two or more crafts or classes are closely related as respects the work performed by each and employment rights in more than one of them are held by the same employee, or promotions from one of such crafts or classes to another are had, the requirement for membership shall be satisfied by membership in the organization of the employee’s choice, which is the duly designated or recognized craft or class representative of any one of them.”
Hearings on S. 3295 at 68-69; Hearings on H.R. 7789 at 32-33. Rejection of appellant’s proposal and later adoption of the different language contained in Section 2, Eleventh (c) is a strong indication that Congress did not intend the result which appellant urges upon us.
While the bill was reported to both the Senate and the House without any provision for inter-craft mobility, S.Rep. No. 2262, 81st Cong., 2d Sess. (1951), H.R.Rep. No. 2811, 81st Cong., 2d Sess. (1951), members of the committees which had considered the bills met with representatives of the Railway Labor Executives’ Association and the American Federation of Labor and agreed that when the bills were presented on the floor the committees would also offer an amendment stating,
“Provided further, that no such agreement shall require membership in more than one labor organization;” 96 Cong.Rec. 15735 (Senate 1950); 96 Cong.Rec. 17052 (House 1951).
In presenting this amendment to the Senate, Senator Hill stated,
“An employee could belong to as many different unions as he wished to belong to. But he cannot be required to belong to one. If he belongs to one, he meets the provisions of the statute, and he cannot be required to pay dues to or to belong to more than one union.”
96 Cong.Rec. 15736. Four of the operating unions, including the Brotherhood of Railway Trainmen and the Order of Railway Conductors, opposed the bill as amended. The Switchmen’s Union supported the bill as amended. Consideration of the bill was postponed while the unions opposing the bill were given an opportunity to agree upon an amendment. 96 Cong.Rec. 16189 (1950). Three of the four unions agreed to support the bill if amended to included the language now contained in Section 2, Eleventh (c). 96 Cong.Rec. 16261, 16330 (1950). Only the Brotherhood of Locomotive Engineers opposed adoption of the bill. Their opposition was based upon a belief that the bill would “guarantee that the young man who has served his apprenticeship as a locomotive fireman shall never be required to become a member of the Brotherhood of Locomotive Engineers.” 96 Cong.Rec. 17052 (1951).
On December 7, 1950 Senators Taft and Hill offered the amendment drafted by the Brotherhood of Locomotive Firemen and Enginemen, the Order of Railway Conductors and Brotherhood of Railroad Trainmen and it was adopted by the Senate the same day. 96 Cong.Rec. 16268 (1950). Senator Holland noted that the debate over the amendment had given notice to the Senate that the amendment made membership in any union among the operating brotherhoods sufficient. 96 Cong.Rec. 16322 (1950). The Senate passed S. 3295, as amended, on December 11, 96 Cong.Rec. 16378 (1950). On January 1, 1951 the House agreed to consider S. 3295 in place of H.R. 7789, a similar bill. The debate in the House makes it clear that the Representatives understood the bill to make membership in any of the unions sufficient. Representative Scott, a member of the Interstate and Foreign Commerce Committee, said, “[The bill] provides that in transportation groups such as engineers, firemen, and so forth, membership in any organization, national in scope, which accepts such employees as members shall fulfill requirements of union membership.” Representative Harris, who served as spokesman for the House Committee, explained the history of the Senate amendment and stated that it “leaves to the individual employee in the operating service the choice of operating union to which he will belong, and this specifically resolves any doubt concerning a possible requirement of dual membership.” 96 Cong.Rec. 17059 (1951). And Congressman O’Hara endorsed the statement of the Brotherhood of Locomotive Engineeers that the amendment would mean that an Engineer would never have to join the Engineer’s Union. 96 Cong.Rec. 17052 (1951).
Neverthless appellants argue that the Supreme Court has limited the application of the proviso to situations where both unions are bargaining agents for crafts or classes of employees on the same railroad. We do not consider the language in Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957) which appellant relies upon to be dispositive. The Court held that “Section 2, Eleventh (c) allows alternative union membership only in those unions which have already qualified under Section 3, First of the Act, as electors of the union representatives on the National Railroad Adjustment Board, and not membership in any union which happens to be, as a matter of fact, national in scope and organized in accordance with the Railway Labor Act.” 352 U.S. at 485, 77 S.Ct. at 424. The issue of the scope of Eleventh (c) as applied to unions qualified under Section 3, First, of the Act was not before the Court. It only decided that membership in a union which was not so qualified did not satisfy the union shop provisions of the Act.
However, appellant points to other language at page 489, at page 426 of 77 S.Ct. of the opinion:
“[T]he sole aim of the provision was to protect employees from the requirement of dual unionism in an industry with high job mobility, and thus to confer on qualified craft unions the right to assure members employment security, even if a member should be working temporarily in a craft for which another union is the bargaining representative,”
and to a statement at pages 492 and 493 at page 427 and 428 of 77 S.Ct. that,
“The only purpose of Section 2, Eleventh (c) was a very narrow one: to prevent compulsory dual unionism when an employee temporarily changes crafts. The aim of the Section, which was drafted by the established unions themselves, quite evidently was not to benefit rising new unions by permitting them to recruit members among employees who are represented by another labor organization. Nor was it intended to provide employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of intercraft mobility.”
While the Court described the section as having only one purpose, prevention of compulsory dual unionism and provision for intercraft mobility, there are two aspects to the operation of the proviso reflecting the two situations in which intercraft mobility might lead to the dual unionism problem.
First, when an employee changes crafts his new craft may be represented by a different union. Under the statute the employee clearly does not have to change unions. The second situation in which the problem arises, which was not discussed in Rychlik, is when so many employees change crafts without changing unions that the bargaining agent for the craft no longer has majority membership in the craft. For example, when there are many layoffs so many engineers may be performing firemen’s jobs that there are more engineers than firemen in firemen's positions. The result might be that the Brotherhood of Locomotive Engineers will get the contracts for both firemen and engineers and the Brotherhood of Locomotive Firemen and Enginemen will no longer have a contract with the railroad. In this situation the firemen may still want to be members of the Locomotive Firemen’s Brotherhood which is their traditional craft union. The second aspect of the operation of Eleventh (c) is to permit these firemen, now a minority, to satisfy the union shop requirement by membership in their craft union, even though it is no longer their bargaining agent.
The annual reports of the National Mediation Board to Congress from 1934 to 1950 show that during this period there were 544 instances on 64 different railroads in which, through demotions or promotions due to changed employment conditions or through union recruiting, a minority union in a craft achieved a majority and as a result took over the contract traditionally held by another union. It was with this history in mind that the operating unions drafted the amendment to the bill which became § 2, Eleventh (c). Obviously the amendment which the unions drafted was intended to make it clear that an employee would be able to satisfy union shop requirements by retaining membership in an operating union whether or not it was the collective bargaining agent for the craft or class in which he was working and whether or not it was the bargaining agent for any craft or class.
In any event, the Supreme Court noted in its opinion in the Rychlik case, that in deciding the case it did not reach the questions which had been decided by this Court. 352 U.S. at 485, 77 S.Ct. 421. Our opinion, remanding to the district court for a finding on whether the union which Rychlik joined was “national in scope” within the meaning of the Act, was predicated upon holding that membership in any such union would satisfy the requirement of § 152, Eleventh (c). 229 F.2d 171, 174 (2d Cir. 1956). We see no reason to hold otherwise. No argument has been advanced which compels overruling of our decision in Rychlik, as limited by the Supreme Court’s holding to unions qualified under Section 3, First of the Act.
We are not persuaded by the contrary holding of the Third Circuit in Rohrer v. Conemaugh & Black Lick Railroad Company, 359 F.2d 127 (1966), which the Seventh Circuit also has declined to follow, Birkholz v. Dirks, 391 F.2d 289 (7th Cir., Feb. 12, 1968).
Further, the Supreme Court’s decision in Felter v. Southern Pacific Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959) implies that an employee can satisfy the union shop requirement by membership in any of the recognized railroad unions for the First Division, since the Court assumed that Felter had validly changed his union membership although it was clear that he left the union which was his collective bargaining agent and it was not clear that his new union represented any of the railroad’s employees.
It is true, as appellant contends, that as in the National Labor Relations Act, the purpose of the union shop is to prevent employees from being “free riders.” See International Association of Machinists v. Street, 367 U.S. 740, 760-764, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1951). But we cannot say that the scheme adopted by Congress, which permits membership in any of the unions which jointly share the duty of administering the machinery of the National Railway Labor Act, is inconsistent with that purpose. It is quite conceivable that Congress intended to implement its scheme through a system of reciprocal gains and losses among the various operating unions. While the Brotherhood of Railroad Trainmen does not collect dues from some of the employees of the Erie Lackawanna whom it represents, concededly it collects dues from employees of other railroads who are represented by other operating unions. See 367 U.S. at 764 n. 15, 81 S.Ct. 1784.
We are unable to find any justification for appellant’s contention that it is entitled to a strict union shop despite the language of the Act because it is the sole collective bargaining agent for all employees on the railroad.
Appellant’s cause of action for libel, pleaded in its answer as a counterclaim, was dismissed below because it “could become an issue only if the contract complained of were held to be valid as a matter of law.” We disagree. The alleged libels described the union shop agreement as a “Slave Labor Agreement” and described membership in appellant as “Dictatorship with no voice in the affairs of their Union.” No matter what the status of the union shop agreement, reference to a competing union as a “dictatorship” could constitute a libel. However, this cause of action does not arise out of the same transaction or occurrence as appellees’ claim. As a permissible counterclaim it must be supported by independent jurisdictional grounds. 6 Moore, Federal Practice par. 13.19 [1]. See Lesnik v. Public Industrials Corporation, 144 F.2d 968, 975-976 (2d Cir. 1944). We find appellant’s counterclaim lacking in this respect and affirm its dismissal for lack of jurisdiction over the subject matter.
The judgment is affirmed.
. Section 2
“Eleventh. Notwithstanding any other provisions of this Act, or of any other statute of law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this Act and a labor organization or labor organization duly designated and authorized to represent employees in accordance with the requirements of this act shall be permitted—
“(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class; * * *
“(c) The requirement of membership in a labor organization in an agreement made pursuant to sub-paragraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard or liostling service, that is, an employee engaged in any of the services or capacities covered in the First Division of Subsection (h) of Section 153 of this chapter, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter, and admitting to membership employees of a craft or class in any of said services; * * * Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.”
Question: What is the second general issue in the case, other than labor relations - collective bargaining?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_district
|
B
|
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".
Minkin CHANDLER, Plaintiff-Appellant, v. BARCLAYS BANK PLC, International Steel Marketing, Gamille Beshay, Kamil Beshay, Defendants, Banque Du Caire Barclays International, S.A.E. Cairo, Defendant-Appellee.
No. 89-1155.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1990.
Decided March 22, 1990.
Rehearing and Rehearing En Banc Denied May 4, 1990.
John C. Kaplansky (argued), Southfield, Mich., for Minkin Chandler.
Donald S. Young, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant Barclays Bank PLC.
Kenneth J. McIntyre, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for Banque Du Caire Barclays Intern., S.A.E. Cairo.
Before KENNEDY and BOGGS, Circuit Judges, and HULL, Chief District Judge.
The Honorable Thomas G. Hull, Chief Judge, United States District Court for the Eastern District of Tennessee.
KENNEDY, Circuit Judge.
Appellant Minkin Chandler filed this action on January 19, 1988, against Barclays Bank PLC (Barclays), an English banking corporation with offices in New York; International Steel Marketing (International Steel), an Egyptian corporation; Gamille and Kamil Beshay, Egyptian citizens and principals of International Steel; and appel-lee Banque du Caire Barclays International S.A.E. Cairo (Banque du Caire), an Egyptian banking corporation. Appellant alleged (1) that payment under a letter of credit issued by Banque du Caire was wrongfully denied, and (2) that defendants Barclays, International Steel, the Beshays, and Banque du Caire conspired to deny payment on the letter of credit in order to allow International Steel to extort a reduction in the price it had agreed to pay for the steel.
Banque du Caire moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(2), arguing that the court lacked personal jurisdiction over it. The District Court agreed, and dismissed Banque du Caire from the action. The court also rejected appellant’s contention that a “national contacts” analysis should be applied in determining whether jurisdiction over Banque du Caire was proper in Michigan. Finally, the court determined that there was no agency relationship between Banque du Caire and the other parties, thereby rejecting appellant’s argument that Banque du Caire subjected itself to the court’s jurisdiction through the actions of its agent(s). Minkin Chandler appeals these three determinations. The other defendants have been dismissed. We AFFIRM the decision of the District Court.
Appellant Minkin Chandler is a Detroit steel supplier. In October of 1986, International Steel entered into a contract to purchase steel from appellant. Payment for the steel was to be made by a letter of credit. To guarantee that a letter of credit would be obtained, International Steel was initially to obtain a letter of guarantee in the amount of $100,000 upon which Minkin Chandler could demand payment from a confirming bank in New York (Barclays) in the event that International Steel did not obtain the promised letter of credit. Following the execution of the contract, International Steel approached Banque du Caire in Cairo, Egypt, and applied for a letter of guarantee. Banque du Caire then established a letter of guarantee in favor of Minkin Chandler in Cairo. Barclays in New York confirmed the letter of guarantee.
After the issuance of the letter of guarantee, International Steel again approached Banque du Caire in Cairo and requested that the bank establish a letter of credit on its behalf in favor of Minkin Chandler. Banque du Caire subsequently issued the letter of credit to International Steel, in the amount of about $1,680,000.00. The letter of credit provided, among other things, that Minkin Chandler could present documents to Barclays in New York, which would act as a confirming bank. In late July of 1987, a representative of Minkin Chandler traveled to New York and presented documents to Barclays, seeking payment under the letter of credit from Barclays. At this time, Banque du Caire was closed due to an Egyptian holiday.
Appellant claims that on August 3, 1987, Barclays denied payment, informing appellant that Barclays had been advised not to make payment under the letter of credit by a “very, very urgent” telefax of Monday, August 3, 1987 from International Steel to Barclays noting two “major discrepancies” in Minkin Chandler’s documents. The tele-fax requested Barclays to withhold payment until after it “check[ed] with our Bank [Banque du Caire].” Minkin Chandler could not reach Banque du Caire, however, during the week of August 3 because of the Egyptian holiday.
On August 4, 1987, Barclays telefaxed to Minkin Chandler a ten-point list of discrepancies, and outlined its reasons for declining payment. When Banque du Caire resumed business following the holiday, it too discovered discrepancies in Minkin Chandler’s documents and advised Bar-clays on August 10, 1987 not to make payment to appellant.
Appellant first argues that there were sufficient contacts between Banque du Caire and the state of Michigan for the court to assert jurisdiction pursuant to the Michigan long-arm statute. Appellant asserts that the letter of credit, in addition to naming a Michigan resident as beneficiary, was sent to and relied upon in Michigan and caused numerous transactions to occur in Michigan.
The Michigan long-arm statute provides, in part:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.
Mich.Comp.Laws Ann. § 600.715 (West 1981).
This limited personal jurisdiction provision extends the state’s jurisdiction to the limits permitted by due process requirements. LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298, (6th Cir.1989) (“Generally speaking, ... ‘[t]he Michigan statute confers on the state courts the maximum scope of personal jurisdiction permitted by the due process clause of the Fourteenth Amendment’.”) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981)); Sifers v. Horen, 385 Mich. 195, 198-200, 188 N.W.2d 623 (1971). Due process mandates that jurisdiction be exercised only if Ban-que du Caire had sufficient “minimum contact” with the state of Michigan, so that summoning the bank to Michigan would not offend “ ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).
This Court has adopted a three-part test for determining whether personal jurisdiction can properly be exercised over an out-of-state defendant:
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 379 (6th Cir.1978) (quoting Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968)). The plaintiff below has the burden of establishing jurisdiction under this test. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981).
We disagree with appellant’s argument that Banque du Caire purposefully availed itself of the privilege of acting or causing a consequence to occur in Michigan. Several courts have held that the mere issuance of a letter of credit naming a resident of a particular state as beneficiary does not subject the issuing bank to the jurisdiction of that state. For example, the court in Occidental Fire & Casualty Co. v. Continental Illinois Nat’l Bank, 689 F.Supp. 564, 568 (E.D.N.C.1988) stated that “courts which have analyzed the issuance of letters of credit for jurisdictional purposes have come to a uniform conclusion. This conclusion is that jurisdiction cannot be properly based on the issuance of a letter of credit.”
This opinion cited a Third Circuit case reaching the same conclusion. The Third Circuit stated:
We do not think that by issuing a letter of credit for a Rhode Island customer, calling for its performance in Rhode Island, the bank can be said to have subjected itself to the adjudicatory authority of Pennsylvania with respect to its obligations under the letter of credit solely because the beneficiary was a Pennsylvania corporate resident. We agree with the District Court that subjecting the bank to the jurisdiction of a Pennsylvania forum would offend traditional notions of fair play and substantial justice.
Empire Abrasive Equip., Inc. v. H.H. Watson, Inc., 567 F.2d 554, 558 (3d Cir.1977).
The Ninth and Tenth Circuits have reached similar conclusions. In H. Ray Baker, Inc. v. Associated Banking Corp., 592 F.2d 550 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), the Ninth Circuit decided a case similar to the one before us. In Baker, Associated Banking Corp. (ABC) issued an irrevocable letter of credit in favor of Baker, an Ohio corporation doing business in California. The proceeds of the letter were assigned to Interquip Corp., another Ohio corporation doing business in California. Interquip negotiated with Dura-Tire and Rubber Industries, a Philippine corporation, for the sale of equipment to Dura-Tire in the Philippines. All of these negotiations were conducted in San Francisco. Dura-Tire caused ABC to issue the irrevocable letter of credit for payment of the equipment. All negotiations between Dura-Tire and ABC were conducted in the Philippines. The letter of credit originally called for a single shipment and payment in five installments, to be advised through Manufacturers Hanover Trust Company of New York. The letter was amended to permit partial shipments. The goods were shipped and the first installment was paid by Manufacturers Hanover. Baker then assigned the proceeds of the letter of credit to Interquip and notified ABC of the assignment. In-terquip presented the letter of credit for payment at a California bank. The letter was dishonored, purportedly because the equipment did not conform to contract terms.
ABC maintained correspondent banking relationships with six California banks. ABC had non-interest-bearing accounts with those banks for the purpose of processing letters of credit and facilitating the transfer of funds between California and the Philippines. ABC’s maintenance of its accounts in these six banks was its sole contact with California.
The California long-arm statute, like the Michigan statute applicable in the case before this Court, has been interpreted to extend to the outer limits of due process. The Ninth Circuit found that ABC had purposefully invoked the protection of California law in order to reap the benefit of the very type of transaction sued upon, for ABC’s assets in California represented one aspect of correspondent banking relationships undertaken by ABC for the express purpose of providing letter of credit services to the bank’s Philippine clients in their business dealings with American entities. The court further found that the sales contract underlying the letter of credit and on which the dishonor apparently was based was thoroughly connected to California. The court nonetheless found:
The existence of correspondent relationships with the six California banks did not put these banks on any special footing with regard to this letter of credit. While Baker could have negotiated the letter of credit through any bank of its choice, any negotiating bank would have forwarded the draft to the paying bank in New York for reimbursement. ... ABC’s selection of a New York correspondent as the advising and paying bank confined the place of payment to New York, where the draft was later dishonored....
[W]e think on this record that plaintiffs have failed to show that ABC could reasonably have expected the issuance or negotiation of this letter to have effects in California that would make it fair to require it to defend this suit [in California].
Id. at 553.
The facts in the case before us are nearly identical to those in Baker. In fact, fewer contacts exist in the present case, for the letter of credit was neither presented nor dishonored in the state where appellant is arguing jurisdiction exists, as was the case in Baker. Furthermore, Banque du Caire does not possess assets in Michigan similar to those possessed by ABC in California.
In Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir.1982), the Tenth Circuit decided a similar case. Leney was the designated beneficiary in a letter of credit issued by an Illinois Bank. Illinois resident Sheldon Moss, the Bank’s customer and the designated account party, procured the letter of credit from the Illinois bank at its Illinois location. The Bank mailed the letter to California resident Leney’s attorney in Colorado. According to the letter’s terms, Le-ney would receive payment upon presenting to the Illinois bank the letter of credit accompanied by documents showing Leney had sold to a designated Colorado corporation his interests in certain real and personal property. Leney submitted the letter of credit to his bank in California, which transmitted a sight draft signed by Leney to the Illinois bank for payment. The Illinois bank refused to pay on the sight draft, stating that it would not honor the letter of credit because of the California bank’s improper endorsement and the absence of necessary documents required by the letter of credit.
The court found that asserting jurisdiction in the federal district court in Colorado over the Illinois bank violated due process. The court noted that “[ojther than mailing the letter of credit to a Colorado attorney, the bank’s only connection to Colorado was its probable knowledge that the letter was going to be used in the sale of Colorado property to a Colorado corporation.” Id. at 880. Although this case differs from the one before us because Leney was a California resident whereas Minkin Chandler is a resident of the state where it is arguing jurisdiction exists, the case is factually similar in most other respects.
As in Leney, the record in the present case does not indicate that the parties expected any dispute over the letter of credit to be resolved in Michigan, for appellant did not ask for a letter of credit on a Michigan bank or for confirmation by a Michigan bank. Id. The court in Leney also noted that “Leney had no direct dealings with the Bank with respect to the letter’s issuance. The Bank did nothing in Colorado. Its Illinois customer obtained the letter of credit from the Bank in Illinois.” Id. Similarly, Minkin Chandler had no direct dealings with Banque du Caire with respect to the letter’s issuance. Ban-que du Caire did nothing in Michigan. Its Egyptian customer obtained the letter of credit from the bank in Egypt.
The court in Leney noted that the trial court below relied upon the Colorado Supreme Court case of Van Schaack & Co. v. District Court, 189 Colo. 145, 538 P.2d 425 (1975). The Leney court stated, however, “[Wjhile we are bound by the Colorado Supreme Court’s interpretation of its own statute, we are not bound by its interpretations of the Due Process Clause of the United States Constitution.... We must independently determine whether asserting jurisdiction in the federal district court in Colorado over the Illinois bank violates due process.” Leney, 670 F.2d at 879-80. The Tenth Circuit then proceeded to disagree with the Colorado Supreme Court’s due process analysis.
In Van Schaack, the Colorado Supreme Court upheld jurisdiction over a Kansas bank that had issued a letter of credit on behalf of its Kansas customer to a Colorado beneficiary in connection with obtaining an extension of time on a Colorado real estate transaction. The court found that-no due process violation existed because: (1) the letter of credit induced conduct in Colorado, for the plaintiff relied upon the letter in extending the contract; (2) the cause of action arose from the consequences in Colorado of the cancellation of the letter; and (3) the letter of credit was issued in conjunction with a Colorado real estate transaction having a substantial connection with Colorado. Van Schaack, 189 Colo. at 147, 538 P.2d 425.
We agree with the Tenth Circuit’s statement in Leney that “ ‘[tjhe bank’s obligation under the letter of credit is independent of the underlying sales contract.’ ” Leney, 670 F.2d at 881 (quoting Baker, 592 F.2d at 553). Consequently, our due process analysis of the case before us, like that of the Tenth Circuit in Leney, differs from that of the Colorado Supreme Court in Van Schaack.
Our decision is further buttressed by the reasoning of the court in Stutsman v. Patterson, 457 F.Supp. 189 (C.D.Calif.1978). In that case, the court found that: (1) the fact that a bank issuing a letter of credit may have inquired of a beneficiary by mail as to the manner in which the letter of credit was to be used does not show an intent on the part of the bank to put itself under the protection of the laws of the state in which the beneficiary resides; (2) the fact that the letter was made payable to a California corporation states little more than that the plaintiff is a resident of California, and is thus entitled to little weight; and (3) the issuing bank had no reason to anticipate any profits merely because the letter of credit was issued in California.
Appellant next argues that the court below had jurisdiction over Banque du Caire because of its contacts with the United States as a nation. The District Court noted that all of the cases that it examined allowing for a “national contacts” or “aggregate contacts” approach were cases, unlike the one before us, involving a federal statute. The court agreed with those courts that have rejected the national contacts approach, citing Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985) and Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 418 (9th Cir.1977). The court in Max Daetwyler stated:
Although we do not decide the issue, we can appreciate the argument that a federal statute, prescribing nationwide personal jurisdiction on the basis of a defendant’s aggregated national contacts, might itself be constitutional. We are, however, unaware of any federal statute which presently authorizes district courts to [find] personal jurisdiction upon such aggregated contacts.
Even those few courts which have accepted the national contacts theory have ultimately grounded jurisdiction upon satisfaction of a state long-arm statute.
We conclude that in the absence of some provision within the patent laws authorizing nationwide service of process, the district court’s power to exercise in per-sonam jurisdiction is limited by Fed.R. Civ.P. 4(e) and by the Pennsylvania long-arm statute, whose incorporation by reference, Rule 4(e) requires.
Max Daetwyler, 762 F.2d at 295, 297 (emphasis in original, citations omitted).
Further, the District Court interpreted the United States Supreme Court case of Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), as rejecting the “national contacts” approach. The Court in Omni recognized that under Federal Rule of Civil Procedure 4(e), a federal court looks to either a federal statute or to the state long-arm statute in order to determine whether a defendant is amenable to service of process, a prerequisite to its exercise of personal jurisdiction. The Omni case involved a federal statute, the Commodity Exchange Act, but the Court found that this statute did not contain an implied provision for nationwide service of process in a private cause of action. In so finding, the Court noted, “[I]t would appear that Congress knows how to authorize nationwide service of process when it wants to provide for it.” Id. at 106, 108 S.Ct. at 411.
Appellee argues the Court’s decision in Omni not to address the constitutionality of the aggregate contacts theory was due to the fact that the doctrine has no application where no federal statute with an authorized service of process vehicle is at issue. The Ninth Circuit has agreed with this interpretation of Omni. Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1416 (9th Cir.1989) (“Indeed, a recent Supreme Court decision implies that a national service provision is a necessary prerequisite for a court even to consider a national contacts approach.”). We agree with appel-lee and the Ninth Circuit on this point. The Supreme Court’s statement in Omni that it had “no occasion” to consider the constitutional issues raised by the national contacts theory leads to no other conclusion but that the theory is applicable solely in conjunction with a statutory national service provision. Because the present case is a diversity action and as such does not involve a federal statute with a national service provision, we find that the District Court properly rejected the national contacts approach.
Finally, appellant argues that Banque du Caire and Barclays operated as agents of International Steel and the Beshays, and as agents of each other, and that under the theory of implied agency, the acts of each defendant are attributable to each other. The implied agency arose, appellant alleges, when Barclays received instruction not to pay on the documents from International Steel and Banque du Caire. Appellant alleges that the defendants agreed to act individually and in combination to breach the sales agreement and the obligations under the letter of credit and the confirmation, committed acts in furtherance of that agreement, and that this conspiracy comprised an implied agency arrangement. The District Court disagreed. The court stated that the rule permitting agency to serve as a basis for service to be effected upon a principal under the long-arm statute “means that if a principal allows an agent to act in a jurisdiction, that the principal subjects itself to the jurisdiction of that Court. That agency involves control, general control over that particular agent.” Joint App. at 215. See Avery v. American Honda Motor Car Co., 120 Mich.App. 222, 225, 327 N.W.2d 447 (1982). The District Court then noted, “[T]he best we have here is one party gave a direction to another party. The requirements of control are clearly not present to establish any type of agency relationship.” Joint App. at 215.
As a confirming bank, Barclays acted pursuant to its own independent contractual relationship with Minkin Chandler. Barclays undertook an independent legal duty to make payment under the letter of credit if conforming documents were presented by Minkin Chandler. In fact, appellant’s complaint acknowledges that: (1) Barclays charged appellant a separate fee in return for its services as confirming bank; (2) Barclays failed to exercise its obligation, independent of and in addition to the obligation of any other bank; and (3) Barclays breached its engagement and contract of confirmation, thus indicating that Barclays indeed had an independent contractual obligation. Because “[a]n agent is one who acts on behalf of another,” Lincoln v. Fairfield-Nobel Co., 76 Mich.App. 514, 519, 257 N.W.2d 148 (1977), appellant’s argument that Barclays was an agent is not persuasive.
Because we agree with the District Court’s determinations that: (1) the court lacked personal jurisdiction over Banque du Caire; (2) a national contacts approach is not appropriate in this case; and (3) Ban-que du Caire did not subject itself to the court’s jurisdiction through the actions of an agent, we AFFIRM the decision of the District Court.
. With respect to this point, the fact that the letter of credit was made payable to a Michigan corporation is entitled to little weight by itself, for *‘[i]n virtually every case alleging personal jurisdiction over a foreign corporation this will be the case.” Stutsman v. Patterson, 457 F.Supp. 189, 191 (C.D.Cal.1978).
. See Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 465 (2d Cir.1970) ("Chase is a confirming bank ... and accordingly has all the duties and rights of a confirming bank.... Thus Chase added its own liability to that of the issuing bank, undertook to honor the drafts and was directly obligated as though it were the letter’s issuer to the extent of its confirmation.”).
. Insofar as appellant alleges that jurisdiction exists based upon the existence of a conspiracy, we find that these allegations are unsupported and therefore do not constitute sufficient contacts to justify an exercise of personal jurisdiction. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1237 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981) ("[T]otally unsupported allegations of conspiracy cannot constitute sufficient contacts ... to justify an exercise of personal jurisdiction.... Similarly, the allegation of conspiratorial activities with tortious consequences in the forum state is insufficient to support jurisdiction under the long arm statute in the absence of some minimal factual showing of ... participation in the conspiracy.").
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Belinda Faye LYLE, Plaintiff-Appellee, v. FOOD LION, INCORPORATED, Defendant-Appellant, v. Wayne TEW, Third Party Defendant-Appellee. Wayne TEW, Plaintiff-Appellee, v. FOOD LION, INCORPORATED, Defendant-Appellant.
Nos. 91-1524, 91-1525.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 31, 1991.
Decided Jan. 24, 1992.
As Amended March 2, 1992.
David R. Simonsen, Jr., Richmond, Va., argued, for defendant-appellant.
James McDaniel Johnson, Bryan, Jones, Johnson & Snow, Dunn, N.C., argued, for plaintiffs-appellees.
Before PHILLIPS and WILKINS, Circuit Judges, and WARD, Senior District Judge for the Middle District of North Carolina, sitting by designation.
OPINION
PHILLIPS, Circuit Judge:
Food Lion, Inc., appeals the adverse judgment of the district court in actions brought by appellees Belinda Lyle and Wayne Tew, former Food Lion employees, to recover unpaid overtime compensation, liquidated damages, attorney’s fees, and costs under § 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C. § 201 et seq. (FLSA). After a bench trial, the district court ruled in favor of Lyle and Tew, awarding them $8,802 and $44,550, respectively, in unpaid overtime compensation and liquidated damages, attorney’s fees in the amount of 20 percent of the judgment award, and costs. We affirm the judgment of the district court in all respects except the amount awarded in attorney’s fees.
I
Belinda Lyle and Wayne Tew were both employed by Food Lion at Store No. 123 on Legion Road, Fayetteville, North Carolina, during the period for which they sought to recover for uncompensated overtime hours they allegedly worked. Tew was the meat market manager at Store No. 123 and Lyle was a meat wrapper. Tew was Lyle’s direct supervisor.
Both Tew and Lyle were full-time, hourly employees of Food Lion. Food Lion has an elaborate scheduling system by which it sets the number of hours each hourly employee is authorized to work each week, and employees must complete the duties assigned to them within the hours authorized. Tew and Lyle consistently found that they were unable to complete their duties in accordance with Food Lion standards in the time allotted by the scheduling system. Their inability to meet these standards within the hours scheduled came up against Food Lion policies both minimizing the number of overtime hours store management could authorize hourly employees to work and prohibiting hourly employees from working “off the clock” — i.e., unscheduled and unreported overtime work. Obviously, employees could be fired for work that did not meet Food Lion standards; they could also be fired for working off the clock. Tew and Lyle were aware of the policy against off-the-clock work, but worked off the clock anyway in order to complete their assigned duties in accordance with Food Lion standards. For Tew and Lyle, the possibility of dismissal for substandard work was greater, they thought, than that for getting caught working off the clock.
In May 1989, Tew and Lyle both admitted to Food Lion upper management that they had been regularly working off the clock since August 1987. Both were transferred to another Food Lion store and Tew was demoted from meat market manager to meat cutter. Both Tew and Lyle voluntarily left their employment with Food Lion in August 1989.
In actions brought against Food Lion pursuant to § 16(b) of the FLSA, Tew and Lyle sought to recover for the uncompensated overtime hours they allegedly worked from August 1987 to May 1989. In response to Tew’s complaint, Food Lion counterclaimed against Tew for breach of contractual and fiduciary duties to Food Lion, and in response to Lyle’s complaint, Food Lion filed a third-party complaint against Tew alleging breach of contractual and fiduciary duties in Tew’s supervision of Lyle and seeking indemnity against Tew for any liability to Lyle. Both the counterclaim and the third-party complaint were dismissed by the district court.
Tew alleged in his complaint that he had worked an average of 18 hours per week off the clock during the period from August 1987 to May 1989, but sought to recover for only 15 hours per week. Lyle alleged that she had worked an average of 10 off-the-clock hours per week during the same period, but sought to recover for only 6 hours per week. The district court found it credible that Tew and Lyle had worked at least as many uncompensated overtime hours as they sought to recover for, and also found that Food Lion, through its store managers and assistant store managers, had actual or constructive knowledge of Tew and Lyle’s off-the-clock work, the evidence showing, among other things, that on numerous occasions, store management personnel gave Tew and Lyle keys to the store so that they could let themselves in to work off the clock before regular store hours. The court awarded Tew and Lyle $44,550 and $8,802, respectively, half of which was back pay for uncompensated overtime hours worked. The other half was liquidated damages that were awarded because the court found that Food Lion, in violating the FLSA, had not acted in good faith.
The district court allowed Tew and Lyle to recover for the entire claimed period of 90 weeks under a three-year statute of limitations provided by 29 U.S.C. § 255(a) for willful violations of the FLSA, which the court found in this case. Without benefit of the three-year statute of limitations (the standard period is two years), Tew and Lyle would have been able to recover for only 68 of the 90 weeks of uncompensated overtime work they claimed. 756 F.Supp. 238.
Finally, the court awarded Tew and Lyle attorney’s fees of 20 percent of the judgment award — $10,670.40—and costs of $499. This appeal followed.
II
Food Lion makes various assignments of error in this appeal challenging (1) the dismissal of its counterclaim and third-party complaint against Tew; (2) the judgment in favor of plaintiffs on their claim; and (3) the award of attorney’s fees. We consider each in turn.
A
Food Lion counterclaimed and filed a third-party complaint against Tew on the ground that he breached his contract with Food Lion and his fiduciary duty to the company as a meat market manager by himself violating and allowing Lyle, an employee under his supervision, to violate Food Lion’s policy against off-the-clock work. Both the counterclaim and the third-party complaint were dismissed by the district court. In effect, Food Lion sought to indemnify itself against Tew for its own violation of the FLSA, which the district court found, and we agree, is something the FLSA simply will not allow. As the Fifth Circuit has noted, “[t]o engraft an indemnity action upon this otherwise comprehensive federal statute would run afoul of the Supremacy Clause of the Constitution” and “would undermine employers’ incentives to abide by the Act.” LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1264 (5th Cir.1986). We hold, therefore, that it was proper for the district court to dismiss the counterclaim and third-party complaint Food Lion filed against Tew.
B
To prevail in the district court, Tew and Lyle had to prove by a preponderance of the evidence that they worked overtime hours without compensation and that Food Lion knew of such work. Pforr v. Food Lion, Inc., 851 F.2d 106, 109 (4th Cir.1988); Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986). Moreover, if an employer is found to have violated the FLSA’s overtime pay provisions, it is liable in the amount of the proven unpaid overtime compensation plus an additional equal amount as liquidated damages. 29 U.S.C. § 216(b). However, if the employer acted in good faith and had reasonable grounds for believing that it was not violating the FLSA, the court, in its discretion, can award a smaller amount of liquidated damages or none at all. 29 U.S.C. § 260. And where the violation of the FLSA is found to be willful, the applicable statute of limitations is three years. 29 U.S.C. § 255(a).
Food Lion contends on appeal that the evidence before the district court was not sufficient to prove that the off-the-clock hours allegedly worked by Tew and Lyle were overtime hours, or that Food Lion suffered or permitted them to work these hours. Food Lion also contends that the district court erred in holding that Food Lion did not act in good faith and that its violation of the FLSA was willful. These contentions take issue with what were essentially the district court’s findings of fact in this case. The district court noted that
[t]his case hinges on a credibility determination. The plaintiffs testified that they regularly worked off-the-clock with the knowledge of Food Lion officials at the store level. These officials testified that they had no such knowledge and that it would have been impossible for the plaintiffs to have worked off-the-clock without their knowledge. The court believes the plaintiffs and not the store managers.
J.A. at 380. As this court has recognized, a trial judge’s decision about which of conflicting testimony to credit may “virtually never” be declared clear error so long as the testimony credited is “coherent and facially plausible” and “is not contradicted by extrinsic evidence.” Dwyer v. Smith, 867 F.2d 184, 189 (4th Cir.1989) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985)). We are satisfied that under that test the dispositive credibility determinations made by the district court in this case were not clearly erroneous, and we therefore affirm that portion of the resulting judgment which found Food Lion liable to Tew and Lyle for unpaid overtime compensation, liquidated damages, and costs.
C
As successful parties in their action against Food Lion, Tew and Lyle were also entitled to an award of reasonable attorney’s fees under the FLSA. 29 U.S.C. § 216(b). In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court noted that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433, 103 S.Ct. at 1939. This calculation, the “lodestar” fee, “provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” Id. Hensley concerned the award of reasonable attorney’s fees under 42 U.S.C. § 1988, but the Court nonetheless noted that “[t]he standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party,’ ” id. at 433 n. 7, 103 S.Ct. at 1939 n. 7, including the FLSA.
While the district court found that 82 hours were expended by appellees’ attorney in this case, and that the attorney’s customary hourly rate was $90 per hour (both of which we find, and Food Lion concedes, are reasonable), the court did not multiply the two to yield the lodestar fee of $7,380 (82 X $90). Rather, the district court awarded attorney’s fees of $10,-670.40 — 20 percent of the amount of the judgment award, reflecting the attorney’s customary contingent fee arrangement in cases of this sort.
Because we understand the Supreme Court’s most relevant decisions firmly to have “adopted the lodestar approach as the centerpiece of attorney’s fee awards,” Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 945, 103 L.Ed.2d 67 (1989); see also Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I), we must conclude that it was an abuse of discretion for the district court here to forgo the lodestar approach and to calculate reasonable attorney’s fees by adopting instead the attorney’s customary contingent-fee arrangement of 20 percent of the recovery. The Supreme Court has held that “[t]he contingent-fee model, premised on the award to an attorney of an amount representing a percentage of the damages, is ... inappropriate for the determination of fees under § 1988,” Blanchard, 489 U.S. at 96, 109 S.Ct. at 946, and we are satisfied that this implies that the contingent-fee approach is inappropriate under the FLSA as well. Moreover, “[t]he defendant is not ... required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way.” Id. at 93, 109 S.Ct. at 944. As noted earlier, the usual way, the lodestar approach, yields a fee in this case of $7,380, which is some $3,000 less than that yielded by awarding an amount based on the attorney’s customary contingent fee.
There remains the possibility, which must be considered, that the greater fee awarded against defendant might be otherwise justified as a proper exercise of the district court’s discretion. Though the lodestar — the product of the hours reasonably expended times a reasonable rate — is a presumptively reasonable fee, Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098, the calculation of the lodestar “does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward.” Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. These other considerations, the Court noted in Hensley, may include the ones identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), though “many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9.
If we start, in this case, with the lodestar fee of $7,380, we find that the district court’s award of $10,670.40 represents an upward adjustment of the lodestar by a factor of 1.45. While it is well within the discretion of the district court to determine the amount of an award of attorney’s fees, Burnley v. Short, 730 F.2d 136, 141 (4th Cir.1984), and to adjust the lodestar upward or downward as it deems appropriate, this must be done on a principled basis, clearly explained by the court. Blum, 465 U.S. at 898-901, 104 S.Ct. at 1548-50; Hensley, 461 U.S. at 437-40, 103 S.Ct. at 1941-43. We find in the record no clear explanation for what was in effect a 45 percent enhancement of what we calculate, based on the findings of the district court, should have been the lodestar fee in this case. Nor do we find on our review of the record any grounds so manifestly supporting an upward adjustment from the lodestar that we might assume and affirm their use by the district court. The case obviously was well prepared and presented by appellees’ counsel, but it did not present uniquely novel or difficult questions of law or fact, and while it did require, according to the district court, a high degree of legal ability and competence for preparation and presentation at trial, the skill, ability, and experience required of an attorney under these circumstances are typically accounted for in the attorney’s customary hourly rate and in the hours she must expend on the matter. Blum, 465 U.S. at 898-900, 104 S.Ct. at 1548-49. The only other “exceptional” factor mentioned by the district court is the undesirability of the case within the legal community in which the suit arose. The court noted that the case was accepted on a contingent-fee basis and that there was substantial risk for an attorney of not being compensated at all, due to the length of time such cases take to litigate and the fact that Food Lion was an adversary known for its persistent and vigorous defense of labor disputes. This may all be valid, but the risk of counsel's not being compensated in a case has been held, standing alone, not a sufficient ground for enhancing the lodestar fee. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 726, 107 S.Ct. 3078, 3087, 97 L.Ed.2d 585 (1987) (plurality opinion). To justify a so-called contingency enhancement, it must appear that in the relevant market only such an enhanced fee is likely to insure representation of comparably situated claimants. Id. at 731, 107 S.Ct. at 3089. No such showing was made here.
In sum, we find that it was an abuse of discretion for the district court to award attorney’s fees of 20 percent of the judgment award in this case. We therefore vacate the award as to its amount only and we remand the matter to the district court for entry of an attorney’s fee award in the amount of $7,380, which, based on the findings of the district court, we have calculated as the appropriate lodestar fee. In all other respects, the judgment of the district court is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
. In Delaware Valley I, the Supreme Court applied § 1988 standards to the determination of fees under the Clean Air Act, 42 U.S.C. § 7401 et seq., noting that "[gjiven the common purpose of both § 304(d) [of the Clean Air Act] and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorney's fees in the same manner.” 478 U.S. at 560, 106 S.Ct. at 3096. Section 216(b) of the FLSA shares in this common purpose as well, promoting enforcement of important federal labor policies, and we will interpret its attorney’s fees provisions following the principles governing the award of such fees under § 1988.
. We note that our holding that appellees are entitled to recover from Food Lion no more than reasonable attorney’s fees as calculated by the lodestar approach controls only what Food Lion must pay appellees, and not what appellees may be contractually obligated to pay their attorney under a contingent-fee agreement. Cf. Venegas v. Mitchell, 495 U.S. 82, 90, 110 S.Ct. 1679, 1684, 109 L.Ed.2d 74 (1990) (“Section 1988 itself does not interfere with the enforceability of a contingent-fee contract.”).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_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.
WOODHOUSE v. BURLING et al.
No. 6203.
United States Court of Appeals for the District of Columbia.
Argued Jan. 9, 1935.
Decided Feb. 25, 1935.
Raymond M. Hudson, of Washington, D. C., for appellant.
Wm. Merrick Parker and Edward B. Burling, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
An appeal from an order of the lower court dismissing an amended bill of complaint filed by appellant as plaintiff below.
The amended bill of complaint named as defendants the following parties, to wit, Washington Airport, Inc., National Aviation Corporation, Edward B. Burling, Washington Air Terminals Corporation, Federal Aviation Corporation, H. Rozier Dulany, trustee, Arthur Herbert, trustee, and National Airport Corporation. The prayer of the bill was for a discovery, the appointment of a receiver, an injunction, a judgment, and general relief.
Motions were filed by defendants Burling and Dulany, respectively, praying that the bill be dismissed on the ground, among others, that the averments contained in it were insufficient to constitute a valid cause of action. The lower court sustained the motions and dismissed the amended bill of complaint, from which order the plaintiff has taken this appeal.
In the bill the plaintiff alleges in substance and effect that the defendant Washington Airport, Inc., was indebted to plaintiff upon various claims for damages in the sum of $1,425,500 then due and unpaid; that the debtor corporation was insolvent and that a judgment had been entered against it in the circuit court for Arlington county, Va., on May 16, 1930, in favor of the Airports Corporation of the United States, Inc., in the sum of $661; and that an execution on the judgment had been issued and returned “nulla bona” by the sheriff of Arlington county.
Plaintiff alleges that the corporation on June 30, 1933, was the owner of a certain described tract of real estate situate in the state of Virginia, and that on July 17, 1933, the defendants Dulany and Burke, as trustees, acting under a certain deed of trust, sold the same at public auction to defendant Edward B. Burling for the sum of $432,000, which sum was about $2,000 more than the secured debts and costs. Plaintiff does not deny the validity of the deed of trust under which the sale was made nor the amount of the indebtedness thereby secured, nor the regularity of the sale, nevertheless, plaintiff alleges that the sale was made “for and on behalf of the defendant, National Aviation Corporation, and those allied with it in its schemes to prevent just creditors of the Washington Airport, Inc., from being able to collect what is due.them from the Washington Airport, Inc., assets, and the said Burling has, or will, convey his rights therein to the said National Aviation Corporation.”
Plaintiff also alleges that on July 14, 1933, the Washington Airport, Inc., was the owner of certain other described real estate situate in the state of Virginia, and that on July 31, 1933, the defendants Dulany and Herbert, as trustees under a deed of trust, sold the same at public auction to Ludington Bros, at the price of $174,500, being'the exact amount of the first trust which the Ludingtons held upon the property. The plaintiff does not deny the amount or validity of the indebtedness secured by the trust deed, nor the regularity of the proceedings of the trustees thereunder, but alleges that defendant National Aviation Corporation, being desirous of purchasing the property, attempted and succeeded in preventing plaintiff and other just creditors of Washington Airport, Inc., particularly the holders of the second trust upon the property, from bidding at the sale. The plaintiff alleges that the trustees who sold the several tracts under the trust deeds have “brought into the District of Columbia” the money which they have received from the sale of the property, or will receive when the balance of the purchase price is paid to them, and that there is no way for the coürts of the state of Virginia to reach the same. The plaintiff therefore prays that the court appoint a receiver to collect from the trustees the sum of- $432,-000, the purchase price of the property sold on July 17, 1933, and’the sum of $174,500 for the purchase price of that sold on July 31, 1933; that the plaintiff be granted a judgment against Washington Airport, Inc., the National Aviation Corporation, and other defendants in the sum of $1,430,600; that the receiver be required to divide the proceeds of the several sales between the plaintiff and other creditors of Washington Airport, Inc.; that the defendants be enjoined and restrained from removing the money or any property of the Washington Airport, Inc., from the District of Columbia; and that the defendants be required to make discovery of and state any and all contracts and understandings between them in relation to the transactions above set out.
We think that the lower court was right in sustaining the motion to dismiss the plaintiff’s bill for want of merit. The plaintiff is an unsecured creditor of the Washington Airport, Inc., and his claim has never been reduced to judgment. It is established by the authorities that a receiver for the property of an alleged debtor will not be appointed by a court of equity at the instance of a creditor whose claim has not been reduced to judgment. This requirement is not satisfied by the fact that another and different creditor has secured a judgment against the debtor and failed to collect the same by execution. Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113; Pusey & Jones v. Hanssen, 261 U. S. 491, 497, 43 S. Ct. 454, 67 L. Ed. 763.
Moreover, the allegations contained in the bill of complaint do not disclose any fraudulent conduct of the part of the Washington Airport, Inc., the alleged debtor, nor any effort on its part to defeat the collection of the plaintiff’s claims by ordinary legal procedure, nor that its assets are being concealed or dissipated. The only actual conduct which is set out in the bill as fraudulent is the effort of the National Aviation Corporation to prevent bidding at the trustees’ sale of the second tract of land. It is not-alleged that this corporation is insolvent, and, moreover, it appears that it has not been served with process in this case, and, consequently, that no valid order or judgment can be entered against it herein.
It is alleged in the bill that Dulany, trustee, is a nonresident of Virginia and that under the Virginia law a nonresident cannot act as such trustee, and, consequently that his acts in that capacity were illegal. It is not denied, however, that his co-trustees in the several deeds of trust were residents of Virginia; and we find no authority for the statement that a deed of trust made in that state to two trustees, one being a resident of Virginia and the other being a nonresident, would be invalid. It seems that such a claim is impliedly contradicted by the provisions of section 5400a of the Virginia Code of 1930. Moreover, it should be remembered that the courts of Virginia have jurisdiction of questions of title and legal procedure in reference to real estate located in that state, and those courts were open to the plaintiff and all questions relating to the validity of the deeds of trust should have been litigated there. It may be noted, moreover, that the plaintiff in the present suit seeks the appointment of a receiver to collect and disburse the funds accruing from the sale of the property made by the trustees under the deeds of trust which plaintiff at the same time claims were invalid.
The decree of the lower court is affirmed with costs.
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_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.
LAKEWOOD MANUFACTURING COMPANY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
Nos. 71-1223, 71-1224.
United States Court of Appeals, Sixth Circuit.
Jan. 4, 1972.
William F. Snyder, Cleveland, Ohio, for petitioner-appellant; Marshman, Snyder & Seeley, Cleveland, Ohio, on brief.
Robert S. Watkins, Atty., Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellee; Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks, Elmer J. Kelsey, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief.
Before BROOKS, MILLER and KENT, Circuit Judges.
KENT, Circuit Judge.
This is an appeal by the Taxpayer from an adverse decision by the Tax Court. The Taxpayer is a corporation, the stock of which is held by Stephen Peplin and the members of his family. The Taxpayer contests deficiencies in corporate income tax found by the Commissioner resulting from the Commissioner’s determination that for the tax years ending May 31, 1962 through May 31, 1967, the salary deducted by the Taxpayer for compensation paid to Stephen Peplin as president was unreasonably high.
Effective June 1, 1959, Stephen Pep-lin was paid $60,000 as President of the company. One of his sons was paid $27,500 as Secretary of the company, and the other son was paid $27,500 as Treasurer of the company. On June 1, 1961, the salaries of the officers were changed. Stephen Peplin’s salary was fixed at $80,000 annually and the salaries of his sons were fixed at $32,500. On January 1, 1967, the salaries were again adjusted; Stephen Peplin’s salary was fixed at $60,000, and the salaries of his sons were fixed at $40,000. As shown, the sales and profits of the company each increased substantially until a disastrous fire occurred on October 3, 1961. The dividends paid were as follows;
Upon review of the Taxpayer’s tax returns for the years in question the Commissioner determined, among other things, that for each of the taxable years ending May 31, 1962 through May 31, 1967, the salary paid to Stephen Pep-lin was unreasonably high, and determined further that the Taxpayer should not be allowed to deduct more than $60,000 of the salary paid to Stephen Peplin as a business expense for the years in question.
On the trial before the Tax Court only three witnesses were called for the Taxpayer and none for the Government. The Taxpayer called Stephen Peplin, President, one of his sons, Richard Pep-lin, Secretary of the corporation, and a management consultant, Mr. Richard M. Walker. The testimony of the corporate officers dealt with the activities of Stephen Peplin as President of the company with particular attention to the fact that he had built the company, that he was responsible for the sales and personally supervised production. However, Stephen Peplin testified that the company employed a full-time superintendent whose job it was to supervise plant production. With respect to the sales work, Stephen Peplin testified that the company preferred to have two or three customers and tried not to exceed a half dozen. Stephen Peplin also testified as to his extensive activities in connection, with the settlement with the insurance companies for the loss sustained as a result of the fire on October 3, 1961.
The Management Consultant in forming the opinion that Stephen Peplin’s salary was reasonable relied upon the fact that other companies would under most circumstances have a sales manager, a production manager and other similar staff personnel. He pointed out that the salary paid to Stephen Peplin was substantially less than would have been required to compensate the staff members whom he found present in other companies.
The scope of appellate review in tax disputes has been determined by the Supreme Court of the United States in Commissioner v. Duberstein, 363 U.S. 278, 290, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), as follows:
But the question here remains basically one of fact, for determination on a case-by-case basis.
One consequence of this is that appellate review of determinations in this field must be quite restricted. Where a jury has tried the matter upon correct instructions, the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue. Baker v. Texas & Pacific R. Co., supra, at 228. Where the trial has been by a judge without a jury, the judge’s findings must stand unless “clearly erroneous.” Fed.Rules Civ.Proc., 52(a). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the 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, 542, 92 L.Ed. 746. The rule itself applies also to factual inferences from undisputed basic facts, id., at 394, 68 S.Ct. 525, 92 L.Ed. 746, as will on many occasions be presented in this area. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 609-610, 70 S.Ct. 854, 94 L.Ed. 1097. And Congress has in the most explicit terms attached the identical weight to the findings of the Tax Court. I.R.C., § 7482(a).
and this Court has long recognized that the issue of the reasonableness of the compensation of corporate officers is a question of fact; Al Haft Sport Enterprises v. C. I. R., 189 F.2d 384 (6th Cir., 1951); Wright-Bernet, Inc. v. C. I. R., 172 F.2d 343 (6th Cir., 1949); Roth Office Equipment Co. v. Gallagher, 172 F.2d 452 (6th Cir., 1949); Mayson Mfg. Co. v. C. I. R., 178 F.2d 115 (6th Cir., 1949), and the other Circuits are in accord. Golden Construction Co. v. C. I. R., 228 F.2d 637 (10th Cir., 1955); Huckins Tool and Die, Inc. v. C. I. R., 289 F.2d 549 (7th Cir., 1961); Perlmutter v. C. I. R., 373 F.2d 45, (10th Cir., 1967). The factors to be considered in determining the reasonableness of compensation paid to corporate officers are set forth in Patton v. C. I. R., 168 F.2d 28, 31 (6th Cir., 1948):
There is no hard and fast rule by which reasonableness of compensation may be determined by the Tax Court. Every case must stand or fall upon its own peculiar facts and circumstances. Among other factors to be considered by that Court are: The nature of the services to be performed, the responsibilities they entail, the time required of the employee in the discharge of his duties, his capabilities and training, and the amount of compensation exclusive function of the Tax Court is the determination of the weight and credibility to be given to the witnesses.
Probably one of the most important factors in determining the reasonableness of compensation is the amount paid to similar employees by similar concerns engaged in similar industries.
Additional factors appropriate for considerations are stated in Mayson Mfg. Co. v. C. I. R., 178 F.2d 115, 119 (6th Cir., 1949):
Although every case of this kind must stand upon its own facts and circumstances, it is well settled that several basic factors should be considered by the Court in reaching its decision in any particular case. Such factors include the employee’s qualifications; the nature, extent and scope of the employee’s work; the size and complexities of the business; a comparison of salaries paid with the gross income and the net income; the prevailing general economic conditions ; comparison of salaries with distributions to stockholders; the prevailing rates of compensation for comparable positions in comparable concerns; the salary policy of the taxpayer as to all employees; and in the case of small corporations with a limited number of officers the amount of compensation paid to the particular employee in previous years.
The burden is on the taxpayer to prove that the Commissioner’s determination of what is reasonable compensation is incorrect. As stated by the Court in Miles-Conley v. C. I. R., 173 F.2d 958, 960 (4th Cir., 1949):
The Commissioner’s determination as to what constituted a reasonable compensation to A. Carlisle Miles, however, carried with it a clear presumption of correctness and the burden was upon the Taxpayer to show error in that determination.
See also Charles McCandless Tile Service v. United States, 422 F.2d 1336, 191 Ct.Cl. 108 (1970), and A1 Haft Sport Enterprises v. C. I. R., 189 F.2d 384 (6th Cir., 1951).
The Taxpayer claims that the failure of the Government to call witnesses to rebut the testimony for the Taxpayer requires that the Tax Court resolve the issue in favor of the Taxpayer. This is not the law. In a case dealing with a different aspect of the tax law this Court has said in Goldman v. C. I. R., 388 F.2d 476, 479, (6th Cir., 1967):
Petitioner argues that since this testimony was not rebutted the Tax Court was required to accept it. This position is clearly untenable since the trier of fact has always the duty to weigh the evidence presented and has the right to accept or reject such evidence. See Quock Ting v. United States, 140 U.S. 417, 11 S.Ct. 733, 851, 35 L.Ed. 501 (1891); Sheppard v. Maxwell, 346 F.2d 707, 726 (6th Cir. 1965), rev’d on other grounds, 384 U. S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Hasson v. Commissioner of Internal Revenue, 239 F.2d 778 (6th Cir. 1956).
In its decision the Tax Court stated as its reasons for finding for the appellee that the Taxpayer had failed to carry the burden of proof because of the lack of clarity as to Stephen Peplin’s precise duties and because it received little assistance from the testimony of the Taxpayer’s expert witness. On the facts as presented we cannot say that the conclusion of the Tax Court, that the Taxpayer, Lakewood Manufacturing Company, did not meet its burden of proof, is clearly erroneous.
The judgment of the Tax Court is affirmed.
. P-H Tax Ct.Mem. ¶ 70,133
Year Ending Sales Profits
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_treat
|
C
|
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 MIFFLINBURG BODY CO. Appeal of MIFFLINBURG BANK & TRUST CO.
No. 7876.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 4, 1942.
Decided April 2, 1942.
Samuel Handler, of Harrisburg, Pa. (Gilbert Nurick and Earl Handler, both of Harrisburg, Pa., on the brief), for appellant.
Harry S. Knight, of Sunbury, Pa. (Walter H. Compton, of Harrisburg, Pa., and Knight & Kivko, of Sunbury, Pa., on the brief), for Clarence P. Wynne, trustee in reorganization proceedings of Mifflinburg Body Company, appellee.'
Before MARIS, JONES, and GOODRICH, Circuit Judges.
MARIS, Circuit Judge.
Mifflinburg Body Company and Mifflinburg Bank and Trust Company are Pennsylvania corporations. At various times prior to 1935 the company borrowed moneys from the bank by discounting trade acceptances with it. Occasionally the company substituted its own notes for some of the trade acceptances. No new loans were made after 1935. On April 1, 1938, the company executed a mortgage for $150,000 upon its plant and equipment to secure a bond issue of the same amount. From the sale of some of these bonds it realized $36,800 in cash. It applied the major portion of the cash towards the indebtedness, which was thereby reduced to $93,328.60. The bank, acting in compliance with instructions by the Banking Department of the Commonwealth of Pennsylvania, demanded additional collateral as security for the indebtedness. On October 23, 1938, the company delivered bonds having a face value of $95,000 to the bank as collateral security. On' June 11, 1940, creditors petitioned for the reorganization of the company under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. In the reorganization proceedings the bank filed a proof of claim as a secured creditor and petitioned that the court determine the value of the pledged bonds. The district court found that the bonds had been issued in contravention of Article 16, Section 7, of the Constitution of Pennsylvania, P.S., and were therefore void and ordered that the bank be treated as an unsecured creditor.
The sole question argued upon the appeal from the district court’s order is whether a pledge of bonds to secure a preexisting indebtedness owing from a Pennsylvania corporation to a Pennsylvania bank and incurred in the regular course of the corporation’s business is invalid as in contravention of Article 16, Section 7, of the Pennsylvania Constitution of 1874. That section reads: “No corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void. * * *”
The question whether the pledge of its bonds by a corporation to secure a preexisting debt is in contravention of a state constitution or statute is by no means novel. Under constitutional and statutory provisions similar to that of! Pennsylvania, courts in California, Missouri, Montana, New York, South Dakota and Texas have ruled that bonds so pledged are invalid, whereas the courts of Alabama and Wisconsin have ruled that such bonds are valid. These decisions may serve as aids in our construction of the provision in the Pennsylvania constitution if they are based upon persuasive reasoning but primarily our task is to determine what the courts of Pennsylvania have ruled in construing this section of its constitution. For if the state court has construed its own state constitution it is of no consequence that decisions from other states involving similar provisions are to the contrary. Cooper v. Taylor, 5 Cir., 1932, 54 F.2d 1055, certiorari denied 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289.
The fact situation involved in the question before us contains two elements, first that the debt was already in existence when the bonds were issued, and second that the bonds were issued not outright but in pledge. Although we have been referred to no decision in Pennsylvania which answers the question, each of its elements has been passed upon by the appellate courts of Pennsylvania. In Wrightsville Hardware Co. v. McElroy, 1916, 254 Pa. 422, 98 A. 1052, the Supreme Court of Pennsylvania held that bonds issued to take up outstanding corporate notes were not issued in contravention of the constitutional provision since the refunding transaction resulted simply in a change of the form of the corporate obligation and not in a fictitious increase of indebtedness. No significance was attached by the court to the fact that the debt for which the bonds were issued was a preexisting debt. In Miller v. Heliana Distilling Co. (No. 1), 1914, 57 Pa. Super. 183, 191, the Superior Court of Pennsylvania held that bonds pledged for a loan less than their face value were not issued in violation of the constitutional provision since there was no fictitious increase of indebtedness involved. The court held further that where a corporation had the power to issue bonds by sale, absolute or conditional, it also had-the power to pledge the bonds. While, as we have said, the Pennsylvania courts have not had occasion to pass upon the validity of corporate bonds pledged for a preexisting debt — the exact question now before us— we are convinced by the rulings and reasoning of the two cases to which we have referred that the Pennsylvania constitutional provision does not invalidate bonds so issued.
We are fortified in this conclusion when we consider the Pennsylvania constitutional provision in the light of its language. It will be seen that there is no provision that the bonds may be issued for a present consideration only. The requirement is merely that the consideration be actually received. The significant fact is whether the corporation received a real and bona fide consideration. The emphasis we think may be found in the concluding clause: “and all fictitious increase of stock or indebtedness shall be void.” In the present case there was in fact no increase in indebtedness. The company continued to owe $93,328.60 after the pledge of: the bonds, the identical amount owed by it before they were pledged.
We are the more persuaded that the pledge of the bonds was valid when we consider the reasons for the constitutional safeguards. These have been frequently described in the Pennsylvania cases. Thus in Miller v. Hellam Distilling Co., supra, Judge Kephart said at page 186 of 57 Pa, Super.: “The constitutional provision was intended to prevent the jeopardizing of corporate property by an incumbrance placed upon it where no return, either in money or property, had been received by the corporation; to stop frauds upon stockholders, which would result through the postponement of their equities in favor of those of the bondholders and in diminishing or destroying the return due to the stockholders ; and, as a bond is generally negotiable, to prevent a fraud upon an innocent purchaser who would take them believing a real consideration passed for their issue; and generally such issue without value would be against public policy. The primary object of this provision was to secure a fair consideration to the company before the bonds passed from its control. Where a corporation requires money to prosecute or extend its business and an effort is made to finance its requirements by a sale or pledge of bonds, it is not the intention of this constitutional provision that the corporate life should be throttled or severely impaired by holding the corporate officers to the duty of securing full value for the sale or pledge of the bonds. To so hold would not only cause serious financial difficulties to the corporation but would be contrary to a settled business policy which has been recognized by the profession as being in accordance with the law and in no wise violating constitutional restrictions.”
To the same effect is the statement by Justice Patterson made in Houghten v. Restland Memorial Park, 343 Pa. 625, 23 A.2d 497, 501: “Article XVI, section 7, of the Constitution was not intended to throttle or severely impair the corporate life of a corporation in need of funds to prosecute or extend its business * * * by prohibiting the negotiation of securities, issued by it in an effort to finance its requirements, for an amount less than their face value. * * * The primary object of the constitutional provision was to prevent the jeopardizing of the corporate property and to stop frauds upon stockholders and innocent purchasers, by the issuance of securities not fairly representing money or property received by the corporation, and consistent with this purpose, all that is required is that transactions involving the disposition of corporate securities must be bona fide, and not a mere device to evade the law and impose a greater obligation upon the corporation than there is any occasion for it to assume, in order to obtain the consideration received therefor.”
The evil which was sought to be stamped out was the fictitious increase of' corporate indebtedness and its resultant fraud upon the creditors of the corporation and the investing public. If the corporation actually receives property or money, if the debt is bona fide, if the transaction is in the ordinary course of business and such as to facilitate the conduct of the corporate affairs and if the execution of the mortgage and the pledge of the bonds are the result of proper corporate action, there is in our opinion no ground for invoking the constitutional prohibition.
The order of the district court directing that the entire claim of the MifHinburg Bank and Trust Company be considered as an unsecured claim is reversed.
California: Farmers’ Loan & Trust Co. v. San Diego Street-Car Co., C.C.Cal. 1891, 45 F. 518.
Missouri: Kemmerer v. St. Louis Blast Furnace Co., 8 Cir., 1914, 212 F. 63; Mudge v. Black, Sheridan & Wilson, 8 Cir., 1915, 224 F. 919; Cass Bank & Trust Co. v. Sheehan, 8 Cir., 1938, 97 F. 2d 935.
Montana: Pacific Coast Pipe Co. v. Conrad City Water Co., D.C., 237 F. 673, affirmed 9 Cir., 1917, 245 F. 846.
New York: (leading ease) In re Progressive Wall Paper Corp., 2 Cir., 1916, 229 F. 489, L.R.A.1916E, 563.
South Dakota: Lyon v. Bleeg, 8 Cir., 1917, 240 F. 405, certiorari denied 244 U.S. 660, 37 S.Ct. 745, 61 L.Ed. 1376.
Texas: Central Lumber Co. v. Fall, Tex.Civ.App.1924, 264 S.W. 513.
Alabama: Nelson v. Hubbard, 1892, 86 Ala. 238, 11 So. 428, 17 L.R.A. 375.
Wisconsin: Hinkley Co. v. Pelton, 1929, 200 Wis. 48, 227 N.W. 308.
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_respond1_5_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Your task is to determine which specific state government agency best describes this litigant.
JONES v. COMMONWEALTH OF KENTUCKY.
No. 7978.
Circuit Court of Appeals, Sixth Circuit.
June 8, 1938.
Perry B. Miller, of Louisville, Ky. (Perry B. Miller, of Louisville, Ky., and Arthur Rhorer, of Middlesboro, Ky., .on the brief), for appellant.
A. E. Funk, of Frankfort, Ky. (Hubert Meredith, of Greenville, Ky., and A. E. Fu'nk, of Frankfort, Ky., on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The appellant was convicted of murder and sentenced to death by a Kentucky court. Having exhausted local remedies by way of petition for new trial, appeal, petitions for writ of habeas corpus and for writ of coram nobis, he challenged the manner of conviction as impairment of his right to due process under the Constitution of the United States (Amendment 14) by petition for writ of habeas corpus in the United States District Court.
The Attorney General of Kentucky, after “giving the matter more than ordinary consideration,” is “strongly inclined to the view that Tom Jones was convicted on perjured testimony.” The Court of Appeals of Kentucky, suppressing “sympathy for him, because of his unfortunate predicament,” relegated him to his last and final remedy of an appeal for clemency, although we are told, without contradiction, that it is public information that the Governor of the Commonwealth conceives himself bound by a pledge not to exercise the pardoning power. The United States District Judge, now a judge of this court, seemingly convinced that appellant’s constitutional rights were impaired and that his conviction was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with greater authority. And so, unless there is power here to relieve the appellant from a result the injustice of which is so strongly suggested, and impairment of constitutional rights is so clear as to call for its exercise, the man must die.
The appellant was indicted November 4th on the charge of murder for the killing of his wife with a pistol on October 30th. On Friday, November 8th, he was arraigned, pleaded not guilty, counsel was appointed for him, and trial was set for Tuesday, November 12th. Though the case was not reached until Thursday, November 14th, counsel was obliged to remain in court subject to call.' Excluding Sunday, November 10th, three days were thus left for the preparation of the defense. Motion for a ten-day continuance, supported by affidavits, was denied. No one had seen the shooting. The principal witnesses for the commonwealth were a six year old girl, who testified as to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman’s dying declaration. The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. Newly discovered evidence offered to the state courts, in support of the several petitions thereto addressed, casts grave doubt upon the competency and freedom from duress of one and upon the veracity of both of the prosecution’s principal witnesses. The court below, and the Attorney General of Kentucky, who cross-examined the witnesses on the first habeas corpus petition, were obviously impressed by the new evidence. The statement of the latter to the Court of Appeals of Kentucky is printed at length in the margin. Thrice in this court does he repeat his doubt of the justice of the judgment. The Kentucky court did not directly pass upon the newly discovered evidence, basing its denial of the writs of habeas corpus and coram nobis on jurisdictional grounds. Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345; Id., 269 Ky. 772, 108 S.W.2d 812; Id., 269 Ky. 779, 108 S.W.2d 816. It is clear from the record below that none of the new evidence was known to the appellant or his counsel at the time of the trial, and it is likewise clear that much of it would have been discovered had a reasonable continuance been granted for the purpose of preparing a defense and had the trial been held in the division of the judicial district where the crime was alleged to have been committed and where the appellant lived.
The writ of habeas corpus in the present case was presented to the court below in pursuance of section 453, T. 28, U.S.C., 28 U.S.C.A. § 453, and the appeal from its denial is entertained under section 466 of the same title, 28 U.S.C.A. § 466. We are not insensible to the extraordinary nature of the writ and the caution that must be exercised in granting it where, as here, the petitioner has been denied relief by the courts of the state. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Ashe v. United States, 270 U.S. 424, 425, 46 S.Ct. 333, 334, 70 L.Ed. 662; Bard v. Chilton, 6 Cir, 20 F.2d 906. It is not a substitute for appeal, Knewel v. Eagan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, and errors of law upon the trial are not through it subject to review. Frank v. Mangum, supra. But the complaint here is not the commission of mere error, “but of a wrong so fundamental that it [must make] the whole proceeding a mere pretense of a trial and [render] the conviction and sentence wholly void.” Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543. It is true that the trial court recognized its duty to assign counsel as a necessary requisite of due process of law. But “that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527 (the first Scotts-boro case). It is likewise true that three days were available to counsel within which to make an investigation and to prepare for defense. But when we take into consideration that this was a capital case, that the defendant was in jail and unable to himself give assistance, that the trial was to be held at a distance from the place where the crime was committed, and that counsel brought to the attention of the court by motion and supporting affidavits his inability to properly prepare for trial within the time, we think it must be concluded that the constitutional right of the defendant to be heard by counsel as a necessary requisite of due process of law had not been preserved to him.
It is, of course, perfectly true, as noted in Powell v. Alabama, supra, that great and inexcusable delay in the enforcement of the criminal law has been a serious evil of the times and has brought the administration of the criminal laws into disrepute. But we progress little if freeing the administration of justice from one evil we permit it to become enmeshed in a second, and in our effort to achieve promptness go forward with such haste as to close the door upon the “calm spirit of regulated justice.”
Nor are constitutional safe-guards maintained or respect for the judicial process promoted by convictions secured on perjured testimony. If the new evidence offered in the present case is to be given any credence, and credible it appeared to the chief law officer of Kentucky, who had opportunity to cross-examine the witnesses, and to the United States District -Judge, there' is reason to believe that the conviction here assailed was so secured. This is not in criticism of the Attorney General, for its infirmity was not disclosed to him until after the conviction, though it might well have been discovered had reasonable opportunty for investigation been accorded the defendant and his counsel.
The concept of due process as it has become crystallized in the public mind and by judicial pronouncement, is formulated in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 342, 79 L.Ed. 791, 98 A.L.R. 406. Its requirement in safe-guarding the liberty of the citizen against deprivation through the action of the state embodies those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” referred to in Hebert v. Louisiana, 272 U.S. 312, 316, 317, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102. This requirement cannot be satisfied “By mere notice and hearing^ if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” If it be urged that the concept thus formulated but condemns convictions obtained by the state through testimony known by the prosecuting officers to have been perjured, then the answer must be that the delineated requirement of due process in the Mooney 'Case embraces no more than the facts of that case require, and that “the fundamental conceptions of justice which lie at the base of our civil and political institutions” must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if .later, but fortunately not too late, its falseness is discovered, and that the state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired. „
The judicial processes of the state have here been vainly invoked. The court below stayed its hand until they had been given full opportunity to function. Even then it was thought wiser to have the clearly indicated relief sanctioned by a three judge reviewing court than to have responsibility for setting aside a state court judgment assumed by a single judge of an inferior Federal court. Considerations of delicacy and propriety need no longer deter amelioration. The appellant is not to be sacrificed upon the altar of a formal legalism too literally applied when those who from the beginning sought his life in effect confess error, when impairment of constitutional right may be perceived, and the door to clemency is closed.
The order dismissing the writ is set aside, and the cause is remanded to the District Court with instructions to discharge the appellant from custody, without prejudice to the right of the commonwealth to take such other proceedings according to law as are consistent herewith.
Reversed.
“Hyperteehnical reasons for overruling the petition for rehearing in the instant case might be found and urged with considerable plausibility were we disposed to restrict our inquiry to the narrow bounds of purely technical considerations. With all the difficulty we have experienced in this case, and realizing that a human life is involved, we do not feel disposed to ask for a strict application of narrow and technical rules, but request rather that the ease be considered from the broad standpoint of right and justice. We have been constrained to take this position primarily upon the doubt that we entertain concerning Tom Jones’ guilt which has arisen upon a careful consideration of newly discovered evidence. If this newly discovered evidence is to be believed, then Tom Jones was convicted by perjured testimony. There is no logic or rule of law known to us whereby the infliction of the death penalty, or in fact any other punishment, upon perjured testimony can be justified. It will be remembered that one of the two witnesses whom it is claimed gave manufactured, or perjured, testimony was an infant who contradicted herself in her version of the affair and whom the newly discovered evidence convicted to perjury.
“The other was a woman of ill repute and who was not present and did not know of any of the things she testified to, according to the newly discovered evidence. We have found nothing in the record that indicates that the persons who made the affidavits and gave the newly discovered evidence were biased or interested or telling an untruth. They at least stand as fair as the two witnesses whom they contradicted and convict of giving perjured testimony at the trial. Their testimony was' sufficient to convince Judge Hamilton that Tom Jones had been convicted on perjured testimony. Having the knowledge of the record, and the high regard for Judge Hamilton that we have, we are strongly inclined to the view that Tom Jones was convicted on perjured testimony. We may be in error, but this is our feeling after giving the matter more than ordinary consideration; and, feeling this way, we cannot ask the court to let the judgment of conviction stand or to allow the judgment to be carried into execution.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "other". Which specific state government agency best describes this litigant?
A. state of ___ - state in its corporate capacity in criminal cases
B. state 0f ___ - state in its corporate capacity in civil cases
C. other state level activity
D. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
DAVID ORTIZ RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Ramon Rodriguez and Associates, Incorporated, Intervenor.
No. 90-1412.
United States Court of Appeals, District of Columbia Circuit.
Argued April 22, 1991.
Decided Aug. 20, 1991.
Robert A. DePont, Washington, D.C., for appellant.
Sue Ann Kanter, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, F.C.C., and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee. Roberta L. Cook, Counsel, F.C.C., Washington, D.C., also entered an appearance, for appellee.
Christopher D. Imlay, Washington, D.C., was on the brief, for intervenor.
Before BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
During preliminary proceedings for a broadcast license, two applicants accused a third of potentially disqualifying skullduggery involving misrepresentation, concealment of material facts, and abuse of process. Without convening hearings, the Federal Communications Commission found the allegations to be without merit, and it ultimately awarded the license to the alleged wrongdoer. Because the FCC skated past the accusers’ central arguments and misapplied its own policy concerning character qualifications, we remand.
I. BackgRound
This proceeding involves the award of a construction permit for a newly authorized FM radio channel serving southwest Puer-to Rico. The first applicant, David Ortiz Radio Corporation (“Ortiz”), proposed to transmit from Cerro Guaniquilla. Ortiz had actually secured permission to use a hill about half a mile from Cerro Guaniquil-la. Upon discovering the error and the unavailability of the originally designated site, Ortiz located an alternative site and filed an amended application. The FCC found no intent to deceive and accepted the amendment. The Commission ultimately granted the license to Ramon Rodriguez & Associates, Inc. (“RRAI”).
Ortiz challenges the licensing decision on three bases: (1) In its license application, RRAI falsely certified that it had reasonable assurance of a transmitter site; (2) RRAI subsequently concealed its lack of a site from the Commission for over seven months; and (3) seeking information with which to discredit Ortiz, an RRAI principal abused the Commission’s process by posing as an FCC official.
A. Transmitter Site-related Charges
On December 8, 1982, RRAI applied for the license and, like Ortiz, listed Cerro Guaniquilla as its transmitter site. In March 1983, RRAI submitted an amendment in which it reaffirmed its intention to transmit from that site; it withdrew that amendment in July and submitted an amendment listing a different site in August. These facts led other applicants to charge RRAI with misrepresenting the status of its transmitter site in the application and with concealing its site problems from the FCC thereafter.
One of the applicants, F.M. Minority Broadcasting, filed a Petition to Enlarge the Issues in July 1987, in which it moved that the Commission consider the misrepresentation charge and determine in the light of it whether RRAI had “the minimum qualifications of character” to receive a license. Joint Appendix (“J.A.”) 172-73. RRAI responded with an affidavit from its principal shareholder, Ramon Rodriguez, dated July 21, 1987 (“July 1987 affidavit”). He explained that the application listed Cerro Guaniquilla because he had learned that it was the site selected by Ortiz, understood that it belonged to the government of Puerto Rico, and believed “to the best of my layman’s knowledge [that] if the land was government owned and available to Mr. Ortiz, it was to be available to us also.” J.A. 192.
According to the affidavit, Rodriguez applied for a land-use permit and paid a filing fee at the Puerto Rico Department of Natural Resources in November 1982. In a letter dated December 3, the agency responded that the government did not own the land. From additional inquiries, Rodriguez learned that the land actually belonged to a different government agency, the Conservation Trust of Puerto Rico; the Trust, however, denied Rodriguez’s request to erect a transmitter tower. The affidavit states that RRAI
[immediately ... moved to start looking for another site which, after many efforts [on] our part, we found in “Penones de Melones”; and [on] June 14, 1983 we received a letter from the owners telling us that they were in agreement to rent the land to us....
We then, on June 29, 1983, prepared and filed an amendment to change the original site before the Federal Communications] Commission, and it is the one that we have at this moment.
J.A. 193.
F.M. Minority termed the RRAI filing “a litany of misrepresentation and lack of candor.” J.A. 210. It noted, among other things, that RRAI had not informed the FCC of its new site on June 29,1983, as the Rodriguez affidavit indicated. Although the engineering documents bore that date, the amendment was not submitted until August 26. F.M. Minority had originally sought a hearing on whether the RRAI application contained a misrepresentation; now, in light of RRAI’s tardiness in disclosing its site problems, it amended the petition to include the issue of post-application concealment as well.
In February 1988, the AU added the misrepresentation issue but said nothing about concealment. J.A. 239. F.M. Minority submitted a “motion for clarification” that asked about the concealment issue. The motion contended that RRAI had known it had been without a site since early December 1982, but had waited eight months before apprising the FCC of the fact, and that during that period, RRAI had submitted two documents to the FCC — a March 1983 amendment and a July letter withdrawing it — that continued to list the original location as the proposed transmitter site. In light of these communications, F.M. Minority urged the FCC to investigate whether RRAI had “misrepresented, concealed or was lacking in candor,” J.A. 253, and whether RRAI had violated an FCC regulation requiring applicants to inform the Commission “as promptly as possible and in any event within 30 days” if the information in the pending application “is no longer substantially accurate and complete in all significant respects,” 47 C.F.R. § 1.65(a) (1990). On April 13, 1988, the AU denied the motion as an untimely attempt to enlarge the issues. He also noted that the facts demonstrated “no undue delay by Rodriguez in finding and amending to a new site once he discovered that the government site was unavailable.” J.A. 415.
Although the AU had refused to add the concealment issue, the misrepresentation issue remained. Rodriguez gave a deposition on April 26 and filed an affidavit on May 2 (“May 1988 affidavit”). Whereas in his earlier affidavit he had spoken of his “layman’s knowledge” about the availability of a government-owned site, he now said he had consulted an attorney. He also disclosed when he first learned there was a problem with the Guaniquilla site, and when he was advised of its unavailability: He said he had received the December 3, 1982, letter from the Department of Natural Resources disclaiming government ownership of the property on December 8— coincidentally, the day that the RRAI application was filed with the FCC in Washington — and that the Conservation Trust had denied him the site on January 10, 1983. After discovery but before the planned hearing, RRAI moved for summary judgment on the issue. In July 1988, the AU granted the motion. He said he found no evidence that RRAI had intended to deceive the FCC and noted that intent is a necessary element of misrepresentation.
Having disposed of the misrepresentation issue, and F.M. Minority having withdrawn its application, the AU proceeded with a comparison of the remaining applicants, RRAI and Ortiz. Although the AU found that both were qualified, he awarded the license to RRAI because Ortiz already owned an AM station in the area. Ramon Rodriguez, 4 F.C.C. Red. 370, 374-75 (1989).
On administrative appeal, Ortiz contested the AU’s handling of the misrepresentation and concealment issues. The Review Board affirmed both rulings on the ground that no evidence showed that RRAI had acted in bad faith. 4 F.C.C. Red. 6817, 6817-18 (Rev.Bd.1989). The Board added that RRAI’s delay in reporting its site problems might once have resulted in a comparative demerit, but the FCC had stopped considering issues of character in its comparative analyses; thus “this option is no longer available to us.” Id. at 6818 (citing Policy Regarding Character Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179, 1230-32 (1986) (“Character Qualifications”), amended, 5 F.C.C. Red. 3252 (1990)). The FCC denied review without discussing the site-related issues. 5 F.C.C. Red. 4041 (1990).
B. Abuse of Process Charge
In April 1988, Ortiz filed a motion to add an abuse-of-process issue against RRAI. Of the allegations in the motion, one is preserved on appeal: Ortiz’s claim that Juan Rodriguez, a one percent owner of RRAI and the son of principal owner Ramon Rodriguez, had tried to pass himself off as an FCC inspector.
Ortiz submitted an affidavit by Carlos Ortiz Postigo, owner of Carlitos Photo Store, who gave the following account. In February 1988, Juan Rodriguez asked him to photograph the transmitter used by Ortiz’s AM station. When Rodriguez admitted that he did not have Ortiz’s permission, the photographer refused. Rodriguez later returned and said that he was from the FCC and wanted to ask about the Ortiz station and about an FM station licensed to the daughter of Ortiz Corporation president David Ortiz. The photographer demanded official identification and, when Rodriguez could not produce any, refused to answer his questions.
RRAI responded with an affidavit from Juan Rodriguez, who swore that he had never identified himself as an FCC employee, that he would never do such a thing because it would tarnish his “sound and moral image” as a singer in “the famous Andino’s Trio,” that he had in fact announced that he was representing RRAI and that he was a member of the renowned trio, and that the photographer had recognized him. J.A. 432. RRAI also submitted the affidavit of Juan Esquerdo, who said that he had accompanied Rodriguez to the photographer’s shop and that the Rodriguez affidavit was accurate. Ortiz responded with a second affidavit from the photographer, who stood by his original account and said he had never heard of Andino’s Trio.
The FCC refused to add the issue. The AU noted that no extrinsic proof had been offered and concluded that “it would serve no purpose to explore” the matter because the conflicting affidavits amounted to a standoff. J.A. 598. The Review Board affirmed. It stressed that impersonating an FCC agent was a crime, and that under the Commission’s Character Qualifications policy, such a charge would not be considered absent a conviction. 4 F.C.C. Red. at 6818. The Board also noted that Juan Rodriguez was a minor shareholder, that he denied the allegation, and that his account was supported by a third party. Id. The Commission denied review without discussing the issue. 5 F.C.C. Red. at 4041.
II. Discussion
A. Legal Standards
The Communications Act provides:
If ... a substantial and material question of fact is presented ..., [the Commission] shall formally designate the application for hearing on the ground or reasons then obtaining.... Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.
47 U.S.C. § 309(e) (1988). Before the FCC will hold a hearing, the “dispute must be clearly and adequately alleged, it must be factual, and it must rise to the level of a substantial and material issue.” California Public Broadcasting Forum v. FCC, 752 F.2d 670, 674 (D.C.Cir.1985); see also Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 394-95 (D.C.Cir.1985). In reviewing the FCC’s denial of a requested hearing, we play only a “limited” role, for “the Commission’s discretion and expertise [are] paramount” in this sphere. Gencom Inc. v. FCC, 832 F.2d 171, 181 (D.C.Cir.1987) (internal quotes and citations omitted). “We will not, however, hesitate to intervene where the agency decision appears unreasonable or bears inadequate relation to the facts on which it is purportedly based.” California Public Broadcasting, 752 F.2d at 675.
B. The Misrepresentation Issue
The first issue presented was whether RRAI’s application had misrepresented the status of its transmitter site. The AU added the issue but resolved it in RRAI’s favor without a hearing, and the Review Board affirmed. Ortiz argues that this disposition is erroneous both substantively and procedurally.
1. Misrepresentation of reasonable assurance
An applicant must have “reasonable assurance” that the transmitter site specified in its application will be available. Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d 1462, 1463 (D.C.Cir.1989). The standard, “a liberal one,” is satisfied by
some clear indication from the landowner that he is amenable to entering into a future arrangement with the applicant for use of the property as its transmitter site, on terms to be negotiated, and that he would give notice of any change of intention.
Elijah Broadcasting Corp., 5 F.C.C. Red. 5350, 5351 (1990). Where the landowner is a government agency, its “mere willingness .,. to entertain a request for use of the land” will suffice. Alden Communications Corp., 3 F.C.C. Red. 3937, 3938 (1988). An applicant will be disqualified for misrepresentation only upon “substantial evidence of an intent to deceive.” Armando Garcia, 3 F.C.C. Red. 1065, 1067 (Rev. Bd.), rev. denied, 3 F.C.C. Red. 4767 (1988).
In affirming the ALJ’s summary decision, the Review Board explained:
[I]t appears from Rodriguez’s uncontra-dicted affidavit and sworn deposition testimony that he proceeded in good faith in specifying a site on the basis of his knowledge that Ortiz had selected the same site, on his conversations with government personnel, on advice from legal counsel, and on his payment of a filing fee. Only after these steps were taken and the application was filed did he learn of the site’s unavailability.
4 F.C.C. Red. at 6817. The Board added that absent evidence of bad faith, “no genuine issue of misrepresentation ... remained to be tried.” Id. at 6817-18.
On appeal, Ortiz notes that Rodriguez initially spoke of his “layman’s knowledge” about government permits, but later claimed that he had consulted a lawyer. Although the Board mentioned this consultation, along with the other steps Rodriguez said he had taken before filing, we have no reason to believe that the Board relied on this particular assertion in finding that RRAI had acted in good faith. The Board was certainly aware of the discrepancy between Rodriquez’s first and final representations, and apparently did not find it significant. Nor do we. As Ortiz has given us no better basis for overturning the Commission’s findings and conclusions, we leave this portion of the decision undisturbed.
2. Summary dismissal
Ortiz also faults the AU for dismissing the issue without a hearing. To defeat a motion for summary decision, a petitioner
may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the presiding officer, that there is a genuine issue of material fact for determination at the hearing[; or] that he cannot, for good cause, present by affidavit or otherwise facts essential to justify his opposition^] or that summary decision is otherwise inappropriate.
47 C.F.R. § 1.251(b). The FCC has substantial discretion in acting on a motion for summary decision; the statutory hearing requirement “does not vouchsafe an inalienable right to cross-examination or sur-rebuttal.” Cellular Mobile Sys. v. FCC, 782 F.2d 182, 197 (D.C.Cir.1985).
Ortiz neither submitted an affidavit nor explained its failure to do so; it merely suggested that the RRAI assertions were incomplete and uncorroborated and that Rodriguez had modified his story in a suspicious fashion. This was not enough for the Review Board, which concluded that “Ortiz’s general objections and denials, unsupported by affidavit(s), ... did not undermine or raise serious question as to Rodriguez’s bona fides,” 4 F.C.C. Red. at 6817. Ortiz relies heavily on California Public Broadcasting Forum v. FCC, but the mov-ant there, unlike Ortiz, produced affidavits and documentary evidence supporting its version of the disputed facts, see 752 F.2d at 676-77. Ortiz has failed to demonstrate that the Commission behaved arbitrarily or capriciously.
C. The Concealment Issue
On the evidence before it, the FCC reasonably concluded that RRAI’s actions concerning the transmitter site were above board up to and including the time that it submitted its license application. RRAI’s post-application behavior, however, is another matter.
On December 8, 1982, the day that RRAI filed its application, it could reasonably believe that Cerro Guaniquilla would be available. But by day’s end, according to his May 1988 affidavit, Rodriguez had received the letter from the Department of Natural Resources advising him (mistakenly) that the property was privately owned. Therefore, as of that moment, RRAI had no assurance of the site’s availability. On January 10, 1983, the Conservation Trust denied RRAI the use of the property. Thus, RRAI’s belief in the site’s availability, reasonable at daybreak on December 8, became less plausible by dusk and untenable on January 10.
When he ruled that “there was no undue delay by Rodriguez in finding and amending to a new site once he discovered that the government site was unavailable,” J.A. 415, the AU apparently did -not comprehend the duration of RRAI’s delay — from January 10 to August 26, seven and one-half months. In an earlier ruling, the AU had said that RRAI “was not advised of [Cerro Guaniquilla’s] unavailability until June of 1983,” J.A. 239, which was a plausible interpretation of Rodriguez’s July 1987 affidavit. See excerpt quoted above at page 1255. The AU presumably continued to harbor this misconception when, on April 13, 1988, he denied the motion for clarification on the ground of “no undue delay.” This is understandable, as it was not until thirteen days after that ruling that Rodriguez first acknowledged, in a deposition, that the Conservation Trust had denied his request as early as “January or February” 1983, not June. (He confirmed the January 10 date the following week in his May 1988 affidavit.)
The Review Board affirmed the AU on a different rationale. After noting that the AU had found no undue delay, the Board said:
We agree with the AU that no substantial basis for a non-reporting issue was established. While Rodriguez did not report the loss of his site within thirty days (required by 47 C.F.R. § 1.65), ... no evidence was submitted to show that he acted deceptively or proceeded in bad faith either before or after he learned that his site was unavailable. In these circumstances, the failure to timely report would have at one time resulted, perhaps, in a comparative demerit, but this option is no longer available to us. See Character Qualifications, 102 F.C.C.2d 1179, 1230-1232 (1986). Absent anything other than speculation and surmise to support Ortiz’s claim that the omission was intended to deceive, we conclude that the AU’s ruling was correct.
4 F.C.C. Red. at 6818. While the Board did not indicate that it recognized the AU’s factual error, we may assume that it did, as Ortiz recited the disclosures contained in Rodriguez’s May 1988 affidavit in its pleadings. Thus, the final agency action before us appears to be this: the Review Board’s conclusion that no evidence of an intent to deceive underlies RRAI’s seven-month delay.
Section 1.65, the reporting requirement to which the Board referred, provides:
Each applicant is responsible for the continuing accuracy and completeness of information furnished in a pending application or in Commission proceedings involving a pending application_ [Whenever the information furnished in the pending application is no longer substantially accurate and complete in all significant respects, the applicant shall as promptly as possible and in any event within 30 days, unless good cause is shown, amend or request the amendment of his application so as to furnish such additional or corrected information as may be appropriate.
47 C.F.R. § 1.65(a). A section 1.65 violation is disqualifying only if evidence indicates that the applicant intended to conceal the information from the Commission, or if the reporting violations are so numerous and serious as to indicate irresponsibility. See Valley Broadcasting Co., 4 F.C.C. Red. 2611, 2618 (Rev. Bd.1989).
Had RRAI remained silent between January 10, 1983, when it was denied the use of Cerro Guaniquilla, and August 26, when it identified its new site by amendment, any charge of deliberate concealment might justly have been dismissed as mere “speculation and surmise.” During that period, however, RRAI spoke twice. On March 18, 1983, about two months after Rodriguez had learned that the site was unavailable, RRAI filed an amendment. It included an engineering statement, signed and certified as accurate by RRAI’s technical consultant, that listed Cerro Guaniquilla as the transmitter location. The amendment was signed by an RRAI partner, who thereby “certifped] that the statements in this application are true, complete, and correct to the best of my knowledge and belief, and are made in good faith.” J.A. 101. And it was accompanied by a letter from RRAI’s attorney, who declared that the amendment specified “the same transmitter site” as the application. J.A. 96. Then, on July 7,1983, RRAI informed the FCC that the March 18 amendment “is hereby withdrawn, and the application as originally filed ... is to be processed.” J.A. 116. This letter implies what the earlier communication stated— that Cerro Guaniquilla remained RRAI’s transmitter site — and it was submitted nearly six months after RRAI learned otherwise.
We believe that these two filings potentially met the Commission’s standard of “suitable evidence of an intent to conceal pertinent information from the Commission,” Valley Broadcasting, 4 F.C.C. Red. at 2618, such that disqualification under section 1.65 was possible. As we have noted before, “the fact of misrepresentation coupled with proof that the party making it had knowledge of its falsity” ordinarily suffices to demonstrate fraudulent intent. Leflore Broadcasting Co. v. FCC, 636 F.2d 454, 462 (D.C.Cir.1980).
As affirmative misstatements, moreover, the two filings also reflected on the applicant’s character. At the time, the Commission limited its interest in character to matters “clearly relevant to the licensing process.” Character Qualifications, 102 F.C.C.2d at 1181. The Commission expressed particular concern over willful misrepresentation: It “not only violates the Commission’s Rules; it also raises immediate concerns over the licensee’s ability to be truthful in any future dealings with the Commission.” Id. at 1209. Accordingly, the FCC may “treat even the most insignificant misrepresentation as disqualifying,” for “ ‘[t]he fact of concealment may be more significant than the facts concealed.’ ” Id. at 1210 & n. 77 (quoting FCC v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 215, 91 L.Ed. 204 (1946)). The FCC has disqualified several applicants for such offenses. See 62 Broadcasting, Inc., 4 F.C.C. Red. 1768, 1774 (Rev.Bd.1989) (citing cases), rev. denied, 5 F.C.C. Red. 830 (1990).
Thus, the RRAI amendment and the letter withdrawing it offer plausible evidence that the applicant may have willfully withheld information from the Commission, thereby raising serious question as to “its basic qualifications to be a licensee.” Character Qualifications, 102 F.C.C.2d at 1231. These filings were vigorously and repeatedly brought to the FCC’s attention — by F.M. Minority before the AU, and by Ortiz before the Review Board and the Commission — and yet, astonishingly, no FCC decisionmaker so much as mentioned them. Much as we defer to the Commission’s determination that a factual dispute is too insubstantial to require a hearing, “the determination must at least be made.” Citizens for Jazz, 775 F.2d at 398 (emphasis in original). As the FCC evaded the requisite determination by ignoring important arguments and evidence, its decision in this regard is arbitrary and capricious, see NRDC v. EPA, 822 F.2d 104, 111 (D.C.Cir.1987), and must be remanded.
D. The Abuse of Process Issue
Here we confront another question of character: the allegation that an RRAI co-owner, Juan Rodriguez, impersonated an FCC inspector. The Review Board affirmed the AU’s refusal to add this issue. The Board stressed that,
insofar as Ortiz contends that the alleged impersonation would constitute a criminal violation of 18 U.S.C. 912, we observe that Ortiz has not even asserted that this matter was the subject of a criminal complaint, investigation, indictment, trial, or judgment of any sort, let alone a conviction. In pertinent part, it is the Commission’s general policy not to take cognizance of misconduct involving alleged criminal activity unless it is finally adjudicated by a court.
4 F.C.C. Red. at 6818.
Once again, the Review Board misconstrued the allegation and as a consequence misapplied FCC policy. It is true that the Commission “will not take cognizance of non-FCC misconduct involving criminally fraudulent misrepresentations ... unless it is adjudicated.” Character Qualifications, 102 F.C.C.2d at 1205 (emphasis added). It is also true, however, that “such misconduct as ... harassment of opposing parties, which threatens the integrity of the Commission’s licensing processes, will ... continue to be considered as bearing on character”; the FCC terms this misbehavior “abuse of process.” Id. at 1211. Ortiz, while mentioning the possibility of criminal liability, argued that the impersonation amounted to “an abuse of the Commission’s process ... intended to impede, frustrate or obstruct the prosecution of the Ortiz application.” J.A. 671. Nevertheless, the Board treated the accusation as alleging criminal conduct unrelated to the licensing process.
In addition to the fact that the impersonation charge had not been criminally adjudicated, the Review Board cited two other points in support of its ruling. First, it noted that the allegation concerned “a very minor Rodriguez principal (Juan Carlos Rodriguez Maldonado, merely a 1% equity owner of the applicant).” 4 F.C.C. Red. at 6818. Rodriguez’s equity interest, however, belies the magnitude of his links to RRAI. He is the son of the principal owner, Ramon Rodriguez, and he expected to become the station’s full-time news director. Moreover, Juan Rodriguez admitted in an affidavit that on one occasion he initially concealed his identity while conducting an investigation on RRAI’s behalf. In an effort to determine whether David Ortiz secretly controlled the station licensed to his daughter, Rodriguez visited the station and requested its public file; when asked what company he represented, he replied that he represented none, but later identified himself as “Juan Carlos Rodriguez, of Ramon Rodriguez & Associates.” J.A. 491-92. In the affidavit, Rodriguez revealed that he had undertaken this mission on his father’s instructions. In light of this episode, it is hardly outlandish to suggest that the other investigation, in which the young Rodriguez allegedly posed as an FCC inspector, was also instigated by his father.
As the other factor against adding the issue, the Review Board noted that the allegation “was flatly denied by the Rodriguez principal, and his statement was supported by a third person.” 4 F.C.C. Red. at 6818. The AU similarly remarked that “[sjince the testimony submitted in support of the motion is contradicted, it would serve no useful purpose to explore because the standoff can never be resolved.” J.A. 598. These statements suggest a disquieting laxity on the Commission’s part. A hearing, with its cross-examination and opportunities to observe the demeanor of witnesses, can frequently resolve a conflict that appears irresolvable on paper; indeed, determining which of several conflicting accounts is accurate “is precisely the function of an evidentiary hearing.” California Public Broadcasting, 752 F.2d at 680.
The Commission may have valid reasons for refusing to inquire into the abuse-of-process charge, but it has thus far failed to articulate them. We must therefore find that the Commission’s peremptory dismissal of the abuse-of-process issue was arbitrary and capricious.
III. CONCLUSION
The FCC acted within its discretion in concluding, after discovery but before a hearing, that RRAI did not misrepresent its site status when applying for the license. The Commission failed, however, to explain satisfactorily its refusal to inquire into two other allegations: that RRAI had concealed its post-application site problems from the FCC by affirmative misstatement as well as by silence; and that Juan Rodriguez, acting on behalf of RRAI, abused the Commission’s process by impersonating an FCC inspector. Accordingly, we reverse these rulings and remand for further proceedings consistent with this opinion.
So ordered.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_3_3
|
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 "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
ASSOCIATED BUILDERS AND CONTRACTORS, INC., BALTIMORE METROPOLITAN CHAPTER, Appellant, v. John R. IRVING, General Counsel National Labor Relations Board, Appellee.
No. 78-1268.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 11, 1978.
Decided Dec. 18, 1979.
N. Peter Lareau, Baltimore, Md. (Jeffrey P. Ayres, Baltimore, Md., on brief), for appellant.
Linda Dreeben, N. L. R. B., Washington, D. C. (John S. Irving, General Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Aileen A. Armstrong, Asst. Gen. Counsel for Sp. Litigation, Bernard P. Jeweler, N. L. R. B., Washington, D. C., on brief), for appel-lee.
Before HAYNSWORTH, Chief Judge, WIDENER and HALL, Circuit Judges.
WIDENER, Circuit Judge:
This is an appeal from an order of the District Court for the District of Maryland dismissing an action by Associated Builders and Contractors (ABC) for a declaratory judgment and a writ of mandamus against the General Counsel of the National Labor Relations Board to declare unlawful the refusal of the General Counsel to file a requested complaint with the National Labor Relations Board and to require him to file such a complaint. We affirm the dismissal by the district court.
The Mass Transit Administration, an instrumentality of the Department of Transportation of the State of Maryland, entered into a “Labor Stabilization Agreement” with the Baltimore Building and Construction Trade Council, AFL-CIO and 21 other labor organizations. Article III of that agreement, which establishes conditions of employment in connection with the construction of the Baltimore Region Rapid Transit System, provides:
Nothing in this agreement shall limit the selection or utilization of contractors or subcontractors to perform construction work on the Rapid Transit Project; provided, however, that all such contractors shall comply with the terms of this agreement.
Article IV(a) of the agreement provides in part:
By accepting any award of construction work, either as contractor or subcontractor (of any level or tier), on any part of the jobsite of the MTA project each employer agrees (i) to be bound by each and every provision of this Agreement, (ii) to execute either personally or through a duly authorized agent (in the form set forth in either Exhibit A or Exhibit B hereto) its agreement to that effect, and (iii) to require that any Employer which is a subcontractor to it agree in writing (in form set forth in either Exhibit A or Exhibit B hereto) to be bound by the terms of the agreement.
The gist of the agreement, of course, is that all contractors and subcontractors on the project would have to sign the union contract.
ABC’s complaint alleges that the contract is an unlawful hot-cargo agreement and thus an unfair labor practice under § 8(e) of the National Labor Relations Act (NLRA) (29 U.S.C. § 158(e)).
Section 8(e) of the NLRA provides in part:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from hauling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcable and void: .
Section 8(e) was added as an amendment to the NLRA in 1959 in an attempt to close a “loophole” in the then existing law against secondary boycotts. Although secondary boycotts were banned by the statute in 1947, unions in many instances could obtain the same result through hot cargo or hot goods clauses in collective bargaining agreements. These clauses were designed to prevent an employer from dealing in goods of an employer engaged in a labor dispute.
A review of the legislative history shows a grave concern in Congress over the widespread use of this tactic by the Teamsters union. Apparently that union was well known for entering into such agreements with trucking companies, thus preventing another company which was having a labor dispute from shipping its own goods or receiving supplies, etc.
To close the loophole in § 8(b)(4), Congress enacted § 8(e), making such contracts between employers and unions illegal, unenforceable and a violation of the statute and an unfair labor practice.
ABC is an association of contractors, subcontractors and suppliers doing business in the Baltimore area. It filed a charge with the Fifth Regional Office of the NLRB, charging that the Transit Administration contracts violated the hot cargo provision of § 8(e) of the statute. The Regional Director refused to file a complaint with the Board upon the ground that the Transit Administration, being a state agency, was “not an employer within the meaning of section 2(2) of the National Labor Relations Act” and “[t]herefore the proscriptions of § 8(e) do not apply to such governmental employers.” ABC appealed that decision to the office of the General Counsel, which sustained the Regional Director’s ruling.
ABC then filed this action in the district court seeking a declaratory judgment that the General Counsel’s finding was in error. It contends that state agencies are indeed employers within the meaning of the statute. It also sought a writ of mandamus to require the General Counsel to issue a complaint upon the charge filed. Jurisdiction is claimed under 28 U.S.C. §§ 1337 and 1346(a)(2).
The General Counsel moved to dismiss on the ground that the district court lacked subject matter jurisdiction. The district court granted the motion and dismissed the complaint ruling that the decision of the General Counsel not to file a complaint is not reviewable by a district court. The district court determined that the court was without jurisdiction to consider the matter.
Whether the decision of the General Counsel in this case is final and therefore not reviewable in any court depends upon the construction of § 3(d), 29 U.S.C. § 153(d), of the statute which provides, in part, as follows:
There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than trial examiners and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or may be provided by law. .
The NLRA contains no express provision authorizing judicial review of decisions by the General Counsel refusing to file a complaint with the Labor Board charging an unfair labor practice.
ABC contends that under the Administrative Procedure Act, enacted one year prior to the 1947 amendments to the NLRA, it has a right to obtain judicial review of the General Counsel’s decision. 5 U.S.C. § 702 provides in part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
The passage just quoted from, 5 U.S.C. § 702, would appear to entitle ABC to judicial review were it not for the provisions of 5 U.S.C. § 701(a) as follows:
This chapter applies, according to the provisions thereof, except to the extent that —(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
The issue, then, is whether, under 5 U.S.C. § 701(a) judicial review of the General Counsel’s decision, which would otherwise be available under 5 U.S.C. § 702, is precluded by § 3(d) of the NLRA.
We think the legislative history shows that the General Counsel was intended to be a political position similar to that of an attorney general or other executive officer of the government. The office of General Counsel, although representing the Board in its actions, was created to be independent of the Board and responsible only to the President and the Congress rather than to the Board. Appointment of the General Counsel was placed not in the hands of the Board but in the hands of the President. Our position is sustained by the House Conference Report and the position of Senator Taft which follows:
(3) Section 10(b) of the amended act under the House Bill contemplated that, in unfair practice cases, the administrator would investigate charges, issue complaints, and prosecute cases. The Senate amendment did not contain comparable provisions. As previously noted, the conference agreement contemplates that these functions will be performed under the exclusive and independent direction of the General Counsel of the Board, an official appointed by the President by and with the advice and consent of the Senate.
House Conference Report No. 510 on H.R. 3020, 1 Leg. Hist. of the L.M.R.A. 557 (1947), U.S.Code Cong.Serv. 1947, pp. 1135, 1159.
As noted by Senator Taft, co-sponsor of the bill:
What the conference amendment does is simply to transfer this “vast and 'unre-viewable power” from this anonymous little group to a statutory officer responsible to the President and to the Congress. So far as having unfettered discretion is concerned he, of course, must respect the rules of decision of the Board and of the courts. In this respect his function is like that of the Attorney General of the United States or a state attorney general. Congressional Record, Senate, June 12, 1947, p. 7000.
We think it was the intent of Congress that the General Counsel’s discretion as to the issuance of complaints should ordinarily be checked by his political responsibility, not by judicial review. We therefore adopt the view alluded to by this court earlier and by many other courts that his “final authority” in most instances precludes judicial review of his decision regarding the issuance of an unfair labor practice complaint.
Although the issue as to the interpretation of § 3(d) has not been resolved definitively by the Supreme Court, that court or its justices have, in various decisions, indicated in discussion that such a decision by the General Counsel is not reviewable by the courts.
Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), involved a suit by the administrator of a deceased employee against his union for the breach of the union’s duty of fair representation. The Court held that the employee’s right of action was not preempted by the jurisdiction granted the Labor Board by the LMRA, and on page 182, 87 S.Ct. on pages 912-13 stated:
. [T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold, as petitioners and the Government urge, that the courts are foreclosed by the NLRB’s Miranda’s Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unre-viewable discretion to refuse to institute an unfair labor practice complaint. [Citation omitted, Emphasis added]
Although Vaca resulted in the plaintiff being allowed to proceed, the opposite re-suit occurred in Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1970). In that case, resolution of the issue as to whether an employee could be expelled by his union for non-payment of dues depended upon the proper construction of the union constitution and bylaws. The Court held that a state court could not make such a determination because it was preempted by the power of the Board to pass upon unfair labor practices. Unfortunately for the plaintiff, in a companion case, the General Counsel had refused to issue a complaint. In arguing against preemption, because an admittedly wronged plaintiff might be left without a remedy, Mr. Justice Douglas, in his dissenting opinion, stated:
If the General Counsel holds against the complaining party and refuses to issue an unfair labor practice complaint, the decision is apparently unre-viewable. .
Id. at 303-304, 91 S.Ct. at 1926.
In National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), the Court in dealing with a request under the Freedom of Information Act for certain papers, generated by the General Counsel in determining whether to permit the filing of certain labor practice complaints, stated that certain opinions by the Office of the General Counsel supporting a decision not to proceed with a case were parts of a final opinion and therefore subject to disclosure. The Court noted that:
Congress has delegated to the Office of General Counsel “on behalf of the Board” the unreviewable authority to determine whether a complaint is filed. . In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration.
Id. at 138-39, 95 S.Ct. at 1511.
See also Hanna Mining v. Marine Engineers, 382 U.S. 181, 191-92, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965).
In Wellington Mill Division, 330 F.2d 579 (4th Cir. 1964), this court reviewed a decision by the Board holding that certain discharges were unfair labor practices. There the union also asked the court to rule on the merits of a claim not charged in the complaint filed by the General Counsel or considered by the Board. In refusing to consider the union’s claim, this court stated:
Section 3(d) of the Act [commits] to the discretion of the General Counsel the decision as to whether he will issue a complaint and his refusal to do so is final and unappealable. The decision as to the scope of a complaint is for the General Counsel.
Id. at 590. The court then concluded that it had “no power to order the General Counsel to issue a complaint,” p. 591, and did not consider the merits of the question.
We therefore conclude that the General Counsel’s refusal to issue a complaint is ordinarily not reviewable by federal courts. An issue remains, however, as to whether the nonreviewability of that action, committed to the discretion of the General Counsel, is based upon a failure to state a claim upon which relief can be granted or upon lack of jurisdiction by the federal courts. We believe the latter, with an exception to be noted later.
While the question has not been decided by the Supreme Court, many circuits have based their conclusion of nonreviewability on lack of jurisdiction.
In Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968), cert. den., 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968), the Sixth Circuit held that federal courts were without jurisdiction to consider claims arising from the General Counsel’s refusal to issue a complaint upon request. Relying upon Vaca, the court noted that it was well settled that the “National Labor Relations Act precludes District Court review of the manner in which the General Counsel of the Board investigated unfair labor practice charges and determines whether to issue a complaint thereon.” Id. at 889.
Most of the circuits have followed this line of thought and have either reasoned or held that the federal courts were without jurisdiction to consider such a decision by the General Counsel.
In Panama Canal Co. v. Grace Lines, Inc., 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed.2d 788 (1957), the Supreme Court indicated that “[s]ection 10 of the Administrative Procedure Act . . excludes from the categories of cases subject to judicial review ‘agency action’ that is ‘by law committed to agency discretion.’ ” (Emphasis ours) Id. at 317, 78 S.Ct. at 757. We think by this language the Court is indicating that the federal courts are without jurisdiction to consider such matters.
In that case plaintiff sued in a federal court seeking to require the Panama Canal Co. to raise the tolls that it charged for use of the canal. The Court, in reversing the decision of the court of appeals that had entered summary judgment for the plaintiffs, concluded that such a decision to act or not to act was left to the “expertise of the agency burdened with the responsibility for decision.” Id. at 318.
But, in Panama Canal Co., the Court indicated that judicial relief is sometimes available where the agency’s failure to act turns on a mistake of law. Id. at 318, 78 S.Ct. 752. That position was taken by the Court in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958). There the Court concluded that jurisdiction did lie with the federal courts to decide whether the Secretary of the Army had misapplied the law in considering a veteran’s discharge status. First the Court noted that “[generally, judicial relief is available to one who has been injured by an act of a government officer which is in excess of his express or implied powers.” Id. at 582, 78 S.Ct. at 435. The Court implicitly concluded that the action taken by the Secretary of the Army, after misinterpreting the law by way of regulations previously issued, was in excess of his statutory authority. In essence, the Court decided that this mistake of law by an agency showed that it acted in- excess of its statutory authority and thus was such an action as is reviewable by the courts.
Again, in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Court held that an act of the NLRB refusing to take a separate vote of professional employees as to whether or not they would be included in a bargaining unit was in violation of the positive command of a statute that “the Board shall not” decide a mixed unit (professional and non-professional) is appropriate “unless a majority of such professional employees vote for inclusion.” The Court held such action to be in excess of the Board’s delegated powers and thus subject to judicial review by way of direct suit in the district court.
We think the Leedom standard is the proper standard to use here, for we see no significant difference in the standard that ought to be applied in reviewing acts of the Board and acts of the General Counsel when judicial review is sought by means other than those provided for by special statute. Applying that standard, we are of opinion we should not review an act of the General Counsel in refusing to issue an unfair labor practice complaint unless his act is in excess of his delegated powers. While it is readily seen that an act of the General Counsel may be so far outside the prescriptions of law as to amount to action taken in excess of delegated power, such as when clearly contrary to a specific prohibition of a statute as in Leedom, we think the question of whether or not the Transit Administration is an employer within the meaning of the statute involved here is not so clear that we can say the act of the General Counsel in this case (in giving his opinion that the Transit Administration was not an employer within the meaning of the statute) was in excess of his delegated authority. It must be admitted that the General Counsel, comparing him to an attorney general as the legislative history indicates we should, must give his opinion on the meaning of many statutes in his ordinary day to day duties and that it is certainly within his authority so to do. And, while it may be true that the reasoning of the Board in Lufthansa German Airlines, 137 NLRB 232 (1972), as adopted by the Ninth Circuit in Marriott Corp. v. NLRB, 491 F.2d 367 (9th Cir. 1974), seems preferable to the reasoning of the Board in New York Electrical Contractors Association, 244 NLRB, No. 46 (1979), which latter case overruled Lufthansa, nevertheless, the conflicting opinions of the Board on precisely the same subject within a few years of each other, illustrates our opinion that the meaning of the statute is not so clear that we can say with reasonable certainty that the General Counsel exceeded his delegated authority in his construction of it, although he well may have been wrong.
In such cases the courts, of course, do have jurisdiction to determine their own jurisdiction, but unless the court can ascertain that the General Counsel acted in excess of his delegated authority, it has no jurisdiction to require him to act, and should dismiss the case for want of jurisdiction. This the district court properly did.
The judgment of the district court is accordingly
AFFIRMED.
. 1959 U.S.Code Cong. & Admin.News pp. 2318, 2443. See also 2383-84.
. § 8(b)(4) of the National Labor Relations Act, 29 U.S.C. 158(b)(4).
. 1959 U.S.Code Cong. & Admin.News pp. 2443 — 45, 2383-84.
. On appeal ABC does not rely upon § 1346(a)(2) as a basis for jurisdiction.
. The Administrative Procedure Act, in and of itself, however, does not confer subject-matter jurisdiction upon the court. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
. See Leg. Hist. of the L.M.R.A. at 296, 365, 541, 866, 900-01, 905, 918, 1494, 1538, 1559-60, 1567, 1576-77, 1588, 1617 and 1629-32.
. See also the comments of Congressman Hartley, 1 Leg. Hist. of the L.M.R.A. 883.
. Wellington Mill Div., West Point Mfg. Co. v. NLRB, 330 F.2d 579 (4th Cir. 1964), cert. den., 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88 (1964); Bays v. Miller, 524 F.2d 631 (9th Cir. 1975); Hernandez v. NLRB, 505 F.2d 119 (5th Cir. 1974); Newspaper Guild, Erie Newspaper Guild v. NLRB, 489 F.2d 416 (3d Cir. 1973); Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968), cert. den., 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968); Div. 1267 Amal. Ass'n of Street, El. Ry., Etc., Emp. v. Ordman, 116 U.S. App.D.C. 7, 320 F.2d 729 (D.C. Cir. 1963). Cf. Illinois St. Empl. Coun. 34 AF of S., C & M. E. v. NLRB, 395 F.Supp. 1011 (N.D.Ill.1975), affd without opinion 530 F.2d 979 (7th Cir. 1976). But see Southern Cal. Dist. Coun. of Lab., Local 1184 v. Ordman, 318 F.Supp. 633 (C.D. Cal.1970).
The Wellington case may well be read as dis-positive here.
. Bays v. Miller, supra; Saez v. Goslee, 463 F.2d 214 (1st Cir. 1972), cert. den., 409 U.S. 1024, 92 S.Ct. 466, 34 L.Ed.2d 316 (1972); Balanyi v. Local 1031, IBEW, 374 F.2d 723 (7th Cir. 1967); United Electrical Contractors Assoc. v. Ordman, 366 F.2d 776 (2d Cir. 1966), cert. den., 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674 (1966); Contractors Assoc. of Phil. & Eastern Pa. v. NLRB, 295 F.2d 526 (3d Cir. 1961), cert. den., 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 612 (1962); Hourihan v. NLRB, 91 U.S.App.D.C. 316, 201 F.2d 187 (D.C.Cir.1952), cert. den., 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1359 (1953); General Drivers, Etc. Local 886, AFL v. NLRB, 179 F.2d 492 (10th Cir. 1950). Cf. Illinois St. Empl. Coun. 34 AF of S., C & M. E. v. NLRB, 395 F.Supp. 1011 (N.D.Ill., 1975), aff’d without opinion, 530 F.2d 979 (7th Cir. 1976); Div. 1267 Amal. Ass’n of Street, El. Ry., Etc., Emp. v. Ordman, 320 F.2d 729 (D.C.Cir.1963).
Other cases have merely said without explanation of underlying reasoning that such a decision of the General Counsel is not reviewable. E.g., NLRB v. Internat’l Bro. of Elec. Wkrs, Loc. 357, 445 F.2d 1015 (9th Cir.1971).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_stateclaim
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
JOHN WALKER & SONS, Limited v. TAMPA CIGAR CO., Inc.
No. 13837.
United States Court of Appeals, Fifth Circuit.
May 23, 1952.
Harry B. Terrell, Tampa, Fla., Ellis W. Leavenworth, New York City, for appellant.
E. O. Palermo, Tampa, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH, and STRUM, Circuit Judges.
BORAH, Circuit Judge.
Plaintiff-appellant, as the registered owner of two trademarks for a blend of straight Scotch whiskies, brought this suit for trademark infringement and unfair trade practices, praying that the court enjoin the defendant from using the name of Johnnie Walker upon or in connection with the sale of cigars and for an accounting of profits, damages, costs, and destruction of infringing labels, signs, prints, packages, wrappers, receptacles, advertisements, etc., in the possession of the defendant.
In response to the complaint the defendant moved to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. The cause came on for hearing upon the motion to dismiss and after .hearing argument of counsel the court entered its order granting the motion without leave to amend. To reverse that order, this appeal is prosecuted.
Briefly stated, the complaint alleges that plaintiff, the registered owner of the trademarks Johnnie Walker and a picture of Johnnie Walker, is a British corporation which manufactures and sells a blend of straight Scotch whiskies. For many years it has shipped whiskey to the United States, where it has been extensively advertised and sold throughout the country under the name and picture of Johnnie Walker. In consequence, Johnnie Walker Scotch Whiskey has been known, recognized, and identified by these two trademarks and a valuable good will attaches to each of them. The defendant, a Florida corporation, manufactures and sells cigars. Long after the dates of the first use of plaintiff’s trademarks in the United States, the defendant started using the name Johnnie Walker on its cigars and, in association with the name, has been using a picture of a man wearing a high hat and holding in his hand a monocle, which is but a colorable imitation of the head and shoulders of the plaintiff’s picture of Johnnie Walker. The defendant’s use of the name Johnnie Walker has been without the plaintiff’s consent and although the plaintiff has demanded that the defendant discontinue such use, it has not done so. The complaint charges that the use of the name is likely to cause confusion, or mistake, or to deceive purchasers as to the origin of defendant’s cigars, and is likely to create the erroneous impression that defendant’s cigars originate with plaintiff, or are endorsed by the plaintiff; that the defendant has acted with full knowledge of the good will attaching to the plaintiff’s trademarks and with the intention and for the purpose of trading on such good will and thereby reaping the benefit and advantage thereof; and that by its acts the defendant is infringing plaintiff’s trademark Johnnie Walker and is unfairly competing with the plaintiff.
Rule 8 of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a pleading shall set forth a short, plain statement of the claim showing that the pleader is entitled to relief and that each averment in a pleading shall be simple, concise, and direct. Absent from this rule is the old requirement of common law and code pleading that the pleader set forth “facts” constituting a cause of action. It is also elementary that a complaint is not subject to dismissal unless it appears to a certainty that the plaintiff cannot possibly be entitled to relief under any set of facts which could be proved in support of its allegations. Even then, a court ordinarily should not dismiss the complaint except after affording every opportunity to the plaintiff to state a claim upon which relief might be granted.
This court and others have frequently laid down the rule, that in considering a motion to dismiss the allegations of the complaint must be viewed in a light most favorable to the plaintiff, and all facts well pleaded must be admitted and accepted as true. Cromelin v. United States, 5 Cir., 177 F.2d 275; Hilliard v. Brown, 5 Cir., 170 F.2d 397; Rose v. Rose, 5 Cir., 162 F.2d 587; Knox v. Ingalls Shipbuilding Corporation, 5 Cir., 158 F.2d 973; Mitchell v. Wright, 5 Cir., 154 F.2d 924.
In the light of these principles, we think it clear that the court below erred in dismissing the complaint. We are in no doubt that the complaint states a claim upon which relief could be granted. The argument that the public is not apt to believe that Johnnie Walker whiskey and Johnnie Walker cigars have a common source of origin and that it has not taken the trademark Johnnie Walker with the intention of trading on the good will of the plaintiff’s trademark, overlooks the point that the motion to dismiss accepts as true all facts well pleaded and, indeed, exemplifies the necessity for a trial in this case. Certain it is this suit for trademark infringement may not be dismissed on motion where there is presented a factual issue as to whether defendant’s use of the name Johnnie Walker is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods.
The judgment of the District Court is reversed and the cause is remanded to that court with directions to overrule the motion to dismiss and for further proceedings not inconsistent herewith.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel1_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 appellant. 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-Appellant, v. Clifford Jerome MILLER and Kathelyn Vandraiss Miller, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Clifford Jerome MILLER, Defendant-Appellee.
Nos. 78-2274, 78-1737, 78-1978 and 78-1979.
United States Court of Appeals, Fifth Circuit.
Dec. 28, 1979.
Rehearing and Rehearing En Banc Denied Feb. 14, 1980.
W. Ray Jahn, Jeremiah Handy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellant in No. 78 — 2274.
LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.
Robert Ramos, Asst. Federal Public Defender, Raymond C. Caballero, El Paso, Tex., for defendant-appellee.
Before COLEMAN, Chief Judge, GOD-BOLD and INGRAHAM, Circuit Judges.
COLEMAN, Chief Judge:
This is a government appeal, 18 U.S.C., § 3731, from the suppression of (1) tangible evidence found in the Miller automobile and (2) Miller’s confessions after he had been arrested and arraigned for having a false driver’s license and an expired automobile inspection sticker. The District Court first suppressed a pistol, rifle, and a portfolio found in the Miller automobile. Later, it suppressed all use of Miller’s correct identity and three confessions which, while voluntary, were thought to be “fruits of the poisonous tree”.
I
The Indictments
On January 9, 1978, Clifford Miller, a previously convicted felon, was indicted in the Pecos Division of the Western District of Texas for possession of a firearm in violation of 18 U.S.C., § 1202(a) Appendix. On January 19, 1978, Clifford Miller and Kathelyn Miller were jointly indicted in the El Paso Division of the Western District for conspiracy to defraud the United States by filing a false social security claim in violation of 18 U.S.C., § 286. Count two of the same indictment charged Kathelyn Miller with the completed substantive offense, in violation of 18 U.S.C., § 287, and Clifford Miller with aiding and abetting that offense. A third indictment was filed in the El Paso Division on March 2,1978, charging Clifford Miller and Kathelyn Miller with mail fraud, in violation of 18 U.S.C., § 1341.
II
The Astonishing Facts
On November 18, 1977, officers of the Texas Department of Public Safety (DPS) set up a routine license and vehicle registration checkpoint adjacent to a Border Patrol checkpoint, a lighted area, on Highway 67, about five miles south of Marfa, Texas. All cars traveling in either direction were stopped for the purpose of checking driver-licenses and motor vehicle registration, a procedure apparently approved in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (197,9).
Officers at the checkpoint were DPS Officers (Agents) Greer, Kilpatrick, and Maxwell, along with a state highway patrolman, the county sheriff, and several other officers. The checkpoint was set up at noon and operated for twenty-four hours.
Around 8 o’clock p. m., after dark, a 1969 Chrysler, with other cars behind it in the same traffic lane, was stopped in regular traffic. It was driven by an individual who ultimately turned out to be Clifford Jerome Miller. His wife, Mrs. Kathelyn Miller, was also riding on the front seat. The automobile carried Texas license plates and displayed an expired safety inspection sticker.
Miller showed Agent Maxwell a New Mexico temporary driver’s permit, made out to Joseph Rosenfeld, specifying a date of birth and social security number. The document was only a carbon copy of the original and it carried no picture. When Agent Maxwell asked Miller to state his name, birthday, and social security number, Miller said his name was “Rosenfeld” and gave the date of birth listed on the permit. However, he recited a completely different social security number to that appearing on the permit.
Maxwell requested that Miller step to the rear of the vehicle, where he was asked to repeat the information recorded on the temporary license, whereupon he gave the same response. This, of course, alerted the officers to the likelihood that there was something rotten in Denmark.
When asked about the ownership of the Chrysler, Miller stated that he had just purchased it in south Texas from Alfred Phipps. Suspiciously enough, he could provide no bill of sale or other document evidencing that transaction. Whereupon, Maxwell called Officer Greer, who was then checking the first car behind Miller’s, to run a National Crime Information Center (NCIC) check on the permit and the automobile. While Miller was with Greer, and while the dispatcher was being contacted by radio for the desired reports, Maxwell drove the Miller Chrysler off the pavement, out of the highway traffic lane. He parked it at the end of the Border Patrol van, on the shoulder of the road, so that it would not obstruct moving traffic and halt the ongoing checks of other vehicles. Mrs. Miller remained in the car, sitting where she had been, on the passenger side of the front seat. Upon getting into the car for the purpose of moving it off the road, Maxwell saw a Colt’s pistol and holster between the bucket seats, only partially covered with a pillow. He unloaded the pistol and took it to Officer Greer in order that an NCIC check might also be run on it.
When the. NCIC reports came in, Greer told Maxwell that the vehicle was reported as registered to Alfred Phipps, of Alice, Texas, and that there was nothing in the computer on the temporary driver’s license. While all this was going on Miller volunteered that he had “purchased the pistol somewhere up North, and that there was a 30.06 riñe in the back seat that he [Maxwell] could check, also ”.
When Maxwell went back to the car to pick up the rifle he saw a plastic identification holder over the sun visor which, upon examination, contained credit cards issued to an oil company. Without stopping to pick up the rifle, Maxwell took these cards to Greer and then returned for the rifle. When he got back with the rifle he found out that “Rosenfeld” was now claiming to be Phipps. However, “Rosenfeld” gave different “middle names” for Phipps. He said that he had been arrested for DWI in Wyoming, that his driver’s license had been taken away from him, that he knew he couldn’t get a driver’s license using his real name, so he used the name Joseph Rosen-feld to get the New Mexico license. Greer testified that there was a credit card slip with the cards, signed that day with a “Phipps” signature. This signed credit slip was what caused “Rosenfeld” to start claiming that he, in fact, was Phipps. However, the credit card incident is of no materiality to this appeal as Miller has not been indicted on that subject.
In the face of the credit card development, Maxwell went back to the car, where the lady passenger insisted that the driver’s name was Rosenfeld, which Maxwell, of course, knew to be untrue.
The NCIC reported that the rifle had been stolen in El Paso and that the credit cards were also stolen. Upon receipt of that information, Greer arrested “Rosen-feld-Phipps” and gave him his Miranda warnings.
When Maxwell asked the lady passenger for the second time about the identity of the driver of the car and she insisted that he was Rosenfeld, Maxwell looked in the back seat and saw a plastic portfolio behind the driver’s seat which, it turned out, contained several sets of identification and a blue diary. He next searched the trunk of the vehicle, the back seat, and two footlockers on top of the car. Nothing found in the trunk or in the footlockers seems to have been of any evidentiary importance. The diary, when read by Maxwell later that night, opened a trail which caused the discovery of Miller’s true identity. It also led to his identification as the perpetrator of a bizarre insurance fraud.
Although the passenger was not arrested, she went to the jail, but was then taken to the bus station so that she could return home. Meanwhile, Agents Maxwell and Greer examined the blue diary. They then requested that a deputy go to the bus station and get the passenger and return her to the jail where she and the prisoner were questioned about entries in the diary and the driver’s identification. Apparently, they learned nothing from her. She was then permitted to return to the bus station.
The next day after his arrest, the driver was duly arraigned, was again warned of his rights, and bond was set.
On the evening of the arrest and the next morning, Maxwell read through the blue diary and other documents taken from the portfolio. He then called the Mutual of New York Insurance Company (MONY) to try to obtain identifying information. By that call he learned that the automobile driver’s true identity was Clifford Jerome Miller. Maxwell also found out that Mrs. Miller had unsuccessfully sued MONY for $50,000 for life insurance allegedly due for the asserted death of her husband, who at one time had been a MONY employee. He was told that there had been a similar claim against Standard Insurance Company of Oregon. Maxwell confronted “Rosenfeld-Phipps” with this information, meeting first with a denial and then with an admission that the prisoner, in fact, was Clifford J. Miller.
After these conversations, Officer Maxwell called the FBI to advise of the potential mail fraud and social security violations by Miller, and he called an Alcohol, Tobacco, and Firearms (ATF) Agent to report a possible firearm violation. Meanwhile MONY apparently contacted the Standard Insurance Company and notified them that Miller was not dead, but very much alive. Standard Insurance then contacted the Postal Inspector to request a mail fraud investigation in the case.
On November 22, 1977, Miller was arraigned before a Presidio County Justice of the Peace as a “fugitive from El Dorado County, California, Governor’s warrant # 14530”. In his right name Miller signed the arraignment form which fully advised him of his right to counsel, that counsel would be appointed for him if he was too poor to afford a lawyer, that he had a right to remain silent, that he was not required to make a statement, and any statement he did make could be used against him in court, that he had a right to stop interviews or questioning at any time and that he had a right to an examining trial.
On November 29, eleven days after his arrest, still in jail because he could not furnish bail, Miller consented to interviews with agents representing three federal agencies. In each and every instance, Miller was warned of his Miranda rights and signed the waiver form.
Postal Inspector Harmond Clemmons conducted the first interview at 9:00 a. m. Clemmons, stationed in Texas, had been asked by a postal inspector in Oregon to interview Miller. Clemmons had not heard of the diary and knew nothing of its contents. He had only been given an outline of the insurance transactions and been told that Miller was still alive.
Miller told Clemmons that he had purchased the Standard Insurance policy while living in California, prior to moving to El Paso in 1974, where he worked as an agent for MONY. He stated that he started putting his “death plan” together in October of 1975 while in Mexico. On December 2nd or 3rd of that year, he and his wife returned to Mexico, and with the help of a doctor, a judge, and another man, Miller faked a heart attack in a field and was pronounced dead. He stated that his wife did not know about his plan. His “funeral” was the next day.
Miller said he returned to the United States via Laredo, Texas, on December 7, 1975, three or four days after the faked death and funeral, using false identification under the assumed name of Alfred Phipps. Before going to Mexico he had arranged for these false identification papers. He said that two or three months later he contacted his wife to tell her that he was alive and that she should go ahead with the insurance claims on his death. He asked her to send him $2,000 of the insurance money she had already received.
About a week prior to November 29, ATF Agent Jimmy Searles had been briefed by Maxwell, but he was mainly concerned with Miller’s prior conviction and a description of the guns which were in his possession at the time of his arrest. At 10:30 a. m., November 29, Searles interviewed Miller. For the fourth time, Miller was advised of his rights, which he again waived in writing. The statement obtained by Searles dealt only with the firearms and contained no reference to the insurance matter.
Wayne Taylor of the FBI was the third federal officer to interview Miller on November 29. Although Agent Taylor had in his possession all the documents seized in the search, he was not completely familiar with their contents, but the major part of the information he got from Miller was clearly connected with and based on the contents of the diary.
III
The Suppression Rulings
Two suppression hearings were held on the three indictments which had been consolidated for hearing purposes. At the first suppression hearing the District Court made oral findings and rulings. He refused to suppress the statements which Kathelyn Miller made during non-custodial interrogation. He granted the motion to suppress the revolver and rifle and all other tangible evidence recovered from the Miller’s vehicle. A written order was entered on March 10, 1978, but the number on the order was only that of the firearms case (the Pecos Division case).
A second suppression hearing was held on April 28, 1978, partially for the purpose of clarifying the first suppression order and to hear further testimony on the issue of the admissibility of Clifford Miller’s three confessions. The memorandum opinion and order following this hearing were entered on May 30, 1978.
As to Clifford Miller, the Court then suppressed all items seized from the car and all fruits thereof, including the statements elicited from him by agents subsequent to the search (with the exception of two pages of the FBI report) and all evidence of his actual identity. As to Kathelyn Miller, the Court suppressed all items seized during the search of the appellees’ vehicle and all fruits of that search except for her husband’s confession.
The government filed notices of appeal from each of the orders. The cases have been consolidated for consideration here.
IV
The Findings in the District Court The First Hearing
We consider it advisable to copy in toto the oral findings of the District Court after the first (Pecos) suppression hearing:
THE COURT: The factual situation concerning what lead up to the ultimate arrest of Mr. Miller is, I think, probably a perfect example of good police work that is handled carefully, conscientiously but improperly. There’s no question in my mind, . . . that in fact the moving of that automobile led to a chain of events and started a chain of events which sequentially, one to another, left it fairly clear to me that the search was not a proper search.
I don’t have any question at all about the propriety to stop, and I don’t believe the defendant, Mr. Miller, does. I don’t have any question in my mind about the propriety of the asking for the driver’s license, nor the suspicion that the officer had when Mr. Miller gave him, on two different occasions, a Social Security number which was not the one listed on the temporary license. If he had said he couldn’t remember his Social Security number, I think that would have been understandable. But to have obviously known his Social Security number committed to memory and be able to give it to the officers twice, I think, would make any officer suspicious that something was not quite right. I think the officers quite correctly ran the check of the vehicle, on the registration itself, but it came back negative. I think they quite properly tried to run down his driver’s license and any information they could about that. And again, there was nothing that led them any further there.
Then Mr. Maxwell got back in the car, and he got back in without the consent, obviously, of Mr. Miller, and he says that he did. It may have been a ministerial act, and it may have been the most logical and appropriate thing to do, but it seems to the Court that at that point had he not gotten back in the car, he never would have seen the pistol. (Emphasis added by the copier).
Now, if they had had some fear about that car or about — about the people in the' car being a danger to them, I am relatively certain that they would not have left his companion in the car, and they didn’t know who she was at 'the time, didn’t know whether she was his wife, girl friend, or what she was. They left her in the car, and it wasn’t until fifteen or twenty minutes later they took her out, and for her comfort, allowed her to go to the van.
So they saw the pistol. They brought the pistol back and ran the check on it, and it came back negative. And then Mr. Miller volunteered that, “If you’re concerned about that, there’s a thirty ought six in the back of the car”. And Mr. Maxwell testified that he could reach back in the back and obviously saw it and had no difficulty getting it. But he got back in the car then and started going through other things, namely the thing— the visor, the credit cards and at some point — and it’s not clear when — into the portfolio on the back seat that was lying apparently in plain view on the back seat, which, of course, was a rich harvest of things.
I just can’t believe that there was at that time any probable cause for that search. Obviously, they were correct. Obviously, they had hold of a man who is involved in questionable activities, but they didn’t know that at the time. All they suspicioned was they might have a stolen car, and they found they didn’t. They didn’t know what it was, but they knew what it wasn’t.
The oral findings were delivered on March 6, 1978. On March 10, the Court entered a written order suppressing the .38 caliber revolver, the 30.06 caliber rifle, and all other tangible evidence recovered from defendant’s vehicle, “because the Court is of the opinion that the search of defendant’s vehicle was conducted without probable cause to believe that an offense had been committed”.
Nothing was said as to Miller’s volunteering the presence of the rifle or his suggestion that the officers could check it if they wished to do so.
The Second Hearing
A second suppression hearing took place in El Paso on April 28, 1978. This hearing was directed to the various statements given by Miller to various officers who had interviewed him in the jail at Marfa.
The Court then entered another order in which it was held that “[Ajfter the NCIC reports on the vehicle, the defendant’s driver’s permit and the pistol came back as negative, the officers’ search became little more than a fishing expedition”.
The Court further held that:
“[T]he initial intrusion must be justified before the validity of subsequent police conduct of a warrantless search of an automobile can be considered [citing Coolidge v. New Hampshire, 403 U.S. 443 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971)] but here, although the initial stop was justified, the agents went beyond the permissible scope of intrusion.”
The Court then ordered that:
“All fruits of the search of the defendant’s vehicle, including all items seized therein, are SUPPRESSED” [as to all three indictments against Miller]. The same order was entered as to Miller’s wife on the two indictments in which she was charged.
It was further held that:
“[N]one of the government agents who elicited statements from defendant Clifford Jerome Miller could have done so but for Agent Maxwell’s seizure of the defendant’s diary and his subsequent perusal thereof . . . . The government has shown no attenuation sufficient to destroy the taint which arises out of the illegal search of the defendant’s vehicle and continued through each of the interviews with defendant Clifford Jerome Miller except as to the interview with the FBI Agent Taylor. Agent Taylor’s testimony clearly reflected that, although he had access to the information contained in the diary prior to interviewing the defendant on November 29, 1977, he did not refer to the diary until after the defendant had narrated the events of his past to him.”
It was ordered that the government:
“Shall not attempt to introduce any evidence as to his identity against [Miller] in prosecuting him.”
This ruling was based on the finding that Miller did not voluntarily reveal his identity (emphasis added) and that but for the illegally seized diary and identification cards, Agent Maxwell could not have found whom to contact in order to discover Miller’s actual identity.
It was further held, however, that Kathe-lyn Miller did not have standing to challenge her husband’s statements made while he was in custody, or his identification.
V
The Applicable Law
Since the District Court was of the view that Maxwell’s removal of the Miller car to the shoulder of the road was an act which “poisoned” everything that occurred thereafter, the first inquiry is whether entering the Miller car to get it out of the line of traffic “was unreasonable under the circumstances”, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
We believe that this question should be answered in the negative — moving the car was not unreasonable.
We start from the undisputed premise that the officers were performing a lawful state function, on a public highway, in a lawful manner, State of Delaware v. Prouse, supra.
Neither Miller nor his wife testified in support of the motion to suppress. There was no proof in support of a notion that the officer drove the Miller automobile out of the line of traffic backed up behind it as a pretext for getting an otherwise prohibited look at things inside the vehicle, see United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 1062, 55 L.Ed.2d 268 (1978). The absence of such proof is hardly surprising since in the lighted area at the Border Patrol checkpoint it is likely that Maxwell could have seen the pistol by merely looking through the window from the outside. See United States v. Kaiser, 5 Cir., 1977, 545 F.2d 467, 476.
Moreover, it is reasonable that the officers may take any action reasonably necessary and relevant to the operation when it is not a pretext for circumventing constitutional rights. The rationale for getting this car off the highway is no different to allowing an inventory of the contents of an automobile lawfully impounded as the result of an arrest. Moreover, it would have been unreasonable, and likely a public safety hazard, to delay all the vehicles behind the Miller car while his status was being resolved.
Finally, the Millers were exercising no expectations of privacy in the pistol. They did not conceal it when they encountered the roadblock and Mrs. Miller took no steps to conceal it while Miller was being questioned about his driver’s permit and lack of a vehicle title.
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), was a case in which two police officers on routine patrol saw the defendant driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic summons. The defendant was asked to step out of the car and produce his owner’s card and operator’s license. When the defendant stepped out, a large bulge was seen under his sports jacket, which led to the detection of a .38 caliber revolver loaded with five rounds of ammunition. A motion to suppress the revolver was denied and the Supreme Court affirmed. The Court held that the intrusion caused by asking the defendant to step out of the car could “only be described as de minimis that it hardly rose to the level of a petty indignity. Moreover, the Court held that the mere inconvenience of getting out could not prevail when balanced against legitimate concern for the officers’ safety.
While no question of officer safety entered the instant case, the efficient operation of a roadblock for lawful purposes, along with a reasonable regard for the travel rights and personal safety of other travelers, was involved. It was perfectly natural for the officer to wish to get the car out of the way. Simply moving a lawfully halted vehicle at a checkpoint to the side of the road, when no search is intended or undertaken, is not an infringement of Fourth Amendment rights.
The pistol was in plain view. Following an unbroken line of authority, we have repeatedly held that where the initial intrusion is not unreasonable, the warrantless seizure of inadvertently-discovered evidence in plain view does not offend the Constitution if it is immediately apparent to the police officer that he has evidence before him. See, e. g., United States v. Duckett, 5 Cir., 1978, 583 F.2d 1309.
Duckett was a case in which an automobile had been stopped because the motor vehicle did not have a visible license plate light. The motorist was unable to produce an operator’s license, a vehicle registration form, or any other means of identification. He was arrested. While looking for the vehicle identification number (VIN) on the vehicle, the officer saw two envelopes addressed to someone other than Duckett. Inside an already opened envelope were two United States Treasury checks made payable to someone other than Duckett. We affirmed a denial of suppression of the government checks.
While it was not unlawful for the Millers, as travelers, to have a pistol in their automobile, there was nothing unreasonable about running the NCIC check on it once it had been discovered in plain view. NCIC information on the pistol might well have led to the correct identification of the driver who for two reasons had put his identity in doubt (1) by offering the officers a carbon copy of a temporary driver’s permit with no picture on it (a temporary New Mexico permit for the driver of a car carrying a Texas license plate) and (2) by being unable to furnish any documentary evidence that he, in fact, had title to the automobile.
Neither the removal of the automobile nor the seizure of the pistol for the purpose of having it checked against National records maintained for that very purpose was a violation of constitutional rights. It necessarily follows that when Miller, contemporaneously with the receipt of the report on the pistol, volunteered the information that the rifle was in the car and suggested that the officers could have it checked if they so desired, accepting that suggestion was neither unreasonable nor arbitrary. Even if it had taken a search to locate the rifle on the backseat, which the officers without contradiction denied, Miller had suggested the search.
The officers had not asked Miller if there were other firearms in the automobile. He simply volunteered it. This involved no infringement of Miranda rights.
Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
The fact that NCIC had reported the car as registered to one Phipps did not prove that Phipps had sold or loaned it to “Rosen-feld”. Neither did it prove that the man who got out of the car was Phipps. The NCIC report on the temporary driver’s permit offered no information whatever.
In any event, as we appraise the facts, neither the pistol nor the rifle was obtained by what might be considered to be a conventional search. The pistol was in plain view. Miller told the officer where to go get the rifle, negating any necessity for uncovering it by searching for it.
We are compelled to the view that by originally entertaining the idea that moving the car onto the shoulder of the road was itself unlawful and thus unconstitutionally tainted everything which occurred thereafter, the Court fell into the error of suppressing the pistol and the rifle.
We reverse the suppression of the pistol and the rifle and remand the case for trial as to the unlawful possession of these weapons by one previously convicted of a felony.
The Suppression of any Evidence as to Miller’s Identity
We have held that the seizure of the pistol and the rifle did not offend the Fourth Amendment. Accordingly, those weapons were admissible in evidence. However, competent proof of Miller’s actual identity is a necessary predicate to establishing that he is the same person who previously had been convicted of a felony, an essential ingredient of this federal firearms violation. Did the trial court err when it suppressed ail use of Miller’s actual identity?
We shall hold, post, that the seizure of the diary contravened the Fourth Amendment. The diary put the officers on the trail which resulted in the discovery that “Rosenfeld-Phipps” was, in fact, Miller. The District Court was of the opinion that “but for” the use of the tainted diary Miller’s true identity would never have been learned, therefore, it directed that the government “shall not attempt to introduce any evidence as to his identity against [Miller] in prosecuting him”. It suppressed “all use of Miller’s correct identity”. This, of course, stopped the prosecution dead in its tracks.
It must be recognized that from the very outset Miller’s true identity was in question. He had volunteered the presence of the rifle. The NCIC check was run on it prior to, and independently of, the search of the portfolio. The information from the portfolio was not the exclusive source available to the police. Miller had been arrested. His fingerprints were available. The stolen gun could be traced. An elementary investigation would have settled the existence or non-existence of an Alfred H. Phipps in Alice, Texas. It would have been surprising indeed if a reasonably intelligent investigator could not have found someone who knew Miller on sight. Miller’s actual identity might be proved from evidentiary sources having absolutely no connection with the portfolio.
The question then becomes: Where, by unconstitutionally obtained documents, the government learns the identity of a person travelling on the public highway, with a false driver’s permit and attempting to evade identification, is the prosecution thereby foreclosed from producing identity from independent, untainted sources?
Miller’s identity was not dependent on a search and seizure in the usual Fourth Amendment sense. His person was in plain view in a pubic place, voluntarily exposed to the sight of all who wished to see. For the observation of his generally identifying characteristics no search was necessary. What a person knowingly exposes to the public, even in his own home or office, to say nothing of the public highway, is not the subject of Fourth Amendment protection, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967).
Miller’s identity was an immutable fact, the same before and after the public encounter. Nothing discovered there or afterwards could alter it. The officers could not seize it like seizing a physical object.
Miller was lawfully in custody and it only remained for the officers to learn his identity by constitutionally admissible means. See United States v. Houltin, 5 Cir., 1978, 566 F.2d 1027.
This situation is governed by what Mr. Justice Holmes wrote in Silverthorne Lumber Company v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920):
Of course this does not mean that the facts thus [unconstitutionally] obtained became sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others . .
This holding was quoted in Nardone v. United States, in Wong Sun v. United States, and again in United States v. Cec-colini.
We hold that Miller’s actual identity may be proved by evidence, if there be any, from sources unconnected with the search of the portfolio and the examination of its contents. To the extent that the order suppressed “any” and “all” evidence of identity, as hereinabove set forth, it will be reversed and the case remanded to the District Court.
We agree, of course, that under the “fruit of the poisonous tree” doctrine none of those involved in the seizure and utilization of the diary itself may be allowed to testify as to Miller’s true identity, although they are certainly free to testify as to the details of the arrest and to identify him in court as the person arrested.
The Firearms Confessions
Miller was lawfully arrested for the possession of the stolen rifle. The statements made to Searles and Greer with reference to the firearms came after Miller had been thoroughly informed of his rights to silence and counsel. Indeed, he specifically declined to give Searles any more information “without my attorney being present”. These statements were obviously voluntary in every respect. The statement to Searles recites Miller’s record of convictions, where and how he obtained the weapons, and how he come to have them with him when stopped near Marfa. Not a word is said of the insurance matters uncovered by the use of the diaries. The statement to Greer confirmed only the story given to Searles as to where he, Miller, had obtained the rifle.
The statements to Searles and Greer should not have been suppressed in their entirety. Only those parts of the confessions in which Miller correctly identified himself as “Clifford Jerome Miller” should be excised. Therefore, except for the identification of Miller, the suppression of the statements given Officers Searles and Greer in connection with the firearms is reversed.
The Search of the Portfolio and the Subsequent Confessions with Reference to the Insurance Frauds
Assuming that the portfolio was Miller’s personal luggage, an assumption which appears to be supported by the evidence, we agree with the defendants that the search of that portfolio did not comply with Fourth Amendment requirements, Arkansas v. Sanders,-U.S.-, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Johnson, 5 Cir., 1979, 588 F.2d 147, 151. The government’s argument that the admissibility of the portfolio contents may be rescued as an “inventory search” simply is not supported by the record. The diary may not be introduced in evidence against Miller.
Miller contends that his subsequent confessions with reference to the insurance frauds were “fruits of the poisonous tree” and that they were correctly suppressed. Here, following a wealth of precedent, we must, at least in part, agree with Miller. Prior to the search of the portfolio none of the officers so much as suspected Miller of the insurance fraud. They were not looking for insurance fraud. The seizure of the diary did not comply with Fourth Amendment requirements. Its contents set in motion the desire of the subsequently investigating officers to obtain statements from him. Postal Inspector Clemmons did not see the diary and did not know of its existence; he, however, had been informed of facts which had been gathered from the diary. It necessarily follows that his use of that information was to exploit it. We cannot say that his lack of knowledge as to the existence of the diary and his failure to have seen it supplied an attenuation sufficient to purge the primary taint. To hold
Question: This question concerns the first listed appellant. 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:
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sc_caseorigin
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212
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. CALIFORNIA.
No. 5,
Original.
Argued December 7-8, 1964.
Decided May 17, 1965.
Solicitor General Cox argued the cause for the United States. With him on the briefs were Stephen J. Poliak, George S. Swarth and Martin Green.
Richard H. Keatinge, Special Assistant Attorney General of California, argued the cause for defendant. With him on the briefs were Thomas C. Lynch, Attorney General, Stanley Mosk, former Attorney General, Charles E. Corker, Howard S. Goldin and Jay L. Shavelson, Assistant Attorneys General, and Warren J. Abbott and N. Gregory Taylor, Deputy Attorneys General.
George N. Hayes, Special Assistant Attorney General of Alaska, by special leave of Court, argued the cause for the State of Alaska, as amicus curiae. With him on the brief were Warren C. Colver, Attorney General, and Avrum M. Gross, Special Assistant Attorney General.
John B. Ogden filed briefs for Carl Whitson, as amicus curiae.
MR. Justice Harlan
delivered the opinion of the Court.
The present case requires us to determine the extent of submerged lands granted to the State of California by the Submerged Lands Act of 1953, and in particular to declare whether specified bodies of water on the California coast are “inland waters” within the meaning of that Act. A substantial amount of background is necessary to place the issues in perspective.
I.
The Setting op the Case.
This is a suit begun in 1945, brought by the United States against California to determine dominion over the submerged lands and mineral rights under the three-mile belt of sea off the coast of California. In 1947 the Court decreed:
“The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles .... The State of California has no title thereto or property interest therein.” United States v. California, 332 U. S. 804, 805, Order and Decree.
After the entry of this decree, the United States asked that the lands awarded to it be defined in greater detail in certain areas where there was substantial oil well activity, and which California asserted lay within inland waters. The Court appointed a Special Master, and directed him to consider seven specified segments of the California coast to determine the line of ordinary low water and the outer limit of inland waters. These segments included various bays, and, as the problem evolved, the so-called “overall unit area” consisting of the waters inside a line encompassing the islands off the shore of southern California, some as far as 50 miles out. The Special Master’s Report, generally favoring the position of the United States, was filed with this Court in November 1952, 344 U. S. 872. He adopted as his criteria for defining inland waters those applied by the United States in the conduct of its foreign affairs as of the date of the California decree, October 27, 1947 — in particular, a rule that only a bay having a closing line across its mouth no more than 10 miles in length and enclosing a sufficient water area to satisfy the so-called Boggs formula would be inland water, with the qualification that a bay which had been historically considered inland water would so continue. Both parties noted their exceptions to the Report, but before any further action was taken, Congress enacted the Submerged Lands Act.
The Submerged Lands Act grants to the States “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States.” § 3 (a). “Boundaries” includes the seaward boundaries of a State “as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress,” but subject to the limitation that
“in no event shall the term ‘boundaries’ ... be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.” § 2 (b).
“Coast line” is then defined as the composite “line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” § 2 (c). For States having no previously approved seaward boundaries the Act provides that “[a]ny State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line . . . .” § 4.
Thus the Act effectively grants each State on the Pacific coast all submerged lands shoreward of a line three geographical miles from its “coast line,” derivatively defined in terms of “the seaward limit of inland waters.” “Inland waters” is not defined by the Act.
In a later measure related to the Submerged Lands Act, Congress declared that the United States owned all submerged land in the continental shelf seaward of the lands granted to the States. Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq.
The passage of the Submerged Lands Act marked the beginning of a long halt in the proceedings in this case. Depth of California’s coastal waters increases very rapidly, and as of May 22, 1953, the date of enactment, it was impractical to drill for oil except close to the shore. By granting to California the mineral rights in the three-mile belt, the Act vested in California all the interests that were then thought to be important, and no further action was taken on the Special Master’s Report. That Report was neither adopted, modified, nor rejected by this Court, but was simply allowed to lie dormant. By 1963, however, drilling techniques had improved sufficiently to revitalize the importance of the demarcation line between state and federal submerged lands. The United States filed an amended complaint reviving the Special Master’s Report and redescribing the issues as modified by the Submerged Lands Act; both the United States and California filed new exceptions to the Report, and the case is now ready for decision.
The basic contention of the United States is that the Act simply moved the line of demarcation out three miles from the line established by the California decree. Therefore, contends the United States, the Special Master’s Report on the line of ordinary low water and the outer limit of inland waters as used in the California decree is just as relevant now as it was before Congress acted, and, with slight modifications, the line drawn by the Special Master should be taken as the “coast line” for purposes of the Submerged Lands Act. California asserts that whereas the Special Master determined inland waters to be those which the United States would have claimed as such for purposes of international relations, the Submerged Lands Act used the term in an entirely different sense to mean those waters which the States historically considered to be inland — in California’s case, those waters which the State considered to be inland at the time it entered the Union. Therefore, according to California, the line drawn in the Special Master’s Report was determined under standards wholly foreign to the Submerged Lands Act.
The focal point of this case is the interpretation to be placed on “inland waters” as used in the Act. Since the Act does not define the term, we look to the legislative history.
II.
Legislative History Reveals that Congress Meant to Leave the Definition of Inland Waters to the Courts.
Two changes relevant for our purposes were made in the bill which became the Submerged Lands Act between the time it was sent to the Senate Committee on Interior and Insular Affairs and the time of its passage.
(1) As first written, the bill defined inland waters to include
“all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.”
This definition was removed by the Senate Committee.
(2) The bill originally contained no limitation on the extent of historic boundaries that could be claimed. The provision limiting the extent of boundary claims to no more than three geographical miles from the coastline on the Atlantic and Pacific Oceans and three marine leagues on the Gulf of Mexico was added to the bill on the floor of the Senate in the late stages of the debates.
Removal of the definition for inland waters and the addition of the three-mile limitation in the Pacific, when taken together, unmistakably show that California cannot prevail in its contention that “as used in the Act, Congress intended inland waters to identify those areas which the states always thought were inland waters.” By deleting the original definition of “inland waters” Congress made plain its intent to leave the meaning of the term to be elaborated by the courts, independently of the Submerged Lands Act.
In response to substantial objections made in the hearings to the original bill’s broad definition of inland waters on grounds that it would prejudice and limit the position which the United States could take in its future conduct of foreign affairs, Senator Cordon, the manager of the bill, recommended and obtained elimination of the definition. The Committee Report which he authored explained:
“The words 'which include all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea’ have been deleted from the reported bill because of the committee’s belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.” S. Rep. No. 133, 83d Cong., 1st Sess., 18.
The committee’s understanding that the measure “neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it,” appears to be an acceptance of “inland waters” as used in the California and prior Court opinions, whatever that usage might have been. Various different concepts of inland waters were asserted during the Senate Hearings, based on such elements as the depth of the water, the width of the opening of a coastal indentation, the Boggs formula, and the common designation of bodies of water as bays, sounds, straits, etc. When it became clear that the question had highly technical aspects (see, e. g., n. 5, supra) and was one on which differences would arise, the Senate Committee adopted the expedient solution of leaving the matter just as it had found it, neither accepting nor rejecting any particular rule or formula. It intended to leave unaffected the judicial view of inland waters and the judicial responsibility for particularizing it.
Reference to Senator Cordon’s request to the Senate Committee for deletion of the objectionable clause confirms that understanding. He said:
“The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt [by those who objected to the definition during the hearings] that the use of these words were [sic] an attempted legislative definition of the term 'inland waters,’ and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.
“The use of the language, it was felt, would probably raise questions that have not been raised, whereas the present definitions are in- the decisions and available to the court.”
“Senator MALONE. The inland waters had a special master for that particular job, did they not, and that is now under consideration, that is, his report is under consideration by the Supreme Court?
“Senator CORDON. With respect to California, and a portion of California coast; yes.” Senate Hearings 1304-1305.
Shortly thereafter there follows a virtually conclusive statement:
“Senator CORDON. It was not the chairman’s view that we were attempting to draw a line delimiting inland waters, but that we were using a term that is well known in the law and is defined by the Court in the California case, for instance, and in the Louisiana case, I assume. That line might still be defined, even though the area may not now have the same legal status as it had before.” Id., at 1376. (Emphasis added.)
California fastens on a statement made in the Committee Report with regard to the eliminated definition:
“The elimination of the language, in the committee’s opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.” S. Rep. No. 133, 83d Cong., 1st Sess., 18.
From this California reasons that “inland waters” must have been intended to encompass all waters which the States “thought” were inland waters, for that is the only way in which the Act can now be interpreted to effectuate fully its supposed “philosophy” of granting to the States all submerged lands within their historic boundaries.
If such a view of the bill’s purpose is accepted as of the time that the Committee Report was written, there is, nonetheless, no inconsistency whatsoever between that purpose and a legislative intent to leave the definition of inland waters to the courts without restriction; at that time the limitation on boundary claims had not yet been incorporated into the Act; thus as the Act was then written, States could have claimed all submerged lands within their historic boundaries, no matter how “inland waters” was defined. The definition would have affected only those States which, not having adequate pre-existing seaward boundaries, chose to extend their boundaries three miles from the coastline pursuant to § 4 of the Act. As stated by Senator Cordon during the Hearings,
“this bill has two approaches to a determination of the area of its application. The first approach is that of the boundaries of the States when they came into the Union; second, an election to any State that has not done so to extend its boundary 3 geographical miles from its present coastline, as that term is described in the present tense in the bill.” Senate Hearings 1374.
Only with the adoption of the three-mile limitation on the Atlantic and Pacific Oceans and the three-league limitation in the Gulf of Mexico did the interpretations of historic boundaries and inland waters become operationally related, and any inconsistency thus created between the limitation and the prior philosophy of the Act shows only that, to the extent the limitation would come into play, the philosophy was modified. This amendment was one of very few made to the bill as reported by the Senate Committee, and came as the result of continuous criticism throughout the course of the debates that the extent of the grant was indefinite, and that coastal States could engage in a “claiming race” for submerged lands. California points to language stating that adoption of the limitation worked no significant change in the bill. 99 Cong. Rec. 4114-4116 (remarks of Senator Holland). But such statements simply reflect the understanding of the major supporters of the bill that no States other than Texas and Florida (on its Gulf side) had provable claims beyond three miles, and that the claims of those two States did not go beyond three leagues. If such were the case, the limitation could indeed be thought to have no effect, for no state boundaries would run afoul of it, and the vast grant of submerged lands up to three miles along the length of the Atlantic and Pacific coasts, and three leagues, subject to historical proof, in the Gulf of Mexico, would not be impaired. Senator Holland, the author of the bill, proposed the limiting boundary amendment to meet the fears of those Senators who had criticized the indefiniteness of the bill. He explained:
“. . . I think the amendment has very little effect. But I am perfectly willing to meet the suggestions of my friends, some of whom have been opponents, and some of whom have been supporters of the joint resolution, to the effect that they would like to have the language more clearly spelled out than it was in the original measure, to the effect that there is no intention whatsoever to grant boundaries beyond 3 geographical miles in either the Atlantic or the Pacific, and that this Congress knows of no possible situation under which greater boundaries are claimed or could be granted in the Gulf of Mexico than 3 leagues; and, in that case, this Congress knows, although this amendment does not indicate it, that there are but 2 States affected by that particular situation.” 99 Cong. Rec. 4116.
Senator Holland was aware of California’s expansive inland water claims, but thought them altogether untenable.
“Mr. HOLLAND. My understanding is that California has no provable case beyond 3 miles from its mainland; and that as to the islands, its provable case would be 3 miles around each of the islands. I so stated in the hearings on this matter.
“Mr. DOUGLAS. That is a consummation devoutly to be desired, but I am not at all satisfied that that is what the Senator’s joint resolution would accomplish, because the coastline is not fully and clearly defined.
“Mr. HOLLAND. Under the joint resolution, no such contention could be maintained.
“Mr. DOUGLAS. Is the Senator certain of that?
“Mr. HOLLAND. That is what I believe, and that is what every legal authority I have consulted on the subject believes. Incidentally, the only reason why there was some thought to the contrary was some wording in the original joint resolution, which has been omitted, which would have made the outer boundary of inland waters farther out than that which is now provided by the joint resolution. The joint resolution simply continues the outer boundary of inland waters pursuant to the decisions of the Supreme Court already made. . . .
“The Senator from Florida knows full well that if the United States Supreme Court should change its mind as to what constituted the outer limits of inland waters, and should change it to a sufficient degree, it could open up, not only under this joint resolution, but of its own initiative, questions which would reach out much farther than anything we have been talking about here.
“The Senator from Florida believes that the laws, as announced over and over and over again by the Supreme Court, as to the delimitation of inland waters, are sufficiently fixed, definite, and certain so that it would require a complete, cataclysmic change of the Supreme Court’s philosophy in that field to afford any hope for an extension of the boundaries of the good State of California so that they would go out beyond the islands as to all areas contained within an outer line. There is no way for us to foreclose the Supreme Court from changing its mind. It might change its mind with reference to inland waters and their delimitation. But failing, such change, the Senator from Florida cannot see how, under this joint resolution, there could possibly be any serious question affecting California or any other State.” 99 Cong. Rec. 2756-2757.
Senator Holland did not wish to foreclose California from arguing (as it has done both here and before the Special Master) that its waters are inland within the appropriate judicial definition, but it was his opinion that no such definition would permit California’s claim to all waters shoreward of their remote islands to prevail. Congress could have defined inland waters as it wished for the purely domestic purposes of the Submerged Lands Act. See United States v. Louisiana, 363 U. S. 1, 30-36. It could have adopted California’s theory, or the Special Master’s theory, or any other. Instead, it chose to leave the definition of inland waters where it found it — in the Court’s hands. The Act does not reveal a particular intent that courts should broadly interpret “inland waters” so as to restore California to its historic expectations regardless of what its expectations might be. Indeed, if the Court is to draw any inference from the intent and structure of the Act as to how inland waters should be defined, the most plausible inference would be that Congress, in adopting the three-mile limitation, must have intended some base line to be used other than one dependent upon each State’s subjective concept of its inland waters, for such a limitation would prove to have been none at all, as full acceptance of California’s claims in the present case would show.
III.
The Meaning of “Inland Waters” in the Submerged Lands Act Should Conform to the Convention on the Territorial Sea and the Contiguous Zone.
We turn, then, to determining the judicial definition of “inland waters.” It immediately appears that the bulk of cases cited by Congressmen during debates on the Submerged Lands Act for the proposition that inland waters have “been defined time and time again by the courts” deal with interior waters such as lakes and rivers, and provide no assistance in classifying bodies of water which join the open sea. In this latter context no prior case in this Court has ever precisely defined the term. The 1947 California opinion clearly indicated that “inland waters” was to have an international content since the outer limits of inland waters would determine the Country’s international coastline, but the Court did not particularize the definition. It was that task which subsequently led to the appointment of the Special Master.
The Special Master found that there was no internationally accepted definition for inland waters and decided, in those circumstances, that it was the position which the United States took on the question in the conduct of its foreign affairs which should be controlling. He considered the relevant date on which to determine our foreign policy position to be the date of the California decree, October 27, 1947. He therefore rejected the assertion that letters from the State Department written in 1951 and 1952 declaring the then present policy of the United States were conclusive on the question before him. At the same time that decision required the Special Master to consider a great many foreign policy materials dating back to 1793 in an attempt to discern a consistent thread of United States policy on the definition of inland waters. He ultimately decided that as of 1947 the United States had taken the position that a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula.
Since the filing of the Special Master’s
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
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201. Circuit Court of the District of Columbia
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207. Utah U.S. Circuit Court for (all) District(s) of Utah
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
In The Matter of The CHICAGO TUNNEL TERMINAL CORP., Debtor.
CHICAGO TUNNEL TERMINAL CORP., Appellant, v. RUTLAND TRANSIT COMPANY, etc., Appellee.
No. 11937.
United States Court of Appeals Seventh Circuit.
Aug. 13, 1957.
Rehearing Denied Sept. 11,1957.
Albert E. Jenner, Jr., Edward H. Hat-ton, Thomas P. Sullivan, Chicago, 111., Thompson, Raymond, Mayer, Jenner & Bloomstein, Chicago, 111., of counsel, for debtor-appellant.
Sidney R. Zatz, Robert Tieken, U. S. Atty., Walter N. Kaufman, Richard Z. Rosenfeld, Chicago, 111., Arvey, Hodes & Mantynband, Chicago, 111., of counsel, for appellee.
Before DUFFY, Chief Judge, FINNEGAN and SCHNACKENBERG, Cir-cu;t Judges.
FINNEGAN, Circuit Judge.
Recently, during our review of a tort complaint, we pointed up the extant integration between the parent corporation, Chicago Tunnel Terminal Corporation and its subsidiaries, Chicago Tunnel Company, Chicago Tunnel Terminal Company and Chicago Tunnel Transport Company. Sisco-Hamilton Co. v. Lennon, 7 Cir., 1957, 240 F.2d 68. Now the parent, debtor, non-operating company, Chicago Tunnel Terminal Corporation, is before us complaining of its exclusion from the benefits of reorganization under Chapter X, 11 U.S.C.A. § 501 et seq., despite current pendency of reorganization proceedings of and for each one of its three operating subsidiaries, in the court below.
Because he concluded that the Debtor’s petition for its reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 541, “was not filed in good faith” the district judge dismissed it. Through its Reply Brief, this Debtor informs us: “On the Petition and Rutland Answer, the cause came on for hearing on October 5, 1956. The debtor rested on the pleadings, declining to put in evidence, explaining its position at length.” But after studying this record and the authorities cited to us, we think that position is untenable. In re Sheridan View Bldg. Corporation, 7 Cir., 1945, 149 F.2d 532, 534, Bankruptcy Act, Chap. X, §§ 130 and 141, 11 U.S.C.A. § 530 and § 141.
Debtor is the sole stockholder of each subsidiary and its assets are accounts receivable from those subsidiaries in reorganization, totaling $10,000,000 as against liabilities of roughly $136,000. But the skeleton petition for reorganization needs fleshing out with factual allegations for these cannot be supplied by tenuous arguments resting on purported admissions through pleadings. Without more of a showing, the mere intercorporate relationship is unavailing in this ■type of proceedings^ Itemized rejection of each point raised in the Debtor’s brief is unnecessary in this opinion for none of them repairs the critical defect in Debt- or’s pleading and course of action.
Judgment affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_geniss
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellee, v. Edgar CALLE-CARDENAS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Wilson VELASQUEZ-SANTARIAGA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mario JARAMILLO-ECHEVERRI, Defendant, Appellant.
Nos. 86-2093 to 86-2095.
United States Court of Appeals, First Circuit.
Heard Dec. 9, 1987.
Decided Jan. 27, 1988.
John B. Reilly, Warwick, R.I., by Appointment of the Court, for defendants, appellants Edgar Calle-Cardenas and Mario Jaramillo- Echeverri.
Joan C. Stanley, by Appointment of the Court, with whom Law Offices of Colette Manoil, Boston, Mass., was on brief, for defendants, appellant Wilson Velasquez-Santariaga.
James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on briefs, for appellee.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
COFFIN, Circuit Judge.
The appeals of appellants Calle-Cardenas and Jaramillo-Echeverri challenge the district court’s denial of their motion to suppress evidence of cocaine and other property seized.
Federal agents obtained a warrant from a federal magistrate at 2:08 p.m. on June 13, 1986. Probable cause to issue the warrant was based on information supplied to Agent Burkett, the affiant, by an informant, that appellant Calle was distributing at least one kilogram of cocaine weekly from “his residence at 46-48 Comstock Street (first floor, side door right).” The warrant authorized a search of “the right side, first floor apartment of 46-48 Com-stock Street, Pawtucket, R.I. ... occupied by Edgar Calle.” Agents surveilling the premises, however, at about the time the warrant was signed by the magistrate, 2:00 p.m., observed a person emerge from an automobile and enter the dwelling through a door on the left side. Soon thereafter, that person emerged from the building and drove off. A check of the license plate number revealed that the vehicle was registered in the name of appellant Calle. The vehicle returned at 3:15, .the driver entered the building and returned to the vehicle as before, and again drove off. He was followed and confronted. Identifying himself as one Mazo, he told the police that Calle’s residence was in fact the left side, first floor apartment, and that Calle had been in the apartment when he, Mazo, had left.
At this time, around 4:00 p.m., the warrant above described had not been executed. Agent Parham, who had supplied the informant’s information for Agent Burkett’s affidavit, then supplied this new information to the magistrate and obtained a second warrant authorizing search of “the left side, first floor apartment of 46-48 Comstock Street ... occupied by Edgar Calle.” The agents then went to the premises, entered by the left door, found themselves in a common passageway, and, taking the door to their right, forced their way into appellant’s apartment. It should be noted that the building, in addition to the outside door on the left, had a front door, an entrance at the right side (which led only to a basement apartment), and a door at the rear.
At this remove it is difficult to see how appellant could devote so much time at the Franks hearing, which the district court gratuitously held out of an abundance of caution, or so much space in his brief, to his challenge to the denial of his motion to suppress. We say this because we cannot imagine what the agents could have done better. When their surveillance of the premises created a doubt as to which side of the house was the location of appellant’s apartment (or the entrance thereto), they refrained from proceeding on the basis of their warrant and obtained another one with the corrected location.
Appellant spins an argument that, when the agents realized that the informant’s information about the contraband being in the right side apartment was in error, they “abandoned” their “reliable informant.” Mazo’s information, appellant argues, “specifically negates” the informant’s “basis of knowledge,” leaving no basis for any suspicion that there was contraband to be found in the left side apartment.
The problem with this approach is that appellant would have us read the first affidavit and warrant as permitting only the interpretation that contraband was in a “right side first floor” apartment, with no significance attached to the apartment as being Calle’s residence. But, as appellant concedes, we are to give a common sense reading to the affidavit supporting a warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In this case we list the following factors to be taken into account: (1) the informant’s main thrust was that Calle was regularly distributing large quantities of cocaine from his “residence”; (2) the warrant equates the “right side first floor” apartment with that “occupied by Edgar Calle”; (3) Mazo’s information gave accurate directions as to how Calle’s residence could be approached; (4) in fact, as the agents found out, Calle’s apartment, once the building had been entered from the outside door on the left, was on the right and on the first floor; and (5) the outside entrance on the right side of the building did not lead to any first floor apartment. Clearly there was no error. The agents acted with punctilious regard for the integrity of warrant-authorized searches, and the magistrate was amply justified in correcting, on an adequate representation, a detail of a generally adequate earlier basis for a warrant.
Appellant Velaquez-Santariaga challenges the court’s refusal to direct a verdict. He argues that, when the agents forced their way into the apartment, there was nothing other than his mere presence on which to base his convictions for possession of cocaine and a firearm. He contends that there was insufficient evidence on which to base a finding of constructive possession of the guns and cocaine. A summary of the evidence favorable to the government is the following. An officer took from the left outer door casing of the apartment a tape containing the names of all three appellants. At the time of the agents’ entry, all three were in shorts and shoeless; each thereafter went to a closet for other clothes. Cash in the amount of $1,001 and a firearm were found lying on a coffee table in front of a couch. Near the cash and pistol were found an Employee’s Withholding Allowance Certificate and a Blue Cross/Blue Shield Group Subscriber Application in the name of Antonio Martinez. The significance of these documents is that they were established, by identity of birth date and social security number, to be those of appellant. The sum of $1,800 was discovered under a couch cushion and a box containing a pistol and holster was retrieved from under the couch. In the pantry was a triple beam balance. Between $208,000 and $278,000 worth of cocaine was seized from the refrigerator and cupboards. We hold that this evidence and the reasonable inferences therefrom adequately support the jury’s verdict. The jury reasonably could have inferred from this cumulative evidence that Velasquez had dominion and control over the area, or at the very least that he had dominion and control over the contraband found in close proximity to his identification documents.
The final issue, raised on appeal by all appellants, is that the district court erred in not instructing the jury as to the meaning of “illegally and unlawfully in the United States.” All three defendants were convicted on charges of possession of a firearm by an illegal alien. The government had to prove that the defendants were aliens illegally or unlawfully in the United States. The district court gave the following instructions:
So next we go on, illegally and unlawfully in the United States. What do we mean by that? Well, to be illegally or unlawfully in the United States means to be willfully in the United States contrary to law. And an act is done willfully if done voluntarily and intentionally with a specific intent to do something which the law forbids, that is to say, with bad purpose, either to disobey or to disregard the law. So that to be illegally and unlawfully in the United States means to be willfully in the United States, contrary to law. And I don’t know what else I can tell you on that one.
No objection to this instruction was made, or request for an alternative instruction. And we are not told in what respect the instruction was inadequate. In any event, pursuing a “plain error” analysis, we see no manifest injustice on this record.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_casesource
|
023
|
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.
The AMERICAN LEGION, et al., Petitioners
v.
AMERICAN HUMANIST ASSOCIATION, et al.;
and
Maryland-National Capital Park and Planning Commission, Petitioner
v.
American Humanist Association, et al.
Nos. 17-1717
18-18
Supreme Court of the United States.
Argued February 27, 2019
Decided June 20, 2019
Neal K. Katyal, Washington, D.C., for the petitioner in No. 18-18.
Michael A. Carvin, Washington, D.C., for the petitioners in No. 17-1717.
Acting Solicitor General Jeffrey B. Wall for the United States as amicus curiae, by special leave of the Court, in support of the petitioners.
Monica L. Miller, Washington, D.C., for the respondents.
Kelly J. Shackelford, Hiram S. Sasser, III, Michael D. Berry, Kenneth A. Klukowski, Roger L. Byron, First Liberty Institute, Plano, TX, Michael A. Carvin, Christopher DiPompeo, Brett A. Swearingen, Kaytlin L. Roholt, Daniel D. Benson, Chris Pagliarella, Caleb P. Redmond, Admitted only in Georgia; supervised by listed D.C. bar members, Jones Day, Washington, DC, for petitioners The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131, for the American Legion, Petitioners.
Adrian R. Gardner, William C. Dickerson, Tracey A. Harvin, Maryland-National, Capital Park and, Planning Commission, Riverdale, MD, Neal Kumar Katyal, Mitchell P. Reich, Benjamin A. Field, HOGAN LOVELLS US LLP, Washington, D.C., for petitioner Maryland-National Capital Park and Planning Commission.
Monica L. Miller, American Humanist Association, Washington, D.C., for respondents.
Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, II-C, III, and IV, and an opinion with respect to Parts II-A and II-D, in which THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join.
Since 1925, the Bladensburg Peace Cross (Cross) has stood as a tribute to 49 area soldiers who gave their lives in the First World War. Eighty-nine years after the dedication of the Cross, respondents filed this lawsuit, claiming that they are offended by the sight of the memorial on public land and that its presence there and the expenditure of public funds to maintain it violate the Establishment Clause of the First Amendment. To remedy this violation, they asked a federal court to order the relocation or demolition of the Cross or at least the removal of its arms. The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse.
Although the cross has long been a preeminent Christian symbol, its use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context. For nearly a century, the Bladensburg Cross has expressed the community's grief at the loss of the young men who perished, its thanks for their sacrifice, and its dedication to the ideals for which they fought. It has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of "a hostility toward religion that has no place in our Establishment Clause traditions." Van Orden v. Perry , 545 U.S. 677, 704, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment). And contrary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.
I
A
The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular.
A cross appears as part of many registered trademarks held by businesses and secular organizations, including Blue Cross Blue Shield, the Bayer Group, and some Johnson & Johnson products. Many of these marks relate to health care, and it is likely that the association of the cross with healing had a religious origin. But the current use of these marks is indisputably secular.
The familiar symbol of the Red Cross-a red cross on a white background-shows how the meaning of a symbol that was originally religious can be transformed. The International Committee of the Red Cross (ICRC) selected that symbol in 1863 because it was thought to call to mind the flag of Switzerland, a country widely known for its neutrality. The Swiss flag consists of a white cross on a red background. In an effort to invoke the message associated with that flag, the ICRC copied its design with the colors inverted. Thus, the ICRC selected this symbol for an essentially secular reason, and the current secular message of the symbol is shown by its use today in nations with only tiny Christian populations. But the cross was originally chosen for the Swiss flag for religious reasons. So an image that began as an expression of faith was transformed.
The image used in the Bladensburg memorial-a plain Latin cross -also took on new meaning after World War I. "During and immediately after the war, the army marked soldiers' graves with temporary wooden crosses or Stars of David"-a departure from the prior practice of marking graves in American military cemeteries with uniform rectangular slabs. G. Piehler, Remembering War the American Way 101 (1995); App. 1146. The vast majority of these grave markers consisted of crosses, and thus when Americans saw photographs of these cemeteries, what struck them were rows and rows of plain white crosses. As a result, the image of a simple white cross "developed into a 'central symbol' " of the conflict. Ibid . Contemporary literature, poetry, and art reflected this powerful imagery. See Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 10-16. Perhaps most famously, John McCrae's poem, In Flanders Fields, began with these memorable lines:
"In Flanders fields the poppies blowBetween the crosses, row on row."
In Flanders Fields and Other Poems 3 (G. P. Putnam's Sons ed. 1919). The poem was enormously popular. See P. Fussell, The Great War and Modern Memory 248-249 (1975). A 1921 New York Times article quoted a description of McCrae's composition as " 'the poem of the army' " and " 'of all those who understand the meaning of the great conflict.' " The image of "the crosses, row on row," stuck in people's minds, and even today for those who view World War I cemeteries in Europe, the image is arresting.
After the 1918 armistice, the War Department announced plans to replace the wooden crosses and Stars of David with uniform marble slabs like those previously used in American military cemeteries. App. 1146. But the public outcry against that proposal was swift and fierce. Many organizations, including the American War Mothers, a nonsectarian group founded in 1917, urged the Department to retain the design of the temporary markers. Id. , at 1146-1147. When the American Battle Monuments Commission took over the project of designing the headstones, it responded to this public sentiment by opting to replace the wooden crosses and Stars of David with marble versions of those symbols. Id. , at 1144. A Member of Congress likewise introduced a resolution noting that "these wooden symbols have, during and since the World War, been regarded as emblematic of the great sacrifices which that war entailed, have been so treated by poets and artists and have become peculiarly and inseparably associated in the thought of surviving relatives and comrades and of the Nation with these World War graves." H. Res. 15, 68th Cong., 1 (1924), App. 1163-1164. This national debate and its outcome confirmed the cross's widespread resonance as a symbol of sacrifice in the war.
B
Recognition of the cross's symbolism extended to local communities across the country. In late 1918, residents of Prince George's County, Maryland, formed a committee for the purpose of erecting a memorial for the county's fallen soldiers. App. 988-989, 1014. Among the committee's members were the mothers of 10 deceased soldiers. Id., at 989. The committee decided that the memorial should be a cross and hired sculptor and architect John Joseph Earley to design it. Although we do not know precisely why the committee chose the cross, it is unsurprising that the committee-and many others commemorating World War I -adopted a symbol so widely associated with that wrenching event.
After selecting the design, the committee turned to the task of financing the project. The committee held fundraising events in the community and invited donations, no matter the size, with a form that read:
"We, the citizens of Maryland, trusting in God, the Supreme Ruler of the Universe, Pledge Faith in our Brothers who gave their all in the World War to make [the] World Safe for Democracy. Their Mortal Bodies have turned to dust, but their spirit Lives to guide us through Life in the way of Godliness, Justice and Liberty.
"With our Motto, 'One God, One Country, and One Flag' We contribute to this Memorial Cross Commemorating the Memory of those who have not Died in Vain." Id ., at. 1251.
Many of those who responded were local residents who gave small amounts: Donations of 25 cents to 1 dollar were the most common. Id. , at 1014. Local businesses and political leaders assisted in this effort. Id., at 1014, 1243. In writing to thank United States Senator John Walter Smith for his donation, committee treasurer Mrs. Martin Redman explained that "[t]he chief reason I feel as deeply in this matter [is that], my son, [Wm.] F. Redman, lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone." Id. , at 1244.
The Cross was to stand at the terminus of another World War I memorial-the National Defense Highway, which connects Washington to Annapolis. The community gathered for a joint groundbreaking ceremony for both memorials on September 28, 1919; the mother of the first Prince George's County resident killed in France broke ground for the Cross. Id. , at 910. By 1922, however, the committee had run out of funds, and progress on the Cross had stalled. The local post of the American Legion took over the project, and the monument was finished in 1925.
The completed monument is a 32-foot tall Latin cross that sits on a large pedestal. The American Legion's emblem is displayed at its center, and the words "Valor," "Endurance," "Courage," and "Devotion" are inscribed at its base, one on each of the four faces. The pedestal also features a 9- by 2.5-foot bronze plaque explaining that the monument is "Dedicated to the heroes of Prince George's County, Maryland who lost their lives in the Great War for the liberty of the world." Id ., at 915 (capitalization omitted). The plaque lists the names of 49 local men, both Black and White, who died in the war. It identifies the dates of American involvement, and quotes President Woodrow Wilson's request for a declaration of war: "The right is more precious than peace. We shall fight for the things we have always carried nearest our hearts. To such a task we dedicate our lives." Ibid .
At the dedication ceremony, a local Catholic priest offered an invocation. Id., at 217-218. United States Representative Stephen W. Gambrill delivered the keynote address, honoring the " 'men of Prince George's County' " who " 'fought for the sacred right of all to live in peace and security.' " Id ., at 1372. He encouraged the community to look to the " 'token of this cross, symbolic of Calvary,' " to " 'keep fresh the memory of our boys who died for a righteous cause.' " Ibid. The ceremony closed with a benediction offered by a Baptist pastor.
Since its dedication, the Cross has served as the site of patriotic events honoring veterans, including gatherings on Veterans Day, Memorial Day, and Independence Day. Like the dedication itself, these events have typically included an invocation, a keynote speaker, and a benediction. Id. , at 182, 319-323. Over the years, memorials honoring the veterans of other conflicts have been added to the surrounding area, which is now known as Veterans Memorial Park. These include a World War II Honor Scroll; a Pearl Harbor memorial; a Korea-Vietnam veterans memorial; a September 11 garden; a War of 1812 memorial; and two recently added 38-foot-tall markers depicting British and American soldiers in the Battle of Bladensburg.
Id. , at 891-903, 1530. Because the Cross is located on a traffic island with limited space, the closest of these other monuments is about 200 feet away in a park across the road. Id. , at 36, 44.
As the area around the Cross developed, the monument came to be at the center of a busy intersection. In 1961, the Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land on which it sits in order to preserve the monument and address traffic-safety concerns. Id. , at 420-421, 1384-1387. The American Legion reserved the right to continue using the memorial to host a variety of ceremonies, including events in memory of departed veterans. Id. , at 1387. Over the next five decades, the Commission spent approximately $ 117,000 to maintain and preserve the monument. In 2008, it budgeted an additional $ 100,000 for renovations and repairs to the Cross.
C
In 2012, nearly 90 years after the Cross was dedicated and more than 50 years after the Commission acquired it, the American Humanist Association (AHA) lodged a complaint with the Commission. The complaint alleged that the Cross's presence on public land and the Commission's maintenance of the memorial violate the Establishment Clause of the First Amendment. Id., at 1443-1451. The AHA, along with three residents of Washington, D. C., and Maryland, also sued the Commission in the District Court for the District of Maryland, making the same claim. The AHA sought declaratory and injunctive relief requiring "removal or demolition of the Cross, or removal of the arms from the Cross to form a non-religious slab or obelisk." 874 F.3d 195, 202, n. 7 (C.A.4 2017) (internal quotation marks omitted). The American Legion intervened to defend the Cross.
The District Court granted summary judgment for the Commission and the American Legion. The Cross, the District Court held, satisfies both the three-pronged test announced in Lemon v. Kurtzman, 403 U. S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and the analysis applied by Justice BREYER in upholding the Ten Commandments monument at issue in Van Orden v. Perry , 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a "principal or primary effect" that "neither advances nor inhibits religion"; and (3) does not foster "an excessive government entanglement with religion," 403 U. S., at 612-613, 91 S.Ct. 2105 (internal quotation marks omitted). Applying that test, the District Court determined that the Commission had secular purposes for acquiring and maintaining the Cross-namely, to commemorate World War I and to ensure traffic safety. The court also found that a reasonable observer aware of the Cross's history, setting, and secular elements "would not view the Monument as having the effect of impermissibly endorsing religion." 147 F.Supp.3d 373, 387 (D.Md. 2015). Nor, according to the court, did the Commission's maintenance of the memorial create the kind of "continued and repeated government involvement with religion" that would constitute an excessive entanglement. Ibid. (internal quotation marks and emphasis omitted). Finally, in light of the factors that informed its analysis of Lemon 's "effects" prong, the court concluded that the Cross is constitutional under Justice BREYER's approach in Van Orden. 147 F.Supp.3d at 388-390.
A divided panel of the Court of Appeals for the Fourth Circuit reversed. The majority relied primarily on the Lemon test but also took cognizance of Justice BREYER's Van Orden concurrence. While recognizing that the Commission acted for a secular purpose, the court held that the Bladensburg Cross failed Lemon 's "effects" prong because a reasonable observer would view the Commission's ownership and maintenance of the monument as an endorsement of Christianity. The court emphasized the cross's "inherent religious meaning" as the " 'preeminent symbol of Christianity.' " 874 F.3d at 206-207. Although conceding that the monument had several "secular elements," the court asserted that they were "overshadow[ed]" by the Cross's size and Christian connection-especially because the Cross's location and condition would make it difficult for "passers-by" to "read" or otherwise "examine" the plaque and American Legion emblem. Id., at 209-210. The court rejected as "too simplistic" an argument defending the Cross's constitutionality on the basis of its 90-year history, suggesting that "[p]erhaps the longer a violation persists, the greater the affront to those offended." Id., at 208. In the alternative, the court concluded, the Commission had become excessively entangled with religion by keeping a display that "aggrandizes the Latin cross" and by spending more than de minimis public funds to maintain it. Id., at 211-212.
Chief Judge Gregory dissented in relevant part, contending that the majority misapplied the "effects" test by failing to give adequate consideration to the Cross's "physical setting, history, and usage." Id., at 218 (opinion concurring in part and dissenting in part). He also disputed the majority's excessive-entanglement analysis, noting that the Commission's maintenance of the Cross was not the kind of "comprehensive, discriminating, and continuing state surveillance" of religion that Lemon was concerned to rule out. 874 F.3d at 221 (internal quotation marks omitted).
The Fourth Circuit denied rehearing en banc over dissents by Chief Judge Gregory, Judge Wilkinson, and Judge Niemeyer. 891 F.3d 117 (2018). The Commission and the American Legion each petitioned for certiorari. We granted the petitions and consolidated them for argument. 586 U. S. ---- (2016).
II
A
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." While the concept of a formally established church is straightforward, pinning down the meaning of a "law respecting an establishment of religion" has proved to be a vexing problem. Prior to the Court's decision in Everson v. Board of Ed. of Ewing , 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Establishment Clause was applied only to the Federal Government, and few cases involving this provision came before the Court. After Everson recognized the incorporation of the Clause, however, the Court faced a steady stream of difficult and controversial Establishment Clause issues, ranging from Bible reading and prayer in the public schools, Engel v. Vitale , 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) ; School Dist. of Abington Township v. Schempp , 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), to Sunday closing laws, McGowan v. Maryland , 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), to state subsidies for church-related schools or the parents of students attending those schools, Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) ; Everson, supra. After grappling with such cases for more than 20 years, Lemon ambitiously attempted to distill from the Court's existing case law a test that would bring order and predictability to Establishment Clause decisionmaking. That test, as noted, called on courts to examine the purposes and effects of a challenged government action, as well as any entanglement with religion that it might entail. Lemon , 403 U. S., at 612-613, 91 S.Ct. 2105
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Richard W. TERRILL and Frances Terrill, Appellants, v. A. H. CARPENTER, Margaret L. Carpenter and The South Central Petroleum Corporation, Appellees.
No. 13045.
United States Court of Appeals Sixth Circuit.
Oct. 23, 1957.
McCann, Sledd & McCann, Troy D. Savage, Lexington, Ky., for appellants.
Hunter M. Shumate, Irvine, Ky., for appellee.
Before ALLEN, McALLISTER and STEWART, Circuit Judges.
PER CURIAM.
This appeal arises out of an action filed July 13, 1953, in which appellants sued for damages claimed to have been incurred from fraud practiced by appellee Carpenter and his agent J. F. Sheppord in the sale to appellants of interests in numerous mineral leases of land located in five counties of the State of Kentucky and in dealings between the parties growing out of such sales. The District Court held that appellants’ claims resting upon and arising out of transactions during the years 1946 and 1947 are barred by the five-year statute of limitations. Kentucky Revised Statutes, Sections 413.120(12) and 413.130 (3). As to subsequent activities of appellees involved herein, the court held that they were covered by an agreement executed April 10, 1951, between appellee Carpenter and his agent Shepperd and appellants herein, whereby, in consideration of assignment by appellee Carpenter and Shepperd of certain stock, and in consideration of the release by appellee Carpenter and Shepperd of certain claims, a full and final compromise and settlement of all controversies to date and release of all claims between the parties were effected.
Each of these holdings is plainly correct under the Kentucky statutes and applicable decisions.
The court, also, in extensive findings of fact, specifically found that fraud was not proved in the numerous transactions attacked by appellants. The testimony as to these matters was in general controverted. The court’s findings of fact are sustained by the record and are binding here. Federal Rules of Civil Procedure rule 52(a), 28 U.S.C.
Numerous other actions claimed to grow out of fraudulent dealings between appellee Carpenter and Shepperd and various parties are pending in the District Court. The decision herein necessarily applies only to the instant case and to transactions between appellee Carpenter and Shepperd and the particular appellants herein.
The judgment is affirmed upon the grounds and for the reasons stated in the findings of fact and conclusions of law and memorandum opinion filed by the District Court August 16, 1956.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_casedisposition
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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.
OHIO CIVIL RIGHTS COMMISSION et al. v. DAYTON CHRISTIAN SCHOOLS, INC., et al.
No. 85-488.
Argued March 26, 1986
Decided June 27, 1986
Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, and O’Connor, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which BRENNAN, Marshall, and Blackmun, JJ., joined, post, p. 629.
Kathleen McManus argued the cause for appellants. With her on the briefs were Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Helen M. Ninos, Assistant Attorney General.
William Bentley Ball argued the cause for appellees. With him on the brief were Philip J. Murren, Sandra E. Wise, and Bruce E. Pence
Joan E. Bertin, George Kannar, Charles S. Sims, Isabelle Katz Pinzler, and Burt Neubome filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Kimberlee Wood Colby, Samuel E. Ericsson, Michael J. Woodruff, Samuel Rabinove, and Richard T. Foltin; for Americans United for Separation of Church and State by Lee Boothby and Robert A. Yingst; for the Associated Christian Conciliation Services by John D. Robb; for the Catholic Conference of Ohio by David J. Young; for Concerned Women of America by Diane E. White, Joy R. Powell, and Jordan W. Lorence; for the Council on Religious Freedom by Lee Boothby and Rolland Truman; for the General Conference of Seventh-day Adventists by Walter E. Carson and Warren L. Johns; for the Gulf & Great Plains Legal Foundation by Jerald L. Hill and Mark J. Bredemeier; for the National Jewish Commission on Law and Public Affairs (“COLPA”) by Daniel D. Chazin, Nathan Lewin, and Dennis Rapps; for the Rutherford Institute et al. by W. Charles Bundren, Guy 0. Farley, Jr., John W. Whitehead, D. Kevin Ikenberry, Thomas 0. Kotouc, Alfred Lindh, William B. Hollberg, and Wendell R. Bird; and for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko.
Briefs of amici curiae were filed for the American Jewish Congress by Marc D. Stem and Ronald A. Krauss; and for the Catholic League for Religious and Civil Rights et al. by Steven Frederick McDowell.
Justice Rehnquist
delivered the opinion of the Court.
Appellee Dayton Christian Schools, Inc. (Dayton), and various individuals brought an action in the United States District Court for the Southern District of Ohio under 42 U. S. C. § 1983, seeking to enjoin a pending state administrative proceeding brought against Dayton by appellant Ohio Civil Rights Commission (Commission). Dayton asserted that the Free Exercise and Establishment Clauses of the First Amendment prohibited the Commission from exercising jurisdiction over it or from punishing it for engaging in employment discrimination. The District Court refused to issue the injunction on grounds that any conflict between the First Amendment and the administrative proceedings was not yet ripe, and that in any case the proposed action of the Commission violated neither the Free Exercise Clause nor the Establishment Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment. The Court of Appeals for the Sixth Circuit reversed, holding that the exercise of jurisdiction and the enforcement of the statute would impermissibly burden appellees’ rights under the Free Exercise Clause and would result in excessive entanglement under the Establishment Clause. We postponed the question of jurisdiction pending consideration of the merits. 474 U. S. 978 (1985). We now conclude that we have jurisdiction, and we reverse, holding that the District Court should have abstained under our cases beginning with Younger v. Harris, 401 U. S. 37 (1971).
Dayton is a private nonprofit corporation that provides education at both the elementary and secondary school levels. It was formed by two local churches, the Patterson Park Brethren Church and the Christian Tabernacle, and it is regarded as a “nondenominational” extension of the Christian education ministries of these two churches. Dayton’s corporate charter establishes a board of directors (board) to lead the corporation in both spiritual and temporal matters. App. 11. The charter also includes a section entitled “Statement of Faith,” which serves to restrict membership on the board and the educational staff to persons who subscribe to a particular set of religious beliefs. The Statement of Faith requires each board or staff member to be a born-again Christian and to reaffirm his or her belief annually in the Bible, the Trinity, the nature and mission of Jesus Christ, the doctrine of original sin, the role of the Holy Ghost, the resurrection and judgment of the dead, the need for Christian unity, and the divine creation of human beings. Id., at 5-6.
The board has elaborated these requirements to include a belief in the internal resolution of disputes through the “Biblical chain of command.” The core of this doctrine, rooted in passages from the New Testament, is that one Christian should not take another Christian into courts of the State. Teachers are expected to present any grievance they may have to their immediate supervisor, and to acquiesce in the final authority of the board, rather than to pursue a remedy in civil court. The board has sought to ensure compliance with this internal dispute resolution doctrine by making it a contractual condition of employment.
Linda Hoskinson was employed as a teacher at Dayton during the 1978-1979 school year. She subscribed to the Statement of Faith and expressly agreed to resolve disputes internally through the Biblical chain of command. In January 1979, she informed her principal, James Rakestraw, that she was pregnant. After consulting with his superiors, Rakestraw informed Hoskinson that her employment contract would not be renewed at the end of the school year because of Dayton’s religious doctrine that mothers should stay home with their preschool age children. Instead of appealing this decision internally, Hoskinson contacted an attorney who sent a letter to Dayton’s superintendent, Claude Schindler, threatening litigation based on state and federal sex discrimination laws if Dayton did not agree to rehire Hoskinson for the coming school year.
Upon receipt of this letter, Schindler informed Hoskinson that she was suspended immediately for challenging the nonrenewal decision in a manner inconsistent with the internal dispute resolution doctrine. The board reviewed this decision and decided to terminate Hoskinson. It stated that the sole reason for her termination was her violation of the internal dispute resolution doctrine, and it rescinded the earlier nonrenewal decision because it said that she had not received adequate prior notice of the doctrine concerning a mother’s duty to stay home with her young children.
Hoskinson filed a complaint with appellant Ohio Civil Rights Commission (Commission), alleging that Dayton’s nonrenewal decision constituted sex discrimination, in violation of Ohio Rev. Code Ann. § 4112.02(A) (Supp. 1985), and that its termination decision penalized her for asserting her rights, in violation of Ohio Rev. Code Ann. §4112.02(1) (Supp. 1985). The Commission notified Dayton that it was conducting a preliminary investigation into the matter, and repeatedly urged Dayton to consider private settlement, warning that failure to do so could result in a formal adjudication of the matter.
The Commission eventually determined that there was probable cause to believe that Dayton had discriminated against Hoskinson based on her sex and had retaliated against her for attempting to assert her rights in violation of §§ 4112(A) and (I). Pursuant to Ohio Rev. Code Ann. § 4112.05(B) (Supp. 1985), it sent Dayton a proposed Conciliation Agreement and Consent Order that would have required Dayton to reinstate Hoskinson with backpay, and would have prohibited Dayton from taking retaliatory action against any employee for participating in the preliminary investigation. The Commission warned Dayton that failure to accede to this proposal or an acceptable counteroffer would result in formal administrative proceedings being initiated against it. When Dayton failed to respond, the Commission initiated administrative proceedings against it by filing a complaint. Dayton answered the complaint by asserting that the First Amendment prevented the Commission from exercising jurisdiction over it since its actions had been taken pursuant to sincerely held religious beliefs. App. 103.
While these administrative proceedings were pending, Dayton filed this action against the Commission in the United States District Court for the Southern District of Ohio under 42 U. S. C. § 1983, seeking a permanent injunction against the state proceedings on the ground that any investigation of Dayton’s hiring process or any imposition of sanctions for Dayton’s nonrenewal or termination decisions would violate the Religion Clauses of the First Amendment. App. 118— 120. The Commission filed a motion to dismiss, arguing, inter alia, that the District Court should refrain from enjoining the administrative proceedings based on federal abstention doctrines. Record, Doc. No. 9, pp. 7-8. It also filed various documents defending its action on the merits.
Without addressing the abstention argument, the District Court refused to issue the injunction. 578 F. Supp. 1004 (1984). The Court of Appeals for the Sixth Circuit reversed, as previously noted, holding that the exercise of such jurisdiction would violate both the Free Exercise Clause and the Establishment Clause of the First Amendment. 766 F. 2d 932 (1985).
We hold that we have appellate jurisdiction under 28 U. S. C. § 1254(2) to review the decision of the Court of Appeals. That statute authorizes an appeal to this Court “by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution.” This authority embraces cases holding a state statute unconstitutional as applied to the facts of the case. Dutton v. Evans, 400 U. S. 74, 76, n. 6 (1970). Here there is no doubt that the decision by the Court of Appeals satisfies this test. The court expressly held that Ohio Rev. Code Ann. §4112.02 et seq. (Supp. 1985) is repugnant to the Free Exercise and Establishment Clauses as applied to authorize the administrative body to investigate the charges against Dayton and to decide whether to impose sanctions. See 766 F. 2d, at 935, n. 5, 944, 955, 961.
Having taken jurisdiction over the decision below, we now turn to whether the District Court should have exercised jurisdiction over the case itself. We conclude that the District Court should have abstained from adjudicating this case under Younger v. Harris, 401 U. S. 37 (1971), and later cases. The Commission urged such abstention in the District Court, and on oral argument here. Tr. of Oral Axg. 7-8. Dayton has filed a postargument brief urging that the Commission has waived any claim to abstention because it had stipulated in the District Court that that court had jurisdiction of the action. We think, however, that this argument misconceives the nature of Younger abstention. It does not arise from lack of jurisdiction in the District Court, but from strong policies counseling against the exercise of such jurisdiction where particular kinds of state proceedings have already been commenced. A State may of course voluntarily submit to federal jurisdiction even though it might have had a tenable claim for abstention. See Brown v. Hotel Employees, 468 U. S. 491, 500, n. 9 (1984); Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471, 479-480 (1977); Sosna v. Iowa, 419 U. S. 393, 396-397, n. 3 (1975). But in each of these cases the State expressly urged this Court or the District Court to proceed to an adjudication of the constitutional merits. We think there was no similar consent or waiver here, and we therefore address the issue of whether the District Court should have abstained from deciding the case.
In Younger v. Harris, supra, we held that a federal court should not enjoin a pending state criminal proceeding except in the very unusual situation that an injunction is necessary to prevent great and immediate irreparable injury. We justified our decision both on equitable principles, id., at 43, and on the “more vital consideration” of the proper respect for the fundamental role of States in our federal system. Id., at 44. Because of our concerns for comity and federalism, we thought that it was
“perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” Id., at 45 (emphasis added).
We have since recognized that our concern for comity and federalism is equally applicable to certain other pending state proceedings. We have applied the Younger principle to civil proceedings in which important state interests are involved. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); Juidice v. Vail, 430 U. S. 327 (1977); Trainor v. Hernandez, 431 U. S. 434 (1977); Moore v. Sims, 442 U. S. 415, 423 (1979). We have also applied it to state administrative proceedings in which important state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim. We stated in Gibson v. Berryhill, 411 U. S. 564, 576-577 (1973), that “administrative proceedings looking toward the revocation of a license to practice medicine may in proper circumstances command the respect due court proceedings.” Similarly, we have held that federal courts should refrain from enjoining lawyer disciplinary proceedings initiated by state ethics committees if the proceedings are within the appellate jurisdiction of the appropriate State Supreme Court. Middlesex County Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 (1982). Because we found that the administrative proceedings in Middlesex were “judicial in nature” from the outset, id., at 432-434, it was not essential to the decision that they had progressed to state-court review by the time we heard the federal injunction case.
We think the principles enunciated in these cases govern the present one. We have no doubt that the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within the ambit of the cited authorities. We also have no reason to doubt that Dayton will receive an adequate opportunity to raise its constitutional claims. Dayton contends that the mere exercise of jurisdiction over it by the state administrative body violates its First Amendment rights. But we have repeatedly rejected the argument that a constitutional attack on state procedures themselves “automatically vitiates the adequacy of those procedures for purposes of the Younger-Huffman line of cases.” Moore, supra, at 427, n. 10. Even religious schools cannot claim to be wholly free from some state regulation. Wisconsin v. Yoder, 406 U. S. 205, 213 (1972). We therefore think that however Dayton’s constitutional claim should be decided on the merits, the Commission violates no constitutional rights by merely investigating the circumstances of Hoskinson’s discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge.
Dayton also contends that the administrative proceedings do not afford the opportunity to level constitutional challenges against the potential sanctions for the alleged sex discrimination. In its reply brief in this Court, the Commission cites several rulings to demonstrate that religious justifications for otherwise illegal conduct are considered by it. See, e. g., In re St. Mary of the Falls, No. 948 (1975). Dayton in turn relies on a decision of the Supreme Court of Ohio, Mobil Oil Corp. v. Rocky River, 38 Ohio St. 2d 23, 26, 309 N. E. 2d 900, 902 (1974), in which that court held that a local zoning commission could not consider constitutional claims. But even if Ohio law is such that the Commission may not consider the constitutionality of the statute under which it operates, it would seem an unusual doctrine, and one not supported by the cited case, to say that the Commission could not construe its own statutory mandate in the light of federal constitutional principles. Cf. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979). In any event, it is sufficient under Middlesex, supra, at 436, that constitutional claims may be raised in state-court judicial review of the administrative proceeding. Section 4112.06 of Ohio Rev. Code Ann. (1980). provides that any “respondent claiming to be aggrieved by a final order of the commission . . . may obtain judicial review thereof.” Dayton cites us to no Ohio authority indicating that this provision does not authorize judicial review of claims that agency action violates the United States Constitution.
The judgment of the Court of Appeals is therefore reversed, and the case remanded for further proceedings consistent with this opinion.
It is so ordered.
We think that any ripeness challenge to appellees’ complaint is foreclosed by Steffel v. Thompson, 415 U. S. 452 (1974), and Doran v. Salem Inn, Inc., 422 U. S. 922 (1975). Steffel held that a reasonable threat of prosecution for conduct allegedly protected by the Constitution gives rise to a sufficiently ripe controversy. 415 U. S., at 458-460. If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not. It is true that the administrative body may rule completely or partially in appellees’ favor; but it was equally true that the plaintiffs in Steffel and Doran may have prevailed had they in fact been prosecuted.
The lower courts have been virtually uniform in holding that the Younger principle applies to pending state administrative proceedings in which an important state interest is involved. See, e. g., Williams v. Red Bank Board of Education, 662 F. 2d 1008 (CA3 1981); Grandco Corp. v. Rochford, 536 F. 2d 197, 206 (CA7 1976); McCune v. Frank, 521 F. 2d 1152, 1158 (CA2 1975); McDonald v. Metro-North Commuter Railroad Division of Metropolitan Transit Authority, 565 F. Supp. 37 (SDNY 1983) (Weinfeld, J.). Only the recent case of Martori Bros. Distributors v. James-Massengale, 781 F. 2d 1349, 1354 (CA9 1986), departs from this position, and it does so without analysis. Of course, if state law expressly indicates that the administrative proceedings are not even “judicial in nature,” abstention may not be appropriate. See Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 237-239 (1984).
The application of the Younger principle to pending state administrative proceedings is fully consistent with Patsy v. Florida Board of Regents, 457 U. S. 496 (1982), which holds that litigants need not exhaust their administrative remedies prior to bringing a § 1983 suit in federal court. Cf. Huffman v. Pursue, Ltd., 420 U. S. 592, 607-611 (1975). Unlike Patsy, the administrative proceedings here are coercive rather than remedial, began before any substantial advancement in the federal action took place, and involve an important state interest.
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_respondent
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081
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BRYANT et al. v. YELLEN et al.
No. 79-421.
Argued March 25, 1980
Decided June 16, 1980
White, J., delivered the opinion for a unanimous Court.
Northcutt Ely and Charles W. Bender argued the cause for petitioners in all cases. With Mr. Ely on the briefs for petitioner Imperial Irrigation District in No. 79-435 were Reginald L. Knox, Jr., Frederick H. Ritts, Robert F. Pietrowski, Jr., Ralph J. GUlis, and Charles E. Corker. With Mr. Bender on the briefs for petitioners Bryant et al. in No. 79-421 were Patrick Lynch, James V. Selna, and John F. Baum. George Deukmejian, Attorney General, R. H. Connett, Assistant Attorney General, and Douglas B. Noble, Deputy Attorney General, filed a brief for the State of California, petitioner in all cases.
Arthur Brunwasser argued the cause and filed a brief for respondents in all cases. Solicitor General McCree argued the cause for the United States in all cases. With him on the brief were Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Mark I. Levy, Peter R. Steenland, Jr., Raymond N. Zagone, and Dirk D. Snel.
Together with No. 79-425, California et al. v. Yellen et al., and No. 79-435, Imperial Irrigation District et al. v. Yellen et al., also on certiorari to the same court.
Robert Marvin Teets, Jr., Christopher E. Hamilton, Ralph Santiago Abascal, Ellen Josephson, and Sidney M. Wolinsky filed a brief for Pedro Duarte et al. as amici curiae urging affirmance in all eases.
Mr. Justice White
delivered the opinion of the Court.
When the Boulder Canyon Project Act, 45 Stat. 1057, 43 U. S. C. § 617 et seg. (Project Act), became effective in 1929, a large area in Imperial Valley, Cal., was already being irrigated by Colorado River water brought to the Valley by a privately owned delivery and distribution system. Pursuant to the Project Act, the United States constructed and the Imperial Irrigation District (District) agreed to pay for a new diversion dam and a new canal connecting the dam with the District. The Project Act was supplemental to the reclamation laws, which as a general rule limited water deliveries from reclamation projects to 160 acres under single ownership. The Project Act, however, required that the Secretary of the Interior (Secretary) observe rights to Colorado River water that had been perfected under state law at the time the Act became effective. In the course of contracting with the District for the building of the new dam and canal and for the delivery of water to the District, the United States represented that the Project Act did not impose acreage limitations on lands that already had vested or present rights to Colorado River water. The United States officially adhered to that position until 1964 when it repudiated its prior construction of the Project Act and sued the District, claiming that the 160-acre limitation contained in the reclamation law applies to all privately owned lands in the District, whether or not they had been irrigated in 1929. The District Court found for the District and its landowners, 322 P. Supp. 11 (SD Cal. 1971), but the Court of Appeals reversed and sustained the Government’s position, 559 F. 2d 509 (CA9 1977). We now reverse the Court of Appeals with respect to those lands that were irrigated in 1929 and with respect to which the District has been adjudicated to have a perfected water right as of that date, a water right which, until 1964, the United States Department of the Interior officially represented foreclosed the application of acreage limitations. The judgment is otherwise vacated.
I
Imperial Valley is an area located south of the Saltón Sea in southeastern California. It lies below sea level, and is an arid desert in its natural state. In 1901, however, irrigation began in the Valley, using water diverted from the Colorado River, which in that area marks the border between California and Arizona. Until at least 1940, irrigation water was brought to the Valley by means of a canal and distribution system that were completely privately financed. On June 25, 1929, when the Project Act became effective, the District was diverting, transporting, and delivering water to 424,145 acres of privately owned and very productive farmland in Imperial Valley. Under neither state law nor private irrigation arrangements in existence in Imperial Valley prior to 1929 was there any restriction on the number of acres that a single landholder could own and irrigate.
Prior to 1929 and for several years thereafter, the water diverted from the Colorado River was carried to the Valley through the Alamo Canal, which left the river north of the border with Mexico but then traversed Mexican territory for some 50 miles before turning northward into Imperial Valley. This distribution system, entirely privately financed and owned, comprised approximately 1,700 miles of main and lateral canals, all serving to divert and deliver the necessary waters to the lands in Imperial Valley.
The Project Act was the culmination of the efforts of the seven States in the Colorado River Basin to control flooding, regulate water supplies on a predictable basis, allocate waters among the Upper and Lower Basin States and among the States in each basin, and connect the river to the Imperial Valley by a canal that did not pass through Mexico. In 1922, the seven States executed the Colorado River Compact (Compact) allocating the waters of the river between the Upper and Lower Basins, and among other things providing in Art. VIII that “[p]resent perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact.” The Project Act, passed in 1928 and effective in 1929, implemented and ratified the Compact; contained its own formula for allocating Lower Basin water among California, Arizona, and Nevada, Arizona v. California, 373 U. S. 546 (1963); and authorized the construction of the works required for the harnessing and more efficient utilization of the unruly river. The principal works of the Project, consisting of the Hoover Dam at Black Canyon and the storage facilities behind it, served to implement the division of the Compact. The dam was completed and storage began in 1935.
Section 1 of the Project Act, which provided for the dam at Black Canyon, also authorized the construction of a new canal, the All-American Canal, which would replace the Alamo Canal and would traverse only territory located in the United States. A new diversion dam for Imperial Valley water was also authorized. Section 1 went on to provide that no charge should be made for the storage or delivery of irrigation or potable water to Imperial or Coachella Valley.
Section 4 (a) of the Project Act conditioned the effectiveness of the Act on the ratification of the Compact by the signatory States. Section 4 (b), as well as requiring contractual provision for the repayment of specified costs with respect to the Hoover Dam, required that before any money was appropriated for the Imperial Yalley works, the Secretary was to make provision for revenues “by contract or otherwise” to insure payment of all “expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law.” Section 5 authorized the Secretary to contract for the storage of water and for its delivery at such points on the river and the canal as were agreed upon. Contracts were to be for permanent service and were required before any person would be entitled to stored water.
Section 6 of the Project Act, of critical importance in these cases, mandated that the works authorized by § 1 were to be used: “First, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River compact; and third, for power.” Section 9 authorized the opening to entry of the public lands that would become irrigable by the Project but in tracts not greater than 160 acres in size in accordance with the provisions of the reclamation law.
Section 14 provided that the Project Act should be deemed supplemental to the reclamation law, “which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided.” The “reclamation law” referred to was defined in § 12 as the Act of June 17, 1902 (Reclamation Act), 32 Stat. 388, and Acts amendatory thereof and supplemental thereto. One of the statutes amendatory of or supplemental to the Reclamation Act was the Omnibus Adjustment Act of 1926 (1926 Act), § 46 of which, 44 Stat. (part 2) 649, 43 U. S. C. § 423e, forbade delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres, and required owners to execute recordable contracts for the sale of excess lands before such lands could receive project water.
Pursuant to the Project Act, the United States and the District entered into a contract on December 1, 1932, providing for the construction of the Imperial Dam and the All-American Canal. The District undertook to pay the cost of the works, and to include within itself certain public lands of the United States and other specified lands. The United States undertook to deliver to the Imperial Dam the water which would be carried by the new canal to the various lands to be served by it. The contract contained no acreage limitation provision. Pursuant to this contract, the United States constructed the Imperial Dam in the Colorado River — some distance below Black Canyon but upriver from the existing point of diversion — and the All-American Canal connecting the dam and Imperial Valley. Use of the canal began in 1940, and by 1942 it carried all Colorado River water used by Imperial Valley.
Article 31 of the contract between the District and the United States provided that the United States would not be' bound by the contract until and unless court proceedings had been instituted by the District and a final judgment obtained confirming the authorization and the validity of the contract. Such an action, entitled Hewes v. All Persons, No. 15460, Superior Court, Imperial County, was instituted' and final judgment was entered on July 1, 1933, confirming the validity of the contract in all respects. App. to Pet. for Cert, in No. 79-435, pp. 120a-154a. In connection with these proceedings, the then Secretary, Ray Lyman Wilbur, on February 24, 1933, submitted a letter to the District dealing with the question whether the 160-acre limitation of the reclamation law was applicable in Imperial Valley. Among other things, the letter stated:
“Upon careful consideration the view, was reached that this limitation does not apply to lands now cultivated and having a present water right. These lands, having already a water right, are entitled to have such vested right recognized without regard to the acreage limitation mentioned. Congress evidently recognized that these lands had a vested right when the provision was inserted that no charge shall be made for the storage, use, or delivery of water to be furnished these areas.”
The trial court in the Hewes case expressly found and concluded that eligibility for project water was not limited to 160-acre tracts in single ownership. An appeal in the case was dismissed before judgment. The United States was not a party to the action.
The Wilbur letter expressing the view that lands under irrigation at the time the Project Act was passed and having a present water right were not subject to the 160-acre limitation remained the official view of the Department of the Interior until 1964 when the Department adopted the view of its then Solicitor that the limitation should have applied to all Imperial Valley lands in private ownership.
Meanwhile, it having become apparent that neither the Compact nor the Project Act settled to the satisfaction of the Lower Basin States how the water allocated to them should be divided, an original action was begun in this Court in 1952 to settle this fundamental question and related issues, including the ascertainment of present perfected rights the unimpaired preservation of which was required by both the Compact and the Project Act. After more than 10 years of litigation, the opinion in Arizona v. California was handed down on June 3, 1963. 373 U. S. 546. Although the dispute among the Lower Basin States was at the heart of the controversy, for present purposes the primary aspect of the case was the recognition given to present perfected rights in the opinion and the ensuing decrees.
The opinion recognized that under § 14 of the Project Act, the construction, operation, and management of the works were to be subject to the provisions of the reclamation law, except as the Act otherwise provided, and that one of the most significant limitations in the Project Act on the Secretary’s authority to contract for the delivery of water is the requirement to satisfy present perfected rights, “a matter of intense importance to those who had reduced their water rights to actual beneficial use at the time the Act became effective.” 373 U. S., at 584. The decree, which was entered on March 9, 1964, 376 U. S. 340, defined a perfected right as:
“[A] water right acquired in accordance with state law, which right has been exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works. . . .” Id., at 341.
Present perfected rights were defined as those perfected rights "existing as of June 25, 1929, the effective date of the Boulder Canyon Project Act.” Ibid. The decree also provided for the future determination of the specific present perfected rights in each of the Lower Basin States. A supplemental decree was eventually forthcoming, 439 U. S. 419 (1979), and in that decree the Imperial Irrigation District was adjudged to have a present perfected right
“in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.” Id., at 429.
As already indicated, the Department of the Interior repudiated the Wilbur interpretation of the Project Act in 1964. It then sought to include its revised position in a renegotiated contract with the District. When the District refused to accept the Department’s position, the United States sued the District in 1967 for a declaratory judgment that the excess-acreage limitation of § 46 applied to all private lands in the Valley. The District Court permitted several Imperial Valley landowners to intervene as defendants representing the certified class of all landowners owning more than 160 acres. It then ruled against the Government, holding for several reasons that “the land limitation provisions of reclamation law have no application to privately owned lands lying within the Imperial Irrigation District” and that the District is not bound to observe such limitations. 322 P. Supp., at 27. The Department of the Interior recommended and the Solicitor General decided, after reviewing the case, that an appeal not be prosecuted on behalf of the United States. In consequence, respondents, a group of Imperial Valley residents, who had been given leave to participate as amici in the District Court and who desired to purchase the excess lands that might become available if § 46 were held applicable, attempted to intervene for purpose of appeal, but the District Court denied the motion. The Court of Appeals reversed the denial, 559 P. 2d, at 543-544, and proceeded to hold that the appealing intervenors had standing under Art. Ill of the Constitution; that Hewes v. All Persons was not conclusive with respect to acreage limitation; that the clear import of §46 and the Project Act was that the 160-acre limitation is applicable to the Imperial Valley; and that the Department’s administrative practice over the years did not bar application of the limitation to the Valley.
Because of the importance of these cases, we granted the petitions for writs of certiorari filed by the District, the landowners, and the State of California. 444 U. S. 978 (1979).
II
As a preliminary matter, we agree with the Court of Appeals that the respondents who sought to enter the suit when the United States forwent an appeal from the District Court’s adverse decision had standing to intervene and press the appeal on their own behalf. Respondents, most of whom are farmworkers, reside in Imperial Valley. The essence of their claim was that they desired to purchase farmlands in Imperial Valley and that if § 46 were applied as they believed it should be, there would be excess lands available for purchase at prices below the market value for irrigated land. The Court of Appeals, although recognizing that no owner of excess lands would be required to sell, concluded that it would be highly improbable that all owners of excess lands would prefer to withdraw their irrigable lands from agriculture in order to avoid § 46. In these circumstances, the Court of Appeals ruled that under Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), and other cases, respondents had standing even though they could not with certainty establish that they would be able to purchase excess lands if § 46 were held applicable.
This was a proper application of our cases. It being unlikely that any of the 800 owners of excess lands would sell land at below current market prices absent the applicability of § 46 and it being likely that excess lands would become available at less than market prices if § 46 were applied, the Court of Appeals properly concluded that respondents had a sufficient stake in the outcome of the controversy to afford them standing to appeal the District Court’s decision.
Ill
We are unable, however, to agree with the Court of Appeals that Congress intended that the 160-acre limitation of the 1926 Act would apply to the lands under irrigation in Imperial Valley in 1929. Under § 14 of the Project Act, the construction, operation, and management of the project works were to be governed by the reclamation law, but only if not otherwise provided for in the Project Act. Section 46 of the 1926 Act is one of the reclamation laws; and its acreage limitation, which expressly applies to contracts for “constructing, operating, and maintaining” project works, would appear to govern the delivery of project water unless its applicability is foreclosed by some other provision of the Project Act. The Court of Appeals, erroneously we think, found no such preclusion in § 6 of the Act. >
Concededly, nothing in § 14, in § 46, or in the reclamation law in general would excuse the Secretary from recognizing his obligation to satisfy present perfected rights in Imperial Valley that were provided for by Art. VIII of the Compact and § 6 of the Project Act and adjudicated by this Court in Arizona v. California, 373 U. S. 546 (1963). The Court of Appeals neverthless held that § 46 could be applied consistently with § 6 because the perfected rights in Imperial Valley were owned by and would be adjudicated to the District, not to individual landowners, who were merely members of a class for whose benefit the water rights had been acquired and held in trust. Individual farmers, the Court of Appeals said, had no right under the law to a particular proportion of the District’s water. Applying § 46 and denying water to excess lands not sold would merely require reallocation of the water among those eligible to receive it and would not reduce the water which the District was entitled to have delivered in
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine 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.
UNITED STATES of America, Plaintiff-Appellee, v. Michael CATALDO, Defendant-Appellant.
No. 86-3826.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1987.
Edward J. Castaing, Jr., New Orleans, La. (Court-appointed), for defendant-appellant.
Howat A. Peters, Jr., Asst. U.S. Atty., John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., Dept, of Justice, New Orleans, La., for plaintiff-appellee.
Before THORNBERRY, GARWOOD and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Michael Cataldo (Cataldo) was convicted on three counts for bank robbery-related crimes. He brought a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his ten-year consecutive sentences under two of the counts violated the double jeopardy clause and that the proper remedy under United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), was to vacate the sentence on one of the two counts and allow the other to stand. The district court granted his motion but found Henry not controlling and vacated the sentences on both counts. The court then allowed the government to elect the count under which Cataldo would be resentenced and imposed a twenty-year sentence under that count. Cataldo appeals, arguing error in the failure to apply Henry and that the twenty-year sentence was vindictive under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We affirm.
Facts and Proceedings Below
Cataldo was tried before a jury on a three-count superseding indictment charging what was essentially a single course of conduct as violations of (1) the Federal Bank Robbery Act, 18 U.S.C. § 2113(a), (d); (2) the Hobbs Act, 18 U.S.C. § 1951; and (3) conspiracy to violate the Hobbs Act. On the substantive counts, Cataldo was also charged under 18 U.S.C. § 2, which makes an aider and abettor derivatively a principal. The evidence at trial established that Cataldo and his brother, Paul, took a bank official, his wife, and their child hostage at gunpoint, held them overnight, and in the morning forced the bank official to procure over $400,000 from the bank. The jury found Cataldo guilty on all three counts. The district court sentenced him to consecutive ten-year imprisonment terms on the substantive counts and a concurrent ten-year term on the conspiracy count (no fine or special assessment was imposed).
Cataldo moved for postconviction relief under section 2255, arguing that his convictions and sentencing under both section 2113 (Federal Bank Robbery Act) and section 1951 (Hobbs Act) constituted double jeopardy. Cataldo argued that United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), established that the proper remedy was to vacate his section 1951 sentence but not his section 2113 sentence. The district court agreed with Cataldo’s double jeopardy claim but not his remedial arguments. The district court found that although Cataldo had waived his double jeopardy defense to conviction by not raising the issue at trial, he could still challenge his sentences on double jeopardy grounds. The district court concluded that because the same acts (bank extortion) constituted the basis for conviction under sections 2113 and 1951, sentencing Cataldo under both statutes was a violation of double jeopardy. The district court vacated Cataldo’s section 2113 and section 1951 sentences, the government elected to have Ca-taldo resentenced under section 1951 (Hobbs Act), and the court then resen-tenced him thereunder to twenty years imprisonment. The court explained at Catal-do’s resentencing:
“I believe as a matter of law that I have not increased Mr. Cataldo’s sentence, and it is my intention not to increase his sentence but to impose upon him the same sentence which was imposed upon him after his conviction, which I later set aside because I felt that taking the sentence on the two counts together constituted an illegal sentence. So it is not my intention to be vindictive. It is not my intention to punish Mr. Cataldo anymore than he has already been punished. It is my clear intention to sentence him to twenty years, which was my original sentence.”
Subsequently, Cataldo filed this appeal seeking to have his new twenty-year section 1951 sentence vacated and the original ten-year sentence reinstated.
Discussion
Our analysis begins with United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc). For his involvement in a shoot-out with state and federal law enforcement officers, Henry was convicted and sentenced to serve five years under 18 U.S.C. § 371, seven years concurrent under 18 U.S.C. § 111, and five years consecutive to the first two sentences under 18 U.S.C. § 924(c). Sections 111 and 924(c) both allow for enhanced penalties for assaulting a federal officer with a firearm. We subsequently ruled that a defendant may not be sentenced under both section 924(c) and section 111, and that a district court could choose to vacate either sentence. United States v. Shillingford, 586 F.2d 372, 376 & n. 7 (5th Cir.1978) (applying Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978)). Armed with these precedents, Henry moved to vacate his section 924(c)(1) sentence under Fed.R.Crim.P. 35. The district court instead chose to vacate the section 111 portion of the sentence, thereby reducing the total twelve-year sentence by only two years instead of the five years desired by defendant. Henry appealed and lost and was granted a rehearing en banc. While his case awaited submission, the Supreme Court decided Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
In Busic, the Court held that the district court could not choose between sections 111 and 924(c); rather, it could only sentence under section 111. Id., 100 S.Ct. at 1752. The Court reasoned solely as a matter of statutory construction, not constitutional law, that enhanced sentencing under section 924(c) for use or possession of a firearm during the commission of a felony is not permissible when the predicate felony statute, such as section 111, contains its own enhancement provision, because in that situation section 924(c) was simply inapplicable. Id. at 1752-53. The Court, however, expressed no opinion as to whether the court of appeals could vacate the section 111 sentence as well as the section 924 sentence so that the district court could resentence under section 111 in a manner consistent with its original sentencing intent. Id. at 1756 n. 19. On remand, the Third Circuit Court of Appeals held that the district court should be able to resentence under section 111 and, accordingly, vacated both sentences. United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).
Applying Busic, we vacated Henry’s “sentence” and remanded. United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc). On remand, the district court vacated the section 924 sentence, reinstated the seven-year section 111 sentence, reduced it to five years, and made it consecutive to the remaining five-year sentence, thereby sentencing Henry to a total of ten years again. Henry again appealed, again lost, and was again granted a rehearing en banc.
The thirteen-member en banc court splintered. Six judges agreed with the result reached by the Third Circuit in Busic on remand and dissented. A plurality of five judges, joined by two specially concurring judges, held that the section 924(c) sentence was the only illegal sentence that the district court could correct under Rule 35, and, consequently, upward resentencing on the section 111 count was impermissible. The plurality stated, however:
“it is clear that one of the two coexisting sentences is absolutely illegal (that under section 924(c)(1)) and the other legal (that under section 111). If the only legal problem in a case is that two sentences cannot coexist (but neither has “priority”), then it arguably makes sense to vacate both of them on a direct appeal.” Henry, 709 F.2d at 308 n. 16.
This distinction, noted by the plurality, is particularly important because it is the emphasis of the two concurring opinions. Judge Reavley, specially concurring, believed that the district court could not change the section 111 sentence because there was nothing about it “that was illegal or required to be corrected in order that some intertwined illegality could be eliminated.” Id. at 317. Judge Jolly, specially concurring, went further and expressly stated that his conclusion would have been different if the two sentences were illegal only because they existed in combination.
“I conclude by saying that if the two sentences under §§ 924 and 111 respectively could have been considered illegal in combination, rather than as one distinctly legal sentence and one distinctly illegal sentence, or if a general sentence had been given by the district court, the conclusion I have reached would be different.” Id. at 318.
Based on these swing votes, we have concluded in dicta that Henry does not apply when “[i]t is the presence of both sentences which makes the entire sentencing scheme illegal.” United States v. Colunga (Colunga I), 786 F.2d 655, 658 n. 4 (5th Cir.1986) (emphasis in original). In other words, Henry is binding precedent only in a Busic-type case where the defendant has been sentenced under a statute that does not proscribe the conduct for which he was prosecuted.
Here, the district court held that Cataldo’s sentences under sections 1951 (Hobbs Act) and 2113 (Federal Bank Robbery Act) violated the double jeopardy prohibition as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and applied in an indistinguishable situation in United States v. Golay, 560 F.2d 866, 869-70 (8th Cir.1977). Cataldo does not contest this ruling, and he does not argue here that either his original section 1951 sentence or his original section 2113 sentence was invalid considered on its own and apart from his being sentenced on the other count for the same conduct; nor does he claim that either section 1951 or section 2113 is inapplicable to his conduct. Instead, he argues that Henry is controlling here on the theory that “if one of the counts is illegal, because of double jeopardy, and that illegal count is vacated, the remaining count is legal.”
We reject Cataldo’s argument. When a sentencing scheme is illegal because of double jeopardy, there is no one count that a court can identify as illegal. In Colunga I, the Court squarely addressed this remedy problem, though not in terms of Henry. After holding that Colunga was sentenced in violation of double jeopardy for two conspiracies, when in fact only one conspiracy existed, we continued:
“because the illegality of the two conspiracy sentences is intertwined — that is, the presence of both sentences makes the entire sentencing scheme illegal — Colunga cannot put blinders on this Court by purportedly challenging only one of the sentences. Therefore, the proper remedy, for which there is strong authority in this Circuit, is to vacate both sentences and remand to the District Court for resentencing on one count.... The government may select the count on which resentencing is to be based.” 786 F.2d at 658 (citations omitted).
Thus, we hold that Henry is inapplicable and that the district court applied the proper remedy when it vacated Cataldo’s sentences under both acts and resentenced him under the count that the government elected.
Having so decided, we must now address Cataldo’s claim of vindictive resentencing under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. A pithy analysis of this line of cases is set forth in United States v. Colunga (Colunga II), 812 F.2d 196, 199 (5th Cir.1987). In brief, when a trial court imposes a harsher sentence after a successful appeal, due process as interpreted in Pearce requires the court to set forth reasons justifying the increased sentence to overcome a presumption of vindictiveness. This prophylactic rule prevents actual vindictiveness as well as the appeal-chilling appearance of vindictiveness.
Pearce, however, likely does not apply here. The Pearce presumption of vindictiveness applies after a successful appeal by the defendant and only when resentencing poses a “real threat of vindictiveness.” Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973). See also Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 979-80, 89 L.Ed.2d 104 (1986). In Chaffin, the Court held that Pearce does not apply to a sentence imposed by a jury that is unaware of the prior, lower sentence because “a jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” Chaffin, 93 S.Ct. at 1983. Here, the district court itself recognized the double jeopardy violation and granted Cataldo relief. It was not reversed or corrected by another court and it did not have to retry the case.
Further, it is questionable whether the district court in fact increased Cataldo’s sentence. In Henry, the plurality stated in dicta that the increase in Henry’s section 111 sentence called Pearce into play though his overall sentence was reduced. We are not bound, however, by this dicta of a minority of the en banc Court. Moreover, we believe that Henry is distinguishable. Henry’s illegal section 924 sentence did not affect the legality of his section 111 sentence. Thus, Henry had an arguable finality interest in his section 111 sentence. Here, because the section 2113 and section 1951 sentences were illegal only in combination, Cataldo’s double jeopardy challenge to one of the two convictions in effect challenged the entire sentencing plan. See Colunga II, 812 F.2d at 198. When the district court resentenced Cataldo to twenty years under section 1951 for a bank robbery by extortionate means, it merely imposed the same sentence for the same conduct. This did not invade any legitimate finality expectation on Cataldo’s part. See id.
Even assuming, however, that Cataldo’s sentence was increased and that Pearce does apply, the reasons given by the district court are clearly sufficient to overcome the presumption of vindictiveness. In the Colunga cases, we established that executing original sentencing intent may justify upward resentencing. In Colunga I, we noted in dicta:
“Should Colunga persist in his original desire to plead guilty, we see no legal barrier to sentencing Colunga to a more severe sentence. We have recently ruled that correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the corrected sentence increases punishment; and the fact that the defendant has begun serving the original sentence is irrelevant....
“... Although not foreseen in Pearce —and on which we express no ruling—a considerable argument can be made for the proposition that sentencing under an incorrect statutory provision during the original sentencing may be sufficient justification for a more severe sentence for Colunga on remand. Along this same line, the record indicates that the sentencing judge would have given Colunga a more severe sentence but for the mistake—shared by all counsel—as to the possible maximum sentence.” 786 F.2d at 658-59 (footnote omitted).
In Colunga II, the district court had imposed the correct maximum sentence (fifteen years) on remand. The court explained that the harsher sentence reflected its original intent. We affirmed, reasoning that discovery of the appropriate sentencing provision “may be sufficient ‘objective information’ to justify a harsher sentence under Pearce. Such an explanation is certainly sufficient where, as here, the harsher sentence is consistent with the district court’s original sentencing intent, as stated at the previous sentencing hearing.” Id. at 200.
Here, the district court expressly stated at Cataldo’s resentencing that it was simply reimposing the original twenty-year sentence and did not believe that it was increasing Cataldo’s sentence. Even if we label the twenty-year section 1951 sentence an increased sentence, the court’s statement justifies the increase. The district court originally sentenced Cataldo to a total of twenty years for bank robbery by extortionate means. The court spread the sentence over two counts (sections 2113 and 1951). Because this sentencing scheme punished Cataldo twice for one course of action, it violated double jeopardy and the district court set it aside. The district court then sentenced Cataldo to twenty years under only one count, thereby effectuating its intent to impose a twenty-year sentence for the single course of criminal conduct. In light of Colunga II and the district court’s explanation, we hold that the twenty-year sentence was not, and could not reasonably be perceived to be, the product of judicial vindictiveness.
Conclusion
We reject Cataldo’s claims of error and, accordingly, affirm the judgment of the district court.
AFFIRMED.
. At the time of trial, the Federal Bank Robbery Act, 18 U.S.C. § 2113, provided in pertinent part:
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association: or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years or both.
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.”
In November 1986, Congress amended section 2113(a) to include a clause that expressly brings bank robbery by extortionate means within the coverage of section 2113(a).
.The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts to conspire so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
“(b) As used in this section—
“(1) The term 'robbery' means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
"(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right....”
. Although the superseding indictment did not specify under which statute the conspiracy conviction was sought, presumably it was 18 U.S.C. § 371, which provides in pertinent part:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
No complaint is made respecting this count or the sentence thereunder.
. Title 18 U.S.C. § 2 provides:
"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
"(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
. The ten-year sentence on the unchallenged conspiracy count continued as concurrent to the new sentence under section 1951. Again, no fine or special assessment was imposed.
. Cataldo did raise below (in addition to his double jeopardy claim) the claim that the Hobbs Act did not in any event apply to his conduct. He has not raised that contention on appeal, and we have previously ruled to the contrary, as indicated below. Cataldo has never contended that the Federal Bank Robbery Act is inapplicable to his conduct.
Although this Court has held that the Hobbs Act provides a remedy for bank robbery by extortionate means, United States v. Carpenter, 611 F.2d 113 (5th Cir.), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980), it has not determined if the Federal Bank Robbery Act also proscribes such activity. Only one court has held that bank robbery by extortionate means is not within the coverage of the Federal Bank Robbery Act. See United States v. Colbert, 548 F.2d 1355, 1356 (9th Cir.1977), rev’d and remanded on other grounds, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), on remand, 581 F.2d 799 (9th Cir.1978). Contra United States v. Marx, 485 F.2d 1179, 1182-83 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); United States v. Snell, 550 F.2d 515, 517 (9th Cir.1977); United States v. Beck, 511 F.2d 997, 1000 (6th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975). Culbert was convicted under both acts, and the Ninth Circuit held that neither act was applicable. The court reasoned that section 2113(a) (Federal Bank Robbery Act) required a "trespassory taking" — a conclusion which the government conceded — and that the Hobbs Act required racketeering. 548 F.2d at 1356-57. The government appealed the decision concerning the Hobbs Act but noted that the concession by the United States Attorney respecting the Federal Bank Robbery Act did not represent the position of the Department of Justice. 98 S.Ct. at 1113 n. 1. The Supreme Court reversed, holding that all activity within the reach of the Hobbs Act’s statutory language was proscribed by it. Id. at 1117. On remand, the Ninth Circuit reaffirmed its dismissal of the Federal Bank Robbery Act conviction, but one judge dissented from that holding. By that time, another panel of the Ninth Circuit had rendered United States v. Snell, 550 F.2d 515 (9th Cir.1977), holding that the Federal Bank Robbery Act was the sole remedy. In United States v. LaBinia, 614 F.2d 1207 (9th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980), the court overruled Snell and held that bank extortion is chargeable under the Hobbs Act. The court did not resolve the conflict between Culbert and Snell, but a fair reading of LaBinia is that bank robbery by extortionate means is chargeable under both acts. This seems to be the better reading of LaBinia, considering that Culbert rests on the unapproved-of concession by the United States Attorney and the conclusion of all other courts reaching the issue that bank extortion is within the plain language of the Federal Bank Robbery Act. Moreover, Culbert would not apply on the facts of this case because Cataldo’s brother entered the bank. See also Golay, 560 F.2d at 869-70 (bank extortion chargeable under both acts). But see Beck, 511 F.2d at 1000 (bank extortion chargeable only under Federal Bank Robbery Act). Beck's rejection of the Hobbs Act is undermined by the subsequent Supreme Court decision in Culbert, 98 S.Ct. at 1117. This, however, does not impinge Beck's conclusion that the Federal Bank Robbery Act is applicable.
In any event, the 1986 addition of the extortion clause to section 2113(a) (Federal Bank Robbery Act) may in the future affect the analysis. See H.R.Rep. No. 99-797, 99th Cong., 2d Sess., § 51, reprinted in 1986 U.S. Code Cong. & Ad. News 6138, 6156 (intent of House to make section 2113(a) "the exclusive provision for prosecuting bank extortion”).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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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.
KATZENBACH, ATTORNEY GENERAL, et al. v. MORGAN et ux.
No. 847.
Argued April 18, 1966.
Decided June 13, 1966.
Solicitor General Marshall argued the cause for appellants in No. 847. With him on the brief were Assistant Attorney General Doar, Ralph S. Spritzer, Louis F. Claiborne, St. John Barrett and Louis M. Kauder.
J. Lee Rankin argued the cause for appellant in No. 877. With him on the brief were Norman Redlich and Seymour B. Quel.
Alfred Avins argued the cause and filed a brief for appellees in both cases.
Rafael Hernandez Colon, Attorney General, argued the cause and filed a brief for the Commonwealth of Puerto Rico, as amicus curiae, urging reversal.
Jean M. Coon, Assistant Attorney General, argued the cause for the State of New York, as amicus curiae, urging affirmance. With her on the brief were Louis J. Lefko witz, Attorney General, and Ruth Kessler Toch, Acting Solicitor General.
Together with No. 877, New York City Board of Elections v. Morgan et ux., also on appeal from the same court.
Mr. Justice Brennan
delivered the opinion of the Court.
These cases concern the constitutionality of § 4 (e)- of the Voting Rights Act of 1965. That law, in the respects pertinent in these cases, provides that no person who has successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English shall be denied the right to vote in any election because of his inability to read or write English. Appellees, registered voters in New York City, brought this suit to challenge the constitutionality of § 4 (e) insofar as it pro tanto prohibits the enforcement of the election laws of New York requiring an ability to read and write English as a condition of voting. Under these laws many of the several hundred thousand New York City residents who have migrated there from the Commonwealth of Puerto Rico had previously been denied the right to vote, and ap-pellees attack § 4 (e) insofar as it would enable many of these citizens to vote. Pursuant to § 14 (b) of the Voting Rights Act of 1965, appellees commenced this proceeding in the District Court for the District of Columbia seeking a declaration that § 4 (e) is invalid and an injunction prohibiting appellants, the Attorney General of the United States and the New York City Board of Elections, from either enforcing or complying with §4(e). A three-judge district court was designated. 28 U. S. C. §§ 2282, 2284 (1964 ed.). Upon cross motions for summary judgment, that court, one judge dissenting, granted the declaratory and injunctive relief appellees sought. The court held that in enacting § 4 (e) Congress exceeded the powers granted to it by the Constitution and therefore usurped powers reserved to the States by the Tenth Amendment. 247 F. Supp. 196. Appeals were taken directly to this Court, 28 U. S. C. §§ 1252, 1253 (1964 ed.), and we noted probable jurisdiction. 382 U. S. 1007. We reverse. We hold that, in the application challenged in these cases, § 4 (e) is a proper exercise of the powers granted to Congress by § 5 of the Fourteenth Amendment and that by force of the Supremacy Clause, Article VI, the New York English literacy requirement cannot be enforced to the extent that it is inconsistent with § 4 (e).
Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers, arid the qualifications established by the States for voting for members of the most numerous branch of the state legislature also determine who may vote for United States Representatives and Senators, Art. I, § 2; Seventeenth Amendment; Ex parte Yarbrough, 110 U. S. 651, 663. But, of course, the States have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment, or any other provision of the Constitution. Such exercises of state power are no more immune to the limitations of the Fourteenth Amendment than any other state action. The Equal Protection Clause itself has been held to forbid some state laws that restrict the right to vote.
The Attorney General of the State of New York argues that an exercise of congressional power under § 5 of the Fourteenth Amendment that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce. More specifically, he urges that § 4 (e) cannot be sustained as appropriate legislation to enforce the Equal Protection Clause unless the judiciary decides — even with the guidance of a congressional judgment — that the application of the English literacy requirement prohibited by § 4 (e) is forbidden by the Equal Protection Clause itself. We disagree. Neither the language nor history of § 5 supports such a construction. As was said with regard to § 5 in Ex parte Virginia, 100 U. S. 339, 345, “It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective.” A construction of § 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment. It would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the “majestic generalities” of § 1 of the Amendment. See Fay v. New York, 332 U. S. 261, 282-284.
Thus our task in this case is not to determine whether the New York English literacy requirement as applied to deny the right to vote to a person who successfully completed the sixth grade in a Puerto Rican school violates the Equal Protection Clause. Accordingly, our decision in Lassiter v. Northampton Election Bd., 360 U. S. 45, sustaining the North Carolina English literacy requirement as not in all circumstances prohibited by the first sections of the Fourteenth and Fifteenth Amendments, is inapposite. Compare also Guinn v. United States, 238 U. S. 347, 366; Camacho v. Doe, 31 Misc. 2d 692, 221 N. Y. S. 2d 262 (1958), aff’d 7 N. Y. 2d 762, 163 N. E. 2d 140 (1959); Camacho v. Rogers, 199 F. Supp. 155 (D. C. S. D. N. Y. 1961). Lassiter did not present the question before us here: Without regard to whether the judiciary would find that the Equal Protection Clause itself nullifies New York’s English literacy requirement as so applied, could Congress prohibit the enforcement of the state law by legislating under § 5 of the Fourteenth Amendment? In answering this question, our task is limited to determining whether such legislation is, as required by § 5, appropriate legislation to enforce the Equal Protection Clause.
By including § 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18. The classic formulation of the reach of those powers was established by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Ex parte Virginia, 100 U. S., at 345-346, decided 12 years after the adoption of the Fourteenth Amendment, held that congressional power under § 5 had this same broad scope:
“Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, 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, if not prohibited, is brought within the domain of congressional power.”
Strauder v. West Virginia, 100 U. S. 303, 311; Virginia v. Rives, 100 U. S. 313, 318. Section 2 of the Fifteenth Amendment grants Congress a similar power to enforce by “appropriate legislation” the provisions of that amendment; and we recently held in South Carolina v. Katzenbach, 383 U. S. 301, 326, that “[t)he basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.” That test was identified as the one formulated in McCulloch v. Maryland. See also James Everard’s Breweries v. Day, 265 U. S. 545, 558-559 (Eighteenth Amendment). Thus the McCulloch v. Maryland standard is the measure of what constitutes “appropriate legislation” under § 5 of the Fourteenth Amendment. Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.
We therefore proceed to the consideration whether § 4 (e) is “appropriate legislation” to enforce the Equal Protection Clause, that is, under the McCulloch v. Maryland standard, whether § 4 (e) may be regarded as an enactment to enforce the Equal Protection Clause, whether it is “plainly adapted to that end” and whether it is not prohibited by but is consistent with “the letter and spirit of the constitution.”
There can be no doubt that § 4 (e) may be regarded as an enactment to enforce the Equal Protection Clause. Congress explicitly declared that it enacted § 4 (e) “to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English.” The persons referred to include those who have migrated from the Commonwealth of Puerto Rico to New York and who have been denied the right to vote because of their inability to read and write English, and the Fourteenth Amendment rights referred to include those emanating from the Equal Protection Clause. More specifically, § 4 (e) may be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government — both in the imposition of voting qualifications and the provision or administration of governmental services, such as public schools, public housing and law enforcement.
Section 4 (e) may be readily seen as “plainly adapted” to furthering these aims of the Equal Protection Clause. The practical effect of § 4 (e) is to prohibit New York from denying the right to vote to large segments of its Puerto Rican community. Congress has thus prohibited the State from denying to that community the right that is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370. This enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community. Section 4 (e) thereby enables the Puerto Rican minority better to obtain “perfect equality of civil rights and the equal protection of the laws.” It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement. It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations — the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as' applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support § 4 (e) in the application in question in this case. Any contrary conclusion would require us to be blind to the realities familiar to the legislators.
The result is no different if we confine our inquiry to the question whether § 4 (e) was merely legislation aimed at the elimination of an invidious discrimination in establishing voter qualifications. We are told that New York’s English literacy requirement originated in the desire to provide an incentive for non-English speaking immigrants to learn the English language and in order to assure the intelligent exercise of the franchise. Yet Congress might well have questioned, in light of the many exemptions provided, and some evidence suggesting that prejudice played a prominent role in the enactment of the requirement, whether these were actually the interests being served. Congress might have also questioned whether denial of a right deemed so precious and fundamental in our society was a necessary or appropriate means of encouraging persons to learn English, or of furthering the goal of an intelligent exercise of the franchise. Finally, Congress might well have concluded that as a means of furthering the intelligent exercise of the franchise, an ability to read or understand Spanish is as effective as ability to read English for those to whom Spanish-language newspapers and Spanish-language radio and television programs are available to inform them of election issues and governmental affairs. Since Congress undertook to legislate so as to preclude the enforcement of the state law, and did so in the context of a general appraisal of literacy requirements for voting, see South Carolina v. Katzenbach, supra, to which it brought a specially informed legislative competence, it was Congress’ prerogative to weigh these competing considerations. Here again, it is enough that we perceive a basis upon which Congress might predicate a judgment that the application of New York’s English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.
There remains the question whether the congressional remedies adopted in § 4 (e) constitute means which are not prohibited by, but are consistent “with the letter and spirit of the constitution.” The only respect in which appellees contend that § 4 (e) fails in this regard is that the section itself works an invidious discrimination in violation of the Fifth Amendment by prohibiting the enforcement of the English literacy requirement only for those educated in American-flag schools (schools located within United States jurisdiction) in which the language of instruction was other than English, and not for those educated in schools beyond the territorial limits of the United States in which the language of instruction was also other than English. This is not a complaint that Congress, in enacting § 4 (e), has unconstitutionally denied or diluted anyone’s right to vote but rather that Congress violated the Constitution by not extending the relief effected in § 4 (e) to those educated in non-American-flag schools. We need not pause to determine whether appellees have a sufficient personal interest to have § 4 (e) invalidated on this ground, see generally United States v. Raines, 362 U. S. 17, since the argument, in our view, falls on the merits.
Section 4 (e) does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. Thus we need not decide whether a state literacy law conditioning the right to vote on achieving a certain level of education in an American-flag school (regardless of the language of instruction) discriminates invidiously against those educated in non-American-flag schools. We need only decide whether the challenged limitation on the relief effected in § 4 (e) was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights, see n. 15, supra, is inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a “statute is not invalid under the Constitution because it might have gone farther than it did,” Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not “strike at all evils at the same time,” Semler v. Dental Examiners, 294 U. S. 608, 610, and that “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,” Williamson v. Lee Optical Co., 348 U. S. 483, 489.
Guided by these principles, we are satisfied that ap-pellees’ challenge to this limitation in § 4 (e) is without merit. In the context of the case before us, the congressional choice to limit the relief effected in § 4 (e) may, for example, reflect Congress’ greater familiarity with the quality of instruction in American-flag schools, a recognition of the unique historic relationship between the Congress and the Commonwealth of Puerto Rico, an awareness of the Federal Government’s acceptance of the desirability of the use of Spanish as the language of instruction in Commonwealth schools, and the fact that Congress has fostered policies encouraging migration from the Commonwealth to the States. We have no occasion to determine in this case whether such factors would justify a similar distinction embodied in a voting-qualification law that denied the franchise to persons educated in non-American-flag schools. We hold only that the limitation on relief effected in § 4 (e) does not constitute a forbidden discrimination since these factors might well have been the basis for the decision of Congress to go “no farther than it did.”
We therefore conclude that § 4 (e), in the application challenged in this case, is appropriate legislation to enforce the Equal Protection Clause and that the judgment of the District Court must be and hereby is
Reversed.
Mr. Justice Douglas joins the Court’s opinion except for the discussion, at pp. 656-658, of the question whether the congressional remedies adopted in § 4 (e) constitute means which are not prohibited by, but are consistent with “the letter and spirit of the constitution.” On that question, he reserves judgment until such time as it is presented by a member of the class against which that particular discrimination is directed.
The full text of §4 (e) is as follows:
“(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in Ameriean-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language.
“(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English.” 79 Stat. 439, 42 U. S. C. § 1973b (e) (1964 ed., Supp. I).
Article II, § 1, of the New York Constitution provides, in pertinent part:
“Notwithstanding the foregoing provisions, after January first, one thousand nine hundred twenty-two, no person shall become entitled to vote by attaining majority, by naturalization or otherwise, unless such person is also able, except for physical disability, to read and write English.”
Section 150 of the New York Election Law provides, in pertinent part:
"... In the case of a person who became entitled to vote in this state by attaining majority, by naturalization or otherwise after January first, nineteen hundred twenty-two, such person must, in addition to the foregoing provisions, be able, except for physical disability, to read and write English. A 'new voter,’ within the meaning of this article, is a person who, if he is entitled to vote in this state, shall have become so entitled on or after January first, nineteen hundred twenty-two, and who has not already voted at a general election in the state of New York after making proof of ability to read and write English, in the manner provided in section one hundred sixty-eight.”
Section 168 of the New York Election Law provides, in pertinent part:
“1. The board of regents of the state of New York shall make provisions for the giving of literacy tests.
“2. . . . But a new voter may present as evidence of literacy a certificate or diploma showing that he has completed the work up to and including the sixth grade of an approved elementary school or of an approved higher school in which English is the language of instruction or a certificate or diploma showing that he has completed the work up to and including the sixth grade in a public school or a private school accredited by the Commonwealth of Puerto Rico in which school instruction is carried on predominantly in the English language or a matriculation card issued by a college or university to a student then at such institution or a certificate or a letter signed by an official of the university or college certifying to such attendance.”
Section 168 of the Election Law as it now reads was enacted while § 4 (e) was under consideration in Congress. See 111 Cong. Rec. 19376-19377. The prior law required the successful completion of the eighth rather than the sixth grade in a school in which the language of instruction was English.
This limitation on appellees’ challenge to §4(e), and thus on the scope of our inquiry, does not distort the primary intent of §4(e). The measure was sponsored in the Senate by Senators Javits and Kennedy and in the House by Representatives Gilbert and Ryan, all of New York, for the explicit purpose of dealing with the disenfranchisement of large segments of the Puerto Rican population in New York. Throughout the congressional debate it was repeatedly acknowledged that § 4 (e) had particular reference to the Puerto Rican population in New York. That situation was the almost exclusive subject of discussion. See 111 Cong. Rec. 11028, 11060-11074, 15666, 16235-16245, 16282-16283, 19192-19201, 19375-19378; see also Voting Rights, Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H. R. 6400, 89th Cong., 1st Sess., 100-101, 420-421, 508-517 (1965). The Solicitor General infonns us in his brief to this Court, that in all probability the practical effect of § 4 (e) will be limited to enfranchising those educated in Puerto Rican schools. He advises us that, aside from the schools in the Commonwealth of Puerto Rico, there are no public or parochial schools in the territorial limits of the United States in which the predominant language of instruction is other than English and which would have generally been attended by persons who are otherwise qualified to vote save for their lack of literacy in English.
Section 14 (b) provides, in pertinent part:
“No court other than the District. Court for the District of Columbia . . . shall have jurisdiction to issue . . . any restraining order or temporary or permanent injunction against the . . . enforcement of any provision of this Act or any action of any Federal officer or employee pursuant hereto.” 79 Stat. 445, 42 U. S. C. § 19731 (b) (1964 ed., Supp. I).
The Attorney General of the United States was initially named as the sole defendant. The New York City Board of Elections was joined as a defendant after it publicly announced its intention to comply with § 4 (e); it has taken the position in these proceedings that § 4 (e) is a proper exercise of congressional power. The Attorney General of the State of New York has participated as amicus curiae in the proceedings below and in this Court, urging § 4 (e) be declared unconstitutional. The United States was granted leave to intervene as a defendant, 28 U. S. C. §2403 (1964 ed.); Fed. Rule Civ. Proc. 24 (a).
“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
It is therefore unnecessary for us to consider whether § 4 (e) could be sustained as an exercise of power under the Territorial Clause, Art. IV, §3; see dissenting opinion of Judge McGowan below, 247 F. Supp., at 204; or as a measure to discharge certain treaty obligations of the United States, see Treaty of Paris of 1898, 30 Stat. 1754, 1759; United Nations Charter, Articles 55 and 56; Art. I, § 8, cl. 18. Nor need we consider whether § 4 (e) could be sustained insofar as it relates to the election of federal officers as an exercise of congressional power under Art. I, §4, see Minor v. Happersett, 21 Wall. 162, 171; United States v. Classic, 313 U. S. 299, 315; Literacy Tests and Voter Requirements in Federal and State Elections, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 480, S. 2750, and S. 2979, 87th Cong., 2d Sess., 302, 306-311 (1962) (brief of the Attorney General); nor whether § 4 (e) could be sustained, insofar as it relates to the election of state officers, as an exercise of congressional power to enforce the clause guaranteeing to each State a republican form of government, Art. IV, §4; Art. I, §8, cl. 18.
Harper v. Virginia Board of Elections, 383 U. S. 663; Carrington v. Rash, 380 U. S. 89. See also United States v. Mississippi, 380 U. S. 128; Louisiana v. United States, 380 U. S. 145, 151; Lassiter v. Northampton Election Bd., 360 U. S. 45; Pope v. Williams, 193 U. S.621, 632-634; Minor v. Happersett, 21 Wall. 162; cf. Burns v. Richardson, ante, p. 73, at 92; Reynolds v. Sims, 377 U. S. 533.
For the historical evidence suggesting that the sponsors and supporters of the Amendment were primarily interested in augmenting the power of Congress, rather than the judiciary, see generally Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L. J. 1353, 1356-1357; Harris, The Quest for Equality, 33-56 (1960); tenBroek, The Antislavery Origins of the Fourteenth Amendment 187-217 (1951).
Senator Howard, in introducing the proposed Amendment to the Senate, described § 5 as “a direct affirmative delegation of power to Congress,” and added:
“It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes .the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.” Cong. Globe, 39th Cong., 1st Sess., 2766, 2768 (1866).
This statement of § 5’s purpose was not questioned by anyone in the course of the debate. Flack, The Adoption of the Fourteenth Amendment 138 (1908).
In fact, earlier drafts of the proposed Amendment- employed the “necessary and proper” terminology to describe the scope of congressional power under the Amendment. See tenBroek, The Antislavery Origins of the Fourteenth Amendment 187-190 (1951). The substitution of the “appropriate legislation” formula was never thought to have the effect of diminishing the scope of this congressional power. See, e. g., Cong. Globe, 42d Cong., 1st Sess., App. 83 (Representative Bingham, a principal draftsman of the Amendment and the earlier proposals).
Contrary to the suggestion of the dissent, post, p. 668, § 5 does not grant Congress power to exercise discretion in the other direction and to enact “statutes so as in effect to dilute equal protection and due process decisions of this Court.” We emphasize that Congress’ power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems of education would not be — as required by § 5 — a measure “to enforce” the Equal Protection Clause since that clause of its own force prohibits such state laws.
Cf. James Everard’s Breweries v. Day, supra, which held that, under the Enforcement Clause of the Eighteenth Amendment, Congress could prohibit the prescription of intoxicating malt liquor for medicinal purposes even though the Amendment itself only prohibited the manufacture and sale of intoxicating liquors for beverage purposes. Cf. also the settled principle applied in the Shreveport Case (Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342), and expressed in United States v. Darby, 312 U. S. 100, 118, that the power of Congress to regulate interstate commerce “extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end ...” Accord, Atlanta Motel v. United States, 379 U. S. 241, 268.
See, e. g., 111 Cong. Rec. 11061-11062, 11065-11066, 16240; Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507-508.
The principal exemption complained of is that for persons who had been eligible to vote before January 1, 1922. See n. 2, supra.
This evidence consists in part of statements made in the Constitutional Convention first considering the English literacy requirement, such as the following made by the sponsor of the measure: “More precious even than the forms of government are the mental qualities of our race. While those stand unimpaired, all is safe. They are exposed to a single danger, and that is that by constantly changing our voting citizenship through the wholesale, but valuable and necessary infusion of Southern and Eastern European races . . . . The danger has begun. . . . We should check it.” III New York State Constitutional Convention 3012 (Rev. Record 1916).
See also id,., at 3015-3017, 3021-3055. This evidence was reinforced by an understanding of the cultural milieu at the time of proposal and enactment, spanning a period from 1915 to 1921 — not one of the enlightened eras of our history. See generally Chafee, Free Speech in the United States 102, 237, 269-282 (1954 ed.). Congress was aware of this evidence. See, e. g., Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507-513; Voting Rights, House Hearings, n. 3, supra, 508-513.
Other States have found ways of assuring an intelligent exercise of the franchise short of total disenfranchisement of persons not literate in English. For example, in Hawaii, where literacy in either English or Hawaiian suffices, candidates’ names may be printed in both languages, Hawaii Rev. Laws § 11-38 (1963 Supp.); New York 'itself already provides assistance for those exempt from the literacy requirement and are literate in no language, N. Y. Election Law § 169; and, of course, the problem of assuring the intelligent exercise of the franchise has been met by those States, more than 30 in number, that have no literacy requirement at all, see e. g., Fla. Stat. Ann. §§97.061, 101.061 (1960) (form of personal assistance); New Mexico Stat. Ann. §§ 3-2-11, 3-3-13 (personal assistance for those literate in no language), §§ 3-3-7, 3-3-12, 3-2-41 (1953) (ballots and instructions authorized to be printed in English or Spanish). Section 4 (e) does not preclude resort to these alternative methods of assuring the intelligent exercise of the franchise. True, the statute precludes, for a certain class, disenfranchisement and thus limits the States’ choice of means of satisfying a purported state interest. But our cases have held that the States can be required to tailor carefully the means of satisfying a legitimate state interest when fundamental liberties and rights are threatened, see, e. g., Carrington v. Rash, 380 U. S. 89, 96; Harper v. Virginia Board of Elections, 383 U. S. 663, 670; Thomas v. Collins, 323 U. S. 516, 529-530; Thornhill v. Alabama, 310 U. S. 88, 95-96; United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4; Meyer v. Nebraska, 262 U. S. 390; and Congress is free to apply the same principle in the exercise of its powers.
See, e. g., 111 Cong. Rec. 11060-11061, 15666, 16235. The record in this case includes affidavits describing the nature of New York’s two major Spanish-language newspapers, one daily and one weekly, and its three full-time Spanish-language radio stations and affidavits from those who have campaigned in Spanish-speaking areas.
See, e. g., Ill Cong. Rec. 11061 (Senator Long of Louisiana and Senator Young), 11064 (Senator Holland), drawing on their experience with voters literate in a language other than
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:
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sc_casedisposition
|
C
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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.
EWING, FEDERAL SECURITY ADMINISTRATOR, et al. v. MYTINGER & CASSELBERRY, INC.
No. 568.
Argued April 19-20, 1950.
Decided May 29, 1950.
Robert L. Stern argued the cause for appellants. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney, Philip Elman, Vincent A. Kleinfeld and William W. Goodrich.
Charles S. Rhyne argued the cause for appellee. With him on the brief were Lester L. Lev and J. E. Simpson.
Mr. Justice Douglas
delivered the opinion of the Court.
This is an appeal from a three-judge District Court specially constituted on appellee’s application for an injunction to restrain enforcement of a portion of an Act of Congress for repugnance to the Due Process Clause of the Fifth Amendment.
Section 304 (a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1044, 21 U. S. C. § 334 (a), as amended, 62 Stat. 582, 21 U. S. C. (Supp. Ill) § 334 (a), permits multiple seizures of misbranded articles “when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer.”
Appellee is the exclusive national distributor of Nutrilite Food Supplement, an encapsulated concentrate of alfalfa, water cress, parsley, and synthetic vitamins combined in a package with mineral tablets. There is no claim that the ingredients of the preparation are harmful or dangerous to health. The sole claim is that the labeling was, to use the statutory words, “misleading to the injury or damage of the purchaser or consumer” and that therefore the preparation was “misbranded” when introduced into interstate commerce.
This was indeed the administrative finding behind eleven seizures resulting in that number of libel suits, between September and December, 1948. The misbranding, it was found, resulted from the booklet which accompanied the preparation. Shortly thereafter the present suit was instituted to have the multiple seizure provision of § 304 (a) declared unconstitutional and to dismiss all libel cases except the first one instituted. The District Court held that appellants had acted arbitrarily and capriciously in violation of the Fifth Amendment in instituting multiple libel suits without first affording the appellee a hearing on the probable cause issue; that the multiple seizure provision of § 304 (a) was unconstitutional under the Due Process Clause of the Fifth Amendment; and that appellants should be permanently enjoined from instituting any action raising a claim that the booklet accompanying the preparation was a misbranding since it was not fraudulent, false, or misleading. 87 F. Supp. 650.
First. The administrative finding of probable cause required by § 304 (a) is merely the statutory prerequisite to the bringing of the lawsuit. When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, satisfies the requirements of due process.
At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. See Lichter v. United States, 334 U. S. 742; Inland Empire Council v. Millis, 325 U. S. 697; Opp Cotton Mills v. Administrator, 312 U. S. 126.
But this case does not go as far. Here an administrative agency is merely determining whether a judicial proceeding should be instituted. Moreover, its finding of probable cause, while a necessary prerequisite to multiple seizures, has no effect in and of itself. All proceedings for the enforcement of the Act or to restrain violations of it must be brought by and in the name of the United States. § 307. Whether a suit will be instituted depends on the Attorney General, not on the administrative agency. He may or may not accept the agency’s recommendation. If he does, seizures are made and libels are instituted. But the seizures and suits are dependent on the discretion of the Attorney General.
It is said that these multiple seizure decisions of the Administrator can cause irreparable damage to a business. And so they can. The impact of the initiation of judicial proceedings is often serious. Take the case of the grand jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. See Beavers v. Henkel, 194 U. S. 73, 85; Ex parte United States, 287 U. S. 241, 250. The impact of an indictment is on the reputation or liberty of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination. Phillips v. Commissioner, 283 U. S. 589, 596-597; Bowles v. Willingham, 321 U. S. 503, 520; Yakus v. United States, 321 U. S. 414, 442-443.
One of the oldest examples is the summary destruction of property without prior notice or hearing for the protection of public health. There is no constitutional reason why Congress in the interests of consumer protection may not extend that area of control. It may conclude, as it did here, that public damage may result even from harmless articles if they are allowed to be sold as panaceas for man’s ills. A requirement for a hearing, as a matter of constitutional right, does not arise merely because the danger of injury may be more apparent or immediate in the one case than in the other. For all we know, the most damage may come from misleading or fraudulent labels. That is a decision for Congress, not for us. The decision of Congress was that the administrative determination to make multiple seizures should be made without a hearing. We cannot say that due process requires one at that stage.
Second. The District Court had no jurisdiction to review the administrative determination of probable cause.
The determination of probable cause in and of itself had no binding legal consequence any more than did the final valuation made by the Interstate Commerce Commission in United States v. Los Angeles & S. L. R. Co., 273 U. S. 299. It took the exercise of discretion on the part of the Attorney General, as we have pointed out above, to bring it into play against appellee’s business. Judicial review of such a preliminary step in a judicial proceeding is so unique that we are not willing easily to infer that it exists.
Judicial review of this preliminary phase of the administrative procedure does not fit the statutory scheme nor serve the policy of the Act. Congress made numerous administrative determinations under the Act reviewable by the courts. But it did not place the finding of probable cause under § 304 (a) in that category. This highly selective manner in which Congress has provided for judicial review reinforces the inference that the only-review of the issue of probable cause which Congress granted was the one provided in the libel suit. Cf. Switchmen’s Union v. Board, 320 U. S. 297, 305-306.
The purpose of the multiple seizure provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of seizures, and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by multiple seizures. It is not enough to say that the vitamin preparation in the present case is not dangerous to health. This preparation may be relatively innocuous. But the statutory scheme treats every “misbranded article” the same in this respect — -whether it is “dangerous to health,” or its labeling is “fraudulent,” or materially “misleading to the injury or damage of the purchaser or consumer.” *** What we do today determines the jurisdiction of the District Court in all the cases in that category. If the court in the present case can halt all multiple seizures but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of multiple seizures. We would impair or destroy the effectiveness of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail. Multiple seizures are the means of protection afforded the public. Consolidation of all the libel suits so that one trial may be had is the relief afforded the distributors of the articles.
Reversed.
Mr. Justice Burton concurs in the result.
Mr. Justice Clark took no part in the consideration or decision of this case.
62 Stat. 928, 961, 28 U. S. C. §§ 1253, 2101.
62 Stat. 968, 28 U. S. C. §§ 2282, 2284.
The provision of which the quoted portion is a part reads as follows:
“Any article of food, drug, device, or cosmetic that is adulterated or misbranded when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce, or which may not, under the provisions of section 404 or 505, be introduced into interstate commerce, shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found: Provided, however, That no libel for condemnation shall be instituted under this Act, for any alleged misbranding if there is pending in any court a libel for condemnation proceeding under this Act based upon the same alleged misbranding, and not more than one such proceeding shall be instituted if no such proceeding is so pending, except that such limitation shall not apply (1) when such misbranding has been the basis of a prior judgment in favor of the United States, in a criminal, injunction, or libel for condemnation proceeding under this Act, or (2) when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer.”
The booklet, How to Get Well and Stay Well, is used by salesmen in soliciting prospective customers. A version of the booklet in use in 1947 represented that Nutrilite had “cured or greatly helped” such “common ailments” as “Low blood pressure, Ulcers, Mental depression, Pyorrhea, Muscular twitching, Rickets, Worry over small things, Tonsilitis, Hay Fever, Sensitiveness to noise, Underweight, Easily tired, Gas in Stomach, Cuts heal slowly, Faulty vision, Headache, Constipation, Anemia, Boils, Flabby tissues, Hysterical tendency, Eczema, Overweight, Faulty memory, Lack of ambition, Certain bone conditions, Nervousness, Nosebleed, Insomnia (sleeplessness), Allergies, Asthma, Restlessness, Bad skin color, Poor appetite, Biliousness, Neuritis, Night blindness, Migraine, High blood pressure, Sinus trouble, Lack of concentration, Dental caries, Irregular heartbeat, Colitis, Craving for sour foods, Arthritis (rheumatism), Neuralgia, Deafness, Subject to colds.” This version is the basis for an indictment now pending in the Southern District of California charging Lee S. Mytinger and William S. Casselberry with the misbranding of Nutrilite in violation-of the Federal Food, Drug, and Cosmetic Act.
After a hearing prior to the indictment, appellee revised the booklet. Direct curative claims were eliminated. But pages 41-52 of the revised booklet were devoted to case histories explaining that Nutrilite brought relief from such ailments as diabetes, feeblemindedness, stomach pains, sneezing and weeping. Appellant Crawford, Associate Commissioner of Food and Drugs, concluded that there was probable cause to believe and that he did believe that this version of the booklet was misleading. On September 28 and 30, 1948, he recommended seizures of Nutrilite shipments.
Appellee thereafter ordered its salesmen to remove pages 37-58 which contained the case histories. The pages which remained pointed to the dangers and prevalence of illness, described the discovery of Nutrilite, and recommended the booklet to those who wanted to get well and stay well. On December 2, 1948, appellant Larrick, Assistant Commissioner of Foods and Drugs, made a probable cause determination on these pages of the booklet and recommended seizure.
Six new pages were thereafter added to the booklet. On December 9, 1948, appellant Dunbar, Commissioner of Foods and Drugs, made a probable cause determination on that version of the booklet and recommended further seizures.
Sec. 304 (b) provides in part:
“The article shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury.”
Review of an order of the Administrator refusing to permit an application for a new drug to become effective or suspending the effectiveness of an application is authorized in § 505 (h), 21 U. S. C. §355 (h). Orders of the Administrator in connection with issuing, amending, or repealing regulations under §§401, 403 (j), 404 (a), 406 (a) and (b), 501 (b), 502 (d), 502 fh), 504, 604 are expressly made reviewable by § 701 (e) and (f), 21 U. S. C. § 371 (e) and (f).
See § 304 (a) note 3, supra.
Sec. 304 (b) provides in part:
“When libel for condemnation proceedings under this section, involving the same claimant and the same issues of adulteration or misbranding, are pending in two or more jurisdictions, such pending proceedings, upon application of the claimant seasonably made to the court of one such jurisdiction, shall be consolidated for trial by order of such court, and tried in (1) any district selected by the claimant where one of such proceedings is pending; or (2) a district agreed upon by stipulation between the parties. If no order for consolidation is so made within a reasonable time, the claimant may apply to the court of one such jurisdiction, and such "court (after giving the United States attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant’s principal place of business, in which all such pending proceedings shall be consolidated for trial and tried. Such order of consolidation shall not apply so as to require the removal of any case the date for trial of which has been fixed. The court granting such order shall give prompt notification thereof to the other courts having jurisdiction of the cases covered thereby.”
Congress has granted distributors through the provision for consolidation of all libel suits the measure of relief which courts at times grant through a stay of multiple actions. See Landis v. North American Co., 299 U. S. 248.
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_issuearea
|
A
|
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.
IMMIGRATION AND NATURALIZATION SERVICE et al. v. DELGADO et al.
No. 82-1271.
Argued January 11, 1984
Decided April 17, 1984
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Stevens, and O’Connor, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 221. Powell, J., filed an opinion concurring in the result, post, p. 221. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 225.
Deputy Solicitor General Frey argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Elliott Schulder, and Patty Merkamp Stemler.
Henry R. Fenton argued the cause for respondents. With him on the brief were Gordon K. Hubei and Max Zimny
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by David M. Brodsky, Burt Neubome, and Charles S. Sims; and for the Mexican American Legal Defense and Education Fund, Inc., et al. by Michael Kantor and Alan Diamond.
Justice Rehnquist
delivered the opinion of the Court.
In the course of enforcing the immigration laws, petitioner Immigration and Naturalization Service (INS) enters employers’ worksites to determine whether any illegal aliens may be present as employees. The Court of Appeals for the Ninth Circuit held that the “factory surveys” involved in this case amounted to a seizure of the entire work forces, and further held that the INS could not question individual employees during any of these surveys unless its agents had a reasonable suspicion that the employee to be questioned was an illegal alien. International Ladies’ Garment Workers’ Union, AFL-CIO v. Sureck, 681 F. 2d 624 (1982). We conclude that these factory surveys did not result in the seizure of the entire work forces, and that the individual questioning of the respondents in this case by INS agents concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment. Accordingly, we reverse the judgment of the Court of Appeals.
Acting pursuant to two warrants, in January and September 1977, the INS conducted a survey of the work force at Southern California Davis Pleating Co. (Davis Pleating) in search of illegal aliens. The warrants were issued on a showing of probable cause by the INS that numerous illegal aliens were employed at Davis Pleating, although neither of the search warrants identified any particular illegal aliens by name. A third factory survey was conducted with the employer’s consent in October 1977, at Mr. Pleat, another garment factory.
At the beginning of the surveys several agents positioned themselves near the buildings’ exits, while other agents dispersed throughout the factory to question most, but not all, employees at their work stations. The agents displayed badges, carried walkie-talkies, and were armed, although at no point during any of the surveys was a weapon ever drawn. Moving systematically through the factory, the agents approached employees and, after identifying themselves, asked them from one to three questions relating to their citizenship. If the employee gave a credible reply that he was a United States citizen, the questioning ended, and the agent moved on to another employee. If the employee gave an unsatisfactory response or admitted that he was an alien, the employee was asked to produce his immigration papers. During the survey, employees continued with their work and were free to walk around within the factory.
Respondents are four employees questioned in one of the three surveys. In 1978 respondents and their union representative, the International Ladies Garment Workers’ Union, filed two actions, later consolidated, in the United States District Court for the Central District of California challenging the constitutionality of INS factory surveys and seeking declaratory and injunctive relief. Respondents argued that the factory surveys violated their Fourth Amendment right to be free from unreasonable searches or seizures and the equal protection component of the Due Process Clause of the Fifth Amendment.
The District Court denied class certification and dismissed the union from the action for lack of standing, App. to Pet. for Cert. 58a-60a. In a series of cross-motions for partial summary judgment, the District Court ruled that respondents had no reasonable expectation of privacy in their workplaces which conferred standing on them to challenge entry by the INS pursuant to a warrant or owner’s consent. Id., at 49a-52a, 53a-55a, 56a-57a. In its final ruling the District Court addressed respondents’ request for injunctive relief directed at preventing the INS from questioning them personally during any future surveys. The District Court, with no material facts in dispute, found that each of the four respondents was asked a question or questions by an INS agent during one of the factory surveys. Id., at 46a. Reasoning from this Court’s decision in Terry v. Ohio, 392 U. S. 1 (1968), that law enforcement officers may ask questions of anyone, the District Court ruled that none of the respondents had been detained under the Fourth Amendment during the factory surveys, either when they were questioned or otherwise. App. to Pet. for Cert. 47a. Accordingly, it granted summary judgment in favor of the INS.
The Court of Appeals reversed. Applying the standard first enunciated by a Member of this Court in United States v. Mendenhall, 446 U. S. 544 (1980) (opinion of Stewart, J.), the Court of Appeals concluded that the entire work forces were seized for the duration of each survey, which lasted from one to two hours, because the stationing of agents at the doors to the buildings meant that “a reasonable worker ‘would have believed that he was not free to leave.’” 681 F. 2d, at 634 (quoting United States v. Anderson, 663 F. 2d 934, 939 (CA9 1981)). Although the Court of Appeals conceded that the INS had statutory authority to question any alien or person believed to be an alien as to his right to be or remain in the United States, see 66 Stat. 233, 8 U. S. C. § 1357(a)(1), it further held that under the Fourth Amendment individual employees could be questioned only on the basis of a reasonable suspicion that a particular employee being questioned was an alien illegally in the country. 681 F. 2d, at 639-645. A reasonable suspicion or probable cause to believe that a number of illegal aliens were working at a particular factory site was insufficient to justify questioning any individual employee. Id., at 643. Consequently, it also held that the individual questioning of respondents violated the Fourth Amendment because there had been no such reasonable suspicion or probable cause as to any of them.
We granted certiorari to review the decision of the Court of Appeals, 461 U. S. 904 (1983), because it has serious implications for the enforcement of the immigration laws and presents a conflict with the decision reached by the Third Circuit in Babula v. INS, 665 F. 2d 293 (1981).
The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976). Given the diversity of encounters between police officers and citizens, however, the Court has been cautious in defining the limits imposed by the Fourth Amendment on encounters between the police and citizens. As we have noted elsewhere: “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, supra, at 19, n. 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212-216 (1979), the protection against unreasonable seizures also extends to “seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, supra, at 554 (footnote omitted); see Florida v. Royer, 460 U. S. 491, 502 (1983) (plurality opinion).
Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment, our recent decision in Royer, supra, plainly implies that interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. In Royer, when Drug Enforcement Administration agents found that the respondent matched a drug courier profile, the agents approached the defendant and asked him for his airplane ticket and driver’s license, which the agents then examined. A majority of the Court believed that the request and examination of the documents were "permissible in themselves.” Id., at 501 (plurality opinion); see id., at 523, n. 3 (opinion of Rehnquist, J.). In contrast, a much different situation prevailed in Brown v. Texas, 443 U. S. 47 (1979), when two policemen physically detained the defendant to determine his identity, after the defendant refused the officers’ request to identify himself. The Court held that absent some reasonable suspicion of misconduct, the detention of the defendant to determine his identity violated the defendant’s Fourth Amendment right to be free from an unreasonable seizure. Id., at 52.
What is apparent from Royer and Brown is that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 U. S. 218, 231-234 (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps — such as those taken in Brown— to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U. S., at 554; see Terry v. Ohio, 392 U. S., at 21.
The Court of Appeals held that “the manner in which the factory surveys were conducted in this case constituted a seizure of the workforce” under the Fourth Amendment. 681 F. 2d, at 634. While the element of surprise and the systematic questioning of individual workers by several INS agents contributed to the court’s holding, the pivotal factor in its decision was the stationing of INS agents near the exits of the factory buildings. According to the Court of Appeals, the stationing of agents near the doors meant that “departures were not to be contemplated,” and thus, workers were “not free to leave.” Ibid. In support of the decision below, respondents argue that the INS created an intimidating psychological environment when it intruded unexpectedly into the workplace with such a show of officers. Besides the stationing of agents near the exits, respondents add that the length of the survey and the failure to inform workers they were free to leave resulted in a Fourth Amendment seizure of the entire work force.
We reject the claim that the entire work forces of the two factories were seized for the duration of the surveys when the INS placed agents near the exits of the factory sites. Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers. The record indicates that when these surveys were initiated, the employees were about their ordinary business, operating machinery and performing other job assignments. While the surveys did cause some disruption, including the efforts of some workers to hide, the record also indicates that workers were not prevented by the agents from moving about the factories.
Respondents argue, however, that the stationing of agents near the factory doors showed the INS’s intent to prevent people from leaving. But there is nothing in the record indicating that this is what the agents at the doors actually did. The obvious purpose of the agents’ presence at the factory doors was to insure that all persons in the factories were questioned. The record indicates that the INS agents’ conduct in this case consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. If mere questioning does not constitute a seizure when it occurs inside the factory, it is no more a seizure when it occurs at the exits.
A similar conclusion holds true for all other citizens or aliens lawfully present inside the factory buildings during the surveys. The presence of agents by the exits posed no reasonable threat of detention to these workers while they walked throughout the factories on job assignments. Likewise, the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way. Since most workers could have had no reasonable fear that they would be detained upon leaving, we conclude that the work forces as a whole were not seized.
The Court of Appeals also held that “detentive questioning” of individuals could be conducted only if INS agents could articulate “objective facts providing investigators with a reasonable suspicion that each questioned person, so detained, is an alien illegally in this country.” 681 F. 2d, at 638. Under our analysis, however, since there was no seizure of the work forces by virtue of the method of conducting the factory surveys, the only way the issue of individual questioning could be presented would be if one of the named respondents had in fact been seized or detained. Reviewing the deposition testimony of respondents, we conclude that none were.
The questioning of each respondent by INS agents seems to have been nothing more than a brief encounter. None of the three Davis Pleating employees were questioned during the January survey. During the September survey at Davis Pleating, respondent Delgado was discussing the survey with another employee when two INS agents approached him and asked him where he was from and from what city. When Delgado informed them that he came from Mayaguez, Puerto Rico, the agent made an innocuous observation to his partner and left. App. 94. Respondent Correa's experience in the September survey was similar. Walking from one part of the factory to another, Correa was stopped by an INS agent and asked where she was bom. When she replied “Huntington Park, [California],” the agent walked away and Correa continued about her business. Id., at 115. Respondent Labonte, the third Davis Pleating employee, was tapped on the shoulder and asked in Spanish, “Where are your papers?” Id., at 138. Labonte responded that she had her papers and without any further request from the INS agents, showed the papers to the agents, who then left. Finally, respondent Miramontes, the sole Mr. Pleat employee involved in this case, encountered an agent en route from an office to her worksite. Questioned concerning her citizenship, Miramon-tes replied that she was a resident alien, and on the agent’s request, produced her work permit. The agent then left. Id., at 120-121.
Respondents argue that the manner in which the surveys were conducted and the attendant disruption caused by the surveys created a psychological environment which made them reasonably afraid they were not free to leave. Consequently, when respondents were approached by INS agents and questioned concerning their citizenship and right to work, they were effectively detained under the Fourth Amendment, since they reasonably feared that refusing to answer would have resulted in their arrest. But it was obvious from the beginning of the surveys that the INS agents were only questioning people. Persons such as respondents who simply went about their business in the workplace were not detained in any way; nothing more occurred than that a question was put to them. While persons who attempted to flee or evade the agents may eventually have been detained for questioning, see id., at 50, 81-84, 91-93, respondents did not do so and were not in fact detained. The manner in which respondents were questioned, given its obvious purpose, could hardly result in a reasonable fear that respondents were not free to continue working or to move about the factory. Respondents may only litigate what happened to them, and our review of their description of the encounters with the INS agents satisfies us that the encounters were classic consensual encounters rather than Fourth Amendment seizures. See Florida v. Royer, 460 U. S. 491 (1983); United States v. Mendenhall, 446 U. S. 544 (1980).
Accordingly, the judgment of the Court of Appeals is
Reversed.
Respondents Herman Delgado, Ramona Correa, and Francisca La-bonte worked at Davis Pleating, while Marie Miramontes, the fourth respondent, was employed by Mr. Pleat. Both Delgado and Correa are United States citizens, while Labonte and Miramontes are permanent resident aliens.
The District Court never ruled directly on respondents’ Fifth Amendment claim, apparently reasoning that since respondents’ Fourth Amendment rights had not been violated, their Fifth Amendment right had also not been violated. The Court of Appeals also never ruled on respondents’ Fifth Amendment claim, and we decline to do so.
The Court of Appeals ruled that the District Court did not abuse its discretion in denying class certification. In light of its disposition of respondents’ Fourth Amendment claims, the Court of Appeals declined to resolve the union’s appeal from the District Court’s determination that the union lacked standing to raise its members’ Fourth Amendment claims. 681 F. 2d. at 645. n. 24.
Although the issue was the subject of substantial discussion at oral argument, the INS does not contest that respondents have standing to bring this case. They allege the existence of an ongoing policy which violated the Fourth Amendment and which will be applied to their workplace in the future. Cf. Allee v. Medrano, 416 U. S. 802 (1974). Part of their argument is clearly based on the INS’s detention of illegal aliens found working at the two factories. Respondents, however, can only premise their right to injunctive relief on their individual encounters with INS agents during the factory surveys. See infra, at 221.
Contrary to respondents’ assertion, it also makes no difference in this case that the encounters took place inside a factory, a location usually not accessible to the public. The INS officers were lawfully present pursuant to consent or a warrant, and other people were in the area during the INS agents’ questioning. Thus, the same considerations attending contacts between the police and citizens in public places should apply to the questions presented to the individual respondents here.
In her deposition respondent Miramontes described an incident that occurred during the October factory survey at Mr. Pleat, in which an INS agent stationed by an exit attempted to prevent a worker, presumably an illegal alien, from leaving the premises after the survey started. The worker walked out the door and when an agent tried to stop him, the worker pushed the agent aside and ran away. App. 125-126. An ambiguous, isolated incident such as this fails to provide any basis on which to conclude that respondents have shown an INS policy entitling them to in-junctive relief. See Rizzo v. Goode, 423 U. S. 362 (1976); cf. Allee v. Medrano, supra; Hague v. CIO, 307 U. S. 496 (1939).
Respondents Delgado and Labonte both left the building during the INS survey, Delgado to load a truck and Labonte to observe INS activities outside the building. App. 98, 136. Neither of them stated in their depositions that the INS agents in any way restrained them from leaving the building, or even addressed any questions to them upon leaving.
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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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.
Napoleon SMITH and Dorothy Mae Smith, Appellants, v. WIRE ROPE CORPORATION OF AMERICA, INC., Appellee (two cases).
Nos. 18719, 18720.
United States Court of Appeals Eighth Circuit.
Aug. 28, 1967.
Henry Woods, Little Rock, Ark., for appellants ; Sidney S. McMath and McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., on the brief.
J. W. Barron, Little Rock, Ark., for appellee; Rose, Meek, House, Barron, Nash & Williamson, Little Rock, Ark., on the brief.
Before VOGEL, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.
VOGEL, Chief Judge.
Appellants, Napoleon Smith and his wife, Dorothy Mae Smith, commenced two actions against defendant-appellee, Wire Rope Corporation of America, Inc., claiming that the appellee’s defective manufacture of wire cable was the cause of very severe personal injuries suffered by appellant Napoleon Smith. At all times relevant herein Napoleon Smith was an employee of S. O. G. of Arkansas, a construction company which was building a lock and dam complex on the Arkansas River. Defendant-appellee, Wire Rope Corporation, supplied to the S. O. G. company certain wire cable. The wire cable in question was being used as a transverse cable on a gantry crane. After being in use five days, the cable broke,' causing a concrete piling being carried by the crane to swing free and severely injure appellant Napoleon Smith.
In the suits brought against the appellee, two independent bases of liability were urged by the appellants, one sounding in tort, alleging negligence in the design, manufacture and inspection of the wire rope, and the second in contract, claiming breach of manufacturer’s warranties. The cases were consolidated and tried to a jury, which returned a verdict for defendant-appellee. This appeal followed. The sole issue raised here is the propriety of the trial court’s modification of Arkansas Model Jury Instruction No. 1001. We affirm.
The question is a narrow one for, although appellants were proceeding on two theories of liability, one in tort and one in contract, they claim no alleged impropriety in the instructions insofar as they involved the contract or breach of warranty cause of action. The issue before us is concerned with the tort or negligence action and the instructions therein. The challenged instruction provided :
“You are instructed that a manufacturer of a wire rope has the duty to use ordinary care in the selection of materials used therein, in the manufacturing thereof and to inspect it and to test it so as to make it reasonably safe when used in the normal and ordinary way and in order to protect those who are in the area of its use from unreasonable risk or harm while it is being used for its intended purpose or while it is being used for any purpose which should reasonably be expected by the manufacturer. Ordinary care on the part of the manufacturer means that degree of skill and care ordinarily possessed and used by manufacturers doing the same or similar work.” (Emphasis supplied.)
With the exception of the italicized portion, the foregoing instruction was drawn verbatim from Arkansas Model Jury Instruction No. 1001. The italicized portion was added by the trial court. To this modification by addition the appellants took exception as follows:
“Mr. Woods: The plaintiffs object to the inclusion of the phrase ‘when used in the normal and ordinary way’ in the Court’s Instruction No. 14. This is a modification of AMI 1001 which the plaintiffs feel is not justified since a matter of abnormal use is a matter which is covered in other instructions. If the abnormal use of the product by S. O. G. caused the injuries to the plaintiff, then this is a matter of proximate causation and is also a matter of foreseeability, which is covered in other instructions and indeed in this very instruction. As the instruction is given, it would appear that abnormal use or use out of the normal way by the defendant employer would be an absolute defense to plaintiffs’ cause of action. In truth and in fact, there could be concurring negligence. The abnormal use of the wire rope in question could concur with a defective manufacture of the rope in question, and the plaintiff’s injuries could result from such concurrent negligence. As the Instruction is here framed, abnormal use is made an absolute defense to the plaintiffs’ cause of action, and therefore the Instruction is erroneous and we request that the Instruction be given in conformity with AMI 1001.” (Emphasis supplied.)
In order for the appellants to recover against the Wire Rope Corporation on either the breach of warranty theory or the tort theory, it was necessary to establish that the cable was in fact defectively manufactured. This was attempted through the presentation of expert testimony. Appellee countered by producing other expert testimony to the effect that there was nothing wrong in the inherent manufacture of the cable but that the untimely break therein, after a usage of only five days, was due to unusual fatigue. It was urged by appellee’s experts that the fatigue was due to the S. O. G. company’s use of a very small pulley on their crane apparatus which subjected the wire cable to much more severe flexing and bending than was recognized as reasonable by general manufacturers and trade specifications. It was appellee’s position that it was not reasonable to require it to anticipate that its product would be used in a grossly abnormal way and then hold appellee liable for resultant injury.
Appellants’ principal contention is that the trial court’s modification of the A. M. J. Instruction by adding the words “so as to make it reasonably safe when used in the normal and ordinary way and” made it appear to the jury “that abnormal use or use out of the normal by the defendant [sic] employer would be an absolute defense to plaintiffs’ cause of action” against appellee manufacturer, thereby precluding the jury from finding in appellants’ favor even if they found that both negligence of the appellant’s employer as well as the negligence of the appellee manufacturer may have concurrently been responsible for appellant’s injuries.
Appellants in their brief quote Restatement 2d, Torts, § 447 and cite Arkansas cases which adhere to the principle that a negligent intervening act of a third person — here the S. O. G. company —will not relieve the original wrongdoer of liability if the intervening conduct was foreseeable, not highly extraordinary and was the normal consequence of the original actor’s conduct. Although this is generally held to be a sound legal principle and in light of Hill v. Wilson, 1949, 216 Ark. 179, 224 S.W.2d 797, 800, and Southwestern Bell Telephone Co. v. Adams, 1939, 199 Ark. 254, 133 S.W.2d 867, 872, is apparently the law of Arkansas, complaint upon this ground is of no avail to appellants unless they can show that the complained-of instruction did in fact preclude the jury from considering this principle. We'think instruction No. 12 as given by the court, which stated that
“When the negligent acts or omissions of two corporations work together as proximate causes of damages to an individual, each of these corporations may be found to be liable. This is true regardless of the relative degrees of fault between them. If you find that the negligence of the Wire Rope Corporation of America, Inc., proximately caused damage to the plaintiff, it is not a defense that S. O. G. of Arkansas may also have been to blame”
(Emphasis supplied.)
clearly presents to the jury the precise question of concurrent responsibility which appellants allege was removed from jury consideration by the trial court’s modification of A.M.I. 1001: A careful reading of the A.M.I. 1001 instruction as given shows that it placed upon the manufacturer the duty to make his product safe for any purpose which should reasonably have been expected. The given instruction, after adding the objected-to words, “so as to make it reasonably safe when used in the normal and ordinary way and” continued as follows:
“ * * * in order to protect those who are in the area of its use from unreasonable risk or harm while it is being used for its intended purpose or while it is being used for any purpose which should reasonably be expected by the manufacturer.” (Emphasis supplied.)
The italicized portion given in conjunction with instruction No. 12, supra, clearly indicates that the modification of A.M. I. 1001 by the trial court did in no sense create an absolute defense based upon abnormal use which would absolve an original wrongdoer of liability for negligent acts. Instructions must be viewed in their entirety rather than in isolated segments. Even if a single instruction is erroneous, it does not call for reversal if it is cured by a subsequent charge or by consideration of the entire charge. Standard Oil Co. of Cal. v. Perkins, 9 Cir., 1965, 347 F.2d 379, 389; McDonough v. United States, 8 Cir., 1957, 248 F.2d 725; Terminal R. Ass’n of St. Louis v. Fitzjohn, 8 Cir., 1948, 165 F.2d 473, 1 A.L.R. 2d 290. Cf., Brown v. San Alberto Cia Armadora S. A., 3 Cir., 1962, 305 F.2d 288. We accordingly hold that the appellants were clearly not prejudiced by the modification of the A.M.I.-approved instruction. Approved model instructions are of great aid to trial courts in presenting clearly to the jury involved legal issues. They are, however, in no sense sacrosanct and must be' subject to trial court modification to meet the facts and legal requirements of the case being tried. Erwin v. Allied Van Lines, Inc., 1966, 240 Ark. 593, 401 S.W.2d 25, 26
Affirmed.
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:
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sc_issue_7
|
Q
|
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.
NATIONAL LABOR RELATIONS BOARD v. CABOT CARBON CO. et al.
No. 329.
Argued March 24, 1959.
Decided June 8, 1959.
Thomas J. McDermott argued the cause for petitioner. With him on the brief' were Solicitor General Rankin,' Jerome D. Fenton, Dominick L. Manoli and Fannie M. Boyls..'
Haywood H. Hillyer, Jr. argued the cause for respondents. With him on the brief were M. Truman Woodward, Jr., Richard C. Keenan and Milton C. Dehbo.
Mr. Justice Whittaker
delivered the opinion of the Court.
The question for decision in this cáse is whether “Employee Committees” established and supported by respondents at each of their several plants for the stated purposes of meeting regularly with management to consider and discuss problems of mutual interest, including grievances, and of handling “grievances at nonunion plants and departments,” are, in the light of their declared purposes and actual practices, “labor organizations” within the meaning of §2(5) of the National Labor Relations Act.
Respondents are affiliated corporations under -the same general management and maintain their principal office at Pampa, Texas. They are, and for many years have been, engaged in operating a number of plants, principally. in Texas and Louisiana, primarily for the purposes of manufacturing and selling carbon black and oil field equipment. Pursuant to a suggestion of the War Production Board in 1943, respondents decided to establish an Employee Committee at each of their plants. To that end, respondents prepared, in collaboration with employee representatives from their several plants, a set of bylaws, stating the purposes, duties and functions of the proposed Employee Committees, for transmittal to and adoption by the employees in establishing such Committees. The bylaws were adopted by a majority of employees at each, plant and by respondents, and, thus, the Employee Committees were established. Those bylaws, and certain related company rules, were later published by respondents in a company manual called “The Guide,” and are still in effect.
In essence, the bylaws state: that the purpose of the Committees is to provide a procedure for considering employees’ ideas and problems of mutual interest to employees and management; that-each plant Committee shall consist», of a stated number of employees (ranging from 2 to 3) whose terms shall be one year, and that retiring members, with the help of plant clerks, will conduct the nomination and election of their successors ; that each plant Committee shall meet with the plant management at regular, monthly meetings and at all special meetings called by management, shall assist the plant management in solving problems of mutual interést, and that'time so spent will be. considered time worked; and that “It shall be the Committee’s responsibility to: ... Handle grievances at nonunion plants and departments according to procedure set up for these, plants and departments.”
In November 1954, International Chemical Workers Union, AFL-CIO, filed with the National Labor Relations Board, and later several times amended, an unfair labor practice charge against respondents, alleging, in part, that respondents-were unlawfully dominating, filterfering with and supporting labor organizations, called Employee Committees, at their several plants. Thereafter the Board, in Apiril 1956, issued a complaint against respondents under § 10 (b) of the Act (29 U. S. C. § 160 (b)) alleging, inter alia, that the Employee Committees were labor organizations within the meaning of §2 (5^ (see note 1), and that respondents, since May 1954, had dominated, interfered with, and supported the Committees in violation of § 8 (a) (2) of the Act.
After a hearing, the trial examiner issued-his intermediate.report containing detailed findings of fact. The relevant findings, mainly based on undisputed evidence, may be summarized as follows: The Committees’ bylaws were prepared and adopted in the manner, and contáin the provisions, above stated. During the period here involved (from May 1954 to the date of the hearing before the Board in June 1956), the Employee Committees, in addition to considering and discussing with respondents’ plant officials problems of the nature covered by the bylaws, made and discussed proposals and requests respecting many other aspects of the employee relationship, including seniority, job classifications, job bidding, makeup time, overtime records, time cards, a merit system, wage corrections, working schedules, holidays, vacations, sick leave, and improvement of working facilities and conditions. Respondents’ plant officials participated in those discussions and in some instances granted the Committees’ .requests. Although not provided for in the bylaws, a “Central Committee,” consisting of the chairmen of the several plant Committees, met annually with respondents’ Director of Industrial Relations in Pampa, Texas, where, during the 1955 and 1956 meetings, the Central Committee made proposals and requests with respect to many matters covering nearly the whole scope of the employment relationship. The Director of Industrial Relations discussed those proposals.and requests, their feasibility and economic consequences from respondents’ point of view, and sought to reach some solution. In some instances he expressed approval of requests or promised to see what could be done toward meeting them, in other instances he suggested that the matter be taken up with local management, and in still other instances he rejected the proposals and requests and explained his reasons for doing so.
The trial examiner also found that the Employee Committees have no membership requirements, collect no dues and havg no funds; that plant clerks assist the Committees in conducting their elections and do all of their clerical work; and that respondents pay all of the necessary expenses of the Committees. None of the Committees has ever attempted to negotiate a collective bargaining contract with respondents. From time to time the- Board has certified independent labor organizations as the exclusive bargaining agents for certain bargaining units of employees in approximately one-third of respondents’ plants, and, as such agents for those bargaining imite, the respective certified labor organizations have entered into collective bargaining contracts with respondents which, as they máy have been amended, are still in effect. Since the respective dates of those collective bargaining contracts the certified labor organizations and the Employee Committees have coexisted in those plants, but the functions of those Employee Committees have generally been reduced to plant efficiency, production promotion and the handling of grievances for employees who are not included in the bargaining units. o
Upon these findings the trial examiner concluded in his intermediate report that the Employee Committees and the Central Committee are labor organizations within the meaning of § 2 (5), and that during the period here involved respondents dominated, interfered with, and supported those labor organizations in violation of § 8 (a) (2) (see note 4). He therefore recommended that respondents be ordered to cease such condúct, and to withdraw all recognition from, and completely disestablish, the Committees “as the representative of any of [their] employees for the purpose of dealing with Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” The Board adopted the findings, conclusions and recommendations of the.trial examiner and entered its order accordingly. 117 N. L. R. B. 1633.
Respondents then petitioned the Court of Appeals to review and vacate the Board’s findings and order, and the Board’s answer sought enforcement of its order. The Court of Appeals denied enforcement of ’the Board’s order and set it aside. 256 F. 2d 281. It found that respondents dominated and supported the Committees but held that they were not “labor organizations” within the meaning of § 2 (5) (see note 1) because it thought (a) that the term “dealing with,” as used in that section, means “bargaining with,” ánd that these Committees “avoid[ed] the usual concept of collective bargaining,” and (b) that the provisions and legislative history of the 1947 amendment of § 9 (a) of the Act show that Congress, in effect, excluded such employee committees from the definition of “labor organization” contained in § 2 (5). 256 F. 2d, at 285-289. Because of an asserted conflict of that decision with the decisions of other Courts of Appeals, and of the importance of the matter to the proper administration of the National Labor Relations Act, we granted certiorari. 358 U. S. 863.
We turn first to the Court of Appeals’ holding that an employee committee which does not “bargain with” employers in “the usual concept of collective bargaining” does not engage in “dealing with” employers, and is therefore not. a “labor organization” within the meaning of § 2 (5). Our study of the matter has convinced us that there is nothing in the plain words of § 2 (5), initsTegislative history, or in the decisions construing it, that supports that conclusion.
Section 2 (5) includes in its definition of “labor organization” any, “employee representation committee or plan . . . which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” (Emphasis added.) Certainly nothing in that section indicates that the broad term “dealing with” is to be read as synonymous with the more limited term “bargaining with.” See, e. g., Labor Board v. Jas. H. Matthews & Co., 156 F. 2d 706, 708, and Indiana Metal Products Corp. v. Labor Board, 202 F. 2d 613, 620-621. The legislative history of § 2 (5) strongly confirms that Congress did not understand or intend those terms to be synonymous. When the original print of the 1935 Wagner bill (S. 1958) was being Considered in the Senate, the then Secretary of Labor proposed an amendment to § 2 (5) which, if adopted, would have given that section the meaning now ascribed to it by the Court of Appeals. The proposal was that the term “bargaining collectively” be substituted for the term “dealing.” But the proposal was not adopted. It is therefore quite clear that Congress, by adopting the broad term “dealing” and rejecting the more limited term “bargaining collectively,” did not intend that the broad term “dealing with” should be limited to and mean only “bargaining with” as held by the Court of Appeals. Construing § 2 (5) of the original Wagner Act, the Courts of Appeals uniformly held that employee committees or plans, under whatever name called, that functioned similarly to those here, were “labor organizations” as defined in that statute. With full knowledge of the terms of § 2 (5) of the original Wagner Act, and of its legislative history and judicial interpretation, Congress in the Taft-Hartley Act re-enacted the section without change. Since that time, as before, the several Courts of Appeals have uniformly held that employee committees or plans, functioning similarly to those here, were “labor organizations” within the definition of § 2 (5).
The Court of Appeals was therefore in error in holding that company-dominated Employee Committees, which exist for the purpose, in part at least, “of dealing with employers concerning grievances ... or conditions of work,” are not “labor organizations,” within the meaning of § 2 (5), simply because' they do not “bargain with” employers in “the usual concept of collective bargaining.” (Emphasis added.)
Consideration of the declared purposes and actual functions of these Committees shows that they existed for the purpose, in part at least, “of dealing with, employers concerning grievances, labor disputes, wages, rates of pay, hours of- employment, or conditions of work.” It cannot be, apd is not, disputed that, by "the terms of the bylaws, which were accepted both by the employees and by respondents, the Employee Committees undertook the “responsibility to,” and did, “[h]andle grievances [with respondents on behalf of employees] at nonunion plants and departments according to grievance procedure set up [by respondents] for these plants and departments” (see note 3). It is therefore as plain as words can express that these Committees existed, at least in part, for the purpose “of dealing with employers concerning grievances . . . .” This alone brings these Committees squarely within the statutory definition of “labor organizations.”
Moreover, although none of the Employee Committees attempted to negotiate any formal bargaining contract with respondents, the Employee Committees, at the regu_lar Employee Committee-Management meetings held during the period here involved, made proposals and requests respecting such matters as seniority, job classification, job bidding, working schedules, holidays, vacations, sick leave, a merit system, wage corrections, and improvement of working facilities and conditions. Respondents’ plant officials participated in the discussion of these matters and frequently granted the Committees’ requests (see note 5). Also, .during the 1955 and 1956 meetings of the Central Committee with respondents’ Director of Industrial Relations in Pampa, Texas, the Central Committee made proposals and requests with respect to matters covering' nearly the whole scope, of the employment relationship and which are commonly considered and dealt with in collective bargaining (see note 6). The Director of Industrial Relations discussed those proposals and requests with the Central Committee, and sought to reach some solution. He granted some of them and rejected others, explaining his reasons for doing so. Respondents say that these activities by the Committees and respondents’ officials do not mean that the Committees were “dealing with” respondents in respect to those matters, because, they argue, the proposals and requests amounted only to recommendations and that final decision remained with respondents. But this is true of all such “dealing,” whether with an independent or a company-dominated “labor organization.” The principal distinction lies in the unfettered power of the former to insist upon its requests. Labor Board v. Jas. H. Matthews & Co., 156 F. 2d 706, 708. Whether those proposals and requests by the Committees, and respondents’ consideration of and action upon them, do or do not constitute “the usual concept of collective bargaining” (256 F. 2d, at 285), we think, that those activities establish that the Committees were “dealing with” respondents, with respect to those subjects, within the meaning of § 2 (5).
We therefore conclude that under' the declared purposes and actual practices of these Committees they are labor organizations unless, as the Court of Appeals held and as respondents contend, Congress by the 1947 amendment of § 9 (a), in legal effect, eliminated such committees from the term “labor organization” as defined in §2(5) and used in §8 (a) (2) (see note 4). We now turn to that contention.
In 1947 the House passed H. R. 3020, known as the “Hartley Bill,” which, among other things, proposed a new section, to be designated 8 (d)(3), providing:
“(d) Notwithstanding any other provision of this section, the following shall not constitute or be evidence of- an unfair labor practice under any of the provisions of this Act:
“(3) Forming or maintaining by an employer of a committee of employees and discussing with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions, . if the Board has not certified or the employer has not recognized a representative as their representative under section 9.”
The Senate amended H. R. 3020 by substituting its own bill, S. 1126, known as the “Taft Bill.” The Senate bill contained no provision corresponding to the new § 8 (d) (3) proposed by the House, but it did propose an amendment to § 9 (a) of the original Wagner Act (49 Stat. 453) by adding to the proviso of that section which read:
“Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer”
the words
“and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.”
. Thereupon the Senate requested a conference. The conferees later reported a new measure, taken partly from the House bill and partly from the Senate bill and containing some, entirely new provisions. That bill as finally agreed upon by the conferees did not contain the House’s proposed new ■§ 8 (d) (3) or any similar language, but it did contain the .Senate’s proposed amendment to §9 (a).
In reporting to the House, the House conferees stated with respect to the elimination of its proposed new §8 (d)(3) that:
“Section 8 (d) (3) . . . in the House bill provided that nothing in the act was to be construed as prohibiting an employer from forming'or maintaining a committee of employees and discussing with it matters of mutual interest, if the employees did not have a bargaining representative. This provision is omitted from the conference agreement since the act by its terms permits individual employees and groups of employees to meet with the employer and section 9 (a) of the conference agreement permits employers to answer their grievances.”
The bill so agreed upon by the conferees was passed by both Houses and eventually became the law-.
Notwithstanding the fact that Congress rejected the House proposal of a new section, to be designated. § 8 (d)(3), which, if adopted, would have permitted an employer to form or maintain a committee of employees and to discuss with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions, if there was no employee representative, respondents contend that Congress intended to accomplish the same purposes by its amendment to § 9 (a), and that, in consequence, an employer, whose employees have no bargaining representative, may now legally form or maintain a committee of employees and discuss with it the matters referred to in the proposed § 8 (d) (3) advocated by the House.
This argument treats the amendment to § 9 (a) as though Congress, had adopted, rather than rejected as-it did, the proposed §8 (d)(3) advocated by the House. And it overlooks thé facts that the Héuse Conference Report itself declared that “The conference agreement does not make any change” in the definition of “labor organization,” and that, as pointed out by Senator Taft, the conferees specifically rejected all attempts to “amend . . . the provisions in subsection 8’ (2) [of the original Wagner Act] relating to company-dominated unions” and had left its prohibitions “unchanged.” Thet&mendment to is 9 (a) does not say that an employer may form or maintain an employee committee for the purpose of “dealing with” the employer, on behalf of employees, concerning grievances. On the contrary the amendment to § 9 (a) simply provides, in substance, that' any individual employee or group of employees shall have the right personally to present their own grievances to their employer, and to have such grievances adjusted, without the intervention of any bargaining representative, as long as the adjustment is not inconsistent with the terms of any collective bargaining contract then in effect, provided that the bargaining representative, if there is one, has been given an opportunity to be present. It is thus evident that there is nothing in the amendment of § 9 (a) that authorizes an employer to engage in “dealing with” an employer-dominated “labor organization” as the representative bf his employees concerning their grievances.
We therefore conclude that there is nothing in the amendment of § 9 (a), or in its legislative history, to indicate that Congress thereby eliminated or intended to eliminate such employee committees from the term “labor organization” as defined in § 2 (5) and used in § 8 (a) (2).
Respondents argue that to hold these employee committees to be labor organizations would prevent employers and employees from discussing matters of mutual interest concerning the employment relationship, and would thus abridge freedom of speech in violation of the First Amendment of the Constitution. But the Board’s order does not impose any such bar; it:merely precludes the employers from dominating, interfering with or supporting such employee committees which Congress has defined to be labor organizations.
>The judgment of the Court of Appeals.is reversed arid the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Section 2 (.5) of the National Labor Relations Act, 61 Stat. 138, 29 U. S. C. § 152 (5) provides:
“The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions bf work.”
Examples of the problems of mutual interest to employees and management to be considered at the Committee-Management meetings were stated in the bylaws to be, but were not limited to, safety; increased efficiency and production; conservation of supplies, materials, and equipment; encouragement of ingenuity and initiative; and grievances at nonunion plants or departments.
As published in The Guide the established grievance procedure applicable to nonunion plants and departments provides, in summary, that in handling an employee’s grievance it shall be the Committee’s duty to consult with the Foreman, the Assistant Plant Superintendent and the Plant Superintendent," and consider all the facts. .If, after having -done so, the Committee believes that the employee has a just grievance it shall prepare in writing, a formal statement of its supporting reasons and presfent it to the Plant Superintendent, who shall send copies of it, attaching his own report and recommendations, to the. District'Superintendent, the department head and Industrial Relations Department of the company. Within five days after receipt of such grievance the District Superintendent or the department head, or both, shall meet with the Committee and plant management and discuss the problem and announce their decision. If the Committee still feels that the grievance has not been, fairly settled it may appeal to the General Managér who, within five days, shall meet- with the Committee and plant management and announce his decision. •
Section 8 (a) (2) of the Act, 61 Stat. 140, 29 U. S. C. § 158 (a) (2), provides:
“(a) It shall be an unfair labor practice for an employer—
“ (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it; Provided, That subject to rules and regulations made and published by' the Board pursuant to section 6, an employer shall not be prohibited, from permitting employees to confer with him during working hours without loss of time or pay. . . .” (Emphasis added.)
Among other things, respondents’ plant officials agreed to Employee Committee requests to change from á company to a plant seniority system in several plants where employees desired the change; to provide longer notice periods concerning jobs up for bid; to permit employees to report early and leave early on week ends; to establish an annual basis for allocating overtime; and to install vents in the roofs of warehouses.
The subjects discussed by the Central Committee with respondents’ Director of Industrial Relations at those meetings included Committee proposals and requests for: a vacation of 3 weeks for employees with 10 years’ service; annual sick leave; a disability benefit plan; amendments-in the practice of working on holidays; the establishment and financing by respondents of an employee educational program; the granting of leaves of absence to employees wishing to attend college; the furnishing to certain employees of work clothing; a change in policy to permit shiftmen to make up work days lost; the creation of more job classifications, with resulting higher wages; more opportunities for employees to transfer from one plant or department?"to another; payment of wages to employees while attending National Guard camps; making the working day of shift-workers the same as that of the gangs with which they work; and a general wage increase.
“The term ‘labor organization’ is phrased very broadly in order that the independence of action guaranteed by section 7 . . . and protected by section 8 shall extend to all- organizations of employees that deal with employers in regard to ‘grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.’ This definition includes employee-representation committees and plans in order that the employers’ activities in connection therewith shall be equally subject to the application of section 8.” S. Rep. No. 573, 74th Cong., 1st Sess. 7, reprinted in 2 Legislative History of the National Labor Relations Act, 1935, p. 2306. (The latter publication .will hereafter be cited, for example, as 2 Leg. Hist. (1935) 2306.)
Hearings before Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 66-67, reprinted in 1 Leg. Hist. (1935) 1442-1443.
S. 1958 (2d print), 74th Cong., 1st Sess. 4, reprinted in 2 Leg. Hist. (1935) 2287.
See comparison of S. 2926 (73d Cong.) and S. 1958 (74th Cong.), pp. 1, 22-23, reprinted in 1 Leg. Hist. (1935) 1320, 1347.
Labor Board v. American Furnace Co., 158 F. 2d 376, 378 (C. A. 7th Cir.); Labor Board v. Jas. H. Matthews & Co., 156 F. 2d 706, 707-708 (C. A. 3d Cir.); Labor Board v. C. Nelson Mfg. Co., 120 F. 2d 444, 445 (C. A. 8th Cir.). Compare Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 268-269; Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241, 246-248.
49 Stat. 450.
61 Stat. 138, 29 U. S. C. § 152 (5).
Pacemaker Corp. v. Labor Board, 260 F. 2d 880, 883 (C. A. 7th Cir.) (where the Seventh Circuit expréssly disagreed with the ruling below); Labor Board v. Standard Coil Products Co., 224 F. 2d 465, 467-468 (C. A. 1st Cir.); Labor Board v. Stow Mfg. Co., 217 F. 2d 900, 903-904 (C. A. 2d Cir.); Labor Board v. Sharples Chemicals, Inc., 209 F. 2d 645, 651-652 (C. A. 6th Cir.); Indiana Metal Products Corp. v. Labor Board, 202 F. 2d 613, 621 (C. A. 7th Cir.); Harrison Sheet Steel Co. v. Labor Board, 194 F. 2d 407, 410 (C. A. 7th Cir.); Labor Board v. General Shoe Corp., 192 F. 2d 504, 507 (C. A. 6th Cir.). But see Labor Board v. Associated Machines, 219 F. 2d 433 (C. A. 6th Cir.).
In Labor Board v. Jas. H. Matthews & Co., the court said: “Respondents say 'that this Junior Board did not deal, it only recommended and that final decision was with management. Final decision is always with management, although when a claim is made by a well organized, good sized union, management' is doubtless more strongly influenced in its decision than it would be by a recommendation of a board which it, itself, has selected and which has been provided with no fighting arms.” 156 F. 2d, at 708.
H. R. 3020, 80th Cong., 1st Sess. 26, reprinted in 1 Leg. Hist. (1947) 183.
S. 1126, 80th Cong., 1st Sess., reprinted in 1 Leg. Hist. (1947) 99.
H. R. 3020, as amended by the Senate, 80th Cong., 1st Sess. 86, reprinted in 1 Leg. Hist. (1947) 244; now 61 Stat. 143, 29 U. S. C. § 159 (a).
93 Cong. Rec. 5298, reprinted in 2 Leg. Hist. (1947) 1522.
H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., reprinted in 1 Leg. Hist. (1947) 505.
H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 45, reprinted in 1 Leg. Hist. (1947) 549.
61 Stat. 136 et seq., 29 U. S. C. § 151 et seq.
H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 33, 1 Leg. Hist. (1947) 537.
93 Cong. Rec. 6600, reprinted in 2 Leg. Hist. (1947) 1539.
Question: What is the issue of the decision?
A. arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)
B. union antitrust: legality of anticompetitive union activity
C. union or closed shop: includes agency shop litigation
D. Fair Labor Standards Act
E. Occupational Safety and Health Act
F. union-union member dispute (except as pertains to union or closed shop)
G. labor-management disputes: bargaining
H. labor-management disputes: employee discharge
I. labor-management disputes: distribution of union literature
J. labor-management disputes: representative election
K. labor-management disputes: antistrike injunction
L. labor-management disputes: jurisdictional dispute
M. labor-management disputes: right to organize
N. labor-management disputes: picketing
O. labor-management disputes: secondary activity
P. labor-management disputes: no-strike clause
Q. labor-management disputes: union representatives
R. labor-management disputes: union trust funds (cf. ERISA)
S. labor-management disputes: working conditions
T. labor-management disputes: miscellaneous dispute
U. miscellaneous union
Answer:
|
songer_appel1_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 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 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. John Carlyle RITCH, Defendant, Appellant.
No. 77-1348.
United States Court of Appeals, First Circuit.
Submitted Sept. 7, 1978.
Decided Sept. 22, 1978.
Certiorari Denied Nov. 13, 1978.
See 99 S.Ct. 463.
James B. Krasnoo, Boston, Mass., by appointment of the court, and Norris, Kozo-doy & Krasnoo, Boston, Mass., on brief for appellant.
Julio Morales Sanchez, U. S. Atty., and Jose A. Quiles, Asst. U. S. Atty., San Juan, P. R., on brief for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Defendant-appellant was indicted for possession and importation of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 952(a), following his arrest at the San Juan International Airport on April 28, 1976. When appellant failed to appear for trial of the drug charges on August 23, 1976, his bail was forfeited and an indictment was returned charging him with violation of 18 U.S.C. § 3150. After he was apprehended and returned to Puerto Rico in January, 1977, the district court, over appellant’s objection, ordered that the drug and bail jumping charges be consolidated for trial. Appellant, was found guilty after a jury trial on all three counts. He appeals from his convictions, arguing (1) that joinder of the drug and bail jumping charges was improper; and (2) that he was not afforded effective assistance of counsel in violation of his rights under the Sixth Amendment. Finding no merit in either claim, we affirm.
I.
Under Rule 13, Fed.R.Crim.P., the court may order that two or more indictments be tried together if the offenses could have been joined in a single indictment. Rule 8(a) sets forth the test for joinder. It provides that “[t]wo or more offenses may be charged in the same indictment . if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” (Emphasis added.)
Appellant first argues that a consolidated trial of the cocaine and bail jumping charges was improper under Rule 8 since those offenses are not of a similar character. The simple answer to this claim is that the scope of Rule 8 is broader. It also permits joinder where the offenses are “connected together”. It is well established that a charge of bail jumping or escape may be deemed sufficiently “connected” with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemmed directly from the substantive charges. See, e. g., United States v. Quinones, 516 F.2d 1309, 1312 (1st Cir.), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Bayless v. United States, 381 F.2d 67, 71-72 (9th Cir. 1967); see also United States v. Elliot, 418 F.2d 219 (9th Cir. 1969).
Even though consolidation of offenses for trial is proper under Rules 8(a) and 13, a defendant nonetheless may seek severance of the offenses pursuant to Rule 14. Motions for severance, however, are addressed to the discretion of the trial court, see, e. g., United States v. Luna, 585 F.2d 1 at 4 (1st Cir. 1978), and a defendant bears a heavy burden to establish abuse. United States v. Somers, 496 F.2d 723, 730 (3rd Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972). To prevail, a defendant “must make a ‘strong showing of prejudice’ likely to result from a joint trial.” United States v. Luna, supra, quoting Sagansky v. United States, 358 F.2d 195, 199 (1st Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). Moreover, the prejudice that must be shown is something “more than just a better chance of acquittal” at separate trials. United States v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973).
Against these principles, appellant’s claim must fail. He first asserts prejudice stemming from the fact that the jury at his consolidated trial was exposed to evidence of both offenses and may have used evidence of guilt as to one to infer guilt as to the other. Concededly, the law recognizes that the prejudicial impact of evidence of a defendant’s other crimes often outweighs its probative value and therefore that such evidence should not be admissible to prove criminal disposition. See, e. g., Fed.R.Evid. 404(b). Accordingly, courts often have found joinder of unrelated offenses for trial improper, when it would result in the jury’s exposure to evidence of the defendant’s other misdeeds. See, e. g., King v. United States, 355 F.2d 700, 704 (1st Cir. 1966); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Yet, there is a well established qualification to this rule in cases where one of the joined offenses involves escape or flight from prosecution. The courts consistently have held that evidence of flight is admissible, from which the jury may draw an inference of the defendant’s consciousness of guilt. See, e. g., United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Rowan, 518 F.2d 685, 691 (6th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975); United States v. Bourassa, supra; Hanks v. United States, 388 F.2d 171, 175 (10th Cir.), cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1968); United States v. Accardi, 342 F.2d 697, 700 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Thus, since the facts concerning appellant’s failure to appear for trial would have been admissible at trial of the drug charges in any event, no prejudice arose from joinder of the offenses. United States v. Bourassa, supra.
Appellant concedes that the evidence at trial was not complicated and that it is clear that the jury was in no way confused by consolidation. See United States v. Luna, supra. He argues, however, that consolidation deterred him from presenting fully his defense. We see little in fact or reason to support this claim. Appellant did not testify at trial. He concedes that he had no viable defense to the bail jumping charge and then maintains that joinder inhibited him from taking the stand in support of his defense to the drug charges. At trial, defense counsel did attempt to establish that appellant had been on a hunting trip in Colombia prior to his arrest at San Juan Airport and argued that the drugs found in his luggage had been placed there without his knowledge. Even assuming that appellant would have been subject to some damaging cross-examination concerning his failure to appear for trial, we fail to see how that constituted any substantial deterrent to his testifying in support of his drug defense if he and his counsel genuinely thought it advisable. Appellant does not and cannot claim that his defenses to the separate charges were logically or factually inconsistent. His flight, while damaging, does not require the conclusion that he was guilty of the substantive counts. While he may have fared better on the drug charges had the jury not known of his flight, something more than simply a better chance of acquittal is required to show undue prejudice. United States v. Martinez, supra. We conclude that appellant suffered no impermissible prejudice in the consolidated trial.
II.
Appellant next contends that the ineffectiveness of his court appointed counsel deprived him of his rights under the Sixth Amendment. In support, he points to numerous alleged errors and omissions by counsel which, it is claimed, singularly or cumulatively amount to a constitutional violation. We noté only the most significant. Appellant complains that his counsel failed to seek suppression of the drugs seized after search of his luggage; that as a result of the short time between the appointment of counsel and trial, counsel failed to interview potential defense witnesses; that counsel failed to object to certain hearsay testimony and unresponsive answers by government witnesses; and finally, that counsel did not cross-examine effectively.
In this circuit, ineffective assistance of counsel “means representation such as to make a mockery, a sham or a farce of the trial.” United States v. Wright, 573 F.2d 681, 683-84 (1st Cir. 1978), quoting United States v. Madrid Ramirez, 535 F.2d 125, 129 (1st Cir. 1976). While we have left open the possibility of adopting the more lenient “reasonably competent assistance” standard, see id. at 129-30, we need not reach that question here, because we are convinced that appellant’s representation was constitutionally adequate under either test.
Appellant’s first allegation that counsel failed to seek suppression of the fruits of the customs search is factually incorrect and legally insufficient. The record reveals that trial counsel did move to suppress the evidence and to have the drug charges dismissed at the close of the government’s case. Denying the motion, the district court held that the evidence had been properly admitted. Even if we assume, however, that suppression motions generally should be made before the commencement of trial, appellant’s claim must fail.
The decision whether or not to make various pretrial motions is a matter of trial tactics generally not reviewable under a claim of ineffective assistance. See Moran v. Hogan, 494 F.2d 1220, 1223 (1st Cir. 1974); Cottman v. Donnelly, 398 F.Supp. 1086, 1092 (D.Mass.1975). Moreover, counsel is not required to make futile or frivolous motions. United States v. Wright, supra, 573 F.2d at 684. From the record it seems clear, as the district court found, that the search was not improper. The arresting customs inspector testified that appellant, after deplaning from a flight from Colombia, entered his aisle for inspection. While appearing normal at first, appellant became nervous, his hands trembling, when the inspector asked him what he had been doing in Colombia. The inspector also testified that his suspicions were further aroused when appellant, in response, stated that he had been hunting, but was carrying no weapons. The inspector then began to inspect a briefcase which appellant had been holding in his hand while his other luggage was examined. The inspector stated that he knew from prior experience that the make of appellant’s briefcase was one which was frequently equipped with a false bottom for smuggling purposes. Upon opening the case, the inspector first observed an abnormality in the bottom and then noticed a plastic bag sealed to the bottom. Appellant was then asked to step into an office where the plastic bag was opened. It revealed a white powder which a field test indicated was cocaine.
As we have recently noted, the standard by which the constitutionality of a search at an international border is tested is “considerably more relaxed than those applicable to ordinary searches.” United States v. Wardlaw, 576 F.2d 932, 934 (1st Cir. 1978). In light of that relaxed standard, appellant suffered no prejudice from any failure of counsel to seek suppression, since it seems clear that the customs inspector had the requisite “reasonable suspicion” to justify the search. See id. at 934-35.
Appellant’s next attack on trial counsel is based on the fact that after his original attorney withdrew from the case as a result of appellant’s failure to appear for trial, his trial counsel was appointed some six days prior to the commencement of trial. Apparently trial counsel initially believed that the matter would be disposed of without trial, and after that assumption proved false, had to prepare for trial essentially over the space of a three day weekend. Appellant concedes that the government’s case was a simple one and makes no claim that counsel lacked trial experience. See Rastrom v. Robbins, 440 F.2d 1251 (1st Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 53, 30 L.Ed.2d 107 (1971). He however argues that as a result of the shortness of this period, counsel failed to interview potential defense witnesses.
In Rastrom, this court, noting that the amount of time required to prepare a constitutionally adequate defense can vary widely from case to case, refused to adopt a rule that impermissible prejudice would be presumed merely from a showing of shortness of preparation time. 440 F.2d at 1253-54. Thus, defendant bears the burden of establishing actual prejudice, a burden which has not been met here.
Appellant requested the presence of three individuals, believed to be living in Florida, who allegedly would testify that appellant had been hunting with them in Colombia prior to his arrest. On the first day of trial, counsel informed the court of his inability a? of that day to contact these individuals and requested a continuance. While permitting the government’s case to proceed, the court ordered the U.S. Attorney’s office to help defense counsel try to contact them. When these initial attempts failed, the court granted a one day continuance, during which the U.S. Attorney and defense counsel renewed their efforts to track down the witnesses. Compare Rastrom v. Robbins, supra. On the following day, after efforts to contact two of the witnesses were apparently still unavailing and it had been learned that the third witness was out of the country and had refused to come to Puerto Rico to testify, the government agreed to a stipulation as to the content of their testimony. As read to the jury, this stipulation stated that the witnesses would testify that appellant had been on a hunting trip in Colombia with them; that while there he had spent some of his time in their company; and that to the best of their knowledge, he had done nothing illegal.
Given the fact that the substance of the testimony of these witnesses, who in fact proved to be unavailable, was presented to the jury, we believe that appellant was not prejudiced by any failure of counsel to contact them before trial. Based on this stipulated testimony, defense counsel, as noted, argued that appellant had been in Colombia for recreational purposes and that the drugs found in his luggage could have been placed there without his knowledge. Judging from the jury’s verdict, this defense was not a winning one. While appellant perhaps cannot be faulted for wishing that counsel had been more vigorous in his defense, from the record it is clear that counsel’s preparation and presentation of the defense far exceeded the dismal performances condemned in the cases upon which he seeks to rely. See Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963).
The last group of alleged failures to make certain evidentiary objections may be disposed of quickly. Certain of the objections which appellant claims counsel should have made, quite clearly would have been frivolous. Although other objections might have been technically sustainable, their omission was not prejudicial because the prosecutor could properly have asked the questions to which counsel allegedly should have objected simply by rephrasing them. Finally, with reference to appellant’s general complaint that trial counsel failed to cross-examine as effectively as he might have, we note again that the government’s evidence was quite simple and its case strong. We are satisfied that appellant’s representation adequately exceeded the constitutional minimum.
Affirmed.
. We note in this regard that while the stipulated testimony confirmed appellant’s claim that he had been hunting, it in no way negated the possibility, supported by other evidence, that he had had ample time while in Colombia to procure the cocaine.
. Appellant’s additional contention that trial counsel should have challenged the government’s proof as to the chemical composition of the cocaine is clearly frivolous in light of the strength of the testimony of the government’s chemist and the fact that appellant does not actually challenge the sufficiency of the evidence on this or any other element of the government’s case.
. As to the claim that an objection should have been made to the adequacy of the foundation for the testimony of Mr. Schreiber, a chemist with the Drug Enforcement Administration, concerning the number of dosages which could be obtained from the amount of cocaine seized from appellant, it appears that Mr. Schreiber’s educational background and experience established his competence to make the estimate. However, even assuming this to be debatable, we find little chance of prejudice. The sole purpose of this testimony was to establish that the large quantity of cocaine found in appellant’s luggage was intended for distribution, not personal use. We think that that quantity, some 765.4 grams, could speak for itself on this point.
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)". 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:
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songer_respond1_1_2
|
C
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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)". 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".
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: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_casetyp1_7-2
|
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".
Lois E. TAYLOR, Personally and on Behalf of Paul Durand Arnold, Plaintiff-Appellee, v. TEXACO, INC., Defendant-Appellant, v. DAPTCO MARINE CORPORATION, and Platform Well Service, Inc., Defendants-Appellees.
No. 85-3095.
United States Court of Appeals, Fifth Circuit.
April 14, 1987.
Miles P. Clements, Samuel F. Reynolds, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendant-appellant.
John M. Robin, Darryl J. Tschirn, Covington, La., for plaintiff-appellee.
Wendell Stout, New Orleans, La., for Daptco.
Thomas E. Balhoff, Baton Rouge, La., for intervenor La. Ins. Guar.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, JOLLY and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
In this appeal Texaco, Inc., argues that the district court erred in holding it 25 percent liable for the death of Paul Durand Arnold, a roustabout who was killed when a fire erupted on the Texaco production platform on which he was working. The fire occurred during a fuel transfer procedure. Texaco contends that, inter alia, the district court incorrectly denied its motion for judgment notwithstanding the verdict, or, alternatively, for a new trial on the issue of its alleged negligence. Upon our review of the record, we find that there is no evidence of any negligence on the part of Texaco and accordingly reverse the district court’s order denying Texaco’s motion for judgment notwithstanding the verdict.
I.
This litigation commenced after Arnold was killed in a fire that occurred on a Texaco-owned fixed production platform in the Gulf of Mexico on January 7, 1982. At the time of the fire, Platform Well Service, Inc., (PWS) drilling rig No. 8 was located on the top deck of Texaco’s platform and was conducting drilling operations pursuant to a Texaco-PWS drilling contract. This contract provided, among other things, that PWS was to man and operate its drilling rig in its entirety, and defined the status of PWS as that of an independent contractor.
Texaco had also entered into a contract with Daptco Marine Corporation (Daptco) under which Daptco was to provide marine transportation and to carry supplies to the platform. The agreement provided that Daptco would man and operate the M/V JUANITA PATRICK for this purpose.
In addition to the equipment required by PWS for its drilling operations, Texaco had production equipment located on the platform. This production equipment was separate from the equipment used by PWS and was operated by a crew of approximately six Texaco employees. The PWS equipment was powered by diesel fuel, and the Texaco equipment was powered by natural gas.
On January 7, 1984, the M/V JUANITA PATRICK arrived at the platform and radioed for instructions. The vessel was informed that a PWS fuel tank was to be filled with diesel fuel. The PWS crane operator lowered the platform's fuel hose, one end being attached to the fuel tank and the other end being attached to the vessel’s fuel hose. PWS personnel advised the Daptco chief engineer that approximately 1200 gallons of fuel were needed. The engineer commenced the transfer operation.
Arnold, a new PWS employee serving as a roustabout, was assisting in the fuel transfer operation. Once the fuel hose was lowered, the crane operator gave a Texaco walkie-talkie to Arnold and another PWS roustabout, David Welborn, who were to actually conduct the refueling.
The PWS fuel tank was a large rectangular tank, 30 feet long, 8 feet wide, and 2 feet high. The tank was situated on the main deck of the platform and was flat, enabling workers to stand on it. The tank did not have an automatic venting system or sight gauge. Thus, in order to determine the amount of fuel in the tank and to vent the tank (i.e., allow the air to escape while filling the tank) and facilitate the intake of fuel, it was necessary for Arnold and Welborn to unscrew a 4-inch (diameter) “bull” plug located on top of the tank at the end farthest from the edge of the platform. Proper procedure in filling the tank would be to remove the bull plug prior to pumping the fuel and not to replace it until pumping had ceased and the shut-off valve, located on a short pipe extension above the tank where the fuel hose was connected, had been closed.
The bull plug was located approximately 10 feet away from a generator building that housed generator engines owned by Texaco and used in its production operation. Located approximately 10 feet above the bull plug were two generator exhausts that extended out from the generator building. The exhausts were not directly over the bull plug but were recessed several feet back; they also pointed upward. Both exhausts were insulated and were equipped with spark arrestors. The testimony indicated that the exhausts were approximately 6 feet apart from each other. Also, two radiator fans were located against the side of the generator building, beneath the exhausts, and blew air away from the building across the fuel tank.
On the day of the fire the exhaust closest to the bull plug was cold. The engine attached to the exhaust inside the building had been turned off for several hours prior to the fuel transfer because of routine inspection servicing being performed by a Reagan Equipment Company serviceman, George Redding. The other exhaust was examined after the fire and showed no sign of fire damage and was not within the area damaged by the fire.
At the commencement of the filling of the fuel tank, Arnold and Welborn removed the bull plug. As the fuel appeared to be coming near to the top of the tank, Arnold used the walkie-talkie to order the M/V JUANITA PATRICK to cease pumping, but he was unable to establish contact. At that point, with neither Arnold nor Welborn using the shut-off valve to stop the flow of fuel into the tank, Welborn took the walkie-talkie and walked the length of the fuel tank to the side of the platform and again called to the vessel, ordering them to shut down the fuel pump. This time the M/V JUANITA PATRICK indicated its understanding of the order.
There was conflicting testimony concerning whether the pump was immediately turned off, or left running, or whether it was turned off and then turned back on again. At any rate, it is apparent that too much fuel was pumped. As Welborn returned to the fuel tank, he saw Arnold crouched over the bull plug with his hand on it, apparently trying to screw it back into the tank. By this time diesel fuel was spilling out of the tank. Also, the effect of attempting to screw the bull plug in while fuel was still being pumped into the tank was to pressurize the fuel and cause it to be sprayed out in various directions about the area, reaching as far away as Welborn, who was approximately 25 feet away. Welborn attempted to warn Arnold but heard a “whoosh”-type noise as Arnold, covered with diesel fuel, caught fire. Welborn turned and ran, feeling diesel fuel strike his back as he ran.
The fire alarm was sounded and the flames on Arnold were ultimately extinguished. A helicopter was dispatched and Arnold was flown to a hospital, where he subsequently died. Lois E. Taylor, Arnold’s mother, filed suit against Texaco, Gulf Oil Exploration, and Daptco. Texaco filed a third-party complaint against PWS and a cross-claim against Daptco.
Trial was before a jury. Following the close of the evidence, the district court entered a directed verdict in favor of PWS on the third-party complaint of Texaco. Texaco’s motion for a directed verdict was denied. The jury returned its verdict, finding both Texaco and Daptco guilty of negligence contributing to the death of Arnold, assessing their percentage of liability at 25 and 75 percent, respectively. Taylor was awarded $500,000 for the loss of society of her son and $750,000 for the conscious pain and suffering of her son prior to his death. The district court entered judgment in favor of Taylor in the amount of $1,250,000, together with interest from the date of the judgment, plus all costs, and ordered that Texaco was liable for 25 percent of the judgment and Daptco was liable for 75 percent of the judgment.
Following the entry of judgment, numerous post-trial motions were made. It is not necessary for purposes of this appeal to describe all these motions. However, the district court did grant Daptco’s motion for a new trial unless Taylor filed a written acceptance of a remittitur of the award to a total amount of $500,000. Taylor accepted the remittitur. The court also granted Texaco’s motion for judgment notwithstanding the verdict based on Washington Metropolitan Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984). Daptco subsequently moved for reconsideration of this decision.
The district court thereafter granted Daptco’s motion for reconsideration of the granting of Texaco’s motion for judgment notwithstanding the verdict. The court reached this conclusion based on its view that Washington Metropolitan was legislatively overruled by the amendments to the LHWCA. The court, therefore, amended the portion of its prior minute entry, which absolved Texaco from liability and substituted an entry that found Texaco liable for its own negligence. An amended judgment was entered in favor of Taylor and against Daptco (75%) and Texaco (25%) in the amount of $500,000, together with costs and legal interest from the date of judicial demand. Texaco now appeals, contending that the district court erred in finding it at fault and not granting its motion for judgment notwithstanding the verdict.
II.
The standard of review of a court’s granting or denying of a motion for judgment notwithstanding the verdict has been well-established in this circuit since Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). In Boeing Co. we stated that in determining whether such a motion should be granted
the Court should consider all the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment notwithstanding the verdict should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Id. at 374-75 (footnotes omitted). The standard governing judgments notwithstanding the verdict remains the same on appeal. Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.1986). We emphasize, however, that while “[i]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses,” Boeing, 411 F.2d at 374, nevertheless, “[a] mere scintilla of evidence is insufficient to present a question for the jury,” and “[t]here must be a conflict in substantial evidence to create a jury question.” Id. at 375. The jury cannot rest its verdict on speculation and conjecture. Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir.1984).
Our review of the evidence leads us to the conclusion that the district court erred in not upholding Texaco’s motion for a judgment notwithstanding the verdict. We find no basis in the record by which reasonable jurors could have found Texaco to be negligent. In denying Texaco’s motion, the district court hypothesized several potential reasons why the jury might have imposed liability on Texaco:
approving plans calling for the placement of the diesel tank too near to Texaco’s own generator exhaust manifold; failing to move its own generator exhaust manifold out of the proximity to the diesel tank; failing to maintain adequately its own generator exhaust manifold; providing a defective generator exhaust manifold; or operating its generator, which had an exhaust manifold near the diesel tank, during fuel operations.
These conclusions presuppose that Texaco’s exhausts caused the fire. The evidence, however, belies such a contention.
First, only the engine farthest from the fuel tank was running; thus, it was the only exhaust of the two that could possibly have been a source of ignition and it was located some six feet to the side of the bull plug. Moreover, both exhausts were about ten feet above the fuel tank, as well as being somewhat recessed, and there were radiator fans blowing vapors from the tank away from the exhausts. The exhausts also were insulated and had spark arrestors. The Reagan Equipment Company serviceman, Redding, had also serviced the engines the day of the fire, including examining the exhaust pipes. He stated that one could place his hand over the exhaust without burning it, indicating that the temperature was not sufficiently hot to ignite diesel fuel. After the fire he also examined the exhausts. He stated that there was no sign of any fire damage nor any sign of sparking. He stated that if there had been a spark that the spark arrestor had not caught, there would have been evidence of burned condition. Evidence was also presented regarding the combustion of diesel fuel. An expert witness testified that for diesel fuel (not diesel fuel vapors) to ignite, it must come into contact with some object that is at least 494 degrees fahrenheit in temperature.
Thus, the testimony of Redding was that a person could, albeit uncomfortably, touch the exhaust pipe of the running engine. Certainly such a temperature is well below the 494 degrees required of a source to ignite diesel fuel. Thus, if the exhaust pipe were the cause, it would have had to have been from the fuel vapors. The flash point of diesel fuel (the point at which the diesel fuel will give off flammable vapors) is 100 degrees. But the uncontroverted testimony of Redding was that there was no evidence of any sparking. Without a spark the vapors could not be ignited. The evidence, therefore, does not support a jury finding that Texaco was negligent through the use or placement of its generator exhausts.
The only evidence presented by Daptco in support of a theory that the exhausts caused the fire was from reports prepared by two Texaco employees, Gerard Victoriano and Clifford Journey. Victoriano was Texaco’s operator’s representative (the employee who oversaw Texaco’s interest in the drill operation or workover operation) on the platform at the time of the fire. After the fire Victoriano conducted an investigation and filled out an accident report. In this report Victoriano gave the following description of the accident: “While taking on fuel from supply boat the diesel tank was pressurized up. When [Arnold] tried to remove plug to check the level in the tank the plug flew off and diesel blew into the air and was ignited, probably by generator] exhaust or rig air compressor.” Daptco relies, in part, on this statement to prove Texaco’s negligence. However, at trial Victoriano testified that “I listed that as a possible source of ignition. When we did the investigation, we didn’t conclude anything as this is it____ [W]e could not narrow it down to say this is it. I certainly couldn’t.” Thus, at the time of his report Victoriano was unable to determine the cause of the ignition of the diesel fuel.
Daptco also presented evidence that Journey listed in his report that the fire was apparently caused by the generator exhaust. However, he testified that there were several possible ignition sources, and that he was not exactly sure what caused the fire.
Thus, while both Victoriano and Journey filed reports indicating that the generator was a possible source of ignition, neither was certain it was the source. We do not believe that this evidence supports a finding that Texaco was negligent through the operation of the generators or in their placement. The evidence of the employees’ reports is not only inconclusive, it also is only a mere scintilla of evidence that the generator exhausts caused the fire. When compared to the opposing evidence that the exhausts were not the cause of the fire, there is not substantial evidence to create an issue that only a jury could resolve. To allow the jury verdict to stand against Texaco on the basis of the two reports would be to allow the verdict to rest on speculation and conjecture.
Daptco propounds several other theories as a basis for finding Texaco negligent. In particular, Daptco argues that “[t]he negligence of Texaco, Inc. ... in failing to comply with or even be aware of the applicable Coast Guard regulations for fueling operations, and in failing to conduct safety meetings or insist on a properly vented diesel tank equipped with sigh guage [sic] and overflow line was a substantial cause of the fire and resultant death of Paul Arnold.” Even assuming the truth of Daptco’s assertions, the evidence does not support that Texaco’s failure to comply with the Coast Guard regulations or to conduct safety meetings was a factor contributing to the accident. The evidence conclusively showed that Texaco was not involved in the refueling operations. Instead, its two independent contractors, PWS and Daptco, were the sole responsible parties. The apparent approval by Texaco of the PWS fuel tank does not offer a basis of liability either. There was no evidence presented that the tank used was itself inherently dangerous, or of any requirements that Texaco could only allow certain types of fuel tanks to be used, and that the PWS tank was not one of those. Instead, the evidence showed that PWS brought its own fuel tank and had properly, without incident, refilled it almost every third day for a number of months. There is no conflict in the evidence regarding the fuel tank, and there is not substantial support in the record to find Texaco negligent on this basis.
III.
For the foregoing reasons, we REVERSE the district court’s denial of Texaco’s judgment notwithstanding the verdict and REMAND for entry of judgment in favor of Texaco.
. Texaco also argues that the district court erred in granting a directed verdict in favor of Platform Well Service, Inc., in dismissing both its claim for contractual indemnity on the basis of the Louisiana Oilfield Indemnity Act, La.Rev. Stat.Ann. § 9:2780, and its claim for breach of an express warranty of workmanlike performance contained in the Texaco-PWS drilling contract, and in failing to reduce further the jury verdict. Since we find that Texaco was not negligent, and reverse on that basis, there is no need to address these other assignments of error.
. Arnold was a green hand, with no previous oilfield experience. He had arrived at the platform for his first assignment with PWS on January 6; thus, he was at his second day of work.
. The distance between the exhausts and the fuel tank was never conclusively established. One estimate ranged from 7 to 10 feet and another ranged from 12 to 15 feet. In their briefs, Texaco approximates the distance as being 10 to 12 feet, and Daptco approximates it at 10 feet. The exact distance is not important for the purposes of this appeal.
. Gulf was originally sued by Taylor because it owned an interest in the mineral lease and in the production of the platform pursuant to an agreement between it and Texaco. To simplify matters, it was stipulated that Texaco was the owner of the platform, and it appears that at some point in the proceedings Gulf was dropped from the suit.
. Daptco, being cast in judgment for the full award at the time and seeking to stop the running of interest, satisfied the judgment, but reserved its right to seek reimbursement against Texaco should Daptco ultimately prevail on its motion to reconsider Texaco’s dismissal.
. The relevant portion of the amended minute order states:
Under the general rule, since Texaco did not retain control over the manner of performance of the workover operations on the platform, nor over the fueling operation in which Arnold was killed, Texaco cannot be held vicariously liable for the negligence of Daptco or Platform Well Service in the performance of those operations, nor directly liable for failing to prevent those independent contractors from performing those operations in a dangerous manner. However, there was sufficient evidence presented from which the jury might reasonably have concluded that Texaco was negligent in some other manner that proximately caused Arnold’s death. Specifically, the jury might reasonably have imposed liability on Texaco for: approving plans calling for the placement of the diesel tank too near to Texaco’s own generator exhaust manifold; failing to move its own generator exhaust manifold out of proximity to the diesel tank; failing to maintain adequately its own generator exhaust manifold; providing a defective generator exhaust manifold; or operating its generator, which had an exhaust manifold near the diesel tank, during fueling operations. The general rule does not preclude Texaco’s liability for any of these acts or omissions of Texaco concerning its own equipment on its own platform. Thus, Texaco is not entitled to judgment notwithstanding the jury verdict finding fault on its part, (footnote omitted).
. Texaco was the only party to appeal. Also, after the notice of appeal was filed, PWS’s insurer became insolvent. The Louisiana Insurance Guaranty Association, pursuant to state law, gave notice it would act on behalf of the insurer.
. As discussed in note 1, supra, Texaco raises other issues, but our finding that Texaco was not negligent, and therefore not liable, precludes the necessity of reaching them.
. As a means of comparison, the boiling point of water is 212 degrees.
. Daptco also argues that Texaco was negligent in directing the placement of the diesel fuel tank directly beneath the generator exhausts. This rationale is the same as that offered by the district court, above, which we have rejected.
. In fact, as soon as the PWS rig was placed on the platform the United States Geological Service and the Coast Guard conducted an inspection and found no unsafe conditions. Also, the Coast Guard made regular inspections of the platform and never issued any citations or made any comment concerning any noncompliance of Coast Guard regulations regarding the fuel tank.
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
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Russell Charles TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
No. 11590.
United States Court of Appeals Sixth Circuit.
Oct. 27, 1952.
Milton R. Henry, Pontiac, 'Mich., and Herman D. Stallings, Detroit, Mich., for appellant.
John J. Kane, Jr., Cleveland, Ohio, and Marcus L. Friedman, Toledo, Ohio, for appellee.
Before MARTIN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The above cause coming on to be heard on the transcript of record, the 'briefs of the parties, and the argument of counsel iti open court; and it appearing that there was no error in the ■ admission of evidence or any rulings thereon by the trial court;’ and that the conviction of appellant was sustained iby • the evidence;
And it appearing further that the District Court was not in error and did not-abuse its discretion in refusing to sentence appellant in accordance with the provisions of Title 18 U.S.C.A. § 5010, known as the Youth Offenders Act; and the court being duly advised;
Now, therefore, it is ordered, that the judgment of the District Court be and is hereby 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_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
Johnny L. SOUTHERN, Plaintiff-Appellant, Liberty Mutual Insurance Company, Intervenor-Appellee, v. PLUMB TOOLS, A DIVISION OF O’AMES CORPORATION, Defendant-Appellee.
No. 81-7103.
United States Court of Appeals, Eleventh Circuit.
Feb. 3, 1983.
Francis H. Hare, Jr., P.C., Birmingham, Ala., for plaintiff-appellant.
Sadler, Sadler, Sullivan, Sharp & Stutts, Eugene P. Stutts, Birmingham, Ala., for defendant-appellee.
B. Boozer Downs, Jr., Davies, Williams & Wallace, Birmingham, Ala., for Liberty Mut. Ins.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN , District Judge.
Honorable Virgil Pittman, U.S. District Judge for the Southern District of Alabama, sitting by designation.
PER CURIAM:
This case involves a suit against a third-party tortfeasor by an employee injured on the job. On appeal we hold that the district court erred, under Alabama law, by refusing to limit the participation at trial of the intervening workmen’s compensation carrier and by allowing the jury to learn that the employee had received workmen’s compensation benefits, and that such was not harmless error.
The appellant, Johnny L. Southern, was injured on his job as a carpenter when a shard of metal flew off a hammer and blinded him in his right eye. His employer’s workmen’s compensation carrier, Liberty Mutual Insurance Company, paid him $17,100 in disability benefits. See Ala.Code § 25-5-11 (1975). Southern then brought this third-party action for negligence against Plumb Tools, the manufacturer of the hammer. Liberty Mutual was the liability carrier for defendant Plumb, in addition to being the compensation carrier for plaintiff’s employer. Liberty Mutual, as the workmen’s compensation carrier, filed a motion to intervene as a party-plaintiff to assert its right of subrogation. Over Southern’s objections, the district court granted the motion and refused to impose any conditions on Liberty Mutual’s intervention.
Liberty Mutual’s role as intervening plaintiff consisted of describing its payment of benefits to Southern on his employer’s behalf and its entitlement to reimbursement should he recover at trial. The case was tried before a jury, which returned a defendant’s verdict for Plumb.
Alabama law precludes the introduction of evidence that a plaintiff in such a case has received workmen’s compensation benefits. Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938). It also requires conditions to be imposed on an intervening insurance company’s participation at trial, particularly when the same company has the defendant’s liability coverage and is the workmen’s compensation carrier for the plaintiff’s employer, unless the carrier can meet certain narrow conditions. Hughes v. Newton, 295 Ala. 117, 324 So.2d 270 (1976). Accord Jones v. Crawford, 361 So.2d 518, 520 (Ala.1978). The question here is whether it was reversible error for a federal trial court not to give effect to these state rules.
Although the parties dispute whether intervention of right or permissive was appropriate under Fed.R.Civ.P. 24, we need not decide that question since we conclude that conditions can be imposed even when a party intervenes as a matter of right under Rule 24(a)(2). There was no evidence of collusion in this case which might have been sufficient grounds for totally denying intervention by Liberty Mutual as intervening plaintiff when it was the defendant’s liability carrier.
Rule 24(a) of the Federal Rules of Civil Procedure itself does not mention conditions or restrictions. The Advisory Committee Note to the 1966 Amendment of Rule 24(a), however, provides: “An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.” There apparently were no decided cases which provided authority for this assertion. Even so, several courts have followed its lead and imposed restrictions on an intervenor of right. 7A C. Wright & A. Miller, Federal Practice and Procedure, § 1922 at 624-25 (1972); cf. McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073 n. 7 (5th Cir.1970) (appellate court acquiesced in condition imposed by district court on post-judgment intervention of right). See also Harris v. General Coach Works, 37 F.R.D. 343 (E.D.Mich.1964) (preamendment and only case clearly showing imposition of restrictions on intervenor of right).
Discretion under Rule 24(b) to grant or deny intervention in toto necessarily implies the power to condition intervention upon cértain particulars. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1922 at 623 (1972). Indeed, several courts have so conditioned their grant. See Van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir.1974); Associated General Contractors v. Secretary of Commerce, 459 F.Supp. 766 (C.D.Cal.1978), vacated and remanded on other grounds, 448 U.S. 908, 100 S.Ct. 3053, 65 L.Ed.2d 1138 (1980); Armstrong v. O’Connell, 75 F.R.D. 452 (E.D.Wis.1977), vacated and remanded mem., 566 F.2d 1175 (7th Cir.1977); NOW, Inc. v. Minnesota Mining & Manufacturing Co., 73 F.R.D. 467 (D.Minn.1977). The Second Circuit, in Ionian Shipping Co. v. British Law Insurance Co., 426 F.2d 186, 191-92 (2nd Cir.1970), has gone so far as to engraft the Advisory Committee Note, supra, onto Rule 24(b) in some situations. It appears, therefore, that imposing certain conditions on either type of intervention, of right or permissive, poses no problem in the federal courts.
Imposing the conditions plaintiff sought in this case would have been an appropriate method of keeping evidence of the payment of workmen’s compensation benefits from the jury. The. liability of the employer or its insurance company, is not a defense against the liability of a third-party tortfeasor. Jones v. Crawford, 361 So.2d at 521; Coleman v. Hamilton Storage Co., 235 Ala. at 557, 180 So. at 557, nor is the amount of compensation of any concern to the jury. Alabama strictly adheres to the collateral source rule with respect to insurance payments and workmen’s compensation benefits, and any showing that plaintiff has received such payments constitutes reversible error. Jones v. Crawford, 361 So.2d 518 (Ala.1978); Gribble v. Cox, 349 So.2d 1141 (Ala.1977); Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963); Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938). Under the “collateral source rule,” compensation for injuries from a source wholly independent of the tortfeasor is not deducted from the damages recovered against the tortfeasor. 22 Am.Jur.2d Damages § 206 (1965). For a discussion of the collateral source doctrine as applied to workmen’s compensation benefits, see Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 533-37 (9th Cir.1962); Annot. Collateral Source Rule: Injured Person’s Receipt of Statutory Disability Unemployment Benefits as Affecting Recovery Against Tortfeasor, 4 A.L.R.3d 535 (1965); 22 Am.Jur.2d Damages § 209 (1965).
These rules of state substantive law must be applied by federal courts in diversity cases. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Even in the ordinary case, a procedural rule permitting an intervenor or defendant to show the plaintiff has received workmen’s compensation benefits from his employer would undermine the substantive collateral source doctrine because such evidence is considered unquestionably prejudicial to the plaintiff’s case. Eichel v. New York Central Railroad, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963) (prejudicial to plaintiff in suit brought under Federal Employer’s Liability Act to admit evidence he received disability payments under Railroad Retirement Act); Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4 (1963) (reversible error to admit evidence of benefits paid under Longshoremen’s and Harbor Worker’s Compensation Act in suit brought under Jones Act).
We can identify no strong federal interest requiring us to uphold a procedural ruling that severely undermines Alabama’s substantive law, see Byrd v. Blue Ridge Electrical Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), particularly since federal courts also have vigorously applied the collateral source rule to prohibit evidence regarding payment of workmen’s compensation benefits. Eichel v. New York Central Railroad and Tipton v. Socony Mobil Oil Co., supra; American Fidelity & Casualty Co. v. Drexler, 220 F.2d 930 (5th Cir.1955); Altenbaumer v. Lion Oil Co., 186 F.2d 35 (5th Cir.1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). The former Fifth Circuit has noted that “nothing in the Federal Rules of Evidence authorizes departure from the [collateral source] rule.” Bourque v. Diamond M. Drilling Co., 623 F.2d 351 n. 1 (5th Cir.1980) (quoting Riddle v. Exxon Transportation Co., 563 F.2d 1103, 1107 (4th Cir.1977)).
We have considered whether the judgment should be affirmed on the ground that the error was harmless because the evidence would normally effect a decision on damages and should not be of concern as to liability. We reject this notion, however, and decide the judgment must be reversed for the following reasons.
First, we note the Supreme Court in Tip-ton v. Socony Mobil Oil Co. concluded that the prejudice would not be limited to the issue of damages and could infect the determination of liability. 375 U.S. at 34 & n. 2, 84 S.Ct. at 2 & n. 2.
Second, although the error essentially was an evidentiary one and federal rather than state rules of evidence generally apply in diversity cases, the admission of the evidence resulted from the failure to properly apply Alabama law. It would seem, therefore, that we should look to that state’s law to determine whether the error was harmless. Plumb argues that the jury found in its favor on the liability issue and the evidence should not affect the decision on liability. The Alabama Supreme Court, however, has held the error reversible in trials like this one in which the jury found the defendant not liable and did not reach the damages issue. Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938). The Alabama court reasoned that the evidence sheds no light on the issues and its only effect was to divert the jury’s mind from resolving those disputed points. 235 Ala. at 557, 180 So. at 557.
Third, the Alabama court disapproves of unencumbered intervention when the insurance company occupies the dual role we see here because it gives the jury the impression that plaintiff has already been compensated and is now attempting to recover again from defendants. Jones v. Crawford, 361 So.2d at 520. That is precisely what occurred in this case. The district court allowed evidence that Liberty Mutual had paid Southern $17,100. Counsel for Liberty Mutual told the jury this money would be paid back first if they returned a verdict for the plaintiff, and the district court so instructed the jury. This was particularly prejudicial since the defendant sought to disprove its own liability by showing negligence on the part of the plaintiff’s employer. In effect, the jury was told that a verdict for the plaintiff would enure to the benefit of the employer, whom the defendant vigorously contended was negligent. In this case, the employer’s carrier rather than the employer itself would be entitled to reimbursement since it paid the benefits to plaintiff. The employer would benefit indirectly by not having its premiums increased.
Fourth, counsel for Plumb told the jury that even if Southern lost his case he would be compensated for his injury since he could keep the workmen’s compensation payments. This is the precise line of reasoning which made the information prejudicial, particularly when the issue of liability was close.
Fifth, the appellee has cited no Alabama case, nor has our research revealed any, which holds that it might be harmless to erroneously admit such evidence. We have seen no Alabama opinions that have even considered that it could be harmless, and it is apparent that an Alabama reviewing court would not hold it to be so. The plaintiff was entitled to the benefit of Alabama law in this case, a benefit he would have received had the case not been removed to federal court on defendant’s motion.
Finally, the district court gave no limiting instruction that the jury was not to consider, in deciding liability, that the plaintiff had received compensation. We cannot conclude that the evidence did not influence an uninstructed jury.
Southern has carried his burden to establish that the error affected his substantial rights. 28 U.S.C.A. § 2111; Fed.R.Civ.P. 61. Appellee has failed to show the error had no prejudicial effect.
REVERSED AND REMANDED FOR A NEW TRIAL.
. After final preparation of this opinion and just prior to its being forwarded to the clerk for publication, counsel for appellant called to our attention the recent opinion in Moring v. State Farm Mutual Automobile Insurance Co., 17 Ala.Bar Rep. 400, 426 So.2d 810 (Ala. December 10, 1982). In that case the Alabama Supreme Court held there is no right of subrogation when a defendant tortfeasor is insured by the same company as the plaintiff. On remand, the district court shall consider the effect of this and any other recently decided state cases which may bear on Liberty Mutual’s right to continued intervention in the instant case.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_usc1sect
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2401
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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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Cyrus R. WARE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 79-1031.
United States Court of Appeals, Fifth Circuit.
Oct. 2, 1980.
James R. Warncke, San Antonio, Tex., for plaintiff-appellant.
Leonard Schaitmen, Linda Jan S. Pack, Dept, of Justice, Civ. Div., Washington, D. C., for defendant-appellee.
Before TJOFLAT, POLITZ and HATCH-ETT, Circuit Judges.
HATCHETT, Circuit Judge:
Appellant, Cyrus R. Ware, appeals a district court order dismissing his $331,607.89 claim against the United States. Ware brought his claim under the Federal Tort Claims Act (hereinafter F.T.C.A.), 28 U.S.C. §§ 1346(b), 2674, and under the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, as an alternate, pendent claim. We find that Ware’s F.T.C.A. claim is not barred by the misrepresentation exception in the F.T.C.A. or the statute of limitations. We also find that the district court does not have pendent jurisdiction over Ware’s Tucker Act claim. We, therefore, affirm in part and reverse in part.
FACTS
Ware operates a dairy farm near San Antonio, Texas. On five occasions between December, 1970, and August, 1975, agents of the Department of Agriculture tested Ware’s dairy herd for tuberculosis, diagnosed 246 of the cattle as tubercular, and killed them. The government compensated Ware on the basis of the value of diseased cattle. Ware asserts that he later learned that the government misdiagnosed 243 of the 246 cattle, and that only three of the cattle were diseased. The following chart reveals the dates of the government tests and the number of cattle diagnosed as tubercular, and the number killed by the government.
Number of Cattle Date Destroyed Number of Alleged Healthy Cattle Destroyed
December, 1970 34 33
November, 1974 22 21
February,1974 150 149
April, 1975 27 27
August, 1975 AS AS
Total Number 246 Total Number 243
Upon learning of the misdiagnosis, Ware filed an administrative claim with the Department of Agriculture on or about April 1, 1977. In June of 1977, the Department of Agriculture denied the claim. Five months later, Ware filed the present action, contending that the government was negligent in misdiagnosing his cattle and therefore liable under the F.T.C.A. Ware also asserted an alternative pendent claim under the Tucker Act for the loss of his cattle. Under both acts, Ware sought the actual cash market value of the 243 healthy cattle, plus compensation for lost milk production and damage to his dairy’s business. In his complaint, Ware asserted liability under the F.T.C.A. in these words:
[t]he Defendant’s agents when destroying the Plaintiff’s aforesaid cattle, represented to Plaintiff that those head of cattle actually destroyed were tubercular upon which representation the Plaintiff relied and the action of Defendant’s agents in destroying the cattle, Plaintiff acquiesced, relying on the representation that the cattle were all indeed diseased.
The basis of the Tucker Act claim is not clearly articulated, but appears to be a Fifth Amendment allegation of taking of property without just compensation.
The government moved to dismiss the complaint. The government claimed that Ware’s F.T.C.A. complaint was barred by the “misrepresentation exception” to the F.T.C.A. If the F.T.C.A. claim was not barred entirely by the misrepresentation exception, the claim for 208 of the 243 cattle was barred under 28 U.S.C. §§ 2401(b), 2675(a), because Ware failed to file an administrative claim within two years of the accrual of the claim. The government further alleged that the district court lacked jurisdiction over Ware’s pendent Tucker Act claim since the amount in controversy exceeded $10,000, the statutory limit of the district court in an original Tucker Act case.
Initially, the district court granted the government’s motion as to the Tucker Act claim, holding that exclusive jurisdiction lay in the Court of Claims. The district court, however, concluded that neither the misrepresentation exception nor the statute of limitations barred Ware’s F.T.C.A. claim. Both parties moved the court to reconsider its ruling and, on reconsideration, the district court, for jurisdictional reasons not fully explained, dismissed Ware’s entire case. This appeal results.
ISSUES
This court must decide:
1. whether the misrepresentation exception to the F.T.C.A. bars Ware’s tort claim;
2. whether Ware’s failure to file an administrative claim within two years of the date the government told him the cattle were tubercular bars his claim for 203 of the 243 cattle; and,
3. whether the district court has jurisdiction over Ware’s Tucker Act claim.
I
The government argues that Ware’s tort claim is barred by 28 U.S.C. § 2680(h), the misrepresentation exception to the F.T.C.A. Section 2680(h) provides, in pertinent part, that:
[t]he provisions in this chapter and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of misrepresentation deceit, or interference with contract rights. . . . [Emphasis added.]
The government relies on United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), for the proposition that the misrepresentation exception bars claims arising out of negligent misrepresentation. In Neustadt, a couple purchased a home that they would not have purchased had they not relied on a negligent inspection and appraisal of the home made for mortgage and insurance purposes by the Federal Housing Administration. The government maintains that Ware’s complaint reveals that the basis of his action is the tort of negligent misrepresentation, for which, under Rey v. United States, 484 F.2d 45 (5th Cir. 1973), there is no recovery.
In Rey, the plaintiffs filed an amended complaint against the United States under the F.T.C.A., alleging that a Department of Agriculture veterinarian negligently tested or diagnosed their hogs. This government employee erroneously and negligently notified the plaintiffs that the hogs were infected with hog cholera, and plaintiffs then administered a vaccine which killed the hogs. In affirming the district court’s dismissal of the amended complaint, this court held that the misrepresentation exception to the F.T.C.A. barred recovery because:
Whatever the additional allegations of negligence in the defendant United States’ operations, the negligently erroneous transmission of misinformation is the crucial element in the chain of causation from defendant’s negligence to plaintiffs’ damages. It is the key fact to be established, the sine qua non, of the theory of the amended complaint. . . . Misrepresentation, although asserted in terms of negligence, is the tortious act now relied on for recovery.
484 F.2d at 49.
The government also relies on a Tenth Circuit case cited in Rey, Hail v. United States, 274 F.2d 69 (10th Cir. 1959), where a cattleman sued the government under the F.T.C.A. for the alleged negligent testing of his cattle for brucellosis. There, government agents told the cattleman that one or more of his cattle were infected, and he subsequently suffered a loss by selling the cattle at a price less than the full market value for healthy cattle. The Hall court affirmed the dismissal of the complaint on the basis of the misrepresentation exception, focusing on the essence of the claim, rather than the language of the complaint. The court reasoned that:
Plaintiff’s loss came about when the government agents misrepresented the condition of the cattle, telling him they were diseased when, in fact, they were free from disease. The claim is that this misrepresentation caused plaintiff to sell his cattle at a loss. This stated a cause of action predicated on a misrepresentation. Misrepresentation as used in the exclusionary provision of the statute was meant to include negligent misrepresentation.
274 F.2d at 71.
While we agree that the United States is not liable under the F.T.C.A. for a claim for negligent misrepresentation, we do not agree with the government that this is a misrepresentation case. We base our holding on the fact that the tort of negligent misrepresentation demands some act, the result of justifiably relying on the misrepresentation. Following Neustadt, we must construe negligent misrepresentation according to “the traditional and commonly understood legal definition of the tort.” 366 U.S. at 706, 81 S.Ct. at 1300. Referring, as did the Supreme Court in Neustadt, to the American Law Institute’s definition of negligent misrepresentation, we find some act or transaction necessary to complete the tort.
RESTATEMENT (SECOND) OF TORTS, § 552. Information Negligently Supplied for the Guidance of Others.
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information if he fails to exercise reasonable care or competency in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to the loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them. [Emphasis added.]
The basis of Ware’s tort claim is that the government negligently diagnosed his cattle as being tubercular and then destroyed them, to his damage. The government, not Ware, destroyed the cattle and caused the damage. Ware suffered damage, not through any action he took based on any misrepresentation by the government, but by the government’s destruction of his cattle. The government destroyed the cattle because of the alleged negligent misdiagnosis. The cases relied on by the government, Neustadt, Rey, and Hall, involve situations where a plaintiff brought suit based upon a misrepresentation upon which he acted to his detriment. In Neustadt, plaintiffs bought a house because of a negligent misrepresentation; in Rey, plaintiffs, relying on the negligent misrepresentation of a government veterinarian, injected their hogs with live vaccine and killed them; and in Hall, the plaintiff sold his cattle at a loss, based on the government’s negligent misrepresentation that his cattle were diseased. Here, Ware committed no act. All actions were taken by the government’s agents; it was they who allegedly negligently misdiagnosed the condition of Ware’s cattle; and it was they who destroyed the cattle, to Ware’s damage.
The government’s misrepresentation caused Ware to do nothing save remain in ignorance that he had suffered a compensable loss. The government, not Ware, destroyed the cattle and caused the damage. Ware’s complaint, thus, arose out of, not a negligent misrepresentation, but an allegedly negligent misdiagnosis that caused the government to destroy his cattle. Under these facts, we are unable to apply the misrepresentation exception to bar Ware’s F.T.C.A. claim.
II
Because we rule that the misrepresentation exception is inapplicable, we turn to the government’s statute of limitations argument. The government declares that dismissal is in order as to each alleged act or omission of negligence which occurred prior to April 1, 1975, as barred by the operation of 28 U.S.C. §§ 2401(b), and 2675(a), because no administrative claim was presented to the Department of Agriculture within two years of the destruction of the cattle.
Under § 2675(a), before a F.T.C.A. action may be filed against the United States, an administrative claim must be presented to the appropriate federal agency, and that agency must either deny the claim in writing or fail to take final action on it for six months. Section 2401(b) requires that if an administrative claim is not presented to the appropriate federal agency within two years of the alleged incident, the claim against the United States arising out of the incident is forever barred.
The government contends that the running of the two year statute of limitations with respect to each of the three incidents of alleged negligence occurring prior to April of 1975 commenced upon the dates of the alleged representations leading up to the destruction of the cattle: December of 1970; November of 1974; and February of 1975. Under the government’s view, recovery for losses due to government negligence occurring on these dates is barred by the two year limitation. The government believes that Ware states a claim for relief only as to those two claims concerning the diagnosis of tuberculosis in twenty-seven head of cattle tested in April, 1975, and thirteen head of cattle tested in August, 1975.
Although state law determines whether any claim accrues against the government on the negligence issue, Marcum v. United States, 621 F.2d 142 (5th Cir. 1980); Ferrero v. United States, 603 F.2d 510 (5th Cir. 1979), federal law determines when a claim accrues within the meaning of § 2401(b) of the F.T.C.A. Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968); Beech v. United States, 345 F.2d 872 (5th Cir. 1965).
The government urges us to apply the Mendiola standard, which provides that a claim accrues under the F.T.C.A. “as a matter of federal law, where the injury coincides with the negligent act and some damage is discernible at the time.” 401 F.2d at 697. In Mendiola, this court affirmed a dismissal where the plaintiff suffered personal injuries and did not file a F.T.C.A. claim until after determination of his workmen’s compensation suit, which was not finalized until more than two years after his injuries were sustained.
We find the Mendiola standard applicable to this set of circumstances, but our interpretation of Mendiola achieves a result contra to the result urged by the government. We find that the Mendiola standard does not cause Ware’s action to be barred by the two year statute of limitations. As previously stated, under Mendiola, accrual arises “where the injury coincides with the negligent act and some damage is discernible at the time.”
Applying the Mendiola standard to the facts at hand we find that injury, negligent act, and discernible damage fail to coincide. In this instance, the injury was the killing of the healthy cattle. The negligent act was the misdiagnosis. But until Ware learned of the destruction of the healthy cattle, no damage was discernible to him, since he labored under the mistaken belief that his cattle, being tubercular, merited death. There was nothing to cause Ware to recognize that he had suffered any damage, until he later found that the government had misdiagnosed the condition of his cattle. Prior to knowledge of the misdiagnosis, Ware knew only that the government tested his cattle, found them to be diseased, and destroyed them in accordance with law. Ware had no reason to suspect that the government was mistaken in its diagnosis. Consequently, while Ware knew that he had suffered a loss, he did not know that his loss was compensable. Since the government misled Ware into believing that the cattle were killed out of necessity, Ware did not know he had suffered damage. Under Mendiola, accrual cannot commence until “some damage is discernible at the time. Therefore, accrual commenced at the time Ware learned that he had suffered damage.
Ware also met the statutory requirement of filing an administrative claim with the appropriate federal agency. Ware filed his administrative claim with the Department of Agriculture in April, 1977. He filed this claim because, shortly before April, 1977, a government veterinarian told him that a recently developed testing procedure could more accurately determine if cattle were tubercular. This admission made Ware suspicious. Subsequently, after inquiry, he determined that all but three of his cattle destroyed by the government were healthy.
Accordingly, the statute of limitations did not run in this case until Ware obtained knowledge of the negligent misdiagnosis by the government. Only at that point could Ware discern that he had suffered damage.
Ill
Ware originally brought this action in two counts. Count I consisted of his F.T. C.A. claim. In Count II of his complaint, Ware requested that “in the alternate, if he is not entitled to his relief prayed for under the Federal Tort Claims Act, that he is, nevertheless, entitled to relief under the Tucker Act.” The relief sought under both the F.T.C.A. and the Tucker Act is identical. Under both claims, Ware sought the actual cash market value of the 243 healthy cattle, plus compensation for lost milk production and damage to the dairy’s business. Ware’s Tucker Act claim is, therefore, a truly alternate claim, not an additional claim. Since we hold that Ware’s F.T.C.A. claim is not barred, and since Ware’s Tucker Act claim is an alternate claim seeking identical relief, we only discuss Ware’s pendent jurisdiction argument to provide the district court with clear instructions on remand. We also note that Ware’s argument is novel to this circuit.
Ware contends that the district court erred in failing to exercise pendent jurisdiction over his Tucker Act claim. Ware admits that the district court lacked original jurisdiction to hear the Tucker Act claim, but he maintains that the district court should have exercised pendent jurisdiction. He relies on the Supreme Court’s holding in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In Gibbs, the Supreme Court held that where a federal court is presented with both a federal and non-federal claim derived from the same “common nucleus” of operative fact, and the federal court has jurisdiction over the federal claim, then the federal court has pendent jurisdiction to try the non-federal claim. 383 U.S. at 725, 86 S.Ct. at 1138. More recent Supreme Court decisions expand the doctrine of pendent jurisdiction by holding that the exercise of pendent jurisdiction is especially appropriate when the pendent claim arises under federal law, rather than state law. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).
Ware argues that his $331,607.89 Tucker Act claim, like any other claim arising under federal law, may be heard by the district court under pendent jurisdiction. Sovereign immunity is not a bar, Ware says, because Congress waived immunity to claims such as his in the Tucker Act. Ware asserts that the $10,000 district court jurisdictional limitation in the Tucker Act merely controls the district court’s original jurisdiction over a Tucker Act claim. Under Ware’s view, the $10,000 limitation does not detract from the government’s consent to be sued and does not prohibit district court adjudication, under the doctrine of pendent jurisdiction, of Tucker Act claims exceeding $10,000.
We disagree. The United States, as sovereign, is immune from suit except as it waives its immunity, and the terms of its waiver, as set forth expressly and specifically by Congress, define the parameters of a federal court’s subject matter jurisdiction to entertain suits brought against it. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1952); United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The conditions that Congress imposes upon its waiver of immunity should be strictly construed. Sherwood; see Dalehite.
The Tucker Act, like the F.T.C.A., waives the immunity of the United States, but that immunity is waived only to the extent specifically set forth by Congress. Assuming that Ware presents a valid Fifth Amendment taking claim, the only express waiver of sovereign immunity which vests the district court with jurisdiction over taking claims against the United States is set forth at 28 U.S.C. § 1346(a)(2), and it limits the district court jurisdiction to claims involving $10,000 in damages or less. Jurisdictional amounts, like statutes of limitation, are conditions of the waiver, and it is not for us to extend the conditions that Congress has set. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). As the Dalehite court stated, specifically referring to the conditions (exceptions) to the F.T.C.A. waiver of immunity:
This statute is another example of the progressive relaxation by legislative enactments of the rigor of the immunity rule. Through such statutes that change the law, organized government expresses the social purposes that motivate its legislation. Of course, these modifications are entitled to a construction that will accomplish their aim, that is, one that will carry out the legislative purpose of allowing suits against the government for negligence with due regard for the statutory exceptions to that policy. In interpreting the exceptions to the generality of the grant, courts include only those circumstances which are within the words and reason of the exception. They cannot do less since petitioners obtain their “right to sue from Congress [and they] necessarily must take [it] subject to such restrictions [conditions] as have been imposed.”
So, our decisions have interpreted the Act to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions.
346 U.S. at 30-31, 73 S.Ct. at 965, (footnotes and citation omitted).
The law of this circuit is clear: the Court of Claims has exclusive jurisdiction of a Tucker Act claim in excess of $10,000. Blanchard v. St. Paul Fire and Marine Insurance Co., 341 F.2d 351 (5th Cir.), cert. denied, 382 U.S. 829, 86 S.Ct. 66, 15 L.Ed.2d 73 (1965). Federal district courts are granted concurrent jurisdiction with the Court of Claims only over suits for $10,000 or less. 28 U.S.C. § 1346(a)(2); Gardner v. Harris, 391 F.2d 885 (5th Cir. 1968); Blanchard.
Ware cites no authority for the proposition that the United States expressly consents to be sued on a Tucker Act claim in a district court where such claim seeks more than $10,000 in damages. Adopting the language of Sanborn v. United States, 453 F.Supp. 651, 655 (E.D.Cal.1977) (refer to n. 5), “[t]his court cannot, by using the judge-made doctrine of pendent jurisdiction waive the immunity of the United States where Congress, constitutional guardian of this immunity, has declined to do so.”
Since neither statute nor precedent allow a district court to hear a Tucker Act claim in excess of $10,000, and since the government has not specifically consented to such a claim, the district court is powerless to entertain the claim.
CONCLUSION
For the preceding reasons, we hold that the misrepresentation exception to the F.T. C.A. does not bar Ware’s tort claim; that the statute of limitations did not commence to run until Ware had knowledge of the damage he suffered; and that the district court does not have pendent jurisdiction over Ware’s Tucker Act claim. Accordingly, we affirm the district court’s dismissal of the Tucker Act claim and reverse the dismissal of the F.T.C.A. claim, remanding to the district court for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
. 28 U.S.C. § 2674 provides, in pertinent part: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
28 U.S.C. § 1346(b) provides, in pertinent part:
[T]he district courts, together with the United States District Court for the District of the Canal Zone, and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claim in accordance with the law of the place where the act or omission occurred.
. 28 U.S.C. § 1491 provides, in pertinent part:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just. 28 U.S.C. § 1346(a)(2) provides, in pertinent
part, that:
(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. . . . For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States. [Emphasis added.]
. 28 U.S.C. § 2675(a) provides that:
(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.
28 U.S.C. § 2401(b) provides that:
(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
. As the government admits, Mendiola is not a medical malpractice case. It is for that very reason that we choose to apply the Mendiola accrual test. By applying the accrual test there stated, we avoid the interpretative problems that could occur if we apply to these facts the medical malpractice accrual test articulated in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) and by this court in Waits v. United States, 611 F.2d 550 (5th Cir. 1980); Beech v. United States, 345 F.2d 872 (5th Cir. 1965); and Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). The Supreme Court in Kubrick stated the general concept of the medical malpractice accrual test “to be that the two-year period did not begin to run until the plaintiff has discovered both his injury and its cause.” 444 U.S. at 120, 100 S.Ct. at 358, 62 L.Ed.2d at 268. In more specific fashion, upheld by the Kubrick Court, this circuit defines accrual to be the time when “the claimant discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based.” Quinton, 304 F.2d at 235. As mentioned, confusion could result if we apply the Quinton test to these facts. Courts created the medical malpractice test to protect those who suffered damage arising out of both a specialized area, medicine, and a unique relationship, doctor-patient. See Toal v. United States, 438 F.2d 222 (2nd Cir. 1971); RESTATEMENT (SECOND) OF TORTS § 899, Comment e. While we feel it important to apply the non-medical malpractice test of Mendiola, we are very aware that the Mendiola accrual test contains the discovery element found in the medical malpractice test. The Mendiola test allows divergence from “the general rule under the Act . . that a tort claim accrues at the time of the plaintiffs injury.” 444 U.S. at 120, 100 S.Ct. at 358, 62 L.Ed.2d at 268. The Mendiola test is the result of the line of cases, Beech v. United States, 345 F.2d 872 (5th Cir. 1965); United States v. Reid, 251 F.2d 691 (5th Cir. 1958), that flowed from the “blameless ignorance” principle in Urie v. Thompson, 337 U.S. 163 at 170, 69 S.Ct. 1018 at 1024, 93 L.Ed. 1282 (1949). In our view, Mendiola, by relying on the non-medical malpractice negligence test of Beech, created a special accrual test for negligence actions under the F.T.C.A., similar to, but distinct from, the medical malpractice accrual test.
. In Roman v. Velarde, 428 F.2d 129 (1st Cir. 1970), the First Circuit entertained, under different circumstances, the question of whether a Tucker Act claim may be appended to a F.T. C.A. claim. The claim involved an inverse condemnation action, and the court determined that subject matter jurisdiction lay with the Court of Claims. The court determined that the F.T.C.A. does not provide a supplementary forum for those demanding compensation for land permanently taken. The court also stated that “we think that it is relevant, in determining Congressional intent with regard to the allocation of jurisdiction [under the Tucker Act and the F.T.C.A.], whether a claim [is] an established tort under general law. Local lawmakers do not have unlimited power to bring Tucker Act claims under the F.T.C.A. by declaring them to be ‘torts.’ ” 428 F.2d 132, 133, n. 5.
In Sanborn v. United States, 453 F.Supp. 651 (E.D.Calif.1977), property owners brought suit against the federal government and California, alleging inverse condemnation, trespass, and negligence. The district court held that an inverse condemnation taking claim in excess of $10,000 could not be appended to F.T.C.A. claims. The court stated that a Tucker Act claim may not be appended to a F.T.C.A. claim to avoid the well established requirement of a waiver of sovereign immunity.
Both Roman v. Velarde and Sanborn are distinguishable, in that, in addition to other factors, the claims sought to be appended were additional claims, not alternate claims seeking identical relief.
. Ware has no contractual relationship with the government, and therefore, apparently intended to present a Tucker Act taking claim, although he makes no reference to the Fifth Amendment. The Supreme Court has held that the
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 28? Answer with a number.
Answer:
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songer_appel1_7_5
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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, Appellee, v. John DOE, a/k/a, James Singleton, Defendant, Appellant.
No. 88-1864.
United States Court of Appeals, First Circuit.
Heard Aug. 3, 1990.
Decided Dec. 13, 1990.
Barbara A.H. Smith, by Appointment of the Court, with whom Quinlan, Dee & Smith, Boston, Mass., was on brief, for appellant.
Jose A. Quiles, Asst. U.S. Atty., with whom Carlos A. Perez, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were on brief, for appellee.
Before SELYA and CYR, Circuit, and RE Judge.
The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
RE, Chief Judge.
Appellant, John Doe, a/k/a James Singleton (Singleton), appeals from a judgment of conviction following a jury trial in the United States District Court for the District of Puerto Rico. Singleton was convicted of aiding and abetting in the possession with the intent to distribute marijuana in violation of 18 U.S.C. § 2 and 46 U.S.C. App. §§ 1903(a), (c), and (f).
Singleton contends that the district court erred in denying his Rule 29 motion for acquittal because it applied an improper standard to test the sufficiency of the evidence, and, therefore, found sufficient evidence for the case to go to the jury. Singleton further contends that the district court’s imposition of a 360-month sentence pursuant to the Sentencing Guidelines was fundamentally unfair.
We hold that the district court applied a correct standard of sufficiency, and that the evidence presented was sufficient to support the jury’s verdict of guilty beyond a reasonable doubt. Furthermore, since the court complied with the Sentencing Guidelines, the 360-month sentence is not appealable. Hence, the judgment of the district court is affirmed.
BACKGROUND
In April 1988, an indictment was returned by a federal grand jury in Puerto Rico against Singleton and five others who were arrested while on a ship. They were charged with aiding and abetting each other in the knowing, willful, and intentional possession with the intent to distribute approximately 3,500 pounds of marijuana in violation of 18 U.S.C. § 2, and 46 U.S.C. App. §§ 1903(a), (c), and (f). Singleton and the five other defendants were tried together before a jury. The jury found three guilty and three not guilty. Only Singleton’s appeal is before us.
The testimony at trial revealed that on January 5, 1988, the United States Coast Guard Cutter Dauntless approached a vessel on the high seas off the coast of Cuba. Since the vessel was coming from the direction of Haiti, Ensign Pulver and other officers aboard the Dauntless discussed whether a boarding of the vessel was warranted because of possible immigration law violations. After having sighted the vessel, the Dauntless attempted to establish radio communication on two channels and in three languages. The Dauntless received no reply, and no electronic communication was established. On drawing closer to the vessel, Ensign Pulver saw on the vessel the name Marilyn E and some letters, but he could not see a home port designation or flag.
Ensign Pulver and the boarding party hoarded a smaller Coast Guard vessel, and drew closer to the Marilyn E. At a distance of about thirty yards, voice contact was established, and someone on the vessel identified it as being from Jamaica.
Ensign Pulver requested and was given permission to board the Marilyn E. He was told by someone on the Marilyn E that there were seven people on board. This proved to be correct as all seven were arrested, although only six were indicted.
Upon boarding the vessel, Ensign Pulver asked for the certificate of documentation. In response to his request, he was given a bill of sale, which was an improper documentation. The “sweep team” searched the vessel, and Ensign Pulver asked what was in the hold. Willey Gordon, the master of the vessel, replied that there was ice in the hold. Ensign Pulver then requested and was given permission to open the hold. During this time, Singleton’s only statement was that he was from the United States.
Upon opening the hold, Ensign Pulver discovered bales up to the top of the hold, and stated that he could tell by the smell that the bales contained marijuana. That the bales contained marijuana was later confirmed by a field test. At trial, other members of the Coast Guard testified that there were 102 bales of marijuana, weighing approximately forty pounds each. Ensign Pulver requested authority from the Commander of the Dauntless to arrest the persons on board the Marilyn E. Since the Coast Guard required the permission of the country of origin to arrest the persons on board the Marilyn E, they were asked if there were flags on board to show a registry. Willey Gordon replied that there were no flags. Singleton stated that he thought that there were flags in the forward section. Two flags were found in the forward section, one yellow and the other a United States flag.
Since the vessel was originally identified by someone on board as being from Jamaica, the Coast Guard requested that Jamaica grant permission for the arrests. While waiting for a reply, the persons on board the vessel slept. After several hours, the Coast Guard received permission from the Jamaican government and the commandant of the Coast Guard to make the arrests. The defendants were thereafter transferred to the Dauntless. The Marilyn E was attached to the Dauntless by a towline, and both vessels proceeded toward Puerto Rico.
The testimony also revealed that the Marilyn E was in disrepair and ill equipped for fishing, or any other kind of long term travel. No fishing gear, refrigeration, ice, or back-up equipment was found on board. The vessel leaked and, indeed, during the trip to Puerto Rico, the Marilyn E sank.
At the close of the government’s case, Singleton’s motion for dismissal under Rule 29 was denied.
Although Singleton presented no evidence on his own behalf, his attorney examined his co-defendant, Willey Gordon. Gordon testified that Singleton asked him for a ride to the Bahamas because Singleton’s girlfriend had destroyed his papers. Gordon told Singleton that he was not going to the Bahamas, but that he was going to “Cape Sol Bank.” Gordon also told Singleton that the owner of the boat would have to give permission for Singleton to make the voyage. The owner, according to Gordon, gave permission for Singleton to be on the boat.
At the close of all evidence, Singleton renewed his Rule 29 motion, and the motion was again denied. The jury returned a verdict of guilty for Singleton and two others, and not guilty for the other three defendants.
On appeal, Singleton contends that the district court erred in denying his Rule 29 motion to dismiss for lack of sufficient evidence, and in imposing a 360-month sentence. Since we hold that the district court correctly denied Singleton’s motion to dismiss, and that the imposition of the 360-month sentence is not appealable, the decision of the district court is affirmed.
DISCUSSION
1. The Rule 29 Motion for Judgment of Acquittal
Rule 29(a) of the Federal Rules of Criminal Procedure provides that, on motion of a defendant, the court “shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.”
Since Singleton made his Rule 29 motion to dismiss at the close of the government’s case-in-chief, and since he renewed' the motion at the close of all evidence, we will review all the evidence presented at trial to determine whether it was sufficient to support the jury’s verdict of guilty beyond a reasonable doubt. See United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir.1978).
Singleton is charged with aiding and abetting in the possession with the intent to distribute marijuana. In Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949), the Supreme Court stated that “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ” Id. at 619, 69 S.Ct. at 770 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938).
Although the evidence against Singleton is largely circumstantial, the standard to be applied is nonetheless “whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.” Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). Indeed, we have specifically stated that “in the context of review of a motion for acquittal, ‘no legal distinction exists between circumstantial and direct evidence.’ ” United States v. Clotida, 892 F.2d 1098, 1104 (1st Cir.1989) (quoting United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986)). Furthermore, it is unquestioned that direct evidence need not be presented. Judicial authority teaches that “the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt.” United States v. Machor, 879 F.2d 945, 948 (1st Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1167, 107 L.Ed.2d 1070 (1990). See also United States v. Glover, 814 F.2d 15, 16 (1st Cir.1987). Finally, “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also United States v. Williams, 858 F.2d 1218, 1221 (7th Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989).
In response to Singleton’s allegation of error, we must state that we find no error in the colloquy between the district court and defense counsel on the Rule 29 motion. The district court, in denying the motion, merely inquired of defense counsel why the district court should find the government’s evidence to be insufficient. This query does not, as Singleton asserts, “dilute the prosecution’s burden of proof.” Rather, the district court was merely affording defense counsel an opportunity to show why the government’s evidence was insufficient for submission to the jury. After having heard the arguments of defense counsel, the district court denied the motion. See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978).
On appeal, Singleton again contends that the government’s evidence is insufficient for a finding of guilt beyond a reasonable doubt. He asserts that the evidence fails to prove that he was anything more than a “hitchhiker” on the Marilyn E. Singleton asserts that, since there was no testimony that there was a noticeable marijuana odor on board the ship, and that, since the government failed to refute the testimony of a co-defendant as to Singleton’s legitimate purpose for being on board the ship, the jury’s verdict should be set aside. The answer is found in many cases that indicate clearly that “[i]t is not necessary for the government to disprove every reasonable hypothesis of innocence, provided that the record as a whole supports a conclusion of guilt beyond a reasonable doubt.” United States v. Cuevas-Esquivel, 905 F.2d 510, 514 (1st Cir.), cert. denied, — U.S. —, 111 S.Ct. 208, 112 L.Ed.2d 169 (1990). See also United States v. Molinares Charris, 822 F.2d 1213, 1219 (1st Cir.1987); United States v. Rivera Rodriquez, 808 F.2d 886, 890 (1st Cir.1986). In the present case, sufficient evidence exists to support the jury's verdict.
In United States v. Lopez, 709 F.2d 742 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983), the appellant Lopez, who was arrested while on a vessel, contended that his conviction for possessing and importing marijuana should have been reversed because there was no noticeable marijuana odor on the vessel before the hold was opened. The appellant also contended that the government “failed to prove that [he] knew at the time [he] signed on with the [vessel] that the vessel contained marijuana.” Id. at 746. In Lopez, we held that certain combinations of factors supported a finding of guilt beyond a reasonable doubt. These factors included: (1) the length of the voyage; (2) the amount of marijuana in relation to the size of the ship; and (3) because of cramped quarters, the necessarily close relationship of the crew. In conjunction with inferences that the marijuana could only be unloaded in a clandestine manner, and that, under the circumstances, the shippers of an illegal cargo would not allow innocent bystanders on the vessel, we held that the conviction was supported by sufficient evidence. See id. at 748.
In the present case, as in Lopez, no marijuana odor was present until the hold was opened. We note, however, that “[r]egardless of whether the marijuana was hidden in scent as well as sight at the time the Coast Guard encountered the vessel, there was evidence from which it could be found that appellant[ ] must have played an active role_” Molinares Charris, 822 F.2d at 1219. See also United States v. Robinson, 843 F.2d 1, 9 (1st Cir.), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988).
Singleton cites United States v. Elkins, 774 F.2d 530 (1st Cir.1985) in support of his contention that his “mere presence” on board the vessel is insufficient evidence of his guilt. In Elkins, we found that the district court was incorrect in failing to strike testimony of a Coast Guard officer as to the defendants’ lack of surprise upon being arrested because such testimony “invited the jury to infer guilty knowledge from the defendants’ failure to respond.” Id. at 538. In Elkins, since errors at trial were not harmless, and the evidence was insufficient to overcome the prejudicial nature of the errors, we remanded for a new trial. Id. at 539-540.
Singleton also points to our decision in United States v. Clotida as support for his contention that his mere presence is insufficient evidence. Clotida involved the appeals of two defendants, Clotida and Chat-ten, who were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, and importation of cocaine. The defendants were arrested during a stopover in San Juan, Puerto Rico, while en route from Ecuador to Amsterdam. A Customs Inspector discovered cocaine in three suitcases, and the tags on the suitcases matched those in the possession of Clotida. Id. at 1101. Defendant Clotida had possession of the passports, the baggage checks, and the airline tickets. Indeed, the only evidence presented by the government against Chatten was that she travelled with Clotida, and that “clothing, impregnated with cocaine[, was] found in suitcases with baggage tag numbers that matched those in the possession of Cloti-da.” Id. at 1105.
In Clotida, we reversed as to defendant Chatten since we found that “the only evidence that may be said to connect or tie Chatten to the crime was that she was present at the airport in San Juan, and had accompanied Clotida” on the trip. Id. The evidence against Chatten fell short of that required to convict a defendant as an accomplice. Hence, the evidence of mere presence presented by the government against Chatten was insufficient. As indicated in the opinion, to have sustained her conviction would have done violence to the presumption of innocence as well as the beyond a reasonable doubt standard of proof required for conviction. See id. at 1105-1106. See also State v. Tally, 102 Ala. 25, 65-76, 15 So. 722, 737-741 (1894) (thorough discussion of proof required to convict accomplice).
In the present case, however, considerably more evidence exists to show Singleton’s connection with the criminal activity. Testimony at trial revealed that Singleton knew where the flags were, that he helped steer the boat, and that he received permission to board the boat from the owner. This is not a case of “mere presence” since an inference of involvement in the illegal activity could be drawn by a jury from the testimony that Singleton helped steer, knew where the flags were, and received permission from the vessel’s owner, who presumably knew the purpose of the voyage, to board the vessel. See Lopez, 709 F.2d at 748.
Singleton also urges that our decision in United States v. Robinson “is instructive” because in Robinson the defendants were crewmembers on the vessel and, in the present case, Singleton was not a crew-member. See 843 F.2d at 9. The jury in the present case, however, might indeed have reasonably inferred that Singleton, in effect, was a crewmember since he helped steer the vessel and knew where the flags were. Additionally, we recognize that sufficiency depends on the totality of the evidence, not one particular fact or factor. See id. See also Molinares Charris, 822 F.2d at 1219.
Particularly significant is our decision in United States v. Luciano Pacheco, 794 F.2d 7 (1st Cir.1986), which was also a case in which arrests were made on a ship. In Luciano Pacheco, the defendants, who were appealing from a conviction for aiding and abetting in the possession with the intent to distribute marijuana, contended that they were mere passengers on the vessel. At trial, defendants testified that “when sight seeing together in Colombia, they were robbed of their worldly possessions ... [and] ... a stranger, overhearing their conversation in English, offered them a ride to Martinique_” Id. at 10. We found that “[w]hile the ... ‘innocent passenger’ defense is certainly within the realm of human possibilities, we have previously noted that juries are perfectly entitled not to believe what may be inherently incredible....” Id. (citing Lopez, 709 F.2d at 747).
In the present case, as in Luciano Pacheco, the evidence presented, and the inferences that might reasonably be drawn therefrom, support a jury verdict of guilty. The testimony at trial shows that the boat was in disrepair, there was no fishing equipment on board, there was no ice or refrigeration for storing fish, and there were no identifying features on the boat other than its name. These factors justify the inference that there was no legitimate purpose for the voyage. See Molinares Charris, 822 F.2d at 1219.
As we stated in Elkins, 774 F.2d at 539, although an inference of some type of illegal activity is an insufficient basis to find a defendant guilty, in the present case there is additional evidence that Singleton was more than a mere passenger. The following may be enumerated: (1) no one on the ship answered repeated attempts by the Coast Guard to establish radio communication; (2) the hold where the marijuana was stored was unlocked and readily accessible to anyone on board; (3) the crew spent their time in extremely cramped quarters; (4) 3,500 pounds of marijuana were on board a 50 foot boat; (5) Singleton helped steer the boat; (6) Singleton knew where the flags were; and (7) Singleton had permission to be on board.
Singleton’s reliance on United States v. Francomano, 554 F.2d 483 (1st Cir.1977) is also misplaced. In Francomano, we held that the defendants, “young men, short of funds, seeking travel for educational experience and adventure,” were merely present on the vessel, and therefore not guilty of the crime charged. Id. at 486. Francomano involved approximately 50 pounds of marijuana, found floating behind the vessel. Furthermore, there were no other factors, as exist in the present case, that tied the defendants to the crime. See id. at 487. See also United States v. Mehtala, 578 F.2d 6, 8 (1st Cir.1978) (same ship and incident, different defendant). Moreover, in Mehtala and Francomano, since the vessel was carrying 2250 pounds of coffee and 2000 pounds of sugar, there was a legitimate purpose for the voyage. See Mehtala, 578 F.2d at 8. See also United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985).
It may be well to note that it is the responsibility of the jury “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences....” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Furthermore, it is within the province of the jury, not that of the reviewing court, to assess the credibility of witnesses. See Machor, 879 F.2d at 948. Finally, the jury’s verdict should not be overturned unless “the prosecution’s failure [to prove guilt] is clear.” Burks, 437 U.S. at 17, 98 S.Ct. at 2150.
In the present case, the jury was fully instructed as to the elements of the crime. The jury was also instructed that “mere presence at the scene of a crime and knowledge that a crime is being committed is not sufficient to establish that a defendant aided and abetted a crime.... ” Moreover, the jury did not merely treat all defendants alike, and bring in a single verdict of guilty as to all defendants, but rather, exercised judgment and found three defendants guilty and three not guilty. In light of the careful instructions given to the jury, and the sufficiency of the evidence presented at trial, we ought not, in this case, set aside the jury’s verdict.
2. Sentencing
Singleton asserts that the imposition of a 360-month sentence is fundamentally unfair because of the “paucity of the evidence.” He adds that the government presented no evidence to show that Singleton “knew, or should have known, the amount of marijuana allegedly involved.” Singleton also asserts that the imposition of a 360-month sentence on a 54-year old man amounts to a “life sentence,” and the district court failed to consider whether a “life sentence” is appropriate punishment for this crime. We find no merit to Singleton’s assertions.
We note at the outset that “[t]he use of guideline sentencing ... does not deprive a defendant of his constitutional right to due process.” United States v. LaGuardia, 902 F.2d 1010, 1014 (1st Cir.1990). While we recognize that the imposition of a 360-month sentence is severe, the district court correctly followed the Sentencing Guidelines in computing the sentence. Furthermore, a defendant may file an appeal as to the imposition of a sentence pursuant to the Guidelines only if the sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater ... term of imprisonment ... than the maximum established in the guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline....
18 U.S.C. § 3742(a). See United States v. Tucker, 892 F.2d 8, 9-10 (1st Cir.1989). See also United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir.1988) (Eighth Amendment generally offers no relief from a sentence imposed in conformity with the Guidelines).
Singleton’s assertion that his base offense level should be determined by reference to the amount of marijuana entered into evidence at trial, rather than the amount found on the vessel, is without merit. Sufficient testimony at trial established that the total amount of marijuana on the vessel was in excess of 3,500 pounds (1,600 kilograms), and that amount required a base offense level of 32. See U.S.S.G. § 2.D1.1(c)(6). We have stated that “an estimation of the total weight of the amount, based on the testimony of the ... officers, ... was appropriate.” United States v. Hilton, 894 F.2d 485, 488 (1st Cir.1990). Furthermore, Singleton was convicted of aiding and abetting in the possession with the intent to distribute the total amount, not the amount entered into evidence at trial. Therefore, the larger amount used in the calculation of the sentence was proper.
Singleton also asserts that the imposition of a 360-month sentence on a 54 year old man was improper because it amounts to a sentence of “life” in prison. We note that the defendant’s age “is not ordinarily relevant in determining whether a sentence should be outside the Guidelines.” U.S. S.G. § 5H1.1. The Guidelines limit consideration of age in determining a sentence to “when the offender is elderly and infirm-” Id. (emphasis in original). See also United States v. Daiagi, 892 F.2d 31, 33-34 (4th Cir.1989) (age has been eliminated as a mitigating factor). Therefore, since .Singleton is neither elderly nor infirm, the district court correctly followed the Sentencing Guidelines.
CONCLUSION
Since we hold that Singleton’s conviction was supported by sufficient evidence, and that his sentence in conformity with the Sentencing Guidelines is not appealable, 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_state
|
21
|
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".
Donna K. DOWD, Widow of Douglas Loel Dowd, Deceased; Charles D. Dowd, minor, surviving son of Douglas Loel Dowd, Deceased, by his mother and next friend, Donna K. Dowd; Dawn Dowd, minor, surviving daughter of Douglas Loel Dowd, Deceased, by her mother and next friend, Donna K. Dowd; Donna K. Dowd, Personal Representative of the Estate of Douglas Loel Dowd, Deceased; Catherine Ellis, Widow of Robert Schild Ellis, Deceased; Michael Ellis, infant, surviving son of Robert Schild Ellis, Deceased, by his mother and next friend, Catherine Ellis; Steven Ellis, infant, surviving son of Robert Schild Ellis, Deceased, by his mother and next friend, Catherine Ellis; Catherine Ellis, Personal Representative of the Estate of Robert Schild Ellis, Deceased, Appellees, v. TEXTRON, INC., a Delaware Corporation; Bell Helicopter Textron, Inc., a Division of Textron, Inc., a Delaware Corporation, Appellants.
No. 85-1704.
United States Court of Appeals, Fourth Circuit.
Argued March 6, 1986.
Decided May 27, 1986.
Rehearing and Rehearing In Banc Denied June 25,1986.
James W. Hunt (James M. FitzSimons, Mendes & Mount, New York City, R. David Broiles, Brown, Herman, Scott, Dean & Miles, George Galerstein, Fort Worth, Tex., Bell Helicopter Textron, Inc., Charles M. Shaffer, Jr., L. Joseph Loveland, Gary J. Toman, Jane E. Jordan, King & Spalding, Atlanta, Ga., on brief), for appellants.
John H. Green, Odessa, Tex., for appellees.
Before RUSSELL, HALL and WILKINSON, Circuit Judges.
PER CURIAM:
Two servicemen, Douglas Dowd and Robert Ellis, were killed when the helicopter they were flying crashed during a flight instruction session at Patuxent River, Maryland. Donna Dowd and Catherine Ellis, the widows of the servicemen, brought suit on behalf of themselves and their children against Textron, Incorporated and its subsidiary Bell Helicopter Textron, the manufacturer of the helicopter. The plaintiffs alleged negligence and strict liability for the design of the rotor system installed on the helicopter. The jury returned a general verdict of $3,650,000 in favor of the plaintiffs, and the district court denied the customary post-trial motions.
We reverse. The defendant has satisfied all elements of the military contractor defense as set forth in Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986). The decision of the United States Army to contract with Bell for a helicopter rotor system with which the Army had extensive familiarity and field experience operates to shield defendant from any liability for alleged design defects in that system.
I.
The crash occurred on May 21, 1981, during a “familiarization flight” at the U.S. Naval Test Pilot School at Patuxent River. The plaintiffs alleged that the accident occurred because the hub of the rotor system struck the mast and severed it, a phenomenon known as “mast bumping.” The rotor is the system of blades that revolve to support the helicopter’s flight. The rotor is attached to a rotating mast. If the rotor dips at an extreme angle and the mast remains stationary, the hub of the rotor may strike the mast and sever it. When mast bumping occurs in flight, it is generally catastrophic because the rotor separates from the mast, and the helicopter can no longer fly. In this case, the separated rotor flew off and the blades cut through the cockpit of the helicopter.
The helicopter flown by Dowd and Ellis had a 540 rotor system that Bell designed in the early 1960’s, and installed on the UH-1 series of helicopters that it built for the Army between 1961 and 1967. In 1965, Bell developed the AH-1G helicopter, a derivative of the UH-1C, and installed the 540 rotor system on the AH-1 series as well. In 1978, the Army entered into a contract with Bell to modify the AH-1G to an AH-1S. The modification added mission equipment to the helicopter; the rotor system was not changed.
The mast bumping accident that occurred at Patuxent River in 1981 was not an isolated incident. Bell and the Army had previously investigated and exchanged information on the problem of inflight mast bumping. In 1973, the Army prepared a report on forty-six instances of mast bumping between 1967 and 1972. That report concluded that the teetering rotor system had unstable characteristics, and recommended further study of the problem. In 1974, the Army published a technical risk assessment report on inflight mast bumping with AH/UH helicopters. The 1974 report concluded that mast bumping was associated with maneuvers at low g levels and with “high speed flight with extreme nose left sideslip.” The report recommended educating pilots about the potential for mast bumping during certain maneuvers and advocated a long-term investigation into redesign of the mast and rotor. While the Army was preparing its reports, Bell and the Army exchanged information on the design of the rotor system and pilot performance. Bell also did a series of in-house studies.
In the late 1970’s, Bell proposed three rotor system modifications that it hoped would reduce mast bumping: the hub spring, the mast plug, and the four-bladed rotor. The mast plug is inserted into the hollow mast to provide additional resistance if the mast is bumped by the hub. The Army approved the mast plug modification for UH-1 helicopters with thin walled masts, but rejected Bell’s proposal to put mast plugs on AH-1 helicopters. At the time of the accident, the Army had not installed hub springs on either the UH-1 or AH-1 helicopters. Bell did not actually propose the four bladed rotor system until 1979 and 1980, after the 1978 modification but before the accident in 1981. The record suggests various reasons why the Army did not adopt Bell’s proposed modifications: the modifications were thought ineffective or too costly, or would have interfered with the military mission of the helicopter by impairing performance because of additional weight the modifications might add.
II.
To avoid liability under the military contractor defense, Bell must demonstrate that it has met the requirements outlined in Tozer. A supplier of military equipment is not liable in tort for design defects when: 1) the United States is immune from liability; 2) the United States established or approved reasonably precise specifications for the equipment; 3) the equipment conformed to those specifications; and 4) the supplier warned the United States about dangers involved in the use of the equipment that were known to the supplier but not to the United States. See Tozer, at 408. Here, the Army was immune from liability under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and we find that the other elements of the defense have been satisfied.
The elements of the defense do not vary with plaintiffs’ theory of recovery. The district judge instructed the jury on the government contractor defense, but gave different instructions for strict liability and negligence. The instructions for strict liability were appropriate, but the district judge’s characterization of the defense as it applies to negligence was erroneous. The judge instructed the jury to “note that the government contractor defense is different for strict liability than for negligence: the government must actually design or mandate or compel the design in question under negligence — under strict liability the government must only establish or approve reasonably precise specifications for the allegedly defective design.” As we said in Tozer, the elements of the government contractor defense remain the same whether plaintiff’s theory of recovery is one of negligence or strict liability. Under either theory, government approval of equipment specifications, not design or dictation of them, is all that is required.
Plaintiffs argue that since Bell originally designed the 540 rotor system in the early 1960’s without any participation by the Army, the government neither set nor approved reasonably detailed specifications. That argument overlooks a wealth of subsequent history. The Army had been using helicopters equipped with the 540 rotor system for some twenty years before Ellis and Dowd’s accident; almost 9,000 UH-1 and AH-1 helicopters flew in Vietnam. The Army had investigated and analyzed incidents of mast bumping in the early 1970’s, discussed the problem at some length with Bell, and prepared two reports on inflight mast bumping. The length and breadth of the Army’s experience with the 540 rotor system — and its decision to continue using it — amply establish government approval of the alleged design defects.
The district court acknowledged that in 1978 the Army required Bell to use the 540 rotor system on the AH-1S: “All of the following assertions made by Bell are correct: The Army did enter into a contract with Bell to inter alia install an Army requisitioned 540 Rotor System (‘teeter-totter’) on the AH-1S helicopter; the Army did not request or order installment of any of the available safety devices mentioned above, despite knowing something of the existence and/or efficacy of these devices; and finally, Bell was not allowed under the contract to install such devices without the permission of the Army.”
The required installation of the 540 rotor system in the AH-1S helicopter may reflect the Army’s judgment that, despite the defects alleged in this tort suit, the equipment had largely accomplished its mission and proved its military worth. It may reflect the Army’s view that safety problems were remediable through pilot training, or that any alteration of the rotor system entailed increased risks or costs. It may simply reflect the Army’s disinclination to tinker with a system that had over time worked well enough. Whatever the reasons, it is not up to the jury to second-guess this military judgment.
Nor was it within the power of the contractor to do so. The military contractor is not in the position of the manufacturer of consumer goods. Even if it developed the original design for a piece of equipment, as Bell did in the early 1960’s, it cannot modify that design without United States approval. To uphold a verdict against the contractor under these circumstances would be to impose liability without responsibility, and we decline to do so here.
Nor is the Army, as plaintiff argues, in the position of the beguiled and unsophisticated consumer. Cf. Tozer, at 406. The Army was familiar with the capabilities and problems of the 540 rotor system; it had completed its own technical risk assessment of the problem of mast bumping; it declined to implement three suggestions — for a hub spring, a mast plug, and a four-bladed rotor system — that Bell thought might alleviate it. While plaintiff naturally disputes the efficacy of those proposals, the contractor’s every suggestion is not to be judged on whether it ultimately proves to be a panacea. If, as the district court intimated, design of the original equipment fixed Bell’s negligence for the indefinite future, Bell’s incentive to propose safety modifications for its product might well be undermined. Much machinery undergoes safety refinements during the course of its useful life, and we see every reason to encourage such an evolution in military equipment.
III.
In sum, the Army approved the 540 rotor system for the AH-1S helicopter in an atmosphere of awareness and in the light of experience. Bell Helicopter, in turn, established the elements of the military contractor defense. The district court thus erred in submitting the matter to the jury. We reverse its decision and remand with directions to enter judgment for defendant.
REVERSED.
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:
|
songer_trialpro
|
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 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".
AMERICAN WEEKLY, Inc., v. HOUSTON PRINTING CORPORATION.
No. 10263.
Circuit Court of Appeals, Fifth Circuit.
March 17, 1943.
As Amended on Denial of Rehearing May 26, 1943.
W. L. Matthews, of San Antonio, Tex., and John P. Bullington, of Houston, Tex., for appellant.
Frank J. Knapp, George W. Rice, and Jack Binion, all of Houston, Tex., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. !
SIBLEY, Circuit Judge.
American Weekly, Inc., (called herein American), publishes a weekly magazine in Chicago which it furnishes to many newspapers to accompany their Sunday editions as a Sunday supplement. On Aug. 28, 1937, it entered into a written contract with Houston Printing Corporation (called herein Houston) which publishes the Houston Post, to furnish each week as ordered copies of the Weekly’s magazine supplement “at a price of $13.05 per thousand copies of twenty-four pages each, subject to modifications as hereinafter set forth, f. o. b. the printing plant at Chicago.” The contract was cancellable on written notice to take effect on any Jan. 1, but not earlier than Jan. 1, 1940. Deliveries began Jan. 1, 1938. In April following Houston expressed dissatisfaction at the falling off in advertising matter in the supplement, in the income from which Houston shared under the contract. Early in 1939, Houston claimed that the contract provided for a definite ratio of advertising matter to other matter, which had not been maintained, and sought to cancel the contract. American denied this construction of the contract, and asserted that its-provisions were being fulfilled. Controversy continued, and Houston refused to pay monthly, as agjreed, for the supplements sent after April, 1939, and American ceased to remit Houstonls part of the advertising income after May, 1939. Houston, however, continued to order weekly the number of supplements it required, which were sent, and distributed; the disputants agreeing that without prejudice to their contentions the business should be carried on till Dec. 31, 1940. Thereafter, unable to reach a settlement, American sued Houston for $54,942 which it claimed. Houston denied owing anything, and pleaded that by reason of the deficiency in advertising matter American had wholly breached the contract, and could not recover on it; that for the reason stated American had partially breached 'the contract; that the contract is ambiguous as to the amount of advertising, but at the time of its execution it was distinctly understood that there would be 32% paid advertising, and that this was the effect of the provision in Par. 8(a) of the contract; that the contract was unilateral and not binding ; and by way of counterclaim, that by American’s failure to maintain the advertising ratio, Houston was damaged in having to pay an additional cost of printing the other matter, and an increased cost of freight so that Houston had overpaid American $15,-123 prior to April, 1939, and had been damaged $34,515 since. The judge tried the case without a jury. He found that there were no false statements to induce the contract, and no mutual mistake in its wording; that it was unambiguous, so that the parol evidence offered was not admissible or needed to explain it; that it meant thar paid advertising should balance other matter in the ratio of approximately fifty-four columns of the former to 114 columns of the latter, or 32% to 68% of the whole paper, and in each instance where the ratio was not maintained there was a violation of the contract by American. He concluded that each issue which did not maintain that ratio should not be paid for by Houston, nor should Houston share in its advertising income, but Houston should recover its outlay for freight thereon. Issues which did maintain the ratio should be settled for under the contract. He held the contract not unilateral, and not can-celled. The result was a recovery of $60,-710 by Houston against American. American appeals.
It is plain the contract was not cancelled or rescinded, but was by mutual consent continued to Dec. 31, 1940; so there is no need to enquire whether Houston had good ground to end it. Nor need we enquire whether it was unilateral. We think Houston was by its terms probably bound to order its needs from week to week, but whether so bound or not, it did order, receive and distribute the supplements under the contract, reserving its contention as to the meaning of it. Settlement for the supplements according to the contract cannot be avoided even if the contract was originally unilateral.
The written contract was before its signing carefully gone over and discussed, paragraph by paragraph, by the contracting parties. Nothing was omitted by accident, mistake or fraud. But we do not find in it any provision for an exact ratio between paid advertising and other matter which would render an issue of the supplement, for lack thereof, not the thing contracted for. American was not making a supplement for Houston according to exact specifications, but was furnishing issues of its weekly paper as published. It could control the amount of reading matter it would contain, but the amount of paid advertising necessarily was limited by what could be gotten, and the evidence is that this not only depends on business conditions, but is seasonal, at times hardly any being procurable. Houston knew this as well as American did. The analysis of the issues sent Houston shows a wide variation. In 1938 the first issue in May had 80 columns of advertising, but the last only 18% columns. Thereafter it averaged around 50 columns but in November. descended into the twenties. The second issue in December carried 68% columns, the third 16, and the fourth only one-tenth of a column. The advertising 'm the year previous to the making 0^ the contract was examined by the contracting parties and showed similar variations, though the average was considerably higher. We think experienced publishers would be unlikely to make an iron-clad contract as to the advertising to be included in each issue, and examining the contract we think they did not. The contract provides that Houston shall share in the advertising income actually collected each month. American’s share is much larger, so that American’s self interest could be relied on for due effort to secure advertising. We have no dispute about the advertising income and its division. The dispute u whether there is a contract for a ratio between advertising and other matter which was not maintained, and with what consequences.
The provisions as to the make-up of the supplement and the price to be paid for it are copied in the margin. A price of $13.05 per thousand is first named for a supplement of 24 pages (168 columns) subject to modifications to be stated. It is then agreed in Par. 3 that the supplement is to consist of editorial matter (meaning all that is not advertising) and advertising, “based on a minimum editorial content of 84 columns per issue.” That much “reading matter” at least is to be furnished for Houston’s subscribers. No amount of advertising is here stipulated for. There follows in Pars. 5, 6 and 7 many provisions as to advertising rates and zones, and the sharing of the advertising income, but they throw no light on the amount of advertising space. Par. 8 returns to the price of the supplement, which is to be modified each week according to the size of the paper, increased or decreased by two pages, and the cost of labor, paper and ink. The opening sentence and the first of the five things named as the price basis is the important matter here: “Par. 8. It is agreed between the parties that the price of the magazine supplements to be furnished by the Weekly is based upon the following: (a) A 24 page supplement carrying approximately 54 columns of advertising.” Now twenty-four pages are 168 columns. There must (Par. 3) be a minimum of 84 columns editorial matter. We here are told that of the remaining 84 columns approximately 54 will be advertising, the other 30 columns being filled with additional editorial matter as needed. A ratio of 54 columns advertising to 168 editorial matter, or 32% to 68%, is thus indicated. But this Paragraph is not a description of the supplement which must be fulfilled by each issue to rendgr the issue tenderable, like the minimum of 84 columns of editorial matter is. Paragraph 8 is concerned with the price, and its variation from $13.05 per thousand because of the five variable elements it lists. One variable is the size, 24 pages, which may be varied in multiples of 2 pages, each 2 pages causing a change of $1,015 per thousand. Other variables are the cost of paper, ink and labor. The quantity of advertising is here mentioned for the first and only time. It is mentioned as a basis of price, and evidently is to affect the price along with the other things set forth in Par. 8. Thus a departure from the advertising ratio is not made a ground for rejecting an issue, as not filling the description of the thing to be delivered, but, as it enters into the basis of the price, it may affect the price. But the contract does not say how much it shall affect it. Nevertheless there would arise a partial failure of consideration which the court can adjust, measured by the pecuniary loss occasioned by the failure. Still a failure to secure the exact ratio of advertising is not to count, because of the use of the word “approximately”. That word means, “about”, “in the neighborhood of”. If the variation, averaged over the period considered, is substantial, causing Houston an unreasonable loss in the advertising income due it under the contract, Houston may recoup the loss. Excess of the ratio in issues where the ratio was exceeded will also be considered in making the average. As in all problems of damages, where no exact measure is provided, there is room for judgment and estimate by the fact finder.
We think the mention of “approximately 54 columns of advertising” in the cost basis adjustment cannot be ignored as appellee contends. The words were intended to have an effect. The income from advertising was expected by the parties, in their negotiation, to reduce greatly the cost of the supplement to Houston. American pointed out Par. 8 to Houston as its protection against too little advertising. The parties differ as to what was then said, and as to what the just quoted words mean. We believe we have given them their just effect.
We therefore conclude that since every issue of the supplement contained the minimum of 84 columns of editorial matter and some advertising, as required by Par. 3, no issue of the supplement could be altogether rejected, and none was. Since the papers were to be delivered to Houston f. o. b. Chicago, Houston can charge no freight to American. Houston is entitled to its part of advertising income collected on all issues. Houston is entitled to a fair abatement of price each year for a failure to carry approximately the proportion of advertising named in the price basis of the contract, the amount to be fixed by the trial court. The judgment is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Rehearing denied; HUTCHESON, Circuit Judge dissenting. See 135 F.2d 733.
“1. The Weekly agrees to produce and ship each week as many copies of the Weekly’s magazine supplements as are ordered by the newspaper at a price of Thirteen and 5/100 Dollars ($13.05) per thousand copies of twenty-four (24) pages each, subject to modifications as hereinafter set forth, f. o. b. the printing plant at Chicago.
“3. The magazine supplement herein designated is to consist of editorial matter and advertising based on a minimum editorial content of eighty-four (84) columns per issue and such editorial content shall be free from controversial matter of opinion or policy.
* * * * *
“8. It is agreed between the parties that the price of the magazine supplements to be furnished by the Weekly is based upon the following:
“(a) A twenty-four (24) page supplement carrying approximately fifty-four 154) columns of advertising.
“(b) Cost of:
Newsprint, $42.50 per ton;
Standard Red Ink, .29 3/4 per lb.,
Standard Blue Ink, .23% per lb.,
Standard Yellow Ink, .18% per lb.,
Standard Black Ink, .065 per lb.
Labor costs based on the union scales in effect in Chicago June 1, 1937.
“(e) The price of the magazine supplement will be increased or decreased by the Weekly as the costs of any of these items increase or decrease.
“(d) The price of the magazine supplements will increase or decrease in units of two pages on basis of costs stated under (b) and .(c) at the rate of $1,015 per thousand each two pages increase or decrease above or below twenty-four (24) pages.
“(e) In the event that the Weekly should find it necessary to make delivery of the magazine supplements f. o. b. printing plants other than at Chicago, the price above mentioned would be adjusted to meet the following additions or deductions:
“Local labor scales; additional freight charges on ink; cost of transporting newsprint from common carrier to plant.
Mr. Maes, who contracted for Houston, testifies: “It was not my understanding that the ratio was to he maintained in every issue, because there are times during a year when it could not he met, but it is supposed to apply over a certain period, a year, or whatever you want to make it”
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
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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).
Walter JACONSKI, Appellant, v. AVISUN CORPORATION and W. V. Pangborne & Co., Inc.
No. 15420.
United States Court of Appeals Third Circuit.
Argued Jan. 3, 1966.
Decided April 13, 1966.
Avram G. Adler, Abraham E. Freedman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellant.
John Francis Gough, Thomas Raeburn White, Jr., White & Williams, Philadelphia, Pa., for appellee, W. V. Pang-borne & Co., Inc.
Martin A. Heckscher, James J. McCabe, Jr., Duane, Morris & Heckscher, Philadelphia, Pa., for appellee, Avisun Corp.
Before BIGGS, GANEY and FREEDMAN, Circuit Judges.
BIGGS, Circuit Judge.
This appeal is taken from a pretrial order entered by the court below dismissing the plaintiff’s, Jaconski’s, case, based on diversity and jurisdictional amount for “lack of jurisdiction.”
The operative facts as they appear from the record follow. On January 23, 1962, Jaconski brought suit to recover damages for personal injuries allegedly sustained by him on the afternoon of August 1, 1961, while he was employed as a pipefitter and welder for Bechtel Corporation. Bechtel was the general contractor in connection with the erection of a polypropylene manufacturing plant for the defendant, Avisun Corporation, Avisun. At the time of the accident the defendant, W. Y. Pangborne & Co., Inc., Pangborne, was engaged in electrical-installation work at Avisun’s plant under a subcontract from Bechtel. At the time of the accident Jaconski was assisting in the construction of a gas line on a “pipe bridge.” When Jaconski attempted to get a length of pipe into place it came into contact with an overhead wire. This contact caused 12,000 volts of electricity to run through the pipe and into and through the body of the plaintiff, throwing him some ten feet.
In March 1962 Avisun and Pangborne served separate but similar interrogatories requiring Jaconski to furnish information regarding the nature and extent of his injuries. On July 26, 1962, Jaconski filed answers to Pangborne’s interrogatories only, which stated that as a result of the accident he had suffered severe electrical burns on both his hands and feet, aggravation of a prior injury to his left foot, and severe shock to his nervous system with residual anxiety neuroses. He also stated that he still suffered “from residual muscle and tendon damage to right hand and increasing difficulty with left foot.” The extent of Jaconski’s alleged injuries is set out more fully in his deposition taken on April 11, 1963. This deposition, however, was not filed in the court below until after the pretrial order dismissing the case was filed and was not considered by the court below. The use of this deposition will be discussed at a later point in this opinion. Jaconski’s answers to the interrogatories further alleged only $400 in special damages.
On December 28, 1964 the plaintiff’s pretrial memorandum, then filed, alleged a permanent partial disability and listed as special damages in the amount of $58,-500, for loss of past earnings and estimated loss of future earnings, and $200, for medical bills. Avisun, on March 1, 1965, filed a motion to compel the plaintiff to furnish to it up-to-date information regarding the claimed injuries. At a hearing held on March 17, 1965, the plaintiff’s attorney agreed to furnish such information before the pretrial conference or be barred from showing additional damages at the trial. No further answers to the interrogatories were filed and, aside from Jaconski’s deposition, no further information as to his injuries has been furnished by Jaeonski.
Avisun’s answer and the pretrial mem-oranda of both Pangborne and Avisun raised the defense of lack of necessary amount in controversy. 28 U.S.C. § 1332(a). On April 8, 1965, the pretrial conference was held, but no stenographic report was made of the proceedings and it appears that none is available. At the close of the conference the order dismissing the action for lack of jurisdiction was entered.
The problem of ascertaining the “sum or value” of the matter in controversy in a suit based on diversity jurisdiction has puzzled the courts for many years. The problem arises, of course, from the fact that lower federal courts possess only that jurisdiction which has been specifically conferred upon them by Congress. United States Constitution, Art. Ill; Sheldon v. Sill, 8 How. 440, 49 U.S. 440, 12 L.Ed. 1147 (1850). In order to comply with the Federal Rules of Civil Procedure in respect to jurisdictional amount all that is necessary is that the complaint contain “a short and plain statement of the grounds upon which the court’s jurisdiction depends * * Rule 8(a)(1), Fed.R.Civ.Proc., 28 U.S.C.
An uncontroverted allegation that the requisite jurisdictional amount exists is deemed sufficient ordinarily to comply with Rule 8(a) (1). See 2 Moore, Federal Practice § 8.11 at 1666 (2d ed. 1965). However, where the amount in controversy is challenged, the burden of proving the matter in controversy exceeds the jurisdictional minimum rests upon the party alleging the sufficiency of the amount in controversy. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wade v. Rogala, 270 F.2d 280, 284 (3 Cir. 1959). Moreover, in McNutt the Supreme Court stated that even if the jurisdictional amount is not challenged by an adversary “the court may still insist that the jurisdictional facts be established or the case be dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence.” See 298 U.S. at 189, 56 S.Ct. at 785.
There is small difficulty in applying this rule when the damages claimed are liquidated, but when the damages are unliquidated, as in the instant case, there is no exact yardstick to measure recovery even when most, if not all the operative facts are known. One of the tools developed for determining the intangible factors relating to the amount in controversy is the requirement that a plaintiff must claim the necessary amount in “good faith”. Norwood Lumber Corporation v. McKean, 153 F.2d 753 (3 Cir. 1946).
On its face, the phrase “good faith” would seem to imply that the relevant consideration is the plaintiff’s state of mind and that, therefore, it is a subjective test. In fact one of the expressions of the rule, whether the demand is colorable and laid for the purpose of giving jurisdiction to the federal court, would suggest this conclusion. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Barry v. Edmunds, 116 U.S. 550, 561, 6 S.Ct. 501, 29 L.Ed. 729 (1886). But it is obvious that the plaintiff’s actual mental state can never be satisfactorily measured without recourse to objective facts. Thus the basic criterion for determining “good faith” is that “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 288-289, 58 S.Ct. 590 (1938). See also Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961); Brough v. Strathmann Supply Co., Inc., 358 F.2d 374 (3 Cir. 1966). The test then is not what amount the plaintiff claims in the ad damnum clause of his complaint, but rather, whether it appears to a “legal certainty” that he cannot re-cover an amount above the jurisdictional minimum. Cumberland v. Household Research Corp. of America, 145 F.Supp. 782 (D.Mass.1956); Cohen v. Proctor & Gamble Distributing Co., 16 F.R.D. 128 (D.Del.1954). It follows, therefore, that in order to find a plaintiff’s claim lacking in “good faith”, the court must be able to conclude from the record before him that the plaintiff cannot recover a sum by way of damages above the $10,000 jurisdictional floor.
We entertain no doubt that a trial judge has the power to determine whether the facts requisite to jurisdiction exist. Wetmore v. Rymer, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682 (1898). However, the determination of jurisdictional issues must always be such as to enable a reviewing court to ascertain whether the evidence supports the trial court’s finding. Id. at 121-122, 18 S.Ct. 293; Shaffer v. Coty, Inc., 183 F.Supp. 662, 665 (S.D.Cal.1960).
The record before us is meager, and the court below did not state the basis for its conclusion that the jurisdictional amount does not exist. Moreover, our review of the record does not permit us to conclude that it is apparent to a “legal certainty” that Jaconski could not recover sufficient damages to constitute the requisite amount.
We are not unmindful of the mounting caseloads in our heavily burdened metropolitan courts and of the very substantial number of cases awaiting trial. In fact the attempt to limit these burgeoning caseloads was one of the major reasons for increasing the jurisdictional amount. S.Rep. 1830, U.S.Code Cong, and Admin.News, 85th Cong.2d Sess. pp. 3099, 3101 (1958). But despite that increase in the jurisdictional amount the statistics published by the Director of the Administrative Office of the United States Courts show that no reduction in private civil litigation, including tort cases, has been effected. It has been contended that the reason for this unfortunate result is the inflexibility of the applicable “good faith-legal certainty” test. But Congress was aware of this test and had been advised that an increase in the jurisdictional amount would undoubtedly be followed by an increase in the damages claimed in tort cases. Congress was surely aware of this difficulty and intended to afford some degree of relief therefrom by enacting Section 1332(b), Title 28, U.S.C. This provision states that when a plaintiff is adjudged to be entitled to less than the jurisdictional amount the court may deny him costs and, in addition, may impose costs on him. Congress “aimed” Section 1332(b) “at deterring the filing of inflated claims made in order to bring the actions in the district courts.” Section 1332(b) has not reduced the number of inflated claims, perhaps because it has not been often applied, but because Congress did enact this section it would seem to follow that it did not attempt to change the “good faith-legal certainty” test. It remains the rule, and the reason for its rather strict application resides, we believe, in the fear of depriving a plaintiff of his right to a jury trial. Except in the plainest cases the issue of jurisdictional amount should not be decided if the ruling constitutes at the same time a decision on the merits. Ordinarily the desirable, indeed the necessary, choice is to permit the case to proceed to trial. Cf. Wade v. Rogala, supra. The grounds for the trial court’s decision in the instant case are far from plain. Can it be said that in the case at bar on the present record, prior to trial, that the jurisdictional amount is lacking ? We are without a statement by the trial court as to the basis for a conclusion of law, in fact unstated by the trial court, that the plaintiff’s allegations of jurisdictional amount were not made in “good faith”.
We are dissatisfied with the record here. Counsel for Jaconski was lax. The judge presiding at the March 17th hearing, who was not the judge who presided at the actual pretrial hearing, pointed out to Jaconski’s counsel clearly that it was his duty to bring up to date the operative facts relating to his client’s damages. Jaconski’s counsel replied: “That’s my responsibility and I accept that responsibility.” He failed in that clearly stated obligation. Jaconski’s deposition was taken on April 11, 1963. The deposition was not filed until May 3, 1965, more than two years later. This was a long delay. May 3, 1965 was the day on which the notice of the appeal was filed. But the court below did not inform Jaconski’s counsel that it would dismiss the action if information concerning the nature, character and extent of Jaconski’s injuries were not brought up to date by the time of the pretrial conference on April 8, 1965, though Jaconski’s counsel could, and perhaps should have drawn an inference that since the court was of the view that the record as constituted then and now would not sustain the allegation of the jurisdictional amount and that therefore the action might possibly be dismissed for lack of jurisdiction. The trial memoranda of Avisun and Pangborne made the jurisdictional amount an issue in the case. But Jaconski’s counsel filed no answering memorandum so far as we are aware. On the other hand, neither Avisun nor Pangborne moved to dismiss the action for lack of jurisdiction. The court aparently entered the order of dismissal sua sponte. Perhaps the unrecorded proceedings at the pretrial conference would disclose an oral motion but without that record we are uninformed as to what transpired and, as has been stated, we are entitled to know on what basis the court below dismissed the case. Cf. Arnold v. Troccoli, 344 F.2d 842 (2 Cir. 1965). The trial court must examine all available evidence. Gilbert v. David, 235 U.S. 561, 568, 35 S.Ct. 164, 59 L.Ed. 360 (1915). Cf. Sansone v. Ocean Accident and Guarantee Corp., 228 F.Supp. 554 (E.D.La. 1964). Moreover, we cannot conclude that the arguments of Avisun and Pang-borne based on the failure of Jaconski to make use of Rule 75 (n) is a factor requiring the determination of this case in their favor. The use of Rule 75 (n) is permissive, not mandatory. In the instant case we must deal with the jurisdictional facts as they are presently on the record. The court below on remand must seek to have counsel make available on the record, for the information of the reviewing tribunal, sufficient facts to determine the good faith of the allegations of the complaint. Another pretrial conference should be held and pretrial to be effective must be full and adequate.
If it were not for the unusual procedural difficulties presented by this case we would deem it unnecessary to comment further. We point out, however, that the court below on remand should determine the issue as to whether or not Jaconski’s attorney’s failure to update the answers to the interrogatories or otherwise to bring up to date on this record the operative facts as to the extent of Jaconski’s injuries should limit Jaconski’s proof as to the extent of those injuries. See 4 Moore Fed.Praetice j[ 33.28, at 2340-41 (2d ed. 1963); Michigan Window Cleaning Co. v. Martino, 173 F.2d 466 (6 Cir. 1949); Fisher v. Underwriters at Lloyd’s London, 115 F.2d 641 (7 Cir. 1940). Cf. United States v. 42 Jars, More or Less, 264 F.2d 666 (3 Cir. 1959). Cf. Rules 33 and 37, Fed.R.Civ. Proc., 28 U.S.C. If such a limitation be imposed by the trial judge it will not affect the necessity of making a determination of the jurisdictional amount in controversy which is to be ascertained, not by the amount which Jaconski is able to prove, but by the amount demanded by him, if that demand is found to have been made in good faith. Miller-Crenshaw Co. v. Colorado Mill & Elevator Co., 84 F.2d 930, 932 (8 Cir. 1936); National Surety Corporation v. City of Excelsior Springs, 123 F.2d 573, 156 A.L.R. 422 (8 Cir. 1941).
The order of the court below will be vacated and the cause will be remanded with instructions to proceed in accordance with this opinion.
. The grounds for dismissal are not set out specifically in the pretrial order of dismissal which reads as follows: “And now, this 8th day of April, 1965, this case is dismissed for lack of jurisdiction.” There is, however, no question of diversity of citizenship since the complaint and answer reveal that the plaintiff is a citizen of New Jersey and the defendant, Avisun Corp., is incorporated under the laws of Delaware and has its principal place of business in Philadelphia, Pennsylvania and the defendant, W. V. Pang-borne & Co., Inc., is incorporated under the laws of Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania.
. Bechtel Corporation is not a party to the present litigation.
. The practice in laying the gas line required Jaconski to stand on the “pipe bridge” while his working partner handed up 20-foot lengths of pipe to him. As soon as a pipe length was in place Jaeonski’s partner would come on the “pipe bridge” and assist him in welding the pipe into place.
. Jaconski’s answers to the interrogatories state: (1) that he was treated at the Delaware Hospital, Wilmington, on the afternoon of the accident but that he was not hospitalized at any other time; (2) that he reported to work the morning after the accident and lost no wages while finishing his job with Bechtel; (3) that during the eleven months after the accident he worked for five separate employers and claimed only the loss of one week’s wages in the amount of $168 in November, 1961, and (4) that his total out-of-pocket expenses totalled less than $400, including approximately $200 in medical expenses.
. The following colloquy took place between counsel in the presence of the court: “Mr. Heckscher (counsel for Avisun): The other motion [by Avisun] is to compel the filing of either answers to our [Avisun’s] interrogatories which have never been filed or up-to-date answers to Pangborne’s interrogatories which stated that they [the interrogatories] were continuing and inasmuch as this case is about to reach pretrial conference we felt that we should have up-to-date information.
“Mr. Adler (counsel for Jaeonski): Tour Honor when they furnished their interrogatories I submitted the answers to Pangborne which were almost identical interrogatories, sworn to and—
“Mr. Heckscher: No question about that, we don’t care which interrogatories are up to date, but the pretrial memorandum has alleged damages which did not appear to be supported by the previous answers filed, and we would like up-to-date, whether they are our interrogatories that are answered or whether up-to-date information is supplied in answer to Pangborne’s interrogatories.
“The Court: Well, at the time of the pretrial conference it will be up to the parties concerned to have their interrogatories up to date. If not up to date at the time of the pretrial conference plaintiff will be limited—
“Mr. Adler: That’s right.
“The Court: —and you won’t be able to prove it.
“Mr. Adler: That’s my responsibility
and I accept that responsibility.
“The Court: I don’t think you need
more than that.
“Mr. Heckscher: Thank you, Tour
Honor.
“The Court: So that the second order in the petition [sic.] will not be signed.
“Mr. Heckscher: Nor need it be listed as I understand it from what Tour Hon- or has said.
“The Court: No, because the responsibility is on plaintiff’s attorney to amend if he chooses to go forward on some phase of damages that are not in the original pretrial memorandum.”
The second order requested by Avisun’s motion, referred to by the court below as a “petition” is not relevant here.
. The first Act limiting federal jurisdiction required a $500 minimum amount in controversy. Act of Sept. 24, 1789, ch. 20, § 11, 1 Stat. 78. Since 1789, Congress has increased this amount three times. Act of March 3,1887, 24 Stat. 552 ($2,000); Act of March 3, 1911, ch. 231, § 24, 36 Stat. 1091 ($3,000); and Act of July 25, 1958, 72 Stat. 415 (now 28 T7.S.C. §§ 1331, 1332) ($10,000).
. See the statistics cited in Arnold v. Troe-coli, 344 F.2d 842, 844-845 (2 Cir. 1965) and the Annual Reports of the Director of the Administrative Office of the United States Courts for the fiscal years 1957— 64, Table C 2.
. See Report of Committee on Jurisdiction and Venue of the Judicial Conference of the United States, U.S.Code Cong, and Admin.News, 8th Cong.2d Sess. 3114, 3123 (1958).
. S.Rep. 1830, U.S.Code Cong, and Admin. News, 85th Cong.2d Sess. pp. 3099-3100 (1958).
. The plaintiff in the instant ease demanded a jury trial in his complaint.
. We cannot and do not consider the contents of JaconsM’s deposition in connection with the issue sub judice. We can consider the record only as it existed at the time the court below made the order dismissing the action. Of. Williams v. Murdoch, 330 F.2d 745 (3 Cir. 1964) , note 3 cited to the text. See Dictograph Products Co. v. Sonotone Corporation, 231 F.2d 867 (2 Cir. 1956), appeal dismissed by stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956).
. See Section 753(b), Title 28, U.S.C. The desirability of having a court reporter present at pretrial conferences and causing the reporter to record verbatim the proceedings is demonstrated by the instant case. In this connection compare United States v. Sigal, 341 F.2d 837 (3 Cir. 1965) .
. Rule 75 (n), Eed.R.Civ.Proc., 28 U.S.O., provides: “Appeals When No Stenographic Report Was Made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the eourt in the record on appeal.”
. Avisun and Pangborne cite two cases in support of their position. The first case, Murphy v. St. Paul Fire and Marine Insurance Company, 314 F.2d 30 (5 Cir. 1963), the recording discs of the court reporter had melted. It was impossible, therefore, for the Court of Appeals to pass on an alleged error in the trial judge’s charge on the doctrine of res ipsa loquitur. In the second case, Kayo Oil Company v. Sammons, 321 F.2d 729 (5 Cir. 1963), the alleged error concerned prejudicial statements allegedly made in the closing argument to the jury which were not recorded. It is obvious that if an error had occurred in either of the cited cases it would appear in a record prepared under Rule 75 (n).
. See note 5, supra.
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:
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songer_procedur
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Enrique MEDINA Fernandez, Ginas Jiminez Nortes, Victor Rodriguez, Manuel Fernandez Rodriguez and Augustin Cabrera Oroza, Appellants, v. Charles C. HARTMAN, Rear Admiral and commandant of Eleventh U. S. Naval District, and Richard C. Hoy, district director, U. S. Immigration and Naturalization Service, Appellees.
No. 15657.
United States Court of Appeals Ninth Circuit.
July 17, 1958.
See also 256 F.2d 512.
A. L. Wirin and Hugh R. Manes, Los Angeles, Cal., Francis Heisler, Carmel, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., for appellees.
Before FEE and CHAMBERS, Circuit Judges, and CHASE A. CLARK, District Judge.
CHAMBERS, Circuit Judge.
Five sailors of the Spanish Navy held by the Immigration Service at or near San Diego, California, resist this government’s intentions to return them through the agency of the United States Navy to the Spanish Navy. All deserted during the month of June, 1957. At the time of desertion they were assigned to two Spanish destroyers, the Lapanto and the Almirante Ferrandiz. The ships were in the harbor at San Diego. While on shore leave, within the time limits thereof, the sailors, intending to desert, made their way to the border and crossed into Tijuana, Mexico. Among other things, they assert they are not ordinary deserters but political refugees.
Eventually they were apprehended In Baja California and brought by Mexican officials under the coaxing of American and Spanish navy officers to the border where all five crossed into the United States rather involuntarily. Once back in this country, the United States Navy took charge of the men. (Certain “paper work” transactions occurred at the border, to which reference will be made later herein.) The purpose of returning the men to Spain was frustrated at least temporarily by these habeas corpus proceedings.
The district court has ruled against petitioners on the ground that their return to the Spanish Navy is required by article XXIV of the Treaty (of 1902) between the United States and Spain of Friendship and General Relations, 33 Stat. 2117. The article says, in part:
“The Consuls-General, Consuls, Vice-Consuls and the Consular-Agents of the two countries may respectively cause to be arrested and sent on board or cause to be returned to their own country, such officers, seamen or other persons forming part of the crew of ships of war or merchant vessels of their Nation, who may have deserted in one of the ports of the other.”
It is this court’s conclusion that the treaty section is inapplicable here because it is satisfied that the desertion of the sailors did not occur in an American port, but in Mexico. Within their times of leave, the men appear to have crossed into Mexico.
Desertion is a serious crime roughly equivalent to a serious nonmilitary felony. Therefore, one must be particularly careful that the limits are circumscribed and not rubbery. Desertion requires an act and an intent. There is no question of intent here. At all times, even prior to leaving the ship, the petitioners intended to desert. But this court believes that for the requisite act to occur the sailor must at least get to a place where he was not authorized to be by his commanding officer, or be at the originally authorized place after the time has expired. The thought that intent alone on desertion is enough should not be imported by judicial pronouncement or by the easy reasoning that the leave was obtained by fraud — therefore the leave was void and, ipso facto, the sailor had no right to be on leave. Further, there was no showing in the instant case that any representations were made by the sailors to the commanding officer.
There is little authority on the elements of desertion that is helpful here. This is probably because the usual instance or case of desertion involves intent as an issue rather than the act. Also, there is ordinarily no occasion to consider whether “out of time” and “out of place” must coincide, because usually time catches up with the place. And the cases are rare where the exact place of desertion has any importance. But the question bobs up here forcefully and one must resort to the statutes and general principles.
There are some problems of definition here. The treaty refers to “desert (ing) in one of the ports of the other.” Then it was testified petitioners had “shore leave.” The latter term is qualified as to area only by the statement of the petitioners that they had been forbidden by their orders to go to Mexico. Strictly the port would be the shore installation area of the harbor. But common sense precludes such a narrow construction. Not less must have been intended than to include within “port” the port city and its immediate environs, or at a large city, the metropolitan area. This court takes judicial notice that the 14 to 16 miles from downtown San Diego to the border would classify as within the environs of the City of San Diego, is within metropolitan Dan Diego. Further, the exact limits of the shore leave of these petitioners not having been defined by the respondents in the pleadings or by evidence it must be assumed that it was not less than coextensive with the broad meaning herein given “port.” Therefore, the “shore leave” extended to the Mexican border.
So in this analysis, petitioners did not attain the status of desertion until at least they had crossed the border. Then, they exceeded the limits of space of their leave. But under the broadest concept they were no longer in an American. port. Therefore, the treaty is not applicable.
The respondents point to serious consequences of the preceding holding. It is said in effect, if intent and the beginning of an attempt are not enough, then within time of leave foreign military personnel can get far beyond a port, perhaps aboard transcontinental or foreign air flights. And the necessary act of getting beyond the area limits of leave will occur before the “deserter” will be caught. But this idea may reinforce the concept of this opinion. Maybe the treaty is out of date, needs to be renegotiated.
Look at the conditions in the United States in 1902. An intending deserter then could have no hope of escaping by automobile or plane. A Spanish sailor’s feet alone, or a horse, offered little hope of getting away from the port without apprehension before sailing time. Trains have not had the flexibility needed for flight. So, hiding (usually with friends) in the port city was the standard method of accomplishing desertion pending the departure of the ship. In that context, one can understand the selection of the words for the Treaty of 1902.
In view of the holding that there was no desertion in an American port the U. S. Navy has no right to hold, no right to surrender respondents to the Spanish Navy as deserters.
Counsel for petitioners has made the case especially difficult for the court by seeking to put the Franco regime on trial here. But that regime is the government recognized by the United States and this government should observe its treaties with Spain. Without deciding, the court is inclined to the belief that if the desertion had occurred in the American port the Navy should be permitted to return petitioners to the Spanish Navy.
The question remaining is what disposition should be made of petitioners. The order will be that the respondent Hartman has no right to hold the petitioners and no right to turn them over to the Spanish Navy. He shall not do so. As to the respondent director, Richard C. Hoy, the order will be that the petitioners be returned to Mexico. This, however, will not preclude his permitting them to go voluntarily if they will do so.
Several factors enter into this matter of return to Mexico. It now appears that the government of Mexico has reversed the position earlier taken concerning the petitioners by its officers in Baja California. Presently it agrees to receive them. This is the place where petitioners wanted to go and this court sees no impediment. As this court examines the papers on which the petitioners were brought back across the American Border they just didn’t fit the petitioners. While a stock form of “Order of Parole” was used, it no more fits the facts than a horseshoe fits the cloven hoof of an ox. Seemingly, at the border it was thought there must be some papers, so an order of parole was used, with some typewritten insertions to the effect that the petitioners were admitted and paroled into the United States for presentation to Spanish authorities. It would appear that the sailors now sit at the border without any real right to be there. Immigration at the time of the recrossing could have told them to go back to Mexico and it would seem it could and should do so now.
Neither the Spanish government nor any official thereof is a party here. No suggestion has entered the record that the petitioners should go in the course of an ordinary deportation to Spain. Therefore, the case has been considered as that of five individuals crossing into the United States from Mexico, standing just inside the line, and whom we find without right to do so. When they go back to Mexico, where they fled, the question of their right to remain there will be no concern of the courts of the United States or of its executive branch.
Our conclusions herein are fortified by our examination of the opinions in Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246, and Rogers v. Quan, 357 U.S. 193, 78 S.Ct. 1076, 2 L.Ed.2d 1252. There aliens were permitted to come within the United States and be paroled at liberty pending determination of their right to enter. These decisions confirm the long standing rule that no status of entry or other right to remain attain before the right to enter has been determined. While the crossing over in this, the sailors’ case, was on the parole form of the Immigration Service, the parole is a sham. The petitioners have never been paroled in or into the United States. The form itself negatives any claim of coming in to have their right to enter determined, and the time limit of ten days has long since expired. They are held by United States authorities in this country. Certainly petitioners stand on a poorer footing than Leng May Ma and Quan.
Reversed for proceedings consistent with this opinion.
. In defining desertion as used in a treaty, if there is no showing of what the Spanish definition of desertion has been or is now, one does not reach the question of which country’s definition of desertion should be applied under the treaty. In the absence of a showing of the fact to be to the contrary, it is a familiar principle that the foreign law is presumed to be the same as the domestic. Also, in defining desertion as used in the treaty a question might arise as whether it should be defined as of 1902 or as of 1957, reflecting an intervening statutory change. But this court’s opinion is that no modification in definition from the separate rules and statutes of the American Army and the American Navy in force in 1902, to (and after) the adoption of the Uniform Code of Military Justice in 1950 (64 Stat. 107) now 10 U.S.C.A. § 801 et seq. and the proclamation of the Manual for Courts Martial on February 8, 1951, by Executive Order 10,214, has been made which would af-feet tbe result bere by selecting one date or another.
Indeed, one may believe that except as modified by statute in various countries the definition of desertion has universally been: absent without leave with intent not to return to duty.
. Not until the adoption of the Uniform Code of Military Justice, 64 Stat. 135, art. 85 (now see 70A Stat. 67, 641, 10 U.S.C.A. § 885) was there a comprehensive and explicit statutory definition of the offense of desertion. And even then one finds it amplified in the 1951 Manual for Courts Martial, United States, proclaimed by Executive order, by the President of the United States on February 8, 1951. See page 310 of the Manual.
However, both the laws for and the rules of the army and navy made it clear (as did the Uniform Code of 1950) there is a difference between a basic offense and an attempt. See Articles 77, 78, and 85 (c) of Uniform Code of Military Justice. Also, 1949 Manual for Courts Martial U. S. Army, pp. 258, 259 and the official 1937, “Naval Courts and Boards,” § 43, p. 14.
Absence without leave, the lesser and first ingredient of desertion, has been traditionally defined about as now found in Uniform Code in the following words:
Article 86
“Any member of the armed forces who, without proper authority—
“(1) fails to go to his appointed place ■of duty at the time prescribed; or
“(2) goes from that place; or
“(8) absents himself or remains absent from his unit, organization, or other place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.”
Formerly, the Navy defined it as: 1. Absence from station and duty without leave, or (2) absence from station and duty after leave had expired. 1937 Naval Courts & Boards, § 74, p. 49.
If one has proper authority to be where one is, one is not absent without leave. See Avins, The Law of AWOL, and decisions therein collected.
. Article 85 of the Uniform Code of Military Justice reads:
“(a) Any member of the armed forces of the United States who — ■
“(1) without proper authority goes or remains absent from [the] place of service, organisation, or place of duty with intent to remain away therefrom permanently : or
“(2) quits his unit or organization or place of duty with intent to avoid hazardous duty or to shirk important service; or
“(3) * * * is guilty of desertion.
“(b) * * *
“ (e) * * * ”. (Emphasis supplied)
64 Stat. 135, 70A Stat. 67, 641.
One may see that this section adopted long after the Treaty of 1902 contains in the second subsection an amplification of the traditional concept of desertion. It should be pointed out that in the military concept one who is on leave within the limits or area and time of the leave is considered to be in his place of duty.
Respondents quote page 313, Manual for Courts Martial, 1951, as supporting their position. The quotation is as follows:
“* * * when, without being regularly separated, a member of an armed force enlists or accepts an appointment in the same or another armed force without fully disclosing the fact that ho has not been so regularly separated, or attempts either such act while in a duty status or while on pass, liberty or leave, he by that act abandons his status of duty, pass, liberty, or leave, and from that moment becomes absent without leave with respect to the former enlistment or appointment. Similarly, a member of the armed forces absent on a short pass or liberty from his organization who is found on board a ship at sea, without authority, bound for a distant port, may be regarded as having abandoned any authority he might have for his absence and to bo absent without proper authority, although he may not have gone beyond the area fixed in the pass and the pass may not have expired.” [Emphasis added.]
This court finds no support for the respondents in the foregoing. The first sentence covers a conflicting enlistment. The second covers flight on a ship. Under familiar rules, the inclusion of one ordinarily excludes the other. Specifically here, the travel to the edge of the area limited by the leave granted would be excluded.
. In fact, much of the area between the San Diego harbor and Tijuana is in the city of San Diego. And the petitioners actually crossed from the city of San Diego into Tijuana.
. No problem of an offense would be presented between a sailor and Ms own country. The law of attempts surely would catch the sailors vis-a-vis their own country. But the Treaty of 1902 in the pertinent section does not mention attempts.
. One finds puzzling the categorical statement in the original petition for habeas corpus, verified by oaths of counsel: “Thereupon [the five sailors] left said vessel for the purpose of remaining permanently in the United States because they understood it to be a free country, and hospitable to political refugees * * The statement is not in the frame of information and belief. Yet at the hearing the petitioners swore positively they had the intention before they left the boat and at all times thereafter to seek their haven in Mexico.
Additionally argument is made that because the return to the United States was really involuntary then conceptually the sailors just are not in this country. To complete the circle for the petitioners, saved from return to Spain by this decision, all that is needed will be here if the contention is then made in petitioner’s behalf that the Immigration Service has no right to send them to Mexico — but this country must keep them.
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Earl Rudolph ABERNATHY, Appellant, v. UNITED STATES of America, Appellee.
No. 19145.
United States Court of Appeals Eighth Circuit.
Nov. 7, 1968.
Arthur S. Margulis, of Cook, Murphy, Lance & Mayer, St. Louis, Mo., for appellant.
William C. Martin, Asst. U. S., Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief.
Before MATTHES, MEHAFFY, and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
The defendant was convicted by a jury on three counts: (1) unlawful possession of a United States Treasury cheek while knowing the same to have been stolen from the United States mail in violation of 18 U.S.C. § 1708; (2) falsely altering and forging the check by endorsing the name of the payee on the back of the check in violation of 18 U.S.C. § 495; and (3) uttering and publishing a falsely altered and forged writing in violation of 18 U.S.C. § 495. The defendant was sentenced to three years in the custody of the Attorney General on each count; the sentences to run concurrently. He appeals. We affirm.
The defendant contends that the District Court erred: (1) in failing to declare a mistrial when a police officer testified that he had taken an exemplar of the defendant’s handwriting on April 7, 1965, at police headquarters; (2) in admitting into evidence a handwriting exemplar provided by the defendant without his first being advised of his rights under the Fifth Amendment of the United States Constitution and which thereby caused the defandant to incriminate himself; and (3) in admitting into evidence two appearance bonds to which the defendant had affixed his signature on November 3 and 11, 1967, respectively, without first being advised of his rights under the Fifth and Sixth Amendments of the United States Constitution and which thereby caused the defendant to incriminate himself.
THE MOTION FOR A MISTRIAL
A prosecution witness testified that on April 7, 1965, he was a member of thte Identification Bureau of the St. Louis County, Missouri, Police. He testified: that on that date he took a handwriting exemplar from an individual who signed his name as “Earl Abernathy;” that the procedure of taking exemplars was followed routinely whenever a person was arrested or taken into custody; and that he could not identify the defendant as the person who gave him the exemplar.
The defendant claims that this testimony constituted grounds for a mistrial as it put into evidence a previous unrelated arrest even though the defendant’s character had not been placed in issue.
The general rule is that the introduction of a previous unrelated arrest by the prosecution demands reversal where the defendant had not placed his character in issue. Cochran v. United States, 310 F.2d 585 (8th Cir. 1962); Bram v. United States, 226 F.2d 858 (8th Cir. 1955). The exclusionary rule is required not because of lack of relevance but because such evidence is highly prejudicial, is calculated to weigh heavily with the jury and may cause it to prejudge the defendant on his past conduct. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).
Nevertheless, the rule is not without its exception. This case falls squarely within the identity exception. Our decision in Cochran v. United States, supra, 310 F.2d at 589, is controlling:
“ * * * All facts affording any reasonable inference as to the identity of a person charged with having committed a crime are properly admitted when it tends to establish guilt. Any reasonable inference drawn therefrom which might tend to discredit appellant’s character was only incidental and is no valid ground for excluding such testimony * * * ”
See, Rich v. United States, 384 F.2d 887 (5th Cir. 1967); United States v. Deaton, 381 F.2d 114 (2nd Cir. 1967).
A primary issue in this case was the identity of the individual who signed the forged endorsement on the check. The only direct evidence of the identity of the forger was the testimony of Samuel Harrold who testified that Earl Abernathy forged the endorsement in his presence. Harrold’s testimony was suspect in that he admitted that he had operated an illegal gambling operation, had been suspected of involvement in an illegal check ring and was a convicted felon.
Apart from the suspect testimony of Harrold as to identity, the government was left to rely on the handwriting comparison evidence. The government introduced three exhibits to establish this fact: Exhibit 3 — the exemplar, and Exhibits 4 and 5 — the appearance bonds. The government’s handwriting expert testified that he was certain that the same person signed Exhibits 3, 4 and 5, and that it was highly probable that the person who signed the exhibits had also forged the cheek. He added, however, that if he had to rely on any one of the exhibits alone, he could not make a meaningful comparison with the signature on the check.
It is also apparent from a reading of the transcript that the expert’s opinion was based primarily on the handwriting exemplar. However, the bonds were the only link between the defendant and the individual who signed the exemplar as the police officer could not identify Abernathy. The expert was able, through a comparison of the signatures, to state that the same person signed all three exhibits.
Under these circumstances, the government was justified in introducing the exemplar into evidence even though the defendant’s character may have been incidentally discredited. The evidence was relevant, competent, material and vital to the government’s case. At issue was the identity of the forger of the check and the testimony was necessary to connect Abernathy with the forged endorsement. We find no error in the trial court’s ruling.
THE HANDWRITING EXEMPLAR
The defendant urges that the admission of this evidence violated his rights under the Fifth Amendment in that he was not advised of his rights pri- or to having provided the sample. We do not agree.
The defendant’s reliance on Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is misplaced. The Supreme Court held in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that the taking of a handwriting exemplar does not violate the privilege against self-incrimination. The Court held, citing Schmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), that the Fifth Amendment privilege against self-incrimination does not reach “ ‘compulsion which makes a suspect or accused the source of "real or physical evidence” * * *.’ ” Gilbert v. California, supra, 388 U.S. at 266, 87 S.Ct. at 1953.
The Court' further stated, citing United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 1953, 18 L.Ed.2d 1149:
“ * * * It by no means follows, * * * that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. * * * ”
Gilbert v. California, supra, 388 U.S. at 266-267, 87 S.Ct. at 1953.
Similarly, the Court dismissed the contention that the taking of a handwriting exemplar when counsel was absent violated the petitioner’s Sixth Amendment rights.
“ * * * [T]here is a minimal risk that the absence of counsel might derogate from his right to a fair trial. * * * ‘[T]he accused has the opportunity for a meaningful confrontation of the (State’s) case at trial through the ordinary processes of cross-examination of the (State’s) expert (handwriting) witnesses and the presentation of his own (handwriting) experts.’ United States v. Wade, supra [338 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149] at 227-228 * * * ”
Gilbert v. California, supra, at 267, 87 S.Ct. at 1953.
APPEARANCE BONDS
Finally, the defendant urges error in the trial court’s admission of two appearance bonds which bore Abernathy’s signature on the.basis that the signature was affixed without the defendant first being advised of his rights under the Fifth and Sixth Amendments of the United States Constitution.
We disagree. The teachings of the Supreme Court in Gilbert, Wade and Schmerber are as applicable to the appearance bonds as they were to the exemplar.
Affirmed.
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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