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songer_genresp2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
J. Rupert MASON, Appellant, v. SUMMER LAKE IRRIGATION DISTRICT and Pueblo Trading Co., Appellees.
No. 13776.
United States Court of Appeals Ninth Circuit.
Nov. 10, 1954.
J. Rupert Mason, in pro. per.
Griffith, Phillips & Coughlin, James K. Buell, Portland, Or., Theodore R. Cohn, Lakeview, Or., George H. Fraser, Cleveland C. Cory, Hugh L. Biggs, Hart, Spencer, McCulloch, Roekwood & Davies, Portland, Or., for appellees.
Before HEALY, POPE and CHAMBERS, Circuit Judges.
PER CURIAM.
The appellant appeals from a decree of the District Court which was entered January 23, 1953, and urges as grounds therefor points and contentions which were heard and disposed of in West Coast Life Ins. Co. v. Merced Irr. Dist., 9 Cir., 114 F.2d 654; Thomas v. El Dorado Irr. Dist., 9 Cir., 126 F.2d 922; Mason v. El Dorado Irr. Dist., 9 Cir., 144 F.2d 189; Mason v. Banta Carbona Irr. Dist., 9 Cir., 149 F.2d 49; United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137; and Mason v. Paradise Irr. Dist., 326 U.S. 536, 66 S.Ct. 290, 90 L.Ed. 287. No new points or contentions are present here. The same appellant was the Mason named in three of the cases cited.
Upon the authority of these cases, the decision and judgment of the District Court is affirmed.
Indeed, the appeal is so unsubstantial and frivolous as to suggest that it was taken merely for delay. The court has seriously considered awarding damages against the appellant for the delay, as provided in Title 28 U.S.C.A. § 1912. Cf. Slaker v. O’Connor, 278 U.S. 188, 191, 49 S.Ct. 158, 73 L.Ed. 258; In re Midland United Co., 3 Cir., 141 F.2d 692; Massachusetts Bonding & Insurance Co. v. Feutz, 8 Cir., 182 F.2d 752; Fern Gold Mining Co. v. Murphy, 9 Cir., 7 F.2d 613. Here the persons entitled thereto have been deprived of the $54,000 paid into court for approximately a year and a half. They have lost the use of that sum and their damages are substantial. Yet because the court has heretofore failed to apply § 1912 in many cases where it might have been invoked, we have decided to hold our hand here, letting this reference to the statute serve as notice of the possibility that it may be applied in the future.
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_interven
|
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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
WILSON et al. v. TOWERS. In re ANNAPOLIS & CHESAPEAKE BAY POWER CO.
No. 3240.
Circuit Court of Appeals, Fourth Circuit.
Jan. 12, 1932.
Edgar Allan Poe, Jr., of Baltimore, Md. (Edgar Allan Poe and Bartlett, Poe & Claggett, all of Baltimore, Md., on the brief), for appellants.
William A. Grimes and Stuart S. Janney, both of Baltimore, Md. (Janney, Ober & Williams, of Baltimore, Md., on the brief), for appellee.
Before PARKER and NORTIICOTT, Circuit Judges, and WEBB, District Judge.
NORTIICOTT, Circuit Judge.
In January, 1931, in the District Court of the United States for the district of Maryland, Albert G. Towers was appointed receiver of the Annapolis & Chesapeake Bay Power Company, a corporation. This action was taken in the suit of George Baker Schoeder against the power company. The stock of the power company was wholly owned by the Washington, Baltimore & Annapolis Electric Railroad Company, a corporation operating an interurban railroad.
Neither the power company nor the Washington, Baltimore & Annapolis generated electrical power. The power company had, on July 1, 1923, entered into a contract with the Washington, Baltimore & Annapolis for the purchase of power from that company. The pertinent part of this contract reads as follows:
“ * * * Whereas the power company has not facilities for the generation of electrical energy and has heretofore purchased from the railroad all of the electrical energy used and sold by the power company; and
“Whereas both parties hereto are desirous that the railroad shall continue to furnish the. power company all of the electrical energy used and sold by the power company * * *
It is hereby agreed as follows: “1. The Railroad agrees to furnish and deliver to the Power Company and the Power Company agrees to take at the places mutually agreed upon, such amount of electrical energy as the Power Company ma.y desire to secure from the Railroad for use or sale by the Power Company at the price of two and three tenths ($.023) per kilowatt hour, based on the net cost of electrical energy to the Railroad of one cent ($0.01) per kilowatt hour.”
At the time this contract was entered into the price the power company agreed to pay for the 60-cyele current was in excess of the cost thereof to the railroad company, but as the entire stock of the power company was owned by the railroad company the former company had little or no choice in the matter, and as long as both companies were solvent, as they were at the time of the making of the contract, no creditor was interested.
Power was purchased under this contract until October, 1928, when the power company, without protest from the railroad company, secured its 60-eyele current from another company at a much less rate than that fixed in the contract of July 1, 1923. This arrangement continued until July 18,-1930, when the power company again began paying the railroad company the price fixed in the July 1, 1923, contract. The result was to take the “spread” between the prices mentioned from the power company and pay the money to the railroad company.
Before the hearing of this suit, the railroad company had become involved financially, and a receiver had been appointed for it.
The receiver of the power company filed a petition in the pending suit, asking the court to construe the contract, and that he be directed not to pay the railroad company the “spread” in the price.
The learned judge below in a well considered memorandum construed the contract of July 1, 1923, as not requiring the power company to purchase all its power from the railroad company, and entered an order relieving the receiver from the conditions of the contract.
■ Appellants, who constituted a committee for the bondholders of the first mortgage bonds of the Baltimore & Annapolis Short Line Railroad Company, which bonds were guaranteed by the Washington, Baltimore & Annapolis Railroad, and who had intervened in the suit, brought this appeal.
The question involved is the construction of the contract. It is contended on behalf of the appellants that, reading the contract as a whole, and construing the “whereas” or recital clauses with the operative or agreement clause, the contract binds the power company to purchase all the current need-er or used by it from the railroad company. The rules of construction contended for on behalf of the appellants apply only where there is an existing ambiguity, but they will not be applied to create uncertainty.
Here there is no ambiguity in the operative part of this contract. There is no uncertainty in the use, in a commercial sense, of the word “desire.” The phrase “such amount of electrical energy as the Power Company may desire to secure from the Railroad Company” is clear and explicit, and needs no aid to interpretation. It certainly does not mean “all the Power Company may need or use.”
The rule has been long established that: “If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be' preferred.” Ex Parte Dawes, L. R. 17 Q. B. D. 275. See, also, Williams v. Barkley, 165 N. Y. 48, 58 N. E. 765.
If an ambiguity existed and we were compelled to resort to the contract as a whole or to the conditions surrounding the parties at the time the contract was entered into, the fact that at that time the railroad was endeavoring to market the bond issue of the power company, and simply wanted to guarantee to prospective purchasers of these bonds an adequate supply of electrical energy for the power company would argue for the interpretation of the contract given by the judge below.
Again the conduct of the railroad in allowing the alleged conditions of the contract to be set aside and the contract completely ignored for a long period of time, and until the railroad company became involved, would tend to prove that the railroad did not consider the contract other than in the light of an option to the power company.
The eases relied upon by attorneys for appellants have been carefully examined. They apply to contracts finally construed as binding the purchasers to take “all” of the thing mentioned that the purchaser needs or can use for a certain purpose. Such is not the case here.
It might well be questioned whether, even should the contract be construed as is contended on behalf of appellants, a court of equity, having charge of the power company, would not relieve tile receiver from carrying out the contract as being burdensome, inequitable, and unjust, and a legal fraud upon the power company, but in view of our conclusion as to the construction of the contract it is not necessary to discuss that point.
The decree of the court below is accordingly affirmed.
Oral opinion.
A discussion of contracts of this character will he found in the following cases: Cold Blast Transportation Co. v. Kansas City Bolt and Nut Co. (C. C. A.) 114 F. 77, 57 L. R. A. 696; Willard Sutherland & Co. v. United States, 262 U. S. 489, 43 S. Ct. 592, 67 L. Ed. 1086; A. Santaella & Co. v. Otto F. Lange Co. (C. C. A.) 155 F. 719; American Cotton Oil Co. v. Kirk (C. C. A.) 68 F. 791; Leach v. Kentucky Block Cannel Coal Co. (D. C.) 256 F. 686 ; Wakem & McLaughlin, Inc., v. Culver (C. C. A.) 28 F.(2d) 942; Northern Iowa Gas & Electric Company v. Luverne (D. C.) 257 F. 818; Incorporated Town of Laurens, Iowa, v. Northern Iowa Gas & Electric Co. (C. C. A.) 282 F. 432; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Company (C. C. A.) 267 F. 35.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
sc_authoritydecision
|
G
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. CALANDRA
No. 72-734.
Argued October 11, 1973
Decided January 8, 1974
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, BlackmuN, and Rehnquist, JJ., joined. BreNNAN, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 356.
Louis F. Claiborne argued the cause for the United States. With him on the briefs were Solicitor General Bork, former Solicitor General Griswold, Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, Keith A. Jones, Jerome M. Feit, and Shirley Baccus-Lobel.
Robert J. Rotatori argued the cause for respondent. With him on the brief were Gerald S. Gold and Niki Z. Schwartz.
Melvin L. Wulf and Pavl Halvonik filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
Mr. Justice Powell
Court.
delivered the opinion of the
This case presents the question whether a witness summoned to appear and testify before a grand jury may refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure. The issue is of considerable importance to the administration of criminal justice.
I
On December 11, 1970, federal agents obtained a warrant authorizing a search of respondent John Calan-dra’s place of business, the Royal Machine & Tool Co. in Cleveland, Ohio. The warrant was issued in connection with an extensive investigation of suspected illegal gambling operations. It specified that the object of the search was the discovery and seizure of bookmaking records and wagering paraphernalia. A master affidavit submitted in support of the application for the warrant contained information derived from statements by confidential informants to the Federal Bureau of Investigation (FBI), from physical surveillance conducted by FBI agents, and from court-authorized electronic surveillance.
The Royal Machine & Tool Co. occupies a two-story building. The first floor consists of about 13,000 square feet, and houses industrial machinery and inventory. The second floor contains a general office area of about 1,500 square feet and a small office occupied by Calandra, president of the company, and his secretary. On December 15, 1970, federal agents executed the warrant directed at Calandra’s place of business and conducted a thorough, four-hour search of the premises. The record reveals that the agents spent more than three hours searching Calandra’s office and files.
Although the agents found no gambling paraphernalia, one discovered, among certain promissory notes, a card indicating that Dr. Walter Loveland had been making periodic payments to Calandra. The agent stated in an affidavit that he was aware that the United States Attorney’s office for the Northern District of Ohio was investigating possible violations of 18 U. S. C. §§ 892, 893, and 894, dealing with extortionate credit transactions, and that Dr. Loveland had been the victim of a “loansharking” enterprise then under investigation. The agent concluded that the card bearing Dr. Loveland’s name was a loansharking record and therefore had it seized along with various other items, including books and records of the company, stock certificates, and. address books.
On March 1, 1971, a special grand jury was convened in the Northern District of Ohio to investigate possible loansharking activities in violation of federal laws. The grand jury subpoenaed Calandra in order to ask him questions based on the evidence seized during the search of his place of business on December 15, 1970. Calandra appeared before the grand jury on August 17, 1971, but refused to testify, invoking his Fifth Amendment privilege against self-incrimination. The Government then requested the District Court to grant Calandra transactional immunity pursuant to 18 U. S. C. § 2514. Calandra requested and received a postponement of the hearing on the Government’s application for the immunity order so that he could prepare a motion to suppress the. evidence seized in the search.
Calandra later moved pursuant to Fed. Rule Crim. Proc. 41 (e) for suppression and return of the seized evidence on the grounds that the affidavit supporting the' warrant was insufficient and that the search exceeded the scope of the warrant. On August 27, the District Court held a hearing at which Calandra stipulated that he would refuse to answer questions based on the seized materials. On October 1, the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury’s questions based on the suppressed evidence. 332 F. Supp. 737 (1971). The court held that “due process . . . allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure.” Id., at 742. The court found that the search warrant had been issued without probable cause and that the search had exceeded the scope of the warrant.
The Court of Appeals for the Sixth Circuit affirmed, holding that the District Court had properly entertained the suppression motion and that the exclusionary rule may be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search and seizure. 465 F. 2d 1218 (1972). The offer to grant Calandra immunity was deemed irrelevant. Id., at 1221.
We granted the Government’s petition for certiorari, 410 U. S. 925 (1973). We now reverse.
I — I H-f
The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.” Cf. Costello v. United States, 350 U. S. 359, 361-362 (1956). The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U. S. 665, 686-687 (1972).
Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U. S. 273, 282 (1919).
The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged. Branzburg v. Hayes, supra, at 700; Costello v. United States, supra, at 364.
In Branzburg, the Court had occasion to reaffirm the importance of the grand jury’s role:
“[T]he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen . . . .” 408 U. S., at 700.
“The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it. . . . ‘When the grand jury is performing its investigatory function into a general problem area . . . society’s interest is best served by a thorough and extensive investigation.’ Wood v. Georgia, 370 U. S. 375, 392 (1962). A grand jury investigation ‘is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’ United States v. Stone, 429 F. 2d 138, 140 (CA2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, 350 U. S., at 362. It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made . . . .” Id., at 701-702.
The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra; Holt v. United States, 218 U. S. 245 (1910); or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination, Lawn v. United States, 355 U. S. 339 (1958).
The power of a federal court to compel persons to appear and testify before a grand jury is also firmly established. Kastigar v. United States, 406 U. S. 441 (1972). The duty to testify has long been recognized as a basic obligation that every citizen owes his Government. Blackmer v. United States, 284 U. S. 421, 438 (1932); United States v. Bryan, 339 U. S. 323, 331 (1950). In Branzburg v. Hayes, supra, at 682 and 688, the Court noted that “[c]itizens generally are not constitutionally immune from grand jury subpoenas . . .” and that “the longstanding principle that 'the public . . . has a right to every man’s evidence’ ... is particularly applicable to grand jury proceedings.” The duty to testify may on occasion be burdensome and even embarrassing. It may cause injury to a witness’ social and economic status. Yet the duty to testify has been regarded as “so necessary to the administration of justice” that the witness’ personal interest in privacy must yield to the public’s overriding interest in full disclosure. Blair v. United States, 250 U. S., at 281. Furthermore, a witness may not interfere with the course of the grand jury’s inquiry. He “is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his.” Id., at 282. Nor is he entitled “to challenge the authority of the court or of the grand jury” or “to set limits to the investigation that the grand jury may conduct.” Ibid.
Of course, the grand jury’s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. Branzburg v. Hayes, supra; United States v. Bryan, supra; Blackmer v. United States, supra; 8 J. Wigmore, Evidence §§ 2290-2391 (McNaughton rev. ed. 1961). Although, for example, an indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid, Lawn v. United States, supra, the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Kastigar v. United States, supra. Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. Boyd v. United States, 116 U. S. 616, 633-635 (1886). Cf. Couch v. United States, 409 U. S. 322 (1973). The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena duces tecum will be disallowed if it is “far too sweeping in its terms to' be regarded as reasonable” under the Fourth Amendment. Hale v. Henkel, 201 U. S. 43, 76 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.
III
In the instant case, the Court of Appeals held that the exclusionary rule of the Fourth Amendment limits the grand jury's power to compel a witness to answer questions based on evidence obtained from a prior unlawful search and seizure. The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). This prohibition applies as well to the fruits of the illegally seized evidence. Wong Sun v. United States, 371 U. S. 471 (1963); Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920).
The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:
“[T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.” Linkletter v. Walker, 381 U. S. 618, 637 (1965).
Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures: Accord, Mapp v. Ohio, supra, at 656; Tehan v. Shott, 382 U. S. 406, 416 (1966); Terry v. Ohio, 392 U. S. 1, 29 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
“The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U. S. 206, 217 (1960).
Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The balancing process implicit in this approach is expressed in the contours of the standing requirement. Thus, standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search. Brown v. United States, 411 U. S. 223 (1973); Alderman v. United States, 394 U. S. 165 (1969); Wong Sun v. United States, supra; Jones v. United States, 362 U. S. 257 (1960). This standing rule is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.
IV
In deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extention of the exclusionary rule would seriously impede the grand jury. Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial. Permitting witnesses to invoke the exclusionary rule before a grand jury would precipitate adjudication of issues hitherto reserved for the trial on the merits and would delay and disrupt grand jury proceedings. Suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective. The probable result would be “protracted interruption of grand jury proceedings,” Gelbard v. United States, 408 U. S. 41, 70 (1972) (White, J., concurring), effectively transforming them into preliminary trials on the merits. In some cases the delay might be fatal to the enforcement of the criminal law. Just last Term we reaffirmed our disinclination to allow litigious interference with grand jury proceedings:
“Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” United States v. Dionisio, 410 U. S. 1, 17 (1973).
Cf. United States v. Ryan, 402 U. S. 530 (1971); Cobbledick v. United States, 309 U. S. 323 (1940). In sum, we believe that allowing a grand jury witness to invoke the exclusionary rule would unduly interfere with the effective and expeditious discharge of the grand jury’s duties.
Against this potential damage to the role and functions of the grand jury, we must weigh the benefits to be derived from this proposed extension of the exclusionary rule. Suppression of the use of illegally seized evidence against the search victim in a criminal trial is thought to be an important method of effectuating the Fourth Amendment. But it does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct. In Alderman v. United States, 394 U. S., at 174-175, for example, this Court declined to extend the exclusionary rule to one who was not the victim of the unlawful search:
“The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.”
We think this observation equally applicable in the present context.
Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation. The incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim. For the most part, a prosecutor would be unlikely to request an indictment where a conviction could not be obtained. We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.
V
Respondent also argues that each and every question based on evidence obtained from an illegal search and seizure constitutes a fresh and independent violation of the witness’ constitutional rights. Ordinarily, of course, a witness has no right of privacy before the grand jury. Absent some recognized privilege of confidentiality, every man owes his testimony. He may invoke his Fifth Amendment privilege against compulsory self-incrimination, but he may not decline to answer on the grounds that his responses might prove embarrassing or result in an unwelcome disclosure of his personal affairs. Blair v. United States, 250 U. S. 273 (1919). Respondent’s claim must be, therefore, not merely that the grand jury’s questions invade his privacy but that, because those questions are based on illegally obtained evidence, they somehow constitute distinct violations of his Fourth Amendment rights. We disagree.
The purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one’s person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual’s life. That wrong, committed in this case, is fully accomplished by the original search without probable cause. Grand jury questions based on evidence obtained thereby involve no independent governmental invasion of one’s person, house, papers, or effects, but rather the usual abridgment of personal privacy common to all grand jury questioning. Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong. Whether such derivative use of illegally obtained evidence by a grand jury should be proscribed presents a question, not of rights, but of remedies.
In the usual context of a criminal trial, the defendant is entitled to the suppression of, not only the evidence obtained through an unlawful search and seizure, but also any derivative use of that evidence. The prohibition of the exclusionary rule must reach such derivative use if it is to fulfill its function of deterring police misconduct. In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by respondent outweighs the benefit of any possible incremental deterrent effect. Our conclusion necessarily controls both the evidence seized during the course of an unlawful search and seizure and any question or evidence derived therefrom (the fruits of the unlawful search). The same considerations of logic and policy apply to both the fruits of an unlawful search and seizure and derivative use of that evidence, and we do not distinguish between them.
The judgment of the Court of Appeals is
Reversed.
On the basis of the same affidavit, federal agents also obtained warrants authorizing searches of Calandra’s residence and automobile. The present case involves only the search of the Royal Machine & Tool Co.
The Court of Appeals affirmed the District Court’s finding that the search of Calandra’s business and seizure of his property were unlawful. 465 F. 2d 1218, 1226 n. 5. Although the Government does not agree with the court’s finding, it has not sought review of this issue. In addition, the Government has not challenged the District Court’s order directing return of the illegally seized property to Calandra.
For a discussion of the history and role of the grand jury, see Costello v. United States, 350 U. S. 359, 361-362 (1956); Blair v. United States, 250 U. S. 273, 279-283 (1919); Hale v. Henkel, 201 U. S. 43, 59 (1906); 4 W. Blackstone, Commentaries *301 et seq.; G. Edwards, The Grand Jury 1-44 (1906); 1 F. Pollock & F. Maitland, History of English Law 151 (2d ed. 1909); 1 W. Holdsworth, History of English Law 321-323 (7th rev. ed. 1956).
The grand jury is subject to the court’s supervision in several respects. See Brown v. United States, 359 U. S. 41, 49 (1959); Fed. Rules Crim. Proc. 6 and 17; 1 L. Orfield, Criminal Procedure Under the Federal Rules § 6:108, pp. 475-477 (1966). In particular, the grand jury must rely on the court to compel production of books, papers, documents, and the testimony of witnesses, and the court may quash or modify a subpoena on motion if compliance would be “unreasonable or oppressive.” Fed. Rule Crim. Proc. 17 (c).
There is some disagreement as to the practical efficacy of the exclusionary rule, and as the Court noted in Elkins v. United States, 364 U. S. 206, 218 (1960), relevant “[ejmpirical statistics are not available.” Cf. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). We have no occasion in the present case to consider the extent of the rule’s efficacy in criminal trials.
In holding that the respondent had standing to invoke the exclusionary rule in a grand jury proceeding, the Court of Appeals relied on Fed. Rule Crim. Proc. 41 (e). 465 F. 2d, at 1222-1224. Rule 41 (e) provides, in relevant part, that “[a] person aggrieved by an unlawful search and seizure may move the district court ... for the return of the property and to suppress for the use as evidence anything so obtained . . . .” It further states that “[t]he motion shall be made before trial or hearing . . . .” We have recognized that Rule 41 (e) is “no broader than the constitutional rule.” Alderman v. United States, 394 U. S. 165, 173 n. 6 (1969); Jones v. United States, 362 U. S. 257 (1960). Rule 41 (e), therefore, does not constitute a statutory expansion of the exclusionary rule.
The Court of Appeals also found that the Government’s offer of immunity under 18 U. S. C. § 2514 was irrelevant to respondent’s standing to invoke the exclusionary rule. 465 F. 2d, at 1221. We agree with that determination for the' reasons stated in Parts III, IV, and V of this opinion.
The force of this argument is well illustrated by the facts of the present case. As of the date of this decision, almost two and one-half years will have elapsed since respondent was summoned to appear and testify before the grand jury. If respondent’s testimony was vital to the grand jury’s investigation in August 1971 of extortionate credit transactions, it is possible that this particular investigation has been completely frustrated.
Respondent relies primarily on Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920), which the dissent contends “plainly controls this case.” Post, at 362. In that ease, federal officers unlawfully seized certain documents belonging to the Silverthornes and their lumber company and presented them to a grand jury that had already indicted the Silverthornes and the company. A district court ordered the return of the documents but impounded photographs and copies of the originals. Later, the prosecutor caused the grand jury to issue subpoenas duces tecum to the Silverthornes and the company to produce the originals, and their refusal to comply led to a contempt citation. In reversing the judgment, the Court held that the subpoenas were invalid because they were based on knowledge obtained from the illegally seized evidence, citing Weeks v. United States, 232 U. S. 383 (1914). Mr. Justice Holmes, writing for the Court, stated that the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” 251 U. S., at 392.
Silverthorne is distinguishable from the present case in several significant respects. There, plaintiffs in error had previously been indicted by the grand jury and.thus could invoke the exclusionary rule on the basis of their status as criminal defendants. Moreover, the Government’s interest in recapturing the original documents was founded on a belief that they might be useful in the criminal prosecution already authorized by the grand jury. It did not appear that the grand jury needed the documents to perform its investigative or accusatorial functions. Thus, the primary consequence of the Court’s decision was to exclude the evidence from the subsequent criminal trial. Finally, prior to the issuance of the grand jury subpoenas, there had been a judicial determination that the search and seizure were illegal. The claim of plaintiffs in error was not raised for the first time in a pre-indictment motion to suppress requiring interruption of grand jury proceedings.
By contrast, in the instant case respondent had not been indicted by the grand jury and was not a criminal defendant. Under traditional principles, he had no standing to invoke the exclusionary rule. The effect of the District Court’s order was to deprive the grand jury of testimony it needed to conduct its investigation. Furthermore, respondent’s motion to suppress had not been previously made and required interruption of the grand jury proceedings. In these circumstances, Silverthorne is certainly not controlling. To the extent that the Court’s broad dictum might be construed to suggest a different result in the present case, we note that it has been substantially undermined by later eases. See Parts III and IV of this opinion.
At oral argument, counsel for respondent stated the contention as follows:
“I submit to the Court that each question asked of the Respondent before the Grand Jury, which question was only asked because of a past violation of the Fourth Amendment, [amounts to] a new, immediate violation of the Fourth Amendment .... [A] question derived from a past violation, a question into the privacy of the witness amounts to another intrusion in violation of the Fourth Amendment.” Tr. of Oral Arg. 17.
“[Rjefusing to answer a question in which the question conceivably is derived from a past violation of the Fourth Amendment, gives rise to an additional or new Fourth Amendment right to resist answering that question because the question itself becomes an additional intrusion . . . .” Tr. of Oral Arg. 19-20.
It should be noted that, even absent the exclusionary rule, a grand jury witness may have other remedies to redress the injury to his privacy and to prevent a further invasion in the future. He may be entitled to maintain a cause of action for damages against the officers who conducted the unlawful search. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). He may also seek return of the illegally seized property, and exclusion of the property and its fruits from being used as evidence against him in a criminal trial. Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931). In these circumstances, we cannot say that such a witness is necessarily left remediless in the face of an unlawful search and seizure.
The dissent's reliance on Gelbard v. United States, 408 U. S. 41 (1972), is misplaced. There, the Court construed 18 U. S. C. § 2515, the evidentiary prohibition of Tit. Ill of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18 U. S. C. §§ 2510-2520. It held that § 2515 could be invoked by a grand jury witness as a defense to a contempt charge brought for refusal to answer questions based on information obtained from the witness’ communications alleged to have been unlawfully intercepted through wiretapping and electronic surveillance. The Court’s holding rested exclusively on an interpretation of Tit. Ill, which represented a congressional effort to afford special safeguards against the unique problems posed by misuse of wiretapping and electronic surveillance. There was no indication, in either Gelbard or the legislative history, that Tit. Ill was regarded as a restatement of existing law with respect to grand jury proceedings. As Mr. Justice White noted in his concurring opinion in Gelbard, Tit. Ill “unquestionably works a change in the law with respect to the rights of grand jury witnesses . . . .” 408 U. S., at 70.
The dissent also voices concern that today’s decision will betray “ ‘the imperative of judicial integrity,’ ” sanction “illegal government conduct,” and even “imperil the very foundation of our people’s trust in their Government.” Post, at 360. There is no basis for this alarm. “Illegal conduct” is hardly sanctioned, nor are the foundations of the Republic imperiled, by declining to make an unprecedented extension of the exclusionary rule to grand jury proceedings where the rule’s objectives would not be effectively served and where other important and historic values would be unduly prejudiced. Cf. Alderman v. United States, 394 U. S. 165 (1969); Linkletter v. Walker, 381 U. S. 618 (1965); and cases cited supra, at 347-348.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_lcdisposition
|
C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
SAFFORD UNIFIED SCHOOL DISTRICT #1 et al. v. REDDING
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08-479.
Argued April 21, 2009
Decided June 25, 2009
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Parts I — III. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined, post, p. 379. Ginsburg, J., filed an opinion concurring in part and dissenting in part, post, p. 381. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 382.
Matthew W. Wright argued the cause for petitioners. With him on the briefs was David K. Pauole.
David A. O’Neil argued the cause for the United States as amicus curiae urging reversal. With him on the brief were then-Acting Solicitor General Kneedler, Acting Assistant Attorney General Hertz, Deputy Solicitor General Katyal, Leonard Schaitman, Robert Kamenshine, Mark Pennak, Edward H. Jurith, Linda V. Priebe, Philip H. Rosenfelt, Stephen H. Freid, Daniel J. Dell’Orto, and Karen L. Lambert.
Adam B. Wolf argued the cause for respondent. With him on the brief were Graham A. Boyd, M. Allen Hopper, Steven R. Shapiro, Bruce G. Macdonald, Andrew J. Petersen, and Daniel Joseph Pochoda.
David R. Day, Francisco M. Negrón, Jr., and Thomas E. M. Hutton filed a brief for the National School Boards Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Juvenile Law Center et al. by Marsha L. Levick; for the National Association of Social Workers et al. by Julia M. Carpenter, Carolyn I. Polowy, and Michael D. Simpson; for the Rutherford Institute et al. by John W. Whitehead, Clint Bolick, Nicholas C. Dranias, Timothy Lynch, and Ilya Shapiro; and for the Urban Justice Center et al. by Raymond H. Brescia.
Justice Souter
delivered the opinion of the Court.
The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.
I
The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her Mend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Sehwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
Savana’s mother filed suit against Safford Unified School District #1, Wilson, Romero, and Sehwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified immunity. The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. 504 F. 3d 828 (2007).
A closely divided Circuit sitting en bane, however, reversed. Following the two-step protocol for evaluating claims of qualified immunity, see Saucier v. Katz, 533 U. S. 194, 200 (2001), the Ninth Circuit held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325 (1985). 531 F. 3d 1071, 1081-1087 (2008). The Circuit then applied the test for qualified immunity, and found that Savana’s right was clearly established at the time of the search: “ '[tjhese notions of personal privacy are “clearly established” in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment’s proscription against unreasonable searches.’” Id., at 1088-1089 (quoting Brannum v. Overton Cty. School Bd., 516 F. 3d 489, 499 (CA6 2008)). The upshot was reversal of summary judgment as to Wilson, while affirming the judgments in favor of Sehwallier, the school nurse, and Romero, the administrative assistant, since they had not acted as independent decision-makers. 531 F. 3d, at 1089.
We granted certiorari, 555 U. S. 1130 (2009), and now affirm in part, reverse in part, and remand.
II
The Fourth Amendment “right of the people to be secure in their persons . . . against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” Brinegar v. United States, 338 U. S. 160, 175-176 (1949) (quoting Carroll v. United States, 267 U. S. 132, 162 (1925)), and that evidence bearing on that offense will be found in the place to be searched.
In T. L. O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search,” 469 U. S., at 340, and held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause,” id., at 341. We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student, id., at 342, 345, and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction,” id., at 342.
A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct, see, e. g., Adams v. Williams, 407 U. S. 143, 148 (1972); id., at 160, n. 9 (Marshall, J., dissenting), the specificity of the information received, see, e. g., Spinelli v. United States, 393 U. S. 410, 416-417 (1969), and the reliability of its source, see, e. g., Aguilar v. Texas, 378 U. S. 108, 114 (1964). At the end of the day, however, we have realized that these factors cannot rigidly control, Illinois v. Gates, 462 U. S. 213, 230 (1983), and we have come back to saying that the standards are “fluid concepts that take their substantive content from the particular contexts” in which they are being assessed, Ornelas v. United States, 517 U. S. 690, 696 (1996).
Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability,” Gates, 462 U. S., at 238, or a “substantial chance,” id., at 244, n. 13, of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing.
Ill
A
In this case, the school’s policies strictly prohibit the non-medical use, possession, or sale of any drug on school grounds, including “‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’ ” App. to Pet. for Cert. 128a. A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” App. 8a. On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch.
Wilson learned from Peggy Schwallier, the school nurse, that the pill was ibuprofen 400 mg, available only by prescription. Wilson then called Marissa out of class. Outside the classroom, Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing various contraband items. Wilson escorted Marissa back to his office.
In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked where the blue pill came from, and Marissa answered, “ ‘I guess it slipped in when she gave me the IBU 400s.’” Id., at 13a. When Wilson asked whom she meant, Marissa replied, “‘Savana Redding.’” Ibid. Wilson then enquired about the day planner and its contents; Marissa denied knowing anything about them. Wilson did not ask Marissa any followup questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them.
Sehwallier did not immediately recognize the blue pill, but information provided through a poison control hotline indicated that the pill was a 200-mg dose of an antiinflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Sehwallier, as Savana was later on. The search revealed no additional pills.
It was at this juncture that Wilson called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to warrant suspicion that Savana was involved in pill distribution.
This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.
B
Here it is that the parties part company, with Savana’s claim that extending the search at Wilson’s behest to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Id., at 23a. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, App. to Pet. for Cert. 135a, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.
Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6-14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can “result in serious emotional damage”). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be, see, e.g., New York City Dept. of Education, Reg. No. A-432, p. 2 (2005), online at http://docs.nycenet.edu/docushare/dsweb/Get/Document-21/A-432.pdf (“Under no circumstances shall a strip-search of a student be conducted”).
The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342.
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students ... hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering of eases of students with contraband in their underwear, id., at 8-9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.
In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students from what Jordan Romero had gone through. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.
We do mean, though, to make it clear that the T L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.
IV
A school official searching a student is “entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.” Pearson v. Callahan, 555 U. S. 223, 243-244 (2009). To be established clearly, however, there is no need that “the very action in question [have] previously been held unlawful.” Wilson v. Layne, 526 U. S. 603, 615 (1999). The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” K. H. v. Morgan, 914 F. 2d 846, 851 (CA7 1990). But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law ... in novel factual circumstances.” Hope v. Pelzer, 536 U. S. 730, 741 (2002).
T. L. O. directed school officials to limit the intrusiveness of a search, “in light of the age and sex of the student and the nature of the infraction,” 469 U. S., at 342, and as we have just said at some length, the intrusiveness of the strip search here cannot be seen as justifiably related to the circumstances. But we realize that the lower courts have reached divergent conclusions regarding how the T L. O. standard applies to such searches.
A number of judges have read T L. O. as the en banc minority of the Ninth Circuit did here. The Sixth Circuit upheld a strip search of a high school student for a drug, without any suspicion that drugs were hidden next to her body. Williams v. Ellington, 936 F. 2d 881, 882-883, 887 (1991). And other courts considering qualified immunity for strip searches have read T. L. O. as “a series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other,” Jenkins v. Talladega City Bd. of Ed., 115 F. 3d 821, 828 (CA11 1997) (en banc), which made it impossible “to establish clearly the contours of a Fourth Amendment right... [in] the wide variety of possible school settings different from those involved in T. L. O.” itself, ibid. See also Thomas v. Roberts, 323 F. 3d 950 (CA11 2003) (granting qualified immunity to a teacher and police officer who conducted a group strip search of a fifth grade class when looking for a missing $26).
We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case. We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law. We conclude that qualified immunity is warranted.
V
The strip search of Savana Redding was unreasonable and a violation of the Fourth Amendment, but petitioners Wilson, Romero, and Schwallier are nevertheless protected from liability through qualified immunity. Our conclusions here do not resolve, however, the question of the liability of petitioner Safford Unified School District #1 under Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978), a claim the Ninth Circuit did not address. The judgment of the Ninth Circuit is therefore affirmed in part and reversed in part, and this case .is remanded for consideration of the Monell claim.
It is so ordered.
When the object of a school search is the enforcement of a school rule, a valid search assumes, of course, the rule’s legitimacy. But the legitimacy of the rule usually goes without saying as it does here. The Court said plainly in New Jersey v. T. L. O., 469 U. S. 325, 342, n. 9 (1985), that standards of conduct for schools are for school administrators to determine ■without second-guessing by courts lacking the experience to appreciate what may be needed. Except in patently arbitrary instances, Fourth Amendment analysis takes the rule as a given, as it obviously should do in this ease. There is no need here either to explain the imperative of keeping drugs out of schools, or to explain the reasons for the school’s rule banning all drugs, no matter how benign, without advance permission. Teachers are not pharmacologists trained to identify pills and powders, and an effective drug ban has to be enforceable fast. The plenary ban makes sense, and there is no basis to claim that the search was unreasonable owing to some defect or shortcoming of the rule it was aimed at enforcing.
Poison control centers across the country maintain 24-hour help hotlines to provide “immediate access to poison exposure management instructions and information on potential poisons.” American Association of Poison Control Centers, online at http://www.aapcc.org/dnn/About/ tabid/74/Default.aspx (all Internet materials as visited June 19, 2009, and available in Clerk of Court’s ease file).
There is no question here that justification for the school officials’ search was required in accordance with the T. L. O. standard of reasonable suspicion, for it is common ground that Savana had a reasonable expectation of privacy covering the personal things she chose to carry in her backpack, cf. 469 U. S., at 339, and that Wilson’s decision to look through it was a “search” within the meaning of the Fourth Amendment.
An Advil tablet, caplet, or gel caplet contains 200 mg ibuprofen. See 2007 Physicians’ Desk Reference for Nonprescription Drugs, Dietary Supplements, and Herbs 674 (28th ed. 2006). An Aleve caplet contains 200 mg naproxen and 20 mg sodium. See id., at 675.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_applfrom
|
L
|
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).
PUBLIC SERVICE COMPANY OF NEW MEXICO, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CITY OF GALLUP, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Service Company of New Mexico, Intervenor.
Nos. 78-2007, 79-1275 and 79-1276.
United States Court of Appeals, Tenth Circuit.
Argued May 7, 1980.
Decided Aug. 11, 1980.
Paul H. Keck of Morgan, Lewis & Bockius, Washington, D. C. (Michael F. Healy of Morgan, Lewis & Bockius, Washington, D. C., William B. Keleher and Richard B. Cole of Keleher & McLeod, Albuquerque, N. M., with him on brief), for petitioner-intervenor Public Service Company of New Mexico.
Charles F. Wheatley, Jr. of Wheatley & Wollesen, Washington, D. C. (Woodrow D. Wollesen and Robert A. O’Neil, Washington, D. C., with him on brief), for petitioner City of Gallup.
George H. Williams, Jr., Atty., Federal Energy Regulatory Commission, Washington, D. C. (Robert R. Nordhaus, Gen. Counsel and Jerome Nelson, Sol., Washington, D. C., with him, on brief), for respondent.
Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.
SETH, Chief Judge.
These three cases were consolidated for hearing as each seeks review of orders of the Federal Energy Regulatory Commission. The particulars of each petition will be described in the following sections.
Case 78-2007
The Public Service Company of New Mexico seeks to review orders of the Federal Energy Regulatory Commission entered in Docket No. E-9454 insofar as they required Public Service Company of New Mexico to file the contract covering its coal purchases from Western Coal Company. The Commission based this portion of its orders of July 5th and December 15th of 1978 on section 35.14(a)(7) of its regulations. The regulations in part read:
“Where the utility purchases fuel from a company-owned or controlled source, the price of which is subject to the jurisdiction of a regulatory body, such cost shall be deemed to be reasonable and includable in the adjustment clause.
With respect to the price of fuel purchases from company-owned or controlled sources pursuant to contracts which are not subject to regulatory authority, the utility company shall file such contracts and amendments thereto with the Commission for its acceptance Any subsequent amendment to such contracts shall likewise be filed with the Commission as a rate schedule change and may be subject to suspension under section 205 of the Federal Power Act.” 18 C.F.R. § 35.14(a)(7).
Under related Commission regulations if the contract must be filed, any subsequent changes in it are treated for all practical purposes as rate schedule changes. The contract or a copy was, of course, furnished during the course of the hearing and considered.
Public Service Company of New Mexico urges that the regulation is not applicable so as to require filing under section 35.14 for the reason that there were no facts developed at the hearings as to “control” except that PNM owned 50% of the stock of Western Coal, and in any event the contract was subject to the “regulatory authority” of the New Mexico Public Service Commission.
The record does not show that PNM had actual “control” over Western Coal. This issue was not considered during the course of the hearings as a fact issue, and the Administrative Law Judge made no finding on the point. We have held that control is a fact question. SEC v. International Chem. Dev. Corp., 469 F.2d 20 (10th Cir.). As mentioned, all the record shows is that PNM owns 50% of the coal company stock and Tucson Gas and Electric owns the other 50%. There is no basis in the record for the Commission’s determination as to control assuming that the issue was properly before it in view of the procedural deficiencies.
The regulation relating to filing quoted above (§ 35.14(a)(7)) applies only to contracts “which are not subject to regulatory authority.” The record demonstrates that the New Mexico Public Service Commission does not “regulate” Western Coal, but it must pass on the contract between Western Coal and PNM to determine whether it is reasonable. This would seem to meet the requirement of the FERC regulations in that it is the “contract” which is referred to, not Western Coal as an entity. When the regulation says “contracts” it clearly means contracts and the matter is not subject to interpretation. United States v. Ray, 488 F.2d 15 (10th Cir.).
The authority of the New Mexico Public Service Commission under chapter 85 of the laws of 1980 of New Mexico has been clarified with the recent enactment of the following provision:
“The sale, furnishing or delivery of coal, uranium or other fuels by any affiliated interest to a utility for the generation of electricity for the public shall be subject to regulation by the commission but only to the extent necessary to enable the commission to determine that the cost to the utility of such coal, uranium or other fuels at the point of sale is reasonable
We must hold that the determination by the Commission as to “control” had no basis in the record, and that the decision as to whether the coal contract was subject to “regulatory authority” was in error. Thus the Commission order insofar as it directs filing of the PNM-Western Coal contract with the Commission under 18 C.F.R. § 35.14(a)(7) is set aside.
Cases 79-1275 and 79-1276
The City of Gallup, New Mexico petitioned to have reviewed in 79-1275 the order of the Federal Energy Regulatory Commission entered in Docket No. ER 78-338, and in 79-1276, the orders entered in Docket No. E-9454. This court in Public Service Co. of N. M. v. FPC, 557 F.2d 227 (10th Cir.), reviewed other orders in E-9454. The Public Service Company of New Mexico appears as an intervenor in support of the rate schedule adopted by the Commission.
The orders here concerned approved certain rates to be charged Gallup by PNM. The Commission in considering the new rates concluded that the existing PNM-Gallup contract was not a “fixed rate” contract. Having made this determination the Commission applied the standard for section 206 hearings, 16 U.S.C. § 824e(a), sec. 206(a) of the Act, thus whether the rates are “just and reasonable,” rather than the Sierra burden for “fixed rate” contracts that is whether the contract rates are so low “as to adversely affect the public interest.” See FPC v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388 and related cases.
The City of Gallup urges that the PNM-Gallup contract is a “fixed rate” contract contrary to the position of the Commission. There would seem to be no reason to describe the analysis of the contract used to decide the issue. It is sufficient to point out that the parties agreed in the contract that:
“This contract, including the tariff made a part hereof, shall at all times be subject to such changes or modifications as shall be ordered from time to time by any legally constituted regulatory body having jurisdiction to require such changes or modifications.” Article XII.
The contract also provided in Article II that should the rates be increased “for any reason whatsoever, other than” reasons not here pertinent, Gallup would have the option to terminate the agreement within 90 days (with provision for continued service for a two-year period under the increased rate).
The City urges that nevertheless the contract was a fixed rate agreement something like the one considered in FPC v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388. However, the Sierra contract provided only for changes by the California commission, not the then FPC. Here, the provision was much broader. Also, we must agree with the Commission that Article II contemplates other and different changes.
We should again point out that this court in Public Service Co. of N. M. v. FPC, 557 F.2d 227 (10th Cir.), in reviewing a previous order in Docket 9454 affirmed the order which recited that the contract did not provide for unilateral filings under section 205, but that changes be made only upon order of the Commission, thus under section 206. The 206 hearings had then been started, and after some problems culminated in the orders under consideration in this appeal. In the cited case we held there was no reservation in Article XII of the contract to permit unilateral changes by rate filings. It was also there stated that the reference to changes by a “regulatory body” “points toward a change after a § 206 proceeding, not a § 205 unilateral filing.”
In view of our previous opinion in Public Service Co. of N. M. v. FPC, 557 F.2d 227 (10th Cir.), it would not seem necessary to discuss in any detail other cases considering the issue. We should mention, however, Louisiana Power & Light v. FERC, 587 F.2d 671 (5th Cir.), where the court held that contract language “subject to amendment or alteration ... in accordance with a[n] . . . order of any governmental authority” did not create a fixed rate contract. See also Southern California Edison Co. v. FPC, 535 F.2d 1325 (D.C.Cir.).
Thus we must hold that the Commission was correct in its application of the “just and reasonable” standard in the section 206 hearing. The Commission in the application of this measure approved the new rate schedule. This was fully supported by the record and was in large part based on data provided by Gallup. This determination was sufficient to establish the new rates under the Commission’s statutory authority and under its regulations. There is no validity to the contention by the City of Gallup that there must be a finding or determination directed to the old schedule. Furthermore, Gallup had a full and complete hearing on all relevant issues during the course of these extended proceedings.
As a separate issue Gallup urges that the new rate schedule is so high that it, as a purchaser for resale, cannot compete with PNM for retail customers. This “price squeeze” issue is a matter the FERC should consider where the elements are found to be present. The Supreme Court so held in FPC v. Conway Corp., 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626. The question whether or not this issue was presented was fully considered by the Administrative Law Judge and he concluded that the City made no showing to support a claim of a price squeeze. It is sufficient to point out that there was no evidence of competition at the retail level, and no showing that the rate schedule here considered for the period in which it was to become applicable was higher than PNM retail rates. The claim of Gallup must fail by reason of a failure of proof as to the elements of the doctrine, and a failure to show or even suggest a substantial difference in cost of service for the relevant period. We find no error as Gallup urges in the selection of a “test” year for this point.
We must hold that the Administrative Law Judge’s determination and the Commission holding as to the price squeeze contention were correct. The proof did not really raise the issue, and it was incumbent on petitioner to develop the facts to at least show as a basis that there was a substantial difference in cost of service or strong reasons to indicate such a difference.
Cases 78-2007, 79-1275, 79-1276
We hold that the Commission orders reviewed in these three cases are valid in all respects except only insofar as the orders of the FERC in Docket No. E-9454 (here Case No. 78-2007) dated July 5, 1978 and December 15, 1978 require Public Service Company of New Mexico to file under its regulations, section 35.14(a)(7), the coal contract between the Public Service Company and Western Coal Company. With this exception the orders are valid and enforceable.
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_pretrial
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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 rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. 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".
Louis WEINSTOCK, Appellant, v. UNITED STATES of America, Appellee.
No. 12656.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 5, 1955.
Decided Jan. 5, 1956.
Danaher, Circuit Judge, dissented.
Mr. Harry Saeher, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Messrs. Joseph Forer and David Rein, Washington, D. C., were on the brief, for appellant.
Mr. John D. Lane, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., Messrs. Lewis Carroll and William Hitz, Asst. U. S. Attys., and Mr. Cecil R. Heflin, Attorney, Dept, of Justice, were on the brief, for appellee.
Before PRETTYMAN, FAHY and DANAHER, Circuit Judges.
PRETTYMAN, Circuit Judge.
Appellant was indicted on two counts for making a false statement before an agency of the United States and was convicted on one count. The false statement was alleged to have been made in an affidavit filed by him with the Subversive Activities Control Board.
The Attorney General of the United States filed with the Board, on April 22, 1953, a petition against the “United May Day Committee”. He sought to require the Committee to register as a Communist-front organization. In his petition he alleged: “From in or about 1946 up to and including the date of the filing of this petition and continuing thereafter, there has existed and operated in .the United States an organization known .by various names, which is now known as the United May Day Committee (hereinafter referred to as the UMDC).” On May 6, 1953, a copy of the petition was served upon appellant, he being described in the marshal’s return upon the service as “Chairman, United May Day Committee”. Weinstoek filed a motion to quash the service. The pertinent part of that motion was:
- “3. There is no Respondent upon which service can be made or against which the relief prayed for in the petition can be granted for the reason that the United May Day Committee is not in existence, either under that name or any other name, and was not in existence on the date of service of the petition on movant.
“Movant submits the annexed affidavit in support of the foregoing - motion.”
The supporting affidavit was in. eleven paragraphs. It is long, but in order to understand our position in the case it is .necessary that nearly the whole of it be .read. We have therefore reproduced paragraphs 4 to 11, inclusive, in an Appendix to this opinion, the first three •paragraphs being purely formal. .In his affidavit Weinstoek set forth in considerable detail, facts with reference to the May Day holiday.in New York City. He said he had personal knowledge, of the manner in which the'celebration was conducted from 1935 to and including 1953. He said that in about March of each year, except for the war years, interested individuals, would call a meeting for the ’ purpose of organizing a committee to conduct the celebration. This meeting adopted a name for the committee, elected officers, and the celebration was duly held. Shortly thereafter, Weinstoek said, a meeting of those who had participated occurred, at which a report of the committee’s- activities and a final financial report were made and the committee was dissolved. Thus, he said, the committee was organized each year, functioned for approximately six weeks, arid then was dissolved.
Weinstoek said that during the years 1935 to 1953 the naines of the committee had varied, as had the identities of the .individuals who called the meetings and .constituted the committee. He said that “United May Day Committee”, “United Front May Day Committee”, and “United Labor and Peoples’ Committee for May .Day” were among the names used for the committee and that the last had been the name by which the committee had been known from 1949 through 1953.
Weinstoek then described in considerable detail the organization of the committee for 1953 and the manner in which the celebration on May Day of that year had been conducted. He said- he had been administrative secretary for that committee. He said that on May 5, 1953, the committee held its final meeting and was dissolved and that at a meeting, held May 11th, of the endorsers of and participants in the celebration the final reports were approved.
In the fourth paragraph of the affidavit Weinstoek included the sentence, “There has been no committee or organization known as or having the name United May Day Committee' since May, 1948.” In the indictment upon which he 'was convicted it was alifeged- this státément was known by him to be false, in that there was in the years 1950, 1951, 1952 and 1953 a committee known as the United May Day Committee.
The situation presented by the Attorney General’s petition, the motion to quash, and the affidavit is perfectly clear. The Attorney General claimed that there was on May 6, 1953, and had been since about 1946, an organization known by various names, being in 1953 known as the United May Day Committee. Weinstock took the position that ■ there had been since 1935, except for the war years, a committee annually organized and dissolved ; that there had been such a committee in 1953 but that it had dissolved by its own action on May 5, 1953. He said that in prior years the committee had been named “United May Day Committee” but that in the years 1949-1953 it was called “United Labor and Peoples’ Committee for May Day”. His point, clearly and unequivocally presented, was that on May 6, 1953, the committee was not in existence. He specifically asserted the committee was not in existence under any name. The Attorney General on the contrary asserted the existence of the committee.
The crime for which Weinstock was indicted is described in Section 1001, Title 18, of the United States Code That section reads as follows: The first clause of the foregoing statute requires that the statement of the accused be false as to “a material fact”, and we held in Freidus v. United States, in respect to the whole section, that “this highly penal statute must be construed as requiring a material falsification.”
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
The precise crux of the controversy is whether the statement “There has been no committee or organization known as or having the name United May Day Committee since May, 1948” was material to an issue posed either by the motion to quash or by the petition.
"Material” when used in respect to evidence is often confused with “relevant”, but the two terms have wholly different meanings. To be “relevant” means to relate to the issue. To be “material” means to have probative weight, i. e., reasonably likely to influence the tribunal in making a determination required to be made. A statement may be relevant but not material. Professor Wigmore depicts with some acerbity the difference between relevancy and materiality, “the inaccuracy of our usage” of the terms, and “the harmfulness of this inveterate error”. Materiality, he maintains, is a matter of substantive law and does not involve the law of evidence. He does not include “materiality” in the topics treated in his volumes on Evidence.
The term "material” is used in-many fields of law; for example, insurance law, bankruptcy, agency, motions for new trial upon the ground of newly discovered evidence, and in respect to-per jury. In respect to materiality in perjury Blackstone said, “ * * * for if it only be in some trifling collateral circumstance, to which no- regard is paid, it is not penal. The meaning of the word appears to be consistent in these various fields. The test is whether the false statement has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made.
Materiality must be judged by the facts and circumstances in the particular case. The color of an accused’s hair may be totally immaterial in one case, but in other circumstances the color of his hair may be not only material but decisively so.
Since the jury in the case at bar found the accused guilty we may assume it found the statement which is the basis of the indictment false. But we think that in the setting in which it was made the statement was not material. If the one sentence had stood alone it might well have been material. But in context, as merely part of the long affidavit, it was immaterial, wholly without weight or influence in any decision to be made by the Board.
The issue posed was whether the committee was a continuous organization or was an annual organization which existed for only six weeks each year, and, more particularly, whether the committee was in existence on May 6, 1953. We think no tribunal, in passing either upon the petition or upon the motion to quash, would have been influenced in the slightest by the name by which the committee was known, either on May 6, 1953, or at any other time, whether the name was United May Day Committee or United Labor and Peoples’ Committee for May Day. The Attorney General had said in his petition that the committee had operated under various names; Weinstock agreed, also saying it had had various names. Surely the Board would have paid no attention whatsoever to the insignificant difference between the names under which the committee went. Had it found all the other facts in dispute to be as the Attorney General claimed them to be, surely it would have permitted as a mere formality an amendment to the title of the proceeding.
We cannot imagine that Weinstock, in supporting his motion to quash before the Board, would have rested any part of his case upon the minute difference in name; and we cannot conceive of the Attorney General, in opposing that motion or in supporting his petition, conceding the slightest fraction of his position if the Board had found a committee in existence on May 6, 1953, which was known as the United Labor and Peoples’ Committee for May Day rather than the United May Day Committee. Thus it is apparent, both from the Attorney General’s petition and from Weinstock’s affidavit, that no question was intended as to the name of the committee.
It may be argued from the Government’s point of view that the permanence of the name (the use of the same name) throughout the whole of a long period tends to prove the committee was a permanent organization. So viewed, the sentence, it could be argued, would be material upon the issue posed by the motion to quash. But the Attorney General nowhere alleged that United May Day Committee was the permanent name of the organization. He did not seem to regard the permanence of the name as essential to his position. Of more importance, however, Weinstock himself said in his affidavit that the committee functioned under one name, with only variations as to the year, during the whole of the period from 1949 to 1953. So he admitted substantial identity of the name over a long period. The difference between Weinstock and the Government as to the name is not whether the same name was used over the years but merely what that name was. That difference was wholly immaterial to the issues posed. If it were agreed that the same name was used over a period of years, it is clear that whether the name used was one name or another is totally immaterial.
It may well be that the statement as to the current name of the committee would be admitted into evidence as relevant. An accused’s name or a witness’s name is admissible so far as relevancy is concerned. But we are not dealing with a question of bare relevancy.
The issue to which the false statement is material need not be the main issue; it may be a collateral issue. And it need not bear directly upon the issue but may merely augment or diminish the evidence upon some point. But it must have some weight in the process of reaching a decision. We think the sentence here involved had no such weight in the circumstances in which it was made, that is, in the context of the whole affidavit.
Of course, as we have indicated, if the statement here involved had been made by Weinstock without anything more being said by him, it might have been material. If he had said simply, “There has been no committee or organization known as or having the name United May Day Committee since May, 1948”, and had stopped there, the statement could well be read as an unequivocal denial of the existence of any committee for many years. Such a statement could well have influenced the Board in passing upon the motion to quash or upon the petition. But Weinstock did not do that. He explained that there had been committees; that they had had various names; that there had been such a committee in existence the day before service of the petition; but he insisted that on the day of service no such committee was in existence under the name United May Day Committee or under any other name. It is this context which robs the lone sentence of any materiality — any possible influence upon the Board in reaching its decision. In context the sentence is a parenthetical observation upon what name the committee used from 1949 to 1953. What the name was, so long as it was the same over the period, was immaterial. What might have been material under other facts and circumstances or in another context was inconsequential and of no weight under the circumstances and in the context actually existing.
Materiality, the Supreme Court said in Sinclair v. United States, is a question for the court. Upon that premise it held pertinency in prosecutions for refusal to answer questions to be a matter for the court to determine. The same reasoning necessarily applies in respect to this false statement statute. The trial court should have directed a judgment of acquittal in the present case. Its judgment of conviction must therefore be
Reversed.
Appendix
Subversive Activities Control Board
No. 111-53
Herbert Brownell, Jr., Attorney General of the United States, Petitioner v.
United May Day Committee, Respondent.
Affidavit in Support of Motion to Quash Service of the Petition State of New York j
I gg^ •
County of New York J
Louis Weinstock, being first duly sworn, deposes as follows:
******
4. There has been no committee or organization known as or having the name United May Day Committee since May, 1948. The statement of the Attorney General in Section I of the petition that “from in or about 1946 up to and including the date of the filing of the petition and continuing thereafter, there has existed and operated in the United States an organization known by various names, which is now known as the United May Day Committee” is not true. If, as stated in the verification to the petition, this statement is based on investigative reports of the Federal Bureau of Investigation; that agency is misinformed as to the facts and has misled and misinformed the Attorney General.
5. The facts with reference to the celebration of the May Day holiday in New York City and the organization of committees to conduct such celebrations are set forth in the following paragraphs.
6. I am informed and believe that May Day has been celebrated as a labor and people’s holiday in New York City substantially annually since 1890. The customary manner of celebrating this, holiday has been by conducting a parade or open air meeting in the streets of New York in which numerous organizations and individuals have participated. I have personal knowledge of the manner in which the May Day celebration was organized and conducted annually from. 1935 to and including 1953, with the exception of the years 1942 to 1945 inclusive, when no outdoor celebration was held by reason of the war.
7. Annually, in or about the month of March, from 1935 to 1953 (with the exception of the war years) individuals interested in celebrating May Day and acting on their own behalf or on behalf of trade unions or other organizations have issued a call addressed to all interested individuals and organizations in the city to attend a meeting for the purpose of organizing a committee to sponsor and conduct the May Day celebration for that year. Such meetings were held annually (except for the war years). Those present at the meeting formed a committee for the exclusive purpose of organizing and conducting the May Day celebration for that year. They adopted á name for the committee and elected officers and members of an administrative committee who were authorized to make all necessary arrangements for the celebration, including application to the City authorities' in the name of the committee for permission to use the streets.' Shortly following May Day of each year, after the committee had conducted the celebration and performed its only function, meetings of the officers and administrative committee and of representatives of' organizations which had endorsed and participated in the celebration were held. At these meetings a report of the committee’s activities and a final financial report were made and approved and the committee dissolved. Thus, in each year, a committee was organized in the manner and for the purpose described above, functioned, for approximately six weeks, and then dissolved, ceasing to carry on any further functions or activities whatsoever.
8. During the years 1935-1953, the names of the committees which were organized annually in the manner above described, varied. The identity of the individuals who called the initial organizing meetings as well as the personnel of the officers and executive committees of these committees, likewise varied. “United May Day Committee”, “United Front May Day Committee”, and “United Labor and Peoples’ Committee for May Day” were among the names used. In various years I have been elected to various offices in these committees.
9. The committees which sponsored the May Day celebrations and parades in the years 1949 to 1953, inclusive, were called the United Labor and Peoples’ Committee for May Day of 1949, 1950, 1951, 1952 and 1953, respectively.
10. In March 1953 a group of individuals, including myself, organized themselves as a provisional committee for May Day, 1953 and issued a call for a meeting which was held at the St. Nicholas Sport Center, New York City, on April 4, 1953 for the purpose of organizing a committee to conduct the 1953 May Day celebration. The meeting voted to establish a committee with the name “United Labor and Peoples’ Committee for May Day of 1953” for the sole and exclusive purpose of conducting the 1953 May Day celebration. The meeting elected an administrative committee, and officers consisting of three co-chairmen, an executive secretary and an administrative secretary. I was elected to the office of administrative secretary of the committee. The officers and administrative committee elected by the meeting proceeded to make all arrangements for the celebration, including the making of an application in the name of the committee, to the city authorities for a permit to conduct a parade on the streets of the city. The application was denied. However, a permit was issued to the committee for an open-air meeting in Union Square, a public square in New York City. A meeting was held pursuant to this permit and under the auspices of the committee on the afternoon of May
I, 1953, and was addressed by a number of speakers.
11. A meeting of the officers and members of the administrative committee of the United Labor and Peoples’ Committee for May Day of 1953, having been duly called, was held on May 5, 1953. A report of the committee’s activities and a final financial report were presented to and approved by the meeting. Thereupon, a resolution was adopted that, its function having been discharged, the United Labor and People’s Committee for May Day of 1953 be dissolved. The meeting further fixed May
II, 1953 as the date of a meeting of those who had endorsed and participated in the celebration for the purpose of making a final report to them. Pursuant to the resolution referred to above, the committee ceased to function or exist after May 5, 1953. The meeting of the endorsers and participants in the celebration was held on May 11, 1953. A report of activities, a final financial report and a report of the action of the officers and executive committee dissolving the United Labor and People’s Committee for May Day of 1953 were submitted to the meeting and approved.
[Signed] Louis Weinstock Louis Weinstock
Subscribed and sworn to
before me this 3rd
day of June 1953 [Signed] Moses C. Weinman
Notary Public
[Seal]
. Sec. 13(a), Internal Security Act of 1950, 64 Stat. 998, 50 U.S.C.A. § 792(a): ( '
. 62 Stat. 749 (1948).
. 96 U.S.App.D.C. 133, 223 F.2d 598, 601 (1955).
. 1 Wigmore, Evidence § 2 (3d ed. 1940).
. 1 4 Bl.Comm. * 137.
. Accord: Carroll v. United States, 16 F.2d 951 (2 Cir., 1927), certiorari denied 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927); Pyle v. United States, 81 U.S.App.D.C. 209, 156 F.2d 852 (D.C. Cir.1946); Robinson v. United States, 72 App.D.C. 254, 114 F.2d 475 (D.C.Cir. 1940); Blackmon v. United States, 108 F.2d 572 (5 Cir., 1940); Central & S. West Utilities Co. v. Securities & E. Comm., 78 U.S.App.D.C. 37, 136 F.2d 273 (D.C.Cir.1943); Freidus v. United States, supra; Woolley v. United States, 97 F.2d 258 (9 Cir., 1938), certiorari de- ■ nied 305 U.S. 614, 59 S.Ct. 73, 83 L.Ed. 391 (1938); United States v. Hendrickson, 200 F.2d 137 (7 Cir., 1952), certiorari denied 345 U.S. 926, 73 S.Ct. 85, 97 L.Ed. 1357 (1953); Willoughby v. Jamison, 103 F.2d 821 (8 Cir., 1939), certiorari denied 308 U.S. 588, 60 S.Ct. 111, 84 L.Ed. 492 (1939); Patrick v. Cochise Hotels, 76 Ariz. 136, 259 P. 2d 569 (1953); State v. Fasano, 119 Conn. 455, 177 A. 376 (1935); Schloss v. Metropolitan Life Ins. Co., 177 Md. 191, 9 A.2d 244 (1939); New York Life Ins. Co. v. Kuhlensehmidt, 218 Ind. 404, 33 N.E.2d 340, 135 A.L.R. 397 (1941); People v. Kresel, 147 Misc. 241, 264 N.Y.S. 464 (1932); Knight v. Citizens Coach Co., 307 Ill.App. 251, 30 N.E.2d 180 (1940); Arkansas Power & Light Co. v. Mason, 191 Ark. 804, 87 S.W.2d 988 (1935); Sellers v. Harvey, 222 Ark. 804, 263 S.W.2d 86 (1954); 2 Wharton, Criminal Law §§ 1542-1548 ;(12th ,ed. 1932); 2 Bishop, Criminkl Law § 1032 (9th ed. 1923). Possibly, contra: United States v. Slutzky, 79 F.2d 504 (3 Cir., 1935).
. See discussion in 41 Am.Dur., Perjury- § 13. '
. 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 092 (1929).
. Sea also tlie opinions in this court in Bowers v. United States, 92 U.S.App. D.C. 79, 202 F.2d 447 (1953), and Keeney v. United States, 94 U.S.App.D.C. 366, 218 F.2d 843 (1954).
Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_discover
|
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 interpretation of rules relating to discovery or other issues related to obtaining evidence 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".
Merle R. JENKINS, et al. v. Michael A. STERLACCI, Appellant.
No. 87-7108.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 18, 1988.
Decided June 10, 1988.
As Amended June 21, 1988.
Opinion on Denial of Rehearing Sept. 6, 1988.
Raymond D. Battocchi, Washington, D.C., for appellant.
James R. Treese, Alexandria, Va., for appellees.
Before WILLIAMS, D.H. GINSBURG, and BOGGS, Circuit Judges.
Of the U.S. Court of Appeals for the Sixth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
The question raised by this appeal is whether the district court properly denied appellant’s motion to disqualify a special master who, while preparing a report in this case, represented a client in an unrelated proceeding in which a member of the law firm representing appellant served as opposing counsel. In order to resolve this question, we must assay the degree to which each member of a law firm is charged with knowledge about the activities of every other member of the firm, the ethical responsibilities of a special master, and the standards to be applied by the district court in addressing a motion to disqualify a special master.
I. Background
The underlying dispute in this case arises from the souring of relations among attorneys who had been in partnership. In 1977, the appellant, Michael Sterlacci, and the appellees, Merle Jenkins and Dennis Nystrom, agreed to form a partnership to practice law in Washington, D.C. At the time, Nystrom and Jenkins were principals in a law firm headquartered in Southfield, Michigan. The parties agreed that Sterlac-ci would assume management responsibilities in the Washington office; it was further agreed that he would not play an active role in the legal or managerial affairs of the Michigan office. Administration of the firm was centralized at the Michigan office, which maintained the accounting records of, and paid bills pertaining to, the Washington office. Attorneys practicing out of the Washington office billed their clients directly, but all fees were to be sent to the Michigan office for deposit in a separate account maintained there for the Washington office. The Michigan office generated monthly profit and loss statements for the Washington office.
In December 1981, the parties agreed to close the Washington office after the Michigan partners determined that it was not a promising business venture. A series of financial disputes between the parties, however, prevented the immediate dissolution of the partnership. Unable to negotiate an acceptable distribution of the partnership assets, Nystrom and Jenkins filed suit against Sterlacci in the District of Columbia Superior Court, alleging inter alia, breach of contract and breach of fiduciary duties. Sterlacci removed the action to the district court, invoking its diversity jurisdiction, and counterclaimed in kind.
The district court found that Jenkins and Nystrom were liable for breach of contract to the extent that they failed to implement an agreed-upon compensation formula. The court also found that they breached their fiduciary duties by failing to abide by this formula in their bookkeeping practices. Sterlacci admitted that he had diverted fees from the Washington office’s billings into a local money market account he maintained with a colleague from that office.
The court ordered that a special master be selected under the Commercial Arbitration Rules of the American Arbitration Association, and charged the special master with determining the damages owing to the respective parties. Professor Harold C. Petrowitz of American University was appointed special master. In all proceedings before the district court and the special master, Sterlacci was represented by Raymond D. Battocchi, a member of the law firm of Cole and Groner, P.C.
We now draw our attention closely to the chronology of the end-game. Evidentiary proceedings before the special master were concluded on April 7, 1986; closing briefs were filed on April 23, 1986. On May 2, 1986, with the Sterlacci matter still before him for decision, special master Petrowitz, acting as an attorney on behalf of Radalab, Inc., filed an unrelated administrative appeal with the Office of Hearings and Appeals of the Small Business Administration (“SBA”). Radalab’s appeal challenged a determination that bore significantly on the success of Accusonics Systems, Inc. in securing a government contract. On May 9, 1986, therefore, Walter Fleischer notified the SBA that he represented Accusonics, and that his client wanted to participate as an interested party in Radalab’s appeal. The cases were no longer unrelated, for Walter Fleischer is a member of Cole and Groner, P.C.
On May 22, 1986, Fleischer filed a brief with the SBA opposing Radalab’s appeal. Petrowitz filed a response to Fleischer’s brief, concluding that “[t]he kindest description that can be accorded [Fleischer’s brief], riddled as it is with inaccuracies and specious assertions, is ‘unprofessional.’ ” On June 13, 1986, the SBA rejected Radal-ab’s appeal; whatever the merits of Fleischer’s brief, his position prevailed over that of attorney Petrowitz.
On July 15, 1986, special master Petrow-itz submitted his report in the Sterlacci case to the American Arbitration Association. Sterlacci’s counsel received the report the following day. On July 24, 1986, Sterlacci moved the district court to disqualify the special master and to vacate his report, alleging that Petrowitz’s participation as an attorney in the SBA proceeding raised reasonable doubts about his impartiality as a special master in this case, and that his report demonstrated that actual bias had infected his consideration of the damages issues.
Responding to this motion, the special master “strongly recommend[ed] that the motion be denied,” providing three reasons: (1) the special master could not have known that a member of Cole and Groner was involved in the SBA proceeding until after the initial pleadings had been filed; (2) once he became aware of Cole and Groner’s role in the SBA appeal, he “assumed with complete justification that all partners in the law firm of Sterlacci's counsel would be aware of his [i.e., Petrowitz’s] participation in” the Sterlacci case; and (3) the motion to disqualify was not filed until after his report had issued, raising “[t]he inescapable inference ... that [Sterlacci] and his counsel [were] dissatisfied with the Report ... and [used] an entirely fortuitous circumstance as a basis for avoiding whatever consequences the Report might have.”
The district court denied the motion to disqualify, concluding that there was “no indication of bias and no reason to disqualify the master.” Jenkins v. Sterlacci, C.A. No. 82-2010, Order at 4 (D.D.C. Dec. 16, 1986) (citing Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.1976)). Sterlacci appealed.
II. Appearance of Partiality
The American Bar Association Code of Judicial Conduct for United States Judges, which was approved by the Judicial Conference of the United States, directs a judge to “disqualify himself in any proceeding in which his impartially might reasonably be questioned.” Code of Judicial Conduct for United States Judges Canon 3.C(1); see also 28 U.S.C. § 455(a) (same standard applicable to “any justice, judge, or magistrate of the United States”). The Code further provides that “[a]nyone ... who is an officer of a judicial system performing judicial functions, including an officer such as a ... special master ... is a judge for the purpose of this Code.” Id. at 1-58. Plainly, then, special master Petrow-itz was obligated to disqualify himself in this case if, as Sterlacci argues, his participation might reasonably be regarded as raising the specter of partiality, unless, as Jenkins and Nystrom suggest, the parties effectively waived their objection. See id. Canon 3.D, compare 28 U.S.C. § 455(e) (parties may waive disqualification of judge based on appearance of partiality standard of § 455(a)); see United States v. Murphy, 768 F.2d 1518, 1540 (7th Cir.1985).
A. Standard Applied to Special Masters
The appellees argue that special masters should be held to a lesser standard of conduct than judges because they are subject to “control” by the district court. Within the framework of the Code, we take this argument to mean that a special master’s impartiality cannot as readily be questioned, by virtue of the district court’s supervision — in anticipation of which the master would keep to the straight and narrow path. As we explain more fully below, the district court’s oversight of the special master may indeed be important in cases where actual bias is alleged to have tainted proceedings before the special master. We cannot agree, however, that the control over the special master that a district court exercises is a sufficient basis for holding special masters to a lesser standard of conduct. As the Supreme Court has stated:
A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); see also Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2704, 41 L.Ed.2d 897 (1974) (“[T]he inquiry must be not only whether there was actual bias on [the judge’s] part, but also whether there was ‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ ”) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).
It is this prophylactic protection against bias on the part of “[a]ny one ... performing judicial functions,” expressly including special masters, that Canon 3.C(1) of the Code of Judicial Conduct is designed to achieve. The court’s interest in the administration of justice, and the public’s confidence in the fairness of our judicial system, require no less. We would disserve both causes were we to suggest that some lesser standard may appropriately be applied to special masters by virtue of an imprecise, indeed merely probabilistic, assessment of the effectiveness that district court oversight of a special master’s findings may entail.
The circumstances of this case, which is altogether typical of many cases in which a special master is used, expose the danger of such an approach. Here, a special master was appointed by the district court to assist it in the laborious task of determining the amounts owing to the respective parties from the partnership for the practice of law. Apparently in order to enlist the expertise of an individual familiar with such matters, the court specified that the master, to be chosen by the American Arbitration Association, be a lawyer. That expertise was enlisted in this case to help the court resolve three specific factual disputes: (1) the cumulative net profit of the Washington office; (2) the amount of that profit that Jenkins and Nystrom had already received; and (3) the distribution of partnership assets deposited in the registry of the district court during the pendency of the litigation. Sterlacci, supra, Mem.Op. at 10 (D.D.C. June 21, 1984). The special master’s factual findings on these issues were reviewed by the district court only for “clear error,” as required by Rule 53(e)(2) of the Federal Rules of Civil Procedure. In the face of conflicting evidence, the “clear error” standard insulates a special master’s findings from reversal by the district court unless that court “is left with the definite and firm conviction that a mistake has been committed.” Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 547 F.2d 575, 580 (D.C.Cir.1976) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Thus, even though a special master’s findings may go against what the district court and this court believe to be the weight of the evidence, those findings may nonetheless be upheld. Id. In this respect, the special master occupies a position functionally indistinguishable from that of a trial judge.
Given the complexities of the issues special masters are frequently called upon to sort out, the closely disputed issues of fact they must resolve in the first instance, and the “clear error” standard governing the court’s review of their findings, the district court’s oversight of a special master falls far short of plenary “control”; there is a range within which a special master’s partiality may operate unchecked and uncheckable by the district court. For that reason, it is the special master who must, in the first instance, confront and consider — sensitively and thoroughly— whether personal, professional, financial, or social relationships may so infect his consideration of a case as to create genuine issues about his ability impartially to resolve close and difficult questions of fact. Cf. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C.Cir.1988) (noting that a judge’s assessment of his own impartiality or the possible appearance of impropriety “is not a decision that an appellate panel may make for a district court judge in the first instance.”). In considering questions of disqualification in situations where a special master’s impartiality is called into question, we hold that the special master must hold himself to the same high standards applicable to the conduct of judges. See United States v. Conservation Chemical Co., 106 F.R.D. 210, 234 (W.D.Mo.1985).
We do recognize, however, that unlike judges, special masters are often practicing attorneys. They therefore may wear different hats depending upon the professional function they are performing from one day to the next. In one matter they may be required to observe the impartial decorum of a decisionmaker, while in another they may be called upon to assume the perspective, and the partiality, of an advocate. This duality of roles places a burden on the special master with an active law practice, but its discharge does not require that once he has accepted an assignment as a special master, an attorney place his life as an advocate in a state of suspended animation. Such a requirement would be counterproductive, since many of the best qualified candidates would certainly forego service as a special master if, during that service, they were required to forego completely their private practice. Instead, it is sufficient, and necessary, that an individual who accepts an appointment as a special master scrupulously avoid any undertaking, as an advocate or otherwise, that would tend or appear to compromise his impartiality as a decisionmaker.
B. Waiver of Objection Based on Appearances
In this case, there is no disagreement among the parties that Petrowitz had no way of knowing, when he filed the administrative appeal before the SBA, that he would be opposed by the same law firm that had appeared on behalf of a party in the case over which he was presiding as special master; this point was clearly conceded at oral argument. We may conclude without hesitation, therefore, that the special master’s act of filing the administrative appeal was entirely proper. Any appearance of impropriety occasioned by the master’s participation in the SBA appeal arose only because Cole and Groner, through Fleischer, subsequently appeared as opposing counsel.
Both Fleischer and Battocchi filed affidavits indicating that they were unaware that Professor Petrowitz had donned both the role of decisionmaker and the role of opposing counsel when Cole and Groner entered the SBA proceedings; they became aware of the potential conflict only after the fact, and only because of a happenstance conversation between them. We have not the slightest reason to doubt their account of how the matter came to their attention. The lack of actual knowledge as between members of a law firm, however, is not dispositive of the issue before us. District of Columbia law provides:
Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
D.C.Code Ann. § 41-111 (1981).
Obviously, as counsel for Sterlacci, Battocchi individually knew that Petrowitz was serving as special master in his dispute with Nystrom and Jenkins; and since his representation in that case was undertaken in his capacity as a member of the firm of Cole and Groner, it was a “matter relating to partnership affairs.” We believe, moreover, that Battocchi “reasonably could and should have communicated” to his colleagues at Cole and Groner that he was participating in a proceeding in which Pe-trowitz acted as a special master. In order to avoid problems arising from the representation of clients with adverse interests, it is standard practice for law firms to assure that each partner is aware of the clients and matters with which the firm is involved. It will not unreasonably burden this conflict-avoidance procedure if partners are expected also to notify each other of the special masters before whom they are appearing.
D.C. law thus charges Fleischer with constructive notice of Petrowitz’s role as special master in the Sterlacci case when he entered an appearance on behalf of Accusonics in the SBA proceeding in which Petrowitz was already counsel of record for Radalab. Charged with knowledge of Petrowitz’s potentially conflicting roles, Cole and Groner had to choose between alternative courses of action: either (1) decline to represent Accusonics in the SBA appeal proceeding, or (2) proceed with that representation, after full disclosure to, and agreement by, both Accusonics and Sterlacci, thereby waiving any objection to the special master’s continued participation in Sterlacci based on the appearance of a conflict of interest. The firm could not reasonably suggest that, instead, Petrowitz withdraw from either proceeding because of an appearance of impropriety that it created by its own actions, which were no doubt taken only because of a failure to communicate relevant information within the firm.
The choice between these alternatives was never consciously made, of course, because neither Fleischer nor Bat-tochi was actually aware of the critical details of the matter in which the other was involved on behalf of the partnership. Indeed, even if their firm had an optimally effective conflict-avoidance procedure, there would always be some risk that a partner would lack actual knowledge of such a conflict. Accordingly, it would have been desirable for the special master to have pointed the potential problem out to the respective attorneys when it came to his attention. Indeed, as a special master, Petrowitz was ethically required to make such a disclosure if, as we may fairly assume, his impartiality might otherwise have reasonably been questioned. See Code of Judicial Conduct, supra, Canon 3.D (one disqualified by reason of appearance only may, instead of withdrawing, disclose on record basis of disqualification, which parties and lawyers may waive); 28 U.S.C. § 455(e) (same); American Arbitration Ass’n, Code of Ethics for Arbitrators in Commercial Disputes Canon 11.A-C (1977) (requiring arbitrators to disclose, “at any stage of the arbitration,” any relationships that “might reasonably create an appearance of partiality or bias”). If disclosure had been made, Cole and Groner, and its clients, could have made an informed decision about which of the alternatives open to them would best serve their respective interests. Regrettably, however, the special master assumed away this responsibility, choosing to rely instead on the law firm’s obligation to make all of its members aware of each of its members’ partnership affairs.
This case, therefore, involves complementary failures on the parts of both Cole and Groner and of special master Petrowitz effectively to disclose among themselves the problems created by Fleischer’s participation in the SBA proceeding. While the special master’s failing in this regard is not excusable, neither is it decisive in view of the statutory imputation of knowledge to Cole and Groner. Their objection to the special master’s participation in the Sterlacci case is thus waived to the extent that it rests upon the appearance of impropriety, as opposed to actual bias.
Our conclusion that the objection is waived would stand, even apart from the constructive notice provision of the District of Columbia partnership law, on the extreme untimeliness of the appellant’s motion to disqualify. That motion came only after proceedings before the special master had been completed and the special master’s report had been filed. As we recently held, “[a] motion for recusal based upon the appearance of impropriety can have only prospective effect.” Liberty Lobby, 838 F.2d at 1302 (citing Murphy, 768 F.2d at 1539). A motion to disqualify a special master should be subject to the same limitation.
III. Actual Bias
Sterlacci argues, in the alternative, that the special master should be disqualified, and his report vacated, because the report and the SBA proceedings demonstrate that Petrowitz was actually biased against Cole and Groner, and hence against their client. This portion of appellant’s motion is unaffected by the waiver occasioned by Fleischer’s participation in the SBA proceeding. See Code of Judicial Conduct, supra, at Canon 3.C.(1)(a) (disqualification for “personal bias or prejudice concerning a party”); id. at Canon 3.D (same not waiva-ble); cf. Murphy, 768 F.2d at 1540 (§ 455 read to same effect). Thus, even though a party may have waived any “appearance” problems arising in proceedings before a special master, the district court may, upon motion, properly review a claim of actual bias.
A party alleging actual bias on the part of a judge must prove that claim by evidence of the judge’s extra-judicial conduct or statements that are plainly inconsistent with his responsibilities as an impartial decisionmaker. Liberty Lobby, 838 F.2d at 1301; United States v. Haldeman, 559 F.2d 31, 132-34 & n. 297 (D.C. Cir.1976) (en banc). Because, as we concluded above, special master Petrowitz performed a role functionally indistinguishable from that of a judge, the same standard applies to Sterlacci’s claim that Petrowitz was actually biased against him.
The only evidence of actual bias drawn from extra-judicial sources that Sterlacci has presented to us is in the papers Petrowitz filed with the SBA on behalf of Radalab, Inc. These papers, Ster-lacci contends, “contained unprovoked am-mony and unwarranted personal attacks upon Fleischer,” and thus demonstrate Pe-trowitz’s actual bias or prejudice against Cole and Groner. While the ad hominem aspect of Petrowitz’s filings is a bit unusual, see, e.g., supra at p. 4, we cannot say that cantankerous remarks of this type are clearly beyond the bounds of proper advocacy. There is, moreover, simply no evidence that Petrowitz’s loss, in his professional capacity as an advocate before the SBA, affected him personally, so as to raise a concern that he would try to “even the score” with Cole and Groner in his capacity as the special master in Sterlacci. On average, each attorney suffers a comparable loss in fully one half the contests he enters; in only the rare instance, however, is a lawyer thereafter incapable of respecting his adversaries and maintaining amicable professional relations with them. There is no evidence of that failing chargeable to special master Petrowitz.
On the evidence presented to us, we can conclude nothing more than that Petrow-itz’s involvement in the SBA proceeding as an advocate raised a substantial question as to whether he should have been disqualified on the basis that these activities raised the appearance of a conflict of interest. That objection, as we have shown above, Sterlacci waived.
IV. Conclusion
The district court in this case found “no indication of bias and no reason to disqualify the master.” Having determined that Sterlacci waived any disqualifying appearance of impropriety, we have reviewed with care the specific examples that Sterlacci has cited as evidence of actual bias. We have found that this evidence is not probative of actual bias on the part of the special master. Accordingly, the judgment of the district court is
Affirmed.
. In Morgan v. Kerrigan, 530 F.2d 401, 426 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976), the First Circuit stated:
Since special masters ... are subject to the control of the court and since there is a need to hire individuals with expertise in particular subject matters, masters ... have not been held to the strict standard of impartiality that are applied to judges.
For the reasons stated in the text, we find this reasoning unpersuasive; we believe that, at least insofar as special masters perform duties functionally equivalent to those performed by a judge, they must be held to the same standards as judges for purposes of disqualification.
. As we explain below, the untimeliness of the motion to disqualify and the unique circumstances of this case effectively prevented the special master from undertaking a searching inquiry into his ability impartially to resolve the damages issues in this case. We do note, however, that the special master responded thoroughly to appellant’s allegations of actual bias.
. We need not consider the consequences, apart from its effect, if any, on the motion to disqualify, attending the special master’s failure to disclose the potential conflict created by Cole and Groner’s appearance before the SBA. The ethical obligations found in the Code of Ethics for Arbitrators in Commercial Disputes are not enforced through judicial review, as noted therein.
. While we express no view on the firm’s responsibilities to its clients, we recognize that the clients’ interests are among those most immediately to be protected by effective communication among members of a law firm and timely disclosure of possible conflicts of interests.
. In United States v. Murphy, the Seventh Circuit intimated that where the facts surrounding a judge’s possible conflicts are or should be known by the parties in a case before that judge, disqualification based on the appearance of partiality may be waived, even though the judge makes no attempt to disclose the potential conflict. Murphy, 768 F.2d at 1540-41. We believe the same rule should be applied to a knowledgeable party before a non-disclosing special master, although we reiterate that disclosure should have been made.
. Counsel for appellant forthrightly drew the attention of the court to this recent precedent, which was decided after the close of briefing, but counsel made no attempt to distinguish the case.
. Not surprisingly, the special master's report, on its face, contains no evidence of actual bias stemming from extra-judicial sources. Sterlacci argues nonetheless that the report provides probative evidence of actual bias because it "resolves virtually every disputed issue against [him], and arrives at an ultimate award to him which is unreasonably low.” Sterlacci apparently argues, in other words, that the findings in the report can be related to an extra-judicial source of prejudice, namely, Petrowitz’s advocacy before the SBA. Thus, Sterlacci would have us engage in a more painstaking review than the "clear error” standard of Rule 53 mandates.
Even if such review were appropriate, and we are convinced that it is not, Sterlacci’s claim must fail. As a means of establishing actual bias, a court's efforts to relate a master’s findings to extra-judicial actions that are sufficient to raise a substantial question about disqualification on the basis of appearances, but are insufficient in themselves to establish actual bias, would ultimately require a judgment too refined and much too calibrated in its distinctions to be practical. Such an undertaking would inevitably become an exercise in judicial speculation. Speculative conclusions of bias are, however, ultimately nothing more than conclusions deduced from "appearances.” Sterlacci has waived objections based on appearances, and they cannot be resurrected under the guise of "actual” bias.
Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_casesource
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024
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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.
SOUTHERN PACIFIC TRANSPORTATION CO. v. COMMERCIAL METALS CO.
No. 81-622.
Argued March 31, 1982
Decided April 27, 1982
Blackmun, J., delivered the opinion for a unanimous Court.
James H. Pipkin, Jr., argued the cause for petitioner. With him on the briefs were Charles G. Cole, Michael R. Johnson, and Harold S. Lentz.
David M. Sudbury argued the cause for respondent. With him on the brief were Richard Gary Thomas and Robert L. Feldman.
Briefs of amici curiae urging reversal were filed by Nelson J. Cooney, Robert A. Hirsch, Alan J. Thiemann, and Kenneth E. Siegel for the American Trucking Associations, Inc.; and by Patricia A. Smith for the Association of American Railroads.
Frederic L. Wood filed a brief for the National Industrial Traffic League as amicus curiae urging affirmance.
Justice Blackmun
delivered the opinion of the Court.
This case presents the question whether a common carrier’s violation of credit regulations issued by the Interstate Commerce Commission (ICC) bars the carrier’s collection of a lawful freight charge from a shipper-consignor who, under the terms of the shipment’s bill of lading, is primarily liable for the charge.
I
Petitioner Southern Pacific Transportation Company (SP) is a common carrier by rail. Respondent Commercial Metals Company (Metals), a Delaware corporation with principal place of business in Dallas, Tex., is in the business of buying and selling steel goods. Petitioner instituted this action against respondent in the United States District Court for the Northern District of Texas to recover freight charges for three cars of steel cobble shipped by rail in 1974 from Detroit, Mich., to Alhambra, Cal.
Each of the three shipments was consigned by Metals to Penn Central Transportation Company, as initial carrier, under the uniform straight bill of lading prescribed by the ICC. Each bill of lading included a “nonrecourse” clause that the consignor might sign. That clause reads: “Subject to Section 7 of Conditions, if the shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges.” In each instance, respondent Metals, as consignor, failed to execute this nonre-course clause. Metals, however, already had received payment for the goods prior to shipment. Tr. of Oral Arg. 5, 6, 24-25; Brief for Respondent 21.
The first of the three cars was tendered to Penn Central at Detroit on April 11, 1974, for transportation to Careo Steel Corporation (Careo), as consignee, in Alhambra. SP released the car to Careo on April 25 without collecting the freight charge in advance of delivery. On the same day, however, SP mailed to Careo a bill for $4,634.11, the correct amount of the charge. Careo was not a credit patron of SP and had never applied to SP for credit. SP never before had made a delivery to Careo. Nevertheless, the carrier made no investigation of Carco’s credit standing.
The second and third shipments took place on May 2, 1974, when Metals consigned two other cars of cobble to Penn Central for transportation to Careo. SP delivered the cars to Careo on May 16. This time, SP released the cars only after receiving checks from Careo in the respective amounts of $5,761.79 and $2,383.67 for the freight charges. The larger amount was correct, but the smaller check should have been for $3,283.66 and thus was $900 short. On May 20, SP issued freight bills in the correct amounts to Careo. The two checks were dishonored by Carco’s bank for insufficient funds.
In August 1974, after efforts to collect the unpaid freight charges from Careo had proved fruitless, SP filed suit against Careo in a California state court. Attempts to serve the summons and complaint were unsuccessful.
On December 17,1976, more than 30 months after the shipments, SP notified Metals of Carco’s failure to pay the freight charges. SP requested that Metals, as the consignor who had failed to execute the nonrecourse provision in the bills of lading, pay the $13,679.56 total charges in satisfaction of its primary liability for the three shipments. This was the first notice to Metals that the freight charges had not been collected from Careo. When payment was not forthcoming, SP instituted the present action against Metals in federal court.
On this record, stipulated by the parties, the District Court ruled that SP had established a prima facie case for the recovery of the freight charges from Metals. It found the charges correct and in accord with applicable tariffs and that no part of those charges had been paid. App. 22. “Absent a showing of valid and affirmative defenses,” then, Metals was liable to the carrier. Id., at 23. The court rejected Metals’ claim that the passage of time barred SP’s recovery; although Metals lacked notice until December 1976 that the charges for the 1974 shipments had not been paid, the court noted that the applicable period of limitation was three years and that the carrier had been making efforts to locate Carco and to receive payment.
The District Court, however, went on to hold that Metals had established a valid equitable defense to SP’s collection of the charges by showing that SP had failed to comply with the ICC’s credit regulations promulgated pursuant to § 3(2) of the Interstate Commerce Act, 49 U. S. C. § 3(2). App. 23. See 49 CFR pt. 1320 (1981). The court was not persuaded by SP’s suggestion that Metals had failed to avail itself of its contractual opportunity for exoneration afforded by the non-recourse provision in the bills of lading. The court concluded: “The loss sustained by [SP] was due entirely to its own fault and negligence by failing to take the proper credit precautions when it delivered the goods to Careo. ... I think that it is fundamentally unfair and inequitable for the defendant in this case to pay for the gross negligence of the plaintiff.” App. 24. Accordingly, judgment was entered for Metals. Id., at 26.
The United States Court of Appeals for the Fifth Circuit affirmed that judgment. 641 F. 2d 235 (1981). Like the District Court, the Court of Appeals acknowledged that in the absence of a valid defense, Metals must be held liable to SP for the freight charges. Id., at 236. The court felt, however, that § 3(2) of the Act, the payment-before-delivery provision, provided a barrier to the carrier’s collection of the charges from the consignor. The implementing regulation, which modified the statutory mandate by allowing for delivery of freight on credit for up to five days, nevertheless was “quite strict.” Ibid. Thus, Metals could assert as a defense the carrier’s extension of credit to Careo without adequate precautions for a period in excess of that provided by the regulation. The court concluded: “Under these circumstances, we are compelled to hold that the carrier’s failure to comply with the applicable ICC regulations is a defense, available to [Metals], in an action by [SP] for unpaid freight charges.” Id., at 239.
Because of a conflict in the decided cases, we granted certiorari. 454 U. S. 1052 (1981).
HH I — (
Since 1919, the ICC has prescribed a uniform bill of lading for use on all interstate domestic shipments of freight by rail. See In re Bills of Lading, 52 I. C. C. 671 (1919), modified, 64 I. C. C. 357 (1921), further modified, 66 I. C. C. 63 (1922). The bill of lading is the basic transportation contract between the shipper-consignor and the carrier; its terms and conditions bind the shipper and all connecting carriers. Texas & Pacific R. Co. v. Leatherwood, 250 U. S. 478, 481 (1919). “Each [term] has in effect the force of a statute, of which all affected must take notice.” Ibid. Unless the bill provides to the contrary, the consignor remains primarily liable for the freight charges. When the ICC first promulgated the uniform bill of lading, it stated:
“The consignor, being the one with whom the contract of transportation is made, is originally liable for the carrier’s charges and unless he is specifically exempted by the provisions of the bill of lading, or unless the goods are received and transported under such circumstances as to clearly indicate an exemption for him, the carrier is entitled to look to the consignor for his charges.” In re Bills of Lading, 52 I. C. C., at 721.
This rule has not changed over time. Recently, the ICC again observed that the consignor’s liability “is governed by the bill of lading contract between the parties and must be decided by interpreting that contract.” C-G-F Grain Co. v. Atchison, T. & S. F. R. Co., 351 I. C. C. 710, 712 (1976).
Clearly, then, under the contract between Metals as consignor and SP as the carrier, the consignor was primarily liable for the freight charges in question. Just as clearly, however, Metals was in a position to effectuate its release from liability by executing the nonrecourse clause in the bill of lading. Signing that clause would have operated to excuse Metals from liability. By failing to execute the nonrecourse provision, Metals continued to be primarily liable for those charges. Illinois Steel Co. v. Baltimore & O. R. Co., 320 U. S. 508, 513 (1944); New York, N. H. & H.R. Co. v. California Fruit Growers Exchange, 125 Conn. 241, 254-255, 5 A. 2d 353, 359, cert. denied, 308 U. S. 567 (1939). See also Louisville & Nashville R. Co. v. Central Iron Co., 265 U. S. 59, 65-67 (1924).
It is perhaps appropriate to note that a carrier has not only the right but also the duty to recover its proper charges for services performed. Id., at 65-66, and n. 3. See Pitts burgh, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577, 581-583 (1919). This rule of strict adherence to statutory standards is in line with the historic purpose of the Interstate Commerce Act — to achieve uniformity in freight transportation charges, and thereby to eliminate the discrimination and favoritism that had plagued the railroad industry in the late 19th century. Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356, 361 (1943); New York, N. H. & H. R. Co. v. ICC, 200 U. S. 361, 391 (1906).
Both the District Court and the Court of Appeals correctly found that SP had established a prima facie case of Metals’ liability for the freight charges in question by proving that Metals had failed to sign the nonrecourse clause. This much, indeed, is conceded by Metals. Brief for Respondent 11; Tr. of Oral Arg. 31.
Ill
SP concedes that its failure to collect all freight charges from Carco before releasing the shipments violated the ICC regulation with regard to at least the first of the three shipments. Id., at 4, 17. See 49 CFR § 1320.1 (1981), quoted in n. 6, supra. The question, then, is whether the Court of Appeals properly found that SP’s violation of the regulation provided Metals with an equitable affirmative defense to SP’s prima facie case.
A. The ICC has comprehensively regulated the extension of credit to shippers by rail carriers. See 49 CFR pt. 1320 (1981). Yet neither the statute under which the regulations were promulgated, 49 U. S. C. §3(2), nor the regulations themselves intimate that a carrier’s violation of the credit rules automatically precludes it from collecting the lawful freight charge. Nor does either contain any words of affirmative defense to a freight charge action. Indeed, to the extent the ICC has spoken to this question, it has stated: “[A] violation of section 3(2) by [a carrier], in itself, would have had no effect on [a consignor’s] responsibility for payment of undercharges.” C-G-F Grain Co. v. Atchison, T. & S. F. R. Co., 351 I. C. C., at 712. Although § 3(2) “prohibits a rail carrier from delivering freight without collecting all charges thereon[,] ... it contains no provision shielding a consignor from liability for lawful charges.” Ibid. Thus, at least in dictum, the ICC has suggested that “[t]he question of [a consignor’s] liability [under a bill of lading] does not turn on whether any provision of the act has been violated.” Ibid.
We view the absence of any provision for an affirmative defense in the ICC’s credit regulations as an administrative construction of the statute that aids our determination of congressional intent. “[L]egislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. . . . Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence.” Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 565 (1980). We so regard the administrative silence here. When an administrative agency historically has engaged in comprehensive regulation of an industry’s credit practices, the agency’s silence regarding an affirmative defense based on a violation of those regulations must be deemed significant.
B. The legislative and administrative history of the credit regulations further indicates that this silence was not inadvertent — the intent of the rules was to protect carriers, not to penalize them. Prior to 1918, the Federal Government did not regulate the extension of credit by rail carriers. Wartime regulation revealed, however, that a general requirement of payment before delivery would protect the working capital of carriers and avoid discrimination among credit recipients. Cf. Ex parte No. MC-1, 2 M. C. C. 365, 374 (1937). After the first World War, when Congress returned the railroads to private control, § 405 of the Transportation Act, 1920, 41 Stat. 479, added paragraph (2) to § 3 of the Interstate Commerce Act. See n. 5, supra. The regulations adopted by the ICC in 1920 under the statute as so amended permitted railroads to extend limited credit to shippers on a nondiscriminatory basis. The regulations have remained largely unchanged to the present time. Until 1971, no court seriously suggested that a violation of the credit regulations precluded a carrier from collecting a freight charge from the party with primary liability. Instead, a defense of estoppel based on a violation of the credit regulations was held to be inconsistent with the purpose of the regulations themselves. Courts were concerned that a rule permitting selective estoppels would defeat the antidiscrim-inatory purpose of the Act and would weaken the capital structure of common carriers. See, e. g., Western Maryland R. Co. v. Cross, 96 W. Va. 666, 673, 123 S. E. 572, 575 (1924); Chicago Junction R. Co. v. Duluth Log Co., 161 Minn. 466, 469, 202 N. W. 24, 25 (1925); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S. W. 2d 505, 507 (Tex. Civ. App. 1944).
Despite the absence of any textual or historical support for an affirmative defense in either the statute or the regulations, the Court of Appeals concluded that Metals could raise SP’s failure to comply fully with the regulations as an absolute equitable defense to SP’s freight charge action. The Court of Appeals relied primarily on what it regarded as “a closely analogous situation,” 641 F. 2d, at 237, presented in Consolidated Freightways Corp. v. Admiral Corp., 442 F. 2d 56 (CA7 1971). On examination, however, that Seventh Circuit case plainly is distinguishable from the present one. The defendant there was a consignee to whom goods had been delivered under bills of lading marked “prepaid.” Relying upon the carrier’s explicit representation of prepayment, the consignee paid the amount of the freight charges to the shipper-consignor. In fact, however, the carrier had extended credit to the consignor and had failed to collect the charges within the period allowed by the regulations. When the consignor went out of business, the carrier turned to the consignee for payment. The Court of Appeals, by a divided vote, held the carrier estopped.
Admiral differs from this case in four crucial respects. First, in Admiral, the carrier not only violated ICC credit regulations but also made to the defendant a material misrepresentation regarding prepayment. The carrier here, in contrast, was charged solely with failure to observe the applicable ICC credit regulations. Second, in the Seventh Circuit case, the consignee-defendant had paid full freight charges to the consignor. Had the Seventh Circuit also awarded relief to the carrier, it would have “require[d] an innocent consignee to defray freight charges exactly double the amount contemplated by the applicable tariffs.” 442 F. 2d, at 65 (Stevens, J., concurring). Here, the defendant paid no freight charges; thus, an award of relief to the carrier creates no possibility of enforcing a double payment.
Third, in Admiral, the grounds for equitable estoppel were created by the consignee’s payment of freight charges in detrimental reliance on the carrier’s misrepresentation. The carrier’s violation of the credit regulations offered only “additional grounds for the intervention of the principles of equity.” Id., at 60 (majority opinion). In this case, there is no suggestion that the consignor knew of, or changed its position detrimentally in reliance on, the carrier’s credit violation. Fourth, and most significant, the defendant-consignee in the Seventh Circuit case had no means by which to protect itself from freight charge liability. In this case, of course, the defendant-consignor could have protected itself completely simply by signing the nonrecourse clause in the bills of lading.
C. Finally, public policy concerns disfavor judicial implication of affirmative defenses based on carrier violations of the Commission's credit regulations. We recognize that the regulations are technical. Thousands of railcars are delivered every day by the country’s railroads. See Association of American Railroads, Yearbook of Railroad Facts 25 (1981) (approximately 62,000 deliveries per day). Almost inevitably, some cars will be delivered to noncredit patrons, some freight bills will be sent out late, and some accounts will not be collected within the specified time. A 1966 study by the ICC’s Bureau of Enforcement found that almost a third of 15,751 bills examined were overdue and that over half of those overdue were delinquent more than 10 days. See In re Regulations for Payment of Rates and Charges, 326 I. C. C. 483, 485 (1966). After appraising this data, the ICC agreed that “the evidence establishes many and continued violations of the credit regulations. However, we are unable to conclude on this record that rigid rules . . . would provide a practical or desirable solution. [Tjhere are many reasons for credit violations which are beyond correction by rules, e. g., where shippers have unexpected peak workloads, where there are controversies over amounts due, where additional information is needed such as weights or evaluations, where standard office procedures are in the process of change, where temporary cash flow problems occur, and where it becomes necessary to check the validity of charges with third persons. Stringent credit rules . . . would destroy the flexibility needed to meet problems of this nature.” Id., at 489-490. Indeed, in 1980, the ICC proposed repealing the credit regulations altogether, noting that “apparent, widespread noncompliance with the regulations indicates that the payment periods and other time limits prescribed are simply not realistic for many of the situations in which they apply.” Ex parte Nos. MC-1, 73, 143, and 170, 45 Fed. Reg. 31766.
It thus appears that the Court of Appeals in the present case implied an affirmative defense that would penalize railroads for violations of the credit regulations just as the agency responsible for administering those regulations was pronouncing them unrealistic. The prospect raised for the carrier is that it will be barred from recovering lawful freight charges, even from a consignor'who fails to execute the non-recourse clause, for possibly unavoidable violations of the credit rules. “The obvious consequence would be to discourage [carriers] from extending credit where the operation of this rather difficult statute is in doubt.” Bruce’s Juices, Inc. v. American Can Co., 330 U. S. 743, 753 (1947). Ironically, those shippers who pay their bills currently in a responsible manner would suffer as a result.
Metals argues that a ruling for SP places SP “in the unrealistic position of being incapable of doing any wrong” and therefore creates “no incentive [for carriers] to improve inefficient and careless credit practices.” Brief for Respondent 12. Metals further claims that the loss at issue here would not have occurred if SP only had complied with its obligations under the regulations. Id., at 24. The answer to this is that the ICC has ample authority to police the credit practices of carriers and thereby to deter improper practices. This authority includes the power to issue a cease-and-desist order, see Shaw Warehouse Co. v. Southern R. Co
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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_appfed
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STERLING ALUMINUM COMPANY, a Division of Federal-Mogul, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 18829.
United States Court of Appeals Eighth Circuit.
Feb. 29, 1968.
James S. Newberry, of O’Herin & Newberry, Malden, Mo., for petitioner.
Paul J. Spielberg, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John E. Nevins, Atty., N.L.R.B., Washington, D. C., on the brief.
Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
The Sterling Aluminum Company, a division of Federal-Mogul, petitions this Court to review an order of the National Labor Relations Board. Reported at 163 NLRB 40, March 9, 1967, 64 LRRM 1354. The Board requests that its order be enforced. This Court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act. 29 U.S.C. § 160(e), (f) (1964 ed.).
The Company, a manufacturer of automobile pistons, transferred its operations from St. Charles to Malden, Missouri, and began production in March, 1963. The International Molders and Allied Workers Union of North'- America, AFL-CIO, who represented the employees at St. Charles, followed the Company to Malden, and instituted an organizational campaign July 12, 1964. It made rapid progress and filed a representation petition with the Board on July 27th (Case No. 14-RC-4904). The Company conducted a vigorous campaign against Union representation, which resulted in the Union losing the N.L.R.B. supervised election on September 17th. The Union filed objections to the election and unfair labor practice charges.
The General Counsel, after an investigation of the charges, issued a complaint alleging that the employer had violated Section 8(a) (1) and (3) of the Act. 29 U.S.C. § 158(a) (1), (3) (1964 ed.).
The Trial Examiner concluded that the Company violated Section 8(a) (1) of the Act by threatening reprisals, promising and granting benefits, coercively interrogating employees, subjecting Union supporters to ridicule, engaging in and creating the impression of surveillance, inducing and encouraging employees to report on the Union activities of fellow employees, threatening to bargain in bad faith, creating grievance committees to discourage Union membership, and other related acts of unlawful interference. He also concluded that the Company discharged eleven Union adherents prior to the election to rid itself of the most active unionists and to thin the ranks of Union supporters and, thereafter, in anticipation of another election, discharged seventeen additional employees and refused to rehire one more. He held the twenty-eight discharges and the one refusal to rehire violated Section 8(a) (3) and (1) of the Act. The Board, with minor modifications not material here, adopted the recommendations of the Trial Examiner.
The Company does not contest the Board’s findings and conclusions that the Company violated Section 8(a) (1) of the Act. It asks, however, that its findings and conclusions respecting the discharges and the refusal to rehire be reversed. It contends that the General Counsel failed to sustain its burden of proving that the twenty-nine employees were discharged because of their Union activities, or that it was motivated to discharge them by a desire to interfere with their rights under the Act. It urges that there was a lack of substantial evidence to establish that: it had knowledge of the fact that the discharged employees were members of the Union; it had no legitimate business reasons for discharging the employees; the reasons advanced by it for the discharges were mere pretenses.
The standards to be applied in reviewing decisions of the N.L.R.B. are well recognized. E.g., Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Superior Sales, Inc., 366 F.2d 229 (8th Cir. 1966); N. L. R. B. v. Coachman’s Inn, 357 F.2d 134 (8th Cir. 1966); N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534 (8th Cir. 1963). We apply them here.
In determining whether there is substantial evidence on the whole record to support the findings of the Board that the Company discriminated against twenty-nine employees by discharge or refusal to rehire, it will be convenient to divide them into five groups. Group 1(A) consists of five employees laid off on July 10, 1964, and discharged on August 19, and 1(B) consists of five employees laid off on July 31, 1964, and also discharged on August 19. Group 2 consists of four employees discharged on December 4, 1964, and a fifth employee whose layoff resulted from the discharge of the four. Group 3 consists of four employees laid off on February 3, 1965, and subsequently discharged. Group 4 consists of four employees discharged in February of 1965. Group 5 consists of the remaining employees.
GROUP 1
On July 10, 1964, two days before the Union initiated its organizational campaign, the Company laid off thirty-six employees for economic reasons. On July 31st, it laid off an additional ten employees. A few days later, the Company began the recall of the laid off employees and, within a short time, had recalled all but fourteen of the forty-six. The fourteen were notified by the Company, on August 19, 1964, that their work was unsatisfactory, and that their temporary layoff should be considered permanent. Ten of the fourteen had signed Union cards. It is this ten with which we are concerned.
We turn first to a consideration of Bob Batchelor, Acy Lee Green, Teddy Guffey, Larry Walton and David Midkiff. They were among the thirty-six employees laid off on July 10th, and discharged on August 19th. We have carefully examined the record relating to them and find that there is substantial evidence to support the findings of the Board that the discharge of Batchelor, Green and Midkiff was discriminatory and in violation of Section 8(a) (3). The essential “ingredients” of such findings are a knowledge on the part of the employer that the employee is engaged in Union activity and the discharge of the employee because of this activity. N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 697 (8th Cir. 1965).
There was direct testimony to support a finding that the Company knew that Batchelor was a Union adherent and sufficient circumstantial evidence to justify an inference that the Company had similar knowledge as to Green and Midkiff. The Company carried on a widespread systematic interrogation to determine where each employee stood on the Union question. Its supervisors admitted that they had a good idea as to who the Union adherents were (although, in a few instances, their ideas were wrong). Malden is a small community and many of its leaders were involved in the campaign. N. L. R. B. v. Melrose Processing Co., supra; A. P. Green Fire Brick Company v. N. L. R. B., 326 F.2d 910 (8th Cir. 1964). The Union made no secret of its organizational campaign. It solicited authorization cards in and around the plant building and held its meetings in the meeting room of the Catholic Church, where persons attending could be readily observed coming and going. Employees favorable to the Company indicated where their sympathies lay.
We believe that the record, as a whole, supports the Board’s conclusion that Batchelor, Green and Midkiff were discharged for Union activity rather than for a cause or causes unrelated to such activity. While there is conflict in the testimony, it is not for us to displace the Board’s choice between two fairly conflicting views of the evidence, even though we might have made a different choice of inferences had the matter been before us. N. L. R. B. v. Coachman’s Inn, supra; N. L. R. B. v. Morrison Cafeteria Co. of Little Rock, Inc., supra.
Batchelor was allegedly discharged for absenteeism and poor work but had not been reprimanded for either prior to his layoff.
Green was allegedly discharged • for “running bad pistons” but had been transferred out of the department in which the pistons were made prior to this layoff. His services in the new department were satisfactory.
Midkiff was allegedly discharged for improper inspection of pistons but had not been warned that his work was unsatisfactory despite a custom to give each employee a written notice to this effect.
We do not believe, however, that the record supports the Board’s findings that the discharges of Guffey and Walton were discriminatory. The Board’s determination that the Company knew they were Union members and discharged them for that reason was based entirely on circumstantial evidence. While this is permissible and while the Board is free to draw reasonable inferences from the evidence, N. L. R. B. v. Melrose Processing Co., supra; Kitty Clover, Inc. v. National Labor Relations Board, 208 F.2d 212 (8th Cir. 1953), such inferences must be adequately supported in the record. Otherwise, as Judge Sanborn indicated in Cupples Co. Manufacturers v. National Labor R. Board, 106 F.2d 100, 117 (8th Cir. 1939), the findings of the Board may represent nothing more than accurate guesses.
It is clear that the Company was hostile to the Union, and that it was seriously interfering with the rights of employees at or about the time of the discharges. It was also reasonable for the Board to infer that the Company knew that Guffey and Walton were Union members. We recognize that each of these facts give some support to the inference that the discharges were discriminatory, N. L. R. B. v. Superior Sales, Inc., supra; N. L. R. B. v. Melrose Processing Co., supra; N. L. R. B. v. Council Manufacturing Corporation, 334 F.2d 161 (8th Cir. 1964); N. L. R. B. v. Arkansas-Louisiana Gas Co., 333 F.2d 790 (8th Cir. 1964), but they do not, in our view, support it sufficiently: (1) The July 10th layoff was admittedly nondiscriminatory in nature. (2) The Company had a good reason for discharging Guffey and Walton. Compare, N. L. R. B. v. Byrds Manufacturing Corporation, 324 F.2d 329 (8th Cir. 1963). (3) Three other employees, none of whom were Union adherents, were also discharged for absenteeism on the same date. Cf., National Labor Relations Board v. Fisher Governor Co., 163 F.2d 913 (8th Cir. 1947). (4) There was no evidence that any of the six employees discharged for absenteeism were subsequently replaced. (5) While the Company may have had reasonable cause for believing that Guffey and Walton were Union adherents, there was no indication in the record that they were among the leaders or were active in the organizational drive.
We turn now to a consideration of the five employees laid off on July 31st and discharged on August 19, 1964, namely: Glendle Elsworth, John P. Battles, Earl Thurston, Ether Lee Coats and Rodney Proffer.
We have carefully reviewed the record relating to them and find that there is substantial evidence to support the Board’s conclusion that their discharges were discriminatory. In our view, the Board’s statement with respect to the five is well taken.
“Not only had * * * [they] been passed over in the first, clearly nondiscriminatory, layoff, but they were thereafter laid off just four days after the petition for an election was filed, and only a very short time before Respondent actually began calling back employees from the first layoff, in which these five had not originally been included. If it is assumed, as Respondent apparently contends, that its least desirable employees were laid off first, some explanation would seem to be in order for recalling earlier laid off employees, while terminating those who had originally been retained. No reason appears. Finally, notwithstanding, the contention that the five employees laid off on July 31 were selected by the divisional superintendents, the evidence shows that certainly three, including two of the foremost Union adherents [Battles and Elsworth], were picked out by higher management.”
Not only was there direct testimony indicating that the Company was aware of the fact that Battles and Elsworth were leaders in the drive for Union recognition, but there is a lack of testimony to support the Company’s contention that they were discharged for cause. The incidents relied upon by the Company to establish that Battles had a poor work record occurred after he had been selected as one of the employees to be laid off, and were not demonstrated to have been of a substantial nature. While the Company advanced reasons for discharging Elsworth, the record indicates that he was, in fact, considered to be a good employee doing an essential job.
The Company knew that Proffer was a Union adherent, and had good reason to believe that Coats was, as he was a close friend and constant companion of Elsworth. The Board was, for the reasons previously stated, justified in concluding that the Company was also aware of Thurston’s Union membership.
The Company advanced reasons for the discharge of all three. It contended that Proffer had a record of excessive absenteeism, that Coats failed to “produce enough,” and that Thurston had provoked an argument with a supervisor and was not a valuable employee. While there is some merit to the Company’s position as to each employee, we cannot say that the Board did not reach a permissible conclusion with respect to them. Proffer was not given a final warning as to his absenteeism, and had been complimented by a supervisor as doing “a darn good jobCoats was never shown the disciplinary report indicating he was not meeting his production quota, and denied having been reprimanded for the alleged deficiency; and Thurston had been complimented on his work, and denied provoking an argument with his supervisor.
GROUP 2
Larry Golden, Harold Gough, Lloyd Evans and Gary Burrow were discharged on December 4, 1964, and Frankie Rice was laid off as a result of the discharges.
The Company testified that it discharged the four because they failed to meet a production standard of $1.75 per hour.
A review of the record indicates: that the four employees had not been advised of the $1.75 standard; that the home office of the Company, rather than local supervisors, determined those not meeting the standard; that the other nine employees discharged on December 4th were not members of the Union; that no employees earning less than $1.75 per hour were retained on the payroll; and that replacements were hired for the discharged employees.
The Trial Examiner, whose findings were adopted by the Board, discussed the evidence and concluded:
“The termination of the employees * * * shows a pattern of elimination of employees of fairly long service, with no warning, no previously stated dissatisfaction with the quantity or quality of their work, carried out with an attitude of obvious reluctance on the part of the immediate supervisors most concerned, or asserted mystification as to the reason for the termination of these employees. In the circumstances * * *, the inference [is] compelling that these terminations constitute only another facet in Respondent’s campaign to dilute, if not wipe out, the adherents of the Union among the employees.
“ * * * [I] t strains credibility that administrative officers, far removed from the production scene, would make quite serious decisions about production personnel, on a large scale, without consulting the production supervision directly affected, if in fact, ‘production’ was the basis for the decisions. being made. * * * ”
While the decision of the Company to weed out the “thirteen least efficient” employees without consultation with their immediate supervisor and without advising the employees that the $1.75 per hour standard existed was unfair to the employees and of questionable benefit to the Company, we do not feel that it is reasonable to infer that the Company discharged thirteen employees to eliminate four Union adherents. The record of the Company before and after December 4th indicated that it knew who the Union adherents were and that it had no hesitancy in finding a “reason” for eliminating them. If the Company had discharged four non-Union employees to provide a cover for the elimination of nine Union adherents, the inference made by the Board might well be permissible. But, in this situation, particularly where none of the four were active in the organizational effort and only two (Evans and Burrow) were identified as being known Union adherents by direct testimony, the inference in our view is not a reasonable one. Cf., National Labor Relations Bd. v. Shedd-Brown Mfg. Co., 213 F.2d 163 (7th Cir. 1954); National Labor Relations Board v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952); National Labor Relations Board v. Sifers, 171 F.2d 63 (10th Cir. 1948).
The Board cites, Sheffer Corp. v. N. L. R. B., 380 F.2d 1007 (6th Cir. 1967); N. L. R. B. v. Tidelands Marine Service, Inc., 338 F.2d 44 (5th Cir. 1964); Wonder State Manufacturing Company v. N. L. R. B., 331 F.2d 737 (6th Cir. 1964); National Labor Relations Board v. Williams, 195 F.2d 669 (4th Cir.), cert. denied, 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649 (1952); National Labor Relations Board v. National Garment Co., 166 F.2d 233 (8th Cir.), cert. denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L.Ed. 1768 (1948), to support its view that it was permissible for the Board to infer that non-Union employees were discharged to lend credence to the discharge of Union adherents. We do not believe that the cases cited are authority for drawing the inference here.
In Sheffer, the employer discontinued an entire night shift of twenty-seven employees when the Union showed strength on that shift, asserting that the shift was uneconomic. Subsequently, all but four were rehired, and these four, the subject of the proceeding, were known by the Company to be Union adherents. The Court directed the reinstatement of the four.
In Tidelands Marine Service, a crew of thirteen was laid off and not rehired, the asserted reason being that they had failed to advise the Company as to how they could be recalled. Three of the crew were subsequently put to work, but most never worked for the Company again. The crew included two of the most active Union organizers, and most of the crew had signed Union pledge cards. The Board stated, “The employer knew of the Union membership of most, if not all, of the crew. * * * He clearly did know some were Union men and he had reason to believe that others were as well.” Here again, there is no indication that the entire crew was fired to reach a few known Union adherents among the thirteen; but rather that the entire crew was fired because the employer felt that most, if not all, were active supporters of the Union.
In Wonder State, two employees worked together in the Company’s shipping department. One of them was the known leader in the Union movement. He held a meeting at his home and his fellow employee was among those attending. Two days later, both were discharged, the asserted reason being their continued carelessness. The Court directed the reinstatement of both.
In Williams, two employees — one of whom was an active supporter of the Union — were discharged, the asserted reason being lack of work. The Court directed the reinstatement of both.
And, in National Garment, all of the employees performing similar work in the plant were laid off allegedly for a bottleneck in production. The day before the layoff occurred, the employer made a speech to all employees in which he threatened to close the plant before dealing with the Union. The Board found that the real reason for the layoff was to implement the threat of the previous day.
Of the five cases cited to support the Board’s position, only two, Wonder State and Williams, involved a situation in which a non-Union employee was discharged to cover the discharge of a known Union adherent. And, in each case, the facts supporting the inference that the charges were discriminatory were, for obvious reasons, stronger than here.
GROUP 3
Gale Hodges, George Rose, Clarence Nettleton and Andrew Loaf man were laid off on February 3, 1965. They were told to return to work the following Monday, at which time other inspectors would be laid off, indicating that a work sharing program was intended. On Saturday, however, the four received notice that due to unforeseen circumstances, their layoff had been indefinitely extended. Two or three weeks later, Hodges, Nettleton and Loaf man were notified that their separation from employment was considered to be permanent as of February 4, 1965. On March 25th, Rose was notified that his work record had been evaluated, found to be unsatisfactory, and that he was, therefore, terminated. All four were members of and active in the Union. There was direct testimony that the Company knew that Hodges, Rose and Loaf man were Union adherents, and it can be reasonably inferred that the Company had similar knowledge as to Nettleton. All four employees were replaced.
The Company contended before the Board that: Hodges was discharged for excessive tardiness and low production; Rose was discharged for his “poor inspections;” Nettleton was discharged for poor inspections and inadequate production; and Loafman was discharged for a number of minor delinquencies. It did not renew its arguments in its brief or in oral argument.
We have reviewed the record carefully and find that there is substantial evidence to support the Board’s conclusion that the discharges were discriminatory. These conclusions were based on the Board’s findings, amply supported by the record, that the employees were satisfactory to excellent employees, that their original layoff was for economic reasons, that they were never advised as to the reason for their discharge, and that the reasons advanced by the Company at the hearing were mere pretences. See, N. L. R. B. v. Melrose Processing Co., supra; N. L. R. B. v. Plant City Steel Corporation, 331 F.2d 511 (5th Cir. 1964); N. L. R. B. v. Griggs Equipment, Inc., 307 F.2d 275 (5th Cir. 1962); N. L. R. B. v. Dell, 283 F.2d 733 (5th Cir. 1960) (subsequent proceedings reported at 309 F.2d 867 [5th Cir. 1962]).
GROUP 4
D. W. McMillian, Billy Joe Walker, William Wages and Herman Wayne McElrath were each replaced by an employee transferred to Malden from a Company plant in another community. McMillian, Wages and McElrath were superior or satisfactory employees. Although there is a conflict in the testimony, the Board’s finding that Walker was satisfactory is supported by substantial evidence. Walker, -Wages and Mc-Elrath were senior employees in their department. McMillian was a junior employee in his department, but his replacement left the job a few weeks after filling it and McMillian was not offered his old position.
The Company knew that McMillian, Walker and Wages were Union adherents. Its knowledge as to McElrath’s adherency could reasonably be inferred from the circumstances.
There was no evidence of a Company practice relating to the transfer of employees from one plant to another. The Company had, in fact, refused employment to some of its former St. Charles employees and committed itself to employing its non-supervisory employees from the Malden area in return for which the community furnished certain facilities. Under such circumstances, little, if any, weight can be given to the Company’s argument that it was merely exercising its discretion in transferring the employees into the Malden plant.
In our view, the findings of the Board that:
“ * * * [I]t is obvious that every effort was made to exclude these men from further employment, even against the efforts of their immediate supervisors to retain them or have them transferred to other jobs. In the cases of Walker, Wages and McElrath, these men were let go while junior employees were retained. In McMillian’s case, the determination not to further employ him is shown by Respondent’s failure to even offer him his old job when it became vacant soon after his layoff. Each of these men were adherents of the Union. Wages and Mc-Millian being notably active in its behalf. * * * ”
are supported by substantial evidence, as is the Board’s conclusion, that the employees were discriminatorily discharged.
GROUP 5
The Board’s conclusion that Jimmy Rose, John Moore and John Barney were not discharged for cause is supported by substantial evidence. They were active in the Union organizational campaign, and were members of the Union. There is direct testimony indicating that the Company was aware of their Union adherency and activity. While the Company advanced a reason for the discharge of each of the employees, the Board found that they were all considered by the Company to be good employees, and that they began to get into difficulties with the employer only after they became active in the Union.
The Company’s asserted reason for discharging Jimmy Rose was that he had failed to notify the Company that he was unable to work because of an injury to his hand within the three-day time limit established by the Company for such notice. The undisputed evidence indicated that Rose’s wife had, in fact, called the Company on the third day and informed it of her husband’s injury and inability to return to work.
John Moore had, in fact, been considered one of the Company’s top employees and had been permitted to transfer to improve his position in the Company. After the organizing campaign began, he was involuntarily transferred to another department. When he protested, he was told by a supervisor that he had been picked as one of the Union instigators. A supervisor admitted that the Company was seeking to build a record against Moore. While it is clear that he did not succeed in the department to which he had been involuntarily transferred, he was not reconsidered for re-transfer to a department in which he had done good work.
The Company asserted that it discharged John Barney for falsifying his production records on one occasion. On the day he was discharged, he was called into the Superintendent’s office and told that there was no way he could have produced the number of pistons reported on the previous day. He attempted to explain how he was able to produce the number claimed, but was discharged without being given an opportunity to do so. In the light of the refusal of the Company to permit the employee to give his explanation and in view of the Company’s inability to reproduce at the hearing the computation that it claims required Barney’s discharge, the Board’s conclusion that Barney was discriminatorily discharged is sustained. See, N. L. R. B. v. Baker Hotel of Dallas, Inc., 311 F.2d 528 (5th Cir. 1963); N. L. R. B. v. Avondale Mills, 242 F.2d 669 (5th Cir. 1957), aff’d, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383 (1958).
Joseph A. Butler, a handicapped employee, was laid off on October 25, 1965. He was informed that the layoff resulted from a lack of work for him to perform. The Company, however, promptly replaced Butler with another employee. The Company admitted at the hearing that he had, in fact, been discharged because he was unable to do his job without assistance from other employees.
The record indicates that the Company had direct knowledge of the fact that Butler was a Union adherent; that his work had been considered satisfactory until the time he became a member of the Union; and that the Company had a policy of hiring and retaining handicapped workers.
The Company’s policy of hiring handicapped workers is certainly a commendable one, and one that ought not to be discouraged by requiring it to maintain a handicapped worker in its employment when it has been adequately demonstrated that he cannot perform the duties for which he was employed. On the other hand, we cannot permit an employee’s handicapped condition to serve as a cover for a discriminatory discharge. We believe that the Board’s finding that Butler’s discharge was discriminatory is substantially supported by the record. He was hired on February 4, 1964, and worked without complaint until October 25th. While he admittedly had some difficulty in performing his work, there is no indication that it was substantial or unexpected, or that it was greater after July 27th, the date on which he signed a Union card, than it had been before that date. The fact that a false reason was given Butler at the time of his discharge is additional evidence of discrimination. N. L. R. B. v. Kalof Pulp & Paper Corporation, 290 F.2d 447 (9th Cir. 1961); National Labor Relations Bd. v. S. S. Coachmen and Sons, 203 F.2d 109 (5th Cir. 1953); National Labor Relations Board v. Fisher Governor Co., supra.
Kenneth Harris was hired in March of 1963, in the warehouse, and remained there for nearly two years. At that time, he was transferred to the mainteance department. Thereafter, the Plant Manager asked him to work in the “A-Turn” department for a few weeks to see how he liked it, promising to shift him to another job Harris had asked for when an opening arose. Harris worked on the A-Turn machines for about one and one-half weeks. On February 26, 1965, he was asked, just before quitting time, whether he would work the following day, a Saturday. He stated that he would. Fifteen minutes later, the supervisor returned and told him that he had been discharged on instructions from “higher up.” Harris later received notification that he was terminated because his production had not met the Company’s standards. While there is no direct evidence in the record that Harris was known by the Company to be a Union adherent, the inference that he was is strong as he had been questioned about it by an employee who had been asked to obtain this type of information and report it to the Warehouse Superintendent. The Company contended at the Board hearing that Harris was fired because he failed to meet a standard of 2,000 pieces a day on the A-Tum machines. The only testimony supporting this contention was that of the Plant Manager, who had testified in a pre-hearing deposition that he did not know Harris.
We believe that the facts adequately support the Board’s finding that Harris was discharged for Union activities. His discharge is clearly distinguishable from those of Golden, Gough, Evans and Burrow. Indeed, it emphasizes the fact that the Company could and would discharge Union adherents with pinpoint accuracy and without bothering to cover their discharge by discharging non-Union employees simultaneously.
Terry H. Butler was hired in October of 1962. He joined the Union and served as one of two observers for the Union at the Board election. He quit his job in November of 1964. In January of 1965, he approached the Plant Manager and asked about coming back to work. The Plant Manager advised Butler that he would check into the matter. He later advised Butler that the Personnel Manager “didn’t want to hire [him] because [he], worked pretty hard for the Union and also that perhaps the Union could come up with an election again and
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
FOX JEWELRY COMPANY, Appellant, v. John C. LEE, Trustee in Bankruptcy of Fox Jewelers, Inc., Bankrupt, Appellee.
No. 17480.
United States Court of Appeals Fifth Circuit.
March 12, 1959.
Edwin W. Ross, Harold Karp, and Carpenter, Karp & Mathews, Atlanta, Ga., for appellants, Fox Jewelry Company and Robert Feldser.
J. Kurt Holland and Haas, Holland & Zinkow, Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge,, and CAMERON and BROWN, Circuit Judges.
HUTCHESON, Chief Judge.
This is an appeal from a turnover order issued in Fox Jewelers, Inc., Bankrupt, against Fox Jewelry Company, a corporation not only in name but in every other aspect which underlies and attends corporate existence. The purpose and scope of the order was, treating the respondent as the alter ego of Fox Jewelers, Inc. to seize and administer its assets and affairs as though its possession was the possession of the bankrupt.
The trustee, standing firmly on the-finding of the referee, insists that the-possession of the assets by the respondent for itself and in its own right was. merely colorable, that is pretextual and feigned, and was really in right of the-bankrupt.
Arguing that the fact that Feldserwas the president and stockholder in both companies; that, as such, he did all the purchasing of the stocks of merchandise and generally handled the business, for both companies; that, in short, he-had one man control of both; and that, this is a case in which there is no difficulty in piercing the corporate veil; he-urges upon us that, though the two corporations conducted their business in-separate towns, had separate bookkeeping, paid separate income and social' security taxes, and in every respect except that they were closely affiliated one-man corporations, were separate, the ref-eree’s holding, that the respondent was in effect the bankrupt and his assets were subject to be seized in a summary proceeding, was correct. We do not think so.
Without discussing the facts in detail other than as above set out, we think that there is no basis whatever in the record for the exercise of summary jurisdiction. This is not to say that there may not be ample basis for a finding in a plenary proceeding that the bankrupt has been imposed upon by the respondent, and that the respondent is accountable to the bankrupt for such imposition. It is to say, though, that the matters on which the trustee relies, control of the two corporations by the one man stockholder and president of each, the fact that they act together, and especially the fact that the purchasing of their stocks of goods are all done by the same man, is not determinative of the question whether the corporations are in fact, as in every legal aspect they appear to be, two corporations or simply one, and the possession of the respondent was the possession of the bankrupt. If the contention of the trustee in this case is correct, then in any case merely of closely affiliated corporations, with one stockholder and one management, this claim of summary judgment could be maintained. The law is otherwise settled. Sampsell v. Imperial Paper & Color Corp., 313 U.S. 215, 61 S.Ct. 904, 85 L.Ed. 1293. In Maule Industries v. Gerstel, 5 Cir., 232 F.2d 294, this court discussed the philosophy and theory of summary jurisdiction and the reasons which underlie and support it, as well as the reasons which deny such asserted jurisdiction when those against whom it is asserted will be deprived thereby of their constitutional rights to a plenary trial with the sanctions and protections such trial affords.
The argument, which seems to be the main reliance of referee and trustee, that it is more desirable that the bankruptcy court have the summary jurisdiction contended for because it can therewith administer matters more expeditiously and more effectively protect the creditors and the estate, while good enough as far as it goes, gives too little weight to the counter contention that durable as that is, it is not sufficiently desirable to permit doing away with the safeguards and sanctions provided by law against undue celerity and the deprivation of substantial rights. The exercise of summary jurisdiction in this case is without support in the evidence and the applicable law.
The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.
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_appel1_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 first listed appellant. 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.
LAZZARA v. WISCONSIN BOXING CLUB.
Circuit Court of Appeals, Seventh Circuit.
December 4, 1928.
No. 4004.
Evan A. Evans, Circuit Judge, dissenting.
Raymond J. Cannon, of Milwaukee, Wis., for plaintiff in error.
George A. Bums, of Milwaukee, Wis., for defendant in error.
Before EYANS, PAGE, and ANDERSON, Circuit Judges.
PAGE, Circuit Judge.
Excluding the averments in the declaration charging liability against the Wisconsin State Athletic Commission and the Fraternal Order of Eagles, former defendants .herein, dismissed out of the case by consent, the allegations against the remaining defendant, the Wisconsin Roxing Club, amount to no more than this: That by an entire agreement, made in writing, plaintiff was to box 10 rounds, in consideration of which defendant was to pay him $10,000; that defendant refused to pay; that plaintiff did not box the 10 rounds because he was wrongfully prevented from doing so by a member of the Wisconsin Athletic Commission and its refeee. It is not claimed that they were the agents for, or under the control of, the defendant, or that defendant profited thereby. No cause of action is stated against defendant.
The decision of Judge Geiger is right, find the judgment affirmed.
Question: This question concerns the first listed appellant. 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_r_nonp
|
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 "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The NATIONAL BLACK MEDIA COALITION, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Heritage Village Church & Missionary Fellowship, Inc., David Livingstone Missionary Foundation, Inc., Intervenors.
No. 83-2062.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 8, 1985.
Decided April 26, 1985.
David E. Honig, Washington, D.C., for appellants.
David Silberman, Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, General Counsel, and Daniel M. Armstrong, Counsel, F.C.C., Washington, D.C., were on the brief, for appellee.
Lee Jay Peltzman, Washington, D.C., with whom B. Jay Baraff and Aaron Shainis, Washington, D.C., were on the brief, for intervenor David Livingstone Missionary Foundation, Inc.
Ashton R. Hardy, New Orleans, La., and James J. Popham, Washington, D.C., were on the brief, for intervenor Heritage Village Church and Missionary Fellowship, Inc.
Before BORK, SCALIA and STARR, Circuit Judges.
Opinion for the court filed by Circuit Judge SCALIA.
SCALIA, Circuit Judge:
The National Black Media Coalition and six other parties (“appellants”) appeal from the Federal Communications Commission’s refusal to designate for hearing an application for assignment of the television license for WJAN-TV in Canton, Ohio. Contending that appellants had failed to file their appeal with this court within the time period prescribed by statute, 47 U.S.C. § 402(c) (1982), the Commission filed a motion to dismiss for lack of jurisdiction. Appellants respond that their filing was proper because its lateness was caused by the Commission’s failure to give them personal notice of its decision, in violation of its own rules and the Administrative Procedure Act. The issue before us is whether the statutory requirement that appeals must be filed within thirty days of public notice of Commission decisions can be tolled by the Commission’s violation of law regarding personal notice to parties.
I
In 1979, the Commission initiated a nonpublic investigation to examine whether PTL of Heritage Village Church and Missionary Fellowship, Inc. (“PTL”), the licensee of WJAN-TV, was subject to license revocation because of violations of 18 U.S.C. § 1343 (1982), outlawing “[fjraud by wire, radio, or television.” See PTL of Heritage Village Church and Missionary Fellowship, Inc., 71 F.C.C.2d 324 (1979). While the investigation was still underway, PTL sought to assign its license to intervenor David Livingstone Missionary Foundation, Inc. Acknowledging the Commission’s general policy against granting assignments when an assignor’s character qualifications are in question, see Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1027 (D.C.Cir.1981); Jefferson Radio Co. v. FCC, 340 F.2d 781, 783 (D.C.Cir.1964), PTL filed a Petition for Special Relief, which the Commission granted by order announced on December 8, 1982. Comfhissioner Jones and Commissioners Fogarty and Rivera issued dissenting statements. See FCC Report No. 18597.
The appellants then filed two separate petitions for reconsideration on January 7, 1983, setting forth assignments of error that we need not recite here. Oppositions to the petitions for reconsideration and replies to the oppositions were filed, and in a Memorandum Opinion and Order adopted on August 12, 1983, and released on August 17, 1983, the petitions were denied. PTL of Heritage Village Church and Missionary Fellowship, Inc., 54 RAD.REG.2d (P & F) 824 (1983). Appellants maintain that they were not sent personal notice of this denial, that they learned of it only when a representative of the National Black Media Coalition directly contacted the Commission on September 29, 1983, and that they were able to obtain a copy of the order only on September 30, 1983. For purposes of this appeal, we take all that to be true (though we note the Commission’s contention, based on its investigation, that personal notice was mailed).
On October 7, 1983, seven weeks after release of the order, appellants filed the present appeal. The Commission and intervenors PTL and David Livingstone argue that the appeal was not timely filed, that appellants have no standing, and that the Commission’s denial of the petitions for rehearing was valid on several independent grounds. We reach only the first of these issues.
II
This appeal is brought pursuant to 47 U.S.C. § 402(b) (1982), and is therefore subject to the requirement of 47 U.S.C. § 402(c) that “[s]uch appeal shall be taken by filing a notice of appeal with the court within thirty days from the date upon which public notice is given of the decision or order complained of” (emphasis added). This time limitation is jurisdictional, and if the present appeal cannot be brought within the terms of the statute, it must be dismissed. See Microwave Communications, Inc. v. FCC, 515 F.2d 385, 389 (D.C. Cir.1974). Public notice of the Commission’s denial of appellants’ petitions for reconsideration was given on August 18, 1983; the October 7 notice of appeal was therefore outside the statutory thirty-day time period by almost three weeks.
Appellants do not dispute this, but argue that their late filing was caused by the Commission’s failure to provide them with personal notice of its decision, in violation of its own rules, 47 C.F.R. § 0.445(a) (1984), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 555(e) (1982). They claim that they reasonably relied on the Commission to provide the legally required notification, and that the otherwise applicable deadline must therefore be extended lest the Commission profit from its own violation of law.
We cannot agree. Section 402(c) makes public notice, not private notice, the operative event for purposes of the running of the statutory filing period, and it makes no exception for excusable failure to file within thirty days of proper public notice. Moreover, Federal Rule of Appellate Procedure 26(b) explicitly provides that “the court [may not] enlarge the time prescribed by law for filing a ... notice of appeal from [ ] an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law” (emphasis added). We cannot disregard the plain meaning of these provisions.
Appellants argue that this ease is controlled by Gardner v. FCC, 530 F.2d 1086 (D.C.Cir.1976). We think not. There, because “[i]t appeared] to us that the late filing ... was due, in substantial measure, to the FCC’s omission to give Petitioner personal notice of any kind,” 530 F.2d at 1091, we held “that the Commission abused its discretion in rejecting Gardner’s petition for rehearing on the ground of untimeliness,” id. at 1092. Central to our reasoning, however, was the following:
The Commission retains jurisdiction over matters before it until the time for judicial appeal has expired. During that time, it is obligated to reconsider, on its own motion if necessary, decisions which appear questionable in light of subsequent developments. We see no reason why the Commission’s continuing jurisdiction ought not also support rehearing on the untimely petition of a party, where the late filing is in some sense attributable to a procedural violation by the Commission.
Id. at 1091 (footnotes omitted) (emphasis added). In this case, however, appellants are asking us to create for ourselves otherwise nonexistent jurisdiction, in a fashion that cannot be grounded in the statutory text. While the Commission may, and can even be required to, waive nonjurisdictional deadlines, we are bound by the terms of our jurisdictional grant.
Appellants also cite Chem-Haulers, Inc. v. United States, 536 F.2d 610 (5th Cir. 1976), in which the court determined that the sixty-day period for filing petitions for review under the Hobbs Act, 28 U.S.C. § 2344 (1982), was to be computed from the date of service of the order rather than the date of decision. 536 F.2d at 616. However, even though that decision dealt with a
statute that makes “entry” of the order, rather than explicitly “public notice,” the triggering event, it is clear that by “date of service” the court meant public service. The Fifth Circuit noted that the agency decision “was not served upon Chem-Haulers, nor the public generally,” id. at 613 (emphasis added), for twelve days after it was rendered, and selected as the appropriate date of entry “[t]he date the order is signed, the Commission seal is affixed, and the order is served,” id. at 616, because only then is the order “final, complete, and a matter of public record.” Id. (emphasis added). More importantly, however, the question in Chem-Haulers was how to construe an ambiguous term (“entry”), not whether an exception to a clear jurisdictional provision should be created .by judicial fiat. There is no dispute in this case concerning the proper definition of “public notice” under § 402(c), which would be analogous to the issue in Chem-Haulers; that issue has been foreclosed by Commission rules and our decision in Microwave. See note 2, supra. The other cases cited by appellants are equally unavailing. Northern Colorado Water Conservancy District v. FERC, 730 F.2d 1509 (D.C.Cir.1984), like Gardner, involved a late-filed petition for rehearing before the agency. Way of Life Television Network, Inc. v. FCC, 593 F.2d 1356 (D.C.Cir.1979), similarly concerned a Commission cut-off date, not a statutory jurisdictional provision.
At oral argument, counsel for appellants expressed disbelief at the suggestion that this court might not have the power to act in the face of an agency's violation of law. That is, however, precisely what a lack of jurisdiction means — an inability to act, not merely in unappealing cases, but in compelling cases as well. Since it is undisputed here that public notice was given and that this appeal was filed well over thirty days later, the matter is at an end. Lest it be thought, however, that such an absolute rule has nothing to recommend it, we note that a clear time limit for filing of an appeal serves important purposes. Private parties, such as David Livingstone in the present case, must be able to rely upon, and make substantial expenditures on the basis of, the finality of Commission action determined through the application of some objective and publicly knowable criterion— which “public notice,” as defined in the Commission’s rules, assuredly is. To carve out exceptions, such as one for cases in which required personal notice was not sent, would replace this objective criterion with highly litigable factual inquiries. As now written, the statute reflects the judgment that it is better that persons in appellants’ position be put to the trouble of following the Commission’s public notices, than that persons in David Livingstone’s position be subjected to risks they can neither foresee nor eliminate. If a different balance is to be struck, it is not for us to do it. The appeal is
Dismissed.
. PTL was subsequently liquidated by its parent, intervenor Heritage Village Church and Missionary Fellowship, Inc. We refer to PTL as the relevant party throughout this opinion.
. Commission rules define the date of public notice as "commenc[ing] at 3 P.M. Eastern Time on the day after ... the release date. A document is ‘released’ by making the full text available to the press and the public in the Commission’s Information Office. The release date appears on the face of the document.” 47 C.F.R. § 1.4(b) (1984). This rule is a further refinement of our decision in Microwave Communications, Inc. v. FCC, 515 F.2d at 390, where we held that public notice of an order is given "when the complete text of the order and any accompanying decision becomes available to the litigants.” Such reasonable agency specification of the precise commencement time for the running of appeals periods has been uniformly approved, and indeed encouraged, by the courts. See, e.g., ITT World Communications, Inc. v. FCC, 621 F.2d 1201, 1209-10 (2d Cir. 1980).
The August 17 release date in the present case established August 18 as the date of public notice, see 47 C.F.R. § 1.4(b). The first day counted for filing purposes was August 19, see id. at § 1.4(a), establishing September 17 as the filing deadline. However, since that and the following day were holidays, see id. at § 1.4(d), the last day for filing was the next business day, September 19, see id. at § 1.4(i).
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
THURMAN, formerly Collector of Internal Revenue, v. STUDEBAKER CORPORATION.
No. 5874.
Circuit Court of Appeals, Seventh Circuit..
March 23, 1937.
Robert H. Jackson, Asst. Atty. Gen., Sewall Key and M. H. Eustace, Sp. Assts. to the Atty. Gen., and Val Nolan, U. S. Atty., and B. Howard Caughran, Asst. U. S. Atty., both of Indianapolis, Ind., for appellant.
Charles O. Roemler, of Indianapolis, Ind., for appellee.
Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
LINDLEY, District Judge.
This is an appeal from a judgment for $34,313.05 as a refund for overpayment of income taxes for the taxable year 1921. Appellant contends that judgment should have gone against appellee, first, because there was no overpayment, and, second, if there was, it was wiped out by a set-off of a liability for income taxes arising out of other transactions, recovery of which was barred by the statutes of limitation but set-off of which is authorized by the federal statutes. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293.
To support the judgment, appellee relies upon an overpayment of taxes under its so-called “partnership plan,” whereby it agreed with its employees who had been in its services for three months or more that they might have common or preferred stock allotted to them from the treasury or purchased for them by the corporation in amounts limited each year to 20 per cent, of their earnings and to $400 at the market value. Appellee agreed to pay 50 per cent, of the cost of the stock, if employee was not in default, by crediting the latter’s account every three months with one-sixteenth of the said one-half of the cost. The employee was charged interest at 4 per cent, upon the unpaid balance and all dividends declared were credited to the stock purchase account of the employee. The excess of dividend credits over interest was applied in reduction in the amount of the balance.
Employees who withdrew might pay the balance due on the purchase price of the stock and receive certificates or authorize sale of stock held for them at the prevailing market price and receive in cash the difference between such amount and the balance due on the purchase price. The estate of a deceased employee had the same rights. Upon completion of payment in the manner aforesaid, certificates were delivered to the employees, who were not allowed to transfer the same before final payment.
The taxpayer kept its books and made its return on an accrual basis and actually credited to the employees dividends as declared and the amounts agreed to be paid by appellee. This contract was made with, and its benefits were extended only to, employees of appellee, clearly as a reward in the way of additional compensation for the services rendered by the employees to appellee, and the latter deducted as an expense of the operation of its business, as additional compensation paid the employees, the amounts thus contributed to them. Subsequent to the return for 1921 the Commissioner levied an additional tax, upon the ground that the deduction was wrongfully made. Appellee made the payment, brought this suit, and recovered.
Section 234 of the Revenue Act of 1921 (42 Stat. 254) provides that in computing the net income of a corporation there shall be allowable as deductions: “(1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered.”
Article 107 of Regulations 45, promulgated January 28, 1921, provides that bonuses to employees shall be considered, when paid in good faith, as additional compensation for services actually rendered by employees, provided they do not exceed a reasonable compensation. Subsequently, the Department ruled, in Office Decision No. 763, Cumulative' Bulletin 4, page 76, that where a corporation permits its employees to purchase stock, retaining title until the purchase price is fully paid, so-called dividends credited to the account of the employee purchasing the stock as part payment shall be treated as additional compensation to the employees and taxable as such, and that any sums paid by the employer upon account of purchases of stock by employees shall be treated as additional compensation. To the same effect were other later decisions of the Department^
Thus, in administration of the law, that branch of the government charged with its enforcement and with collection of revenue has by its regulations arid decisions put a practical interpretation upon the statute reflecting the same reasoning and sustaining the same conclusions as those of the District Court. This 'should justify the judgment unless such interpretation is at varian,ce with the law.
Where a taxpayer’s books are kept on an accrual basis, the expenses paid or incurred, properly charged upon the books of the taxpayer and properly attributable to the process of earning income during the period covered by the return, must be deducted in that period, in order to reflect the true income of the taxpayer. United States v. Anderson (United States v. Yale & Towne Mfg. Co.), 269 U.S. 422, 46 S.Ct. 131, 134, 70 L.Ed. 347; American National Co. v. United States, 274 U.S. 99, 47 S.Ct. 520, 71 L.Ed. 946. In the first mentioned case, certain taxes accrued in the year 1916' but could not be determined until the following year, at which time the exact amount became evident. The taxpayer, though it entered a reserve for the taxes in 1916, made the deduction in 1917 when the taxes were fixed and, paid. The books having been kept on an accrual basis, the Supreme Court ruled. that the deduction should be made in the year 1916, as the expense was properly allocable to the income realized that year. The court said the accrual system was approved “to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period; and indeed, to require the tax return to be made on that basis, if the taxpayer failed or was unable to make the return on a strict receipts and disbursements basis. The appellee’s true income for the year 1916 could not have been determined without deducting from its gross income for the year the total cost and expenses attributable to the production of that income during the year. The reserve for munitions taxes set up on its books for 1916 must have been deducted from receivables for munitions sold in that year before the net results of the operations for the year could be ascertained.”
In Alger-Sullivan Lumber Co. v. Commissioner of Internal Revenue (C.C.A.) 57 F.(2d) 3, the taxpayer sold shares of its stock to four employees under a plan similar to that here presented. Certain credits to the employees were entered by the company because of dividends and other items. It deducted the market value of the stock, as additional compensation. The court approved the deduction, holding that the transaction was not a sale; that the credits were made to the employees in good faith as additional compensation; and 'that the company was entitled to the deduction claimed. The court, .however, did not pass upon the question of when the deduction should be made.
Under the reasoning of the Supreme Court, the credits made by this corporation to the employees and enteied upon the books at the time were clearly additional compensation to the employees. The books being kept on an accrual basis and this additional compensation being one of the expenses of the operation, during the period for which it was allowed, it was proper that such additional compensation should be treated as a deductible expense for that period. To have waited until the stock .was fully paid for would have been to allocate expenses in the form of additional compensation due employees to a period, in some instances, four years removed from the .time the services for which the compensation was paid were rendered. This Judge Baltzell held was not a proper method, and we agree.
Appellant cites three cases upon which he relies to support a contrary reasoning. In Hudson Motor Car Co. v. United States (Ct.Cl.) 3 F.Supp. 834, the court had before it a situation where stock was set aside for issuance to employees when the cash dividends equaled the par value. Eventually the dividends equaled this value and the certificates were issued. The employer attempted to deduct the market value ■of the stock in the year it was issued. The Commissioner contended that the transaction was a sale of stock and not additional compensation, and therefore not deductible. The court held, against appellant’s present contention, that the dividends credited on the purchase price were additional compensation and deductible as such.
The court held further that the deduction was allowable at the time of issuance of certificates. With this branch of the decision we disagree. Under the reasoning of the Supreme Court in United States v. Yale & Towne Mfg. Co., supra, the employer being on an accrual basis, tlie deductions could be taken properly only in the years the additional compensation was earned by the employees, credit for which they then received.
Gardner-Denver Co. v. Commissioner, 75 F.(2d) 38, was decided by this court. There the employer contracted with employees to sell them stock at substantially the market value, to be paid for with interest in monthly payments in cash and by the application of such dividends as were declared over a period of five years, whereupon the certificates were to be delivered. When the time for sale arrived, the market value had increased $432,000 over the selling price. The ‘‘employer attempted to deduct the difference between the market value and the price at which it sold to its employees upon the theory that such difference represented a deductible expense. This court found that the deduction constituting “subsequent increment in value” represented no deductible outlay or expense, and held further that credits extended employees in prior years were not deductible in later years when the contracts matured. Furthermore, the facts in that case were such that it was deemed that the transaction amounted to sale of stock rather than to additional compensation.
Schaefer v. Bowers, 50 F.(2d) 689 (C.C.A.2), had to do with the tax upon the employee’s income and docs not touch the question at issue.
The amounts deducted, having represented, as they did, additional compensation charged as an expense against the employer and credited to the employee as the services were rendered, and the books having been kept on an accrual basis, appellee was entitled to the deduction and to recover the overpayment of taxes assessed.
Appellant insists further, however, that if appellee was entitled to recovery, appellant had a right to set off against the right a liability for additional taxes properly assessable against appellee for the year 1921, collection of which was barred by the statute of limitation. In this respect appellant relics upon the proposition that no recovery for refund may be had where it appears that the taxpayer is indebted to the United States for additional taxes. Such is the rule. Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293. It becomes necessary then to determine whether any additional tax was due from appellee because of other transactions.
Appellant’s contention in this respect arises out of two similar contracts that appellee had, one with its branch managers under a so-called branch managers’ compensation and bonus plan, and the other with its managing officers under its bonus plan for management. The essential intent of each of these contracts was the same as that with the employees. The allowances made under .each of them constituted additional compensation. In each of the years 1920 and 1921 the credits of the appellee to its managing officers for additional compensation aggregated over $250,000. These items were charged to expense, credited to the officers upon their contracts, and taken as deductions in computing taxable net income for those years. Under its arrangement with the branch managers, appellee credited to them and charged to expense as additional compensation, in the year 1920, $17,-000, and in 1921, $28,000. The plain purport of each of the three contracts was to further a general plan of appellee to permit its executive officers, branch managers, and employees to share in such profits as might accrue in the business operation of appellee, manufacturing,and selling automobiles, by distributing to them as additional compensation the sums agreed upon. The testimony supports only a finding that this was a well-considered, well-developed policy of industrial operation and management carried into practical execution, in accord with the meaning and intent of the regulations of the Revenue Department herein-before referred to, with the policy of administration of the revenue laws for a number of years and with the reasoning of the Supreme Court in the cases mentioned. The deductions of the amounts credited, because of the contracts and because appellee was on the accrual basis, were, as in the case of the employees, properly deductible as expense and no additional tax, therefore, was due.
The judgment of the District Court is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
COCHISE CONSULTANCY, INC., et al., Petitioners
v.
UNITED STATES, EX REL. Billy Joe HUNT
No. 18-315.
Supreme Court of the United States.
Argued March 19, 2019
Decided May 13, 2019
Theodore J. Boutrous, Jr., Los Angeles, CA, for the petitioners.
Earl N. Mayfeld, III, Fairfax, VA, for the respondent.
Matthew Guarnieri for the United States as amicus curiae, by special leave of the Court, in support of the respondent.
Duane A. Daiker, Robert R. Warchola, Jr., Shumaker, Loop & Kendrick, LLP, Tampa, FL, for petitioner Cochise Consultancy, Inc.
Theodore J. Boutrous, Jr., Lauren M. Blas, Jessica R. Culpepper, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C., for petitioner The Parsons Corporation.
Sarah O. Schrup, Susan E. Provenzano, Jocelyn D. Francoeur, Northwestern Pritzker, Law School Appellate Advocacy Center, Chicago, IL, Earl N. "Trey" Mayfeld, III, Christopher M. Day, Juris Day, PLLC, Fairfax, VA, for respondent.
Justice THOMAS delivered the opinion of the Court.
The False Claims Act contains two limitations periods that apply to a "civil action under section 3730"-that is, an action asserting that a person presented false claims to the United States Government. 31 U.S.C. § 3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period.
This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are "civil action[s] under section 3730" and that the limitations periods in § 3731(b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit cannot be deemed the official of the United States. We agree, and therefore affirm.
I
As relevant, the False Claims Act imposes civil liability on "any person" who "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" to the Government or to certain third parties acting on the Government's behalf. 31 U.S.C. §§ 3729(a), (b)(2). Section 3730 authorizes two types of actions: First, the Attorney General, who "diligently shall investigate a violation under section 3729," may bring a civil action against the alleged false claimant. § 3730(a). Second, a private person, known as a relator, may bring a qui tam civil action "for the person and for the United States Government" against the alleged false claimant, "in the name of the Government." § 3730(b).
If a relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the Government, which then has 60 days to intervene in the action. §§ 3730(b)(2), (4). During this time, the complaint remains sealed. § 3730(b)(2). If the Government intervenes, it assumes primary responsibility for prosecuting the action, though the relator may continue to participate. § 3730(c). Otherwise, the relator has the right to pursue the action. §§ 3730(b)(4), (c)(3). Even if it does not intervene, the Government is entitled to be served with all pleadings upon request and may intervene at any time with good cause. § 3730(c)(3). The relator receives a share of any proceeds from the action-generally 15 to 25 percent if the Government intervenes, and 25 to 30 percent if it does not-plus attorney's fees and costs. §§ 3730(d)(1)-(2). See Vermont Agency of Natural Resources v. United States ex rel. Stevens , 529 U.S. 765, 769-770, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000).
At issue here is the Act's statute of limitations, which provides:
"(b) A civil action under section 3730 may not be brought-
"(1) more than 6 years after the date on which the violation of section 3729 is committed, or
"(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed,
"whichever occurs last." § 3731(b).
On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners-two defense contractors (collectively, Cochise)-defrauded the Government by submitting false claims for payment under a subcontract to provide security services in Iraq "from some time prior to January 2006 until early 2007." App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise's allegedly fraudulent scheme during this November 30, 2010, interview.
The United States declined to intervene in Hunt's action, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in § 3731(b)(1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under § 3731(b)(2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred).
The District Court dismissed the action. It considered three potential interpretations of § 3731(b). Under the first interpretation, § 3731(b)(2) does not apply to a relator-initiated action in which the Government elects not to intervene, so any such action must be filed within six years after the violation. Under the second interpretation, § 3731(b)(2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpretation, § 3731(b)(2) applies in nonintervened actions, and the limitations period begins when "the official of the United States charged with responsibility to act in the circumstances" knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt's complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. 887 F.3d 1081 (C.A.11 2018).
Given a conflict between the Courts of Appeals, we granted certiorari. 586 U.S. ----, 139 S.Ct. 566, 202 L.Ed.2d 400 (2018).
II
The first question before us is whether the limitations period in § 3731(b)(2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered "the official of the United States" whose knowledge triggers § 3731(b)(2) 's 3-year limitations period.
A
Section 3731(b) sets forth two limitations periods that apply to "civil action[s] under section 3730." Both Government-initiated suits under § 3730(a) and relator-initiated suits under § 3730(b) are "civil action[s] under section 3730." Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits.
Cochise agrees with that view as to the limitations period in § 3731(b)(1), but argues that the period in § 3731(b)(2) is available in a relator-initiated suit only if the Government intervenes. According to Cochise, starting a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should be read to apply only when the Government is a party. In short, under Cochise's reading, a relator-initiated, nonintervened suit is a "civil action under section 3730" for purposes of subsection (b)(1) but not subsection (b)(2).
This reading is at odds with fundamental rules of statutory interpretation. In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning. See Ratzlaf v. United States , 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). We therefore avoid interpretations that would "attribute different meanings to the same phrase." Reno v. Bossier Parish School Bd. , 528 U.S. 320, 329, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). Here, either a relator-initiated, nonintervened suit is a "civil action under section 3730"-and thus subject to the limitations periods in subsections (b)(1) and (b)(2)-or it is not. It is such an action. Whatever the default tolling rule might be, the clear text of the statute controls this case.
Under Cochise's reading, a relator-initiated civil action would convert to "[a] civil action under section 3730" for purposes of subsection (b)(2) if and when the Government intervenes. That reading cannot be correct. If the Government intervenes, the civil action remains the same-it simply has one additional party. There is no textual basis to base the meaning of "[a] civil action under section 3730" on whether the Government has intervened.
Cochise relies on our decision in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson , 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005), which addressed the question whether § 3731(b)(1) or federal common law provided the limitations period for § 3730(h) retaliation actions. Section 3730(h) creates a cause of action for an employee who suffers retaliation for, among other things, assisting with the prosecution of a False Claims Act action. At the time, § 3730(h) did not specify a time limit for bringing a retaliation action, so the question before us was whether the phrase "civil action under section 3730" in § 3731(b) encompassed actions under § 3730(h). We considered the statute "ambiguous because its text, literally read, admits of two plausible interpretations." Id. , at 419, n. 2, 125 S.Ct. 2444. One reading was that a "civil action under section 3730" includes § 3730(h) actions because such actions arise under § 3730. Id. , at 415, 125 S.Ct. 2444. "Another reasonable reading" was that a "civil action under section 3730" "applies only to actions arising under §§ 3730(a) and (b)" because " § 3731(b)(1) t[ies] the start of the time limit to 'the date on which the violation of section 3729 is committed.' " Ibid. That reading had force because retaliation claims need not involve an actual violation of § 3729. Ibid. Looking to statutory context, we explained that the phrase " 'civil action under section 3730 ' means only those civil actions under § 3730 that have as an element a 'violation of section 3729,' that is, §§ 3730(a) and (b) actions"-not § 3730(h) retaliation actions. Id. , at 421-422, 125 S.Ct. 2444.
A relator-initiated, nonintervened suit arises under § 3730(b) and has as an element a violation of § 3729. Graham County supports our reading. Nonetheless, Cochise points out that in considering the statutory context, we discussed a similar phrase contained in § 3731(c) (now § 3731(d) ), which stated: "In any action brought under section 3730 , the United States shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence." (Emphasis added.) We explained that § 3731(c)"use[d] the similarly unqualified phrase 'action brought under section 3730 ' to refer only to §§ 3730(a) and (b) actions." Id. , at 417-418, 125 S.Ct. 2444. We then stated: "As [respondent] and the United States concede, the context of this provision implies that the phrase 'any action brought under section 3730 ' is limited to § 3730(a) actions brought by the United States and § 3730(b) actions in which the United States intervenes as a party, as those are the types of § 3730 actions in which the United States necessarily participates." Id. , at 418, 125 S.Ct. 2444.
Cochise contends that we should adopt a similar construction of the phrase "civil action under section 3730" in § 3731(b). We disagree. Our discussion of § 3731(c) was focused on "the context of th[at] provision" and on whether it could be read to impose the burden of proof on the Government even in cases where the Government did not participate. Id. , at 418, 125 S.Ct. 2444. Those considerations do not apply here; there is nothing illogical about reading § 3731(b) to apply in accordance with its plain terms. Moreover, if a "civil action under section 3730" included only an action in which the Government participates for purposes of § 3731(b)(2), then we would be obligated to give it a like meaning for purposes of § 3731(b)(1). This would mean that a relator-initiated, nonintervened suit would be subject to neither § 3731(b)(1) nor § 3731(b)(2) -a reading Cochise expressly disclaims. See Brief for Petitioners 20, n. 3. Nothing in Graham County supports giving the same phrase in § 3731(b) two different meanings depending on whether the Government intervenes.
Again pointing to Graham County , Cochise next contends that our reading would lead to " 'counterintuitive results.' " Brief for Petitioners 26. For instance, if the Government discovers the fraud on the day it occurred, it would have 6 years to bring suit, but if a relator instead discovers the fraud on the day it occurred and the Government does not discover it, the relator could have as many as 10 years to bring suit. That discrepancy arises because § 3731(b)(2) begins its limitations period on the date that "the official of the United States charged with responsibility to act" obtained knowledge of the relevant facts. But we see nothing unusual about extending the limitations period when the Government official did not know and should not reasonably have known the relevant facts, given that the Government is the party harmed by the false claim and will receive the bulk of any recovery. See § 3730(d). In any event, a result that "may seem odd ... is not absurd." Exxon Mobil Corp. v. Allapattah Services, Inc. , 545 U.S. 546, 565, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). Although in Graham County we sought "a construction that avoids ... counterintuitive results," there the text "admit[ted] of two plausible interpretations." 545 U.S. at 421, 419, n. 2, 125 S.Ct. 2444. Here, Cochise points to no other plausible interpretation of the text, so the " 'judicial inquiry is complete.' " Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002).
B
Cochise's fallback argument is that the relator in a nonintervened suit should be considered "the official of the United States charged with responsibility to act in the circumstances," meaning that § 3731(b)(2) 's 3-year limitations period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading "the official of the United States" to encompass a private relator.
First, a private relator is not an "official of the United States" in the ordinary sense of that phrase. A relator is neither appointed as an officer of the United States, see U.S. Const., Art. II, § 2, cl. 2, nor employed by the United States. Indeed, the provision that authorizes qui tam suits is entitled "Actions by Private Persons." § 3730(b). Although that provision explains that the action is brought "for the person and for the United States Government" and "in the name of the Government," ibid. , it does not make the relator anything other than a private person, much less "the official of the United States" referenced by the statute. Cf. Stevens , 529 U.S. at 773, n. 4, 120 S.Ct. 1858 ("[A] qui tam relator is, in effect, suing as a partial assignee of the United States" (emphasis deleted)).
Second, the statute refers to "the" official "charged with responsibility to act in the circumstances." The Government argues that, in context, "the" official refers to the Attorney General (or his delegate), who by statute "shall investigate a violation under section 3729." § 3730(a). Regardless of precisely which official or officials the statute is referring to, § 3731(b)(2) 's use of the definite article "the" suggests that Congress did not intend for any and all private relators to be considered "the official of the United States." See Rumsfeld v. Padilla , 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (explaining that the "use of the definite article ... indicates that there is generally only one" person covered). More fundamentally, private relators are not "charged with responsibility to act" in the sense contemplated by § 3731(b), as they are not required to investigate or prosecute a False Claims Act action.
* * *
For the foregoing reasons, the judgment of the Court of Appeals is
Affirmed .
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co. , 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Compare 887 F.3d 1081, 1089-1097 (C.A.11 2018) (adopting the third interpretation), with United States ex rel. Hyatt v. Northrop Corp. , 91 F.3d 1211, 1216-1218 (C.A.9 1996) (adopting the second interpretation); United States ex rel. Sanders v. North Am. Bus Industries, Inc. , 546 F. 3d 288, 293-294 (C.A.4 2008) (adopting the first interpretation); and United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah , 472 F. 3d 702, 725-726 (C.A.10 2006) (same).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
JANEWAY et ux. v. COMMISSIONER OF INTERNAL REVENUE. SHIELDS v. SAME.
Nos. 29, 30.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1945.
Wright, Gordon, Zachry, Parlin & Ca-hill, of New York City (Charles C. Parlin and Robert C. Brown, both of New York City, of counsel), for petitioners.
Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Newton K. Fox, all of Washington, D. C., for respondent.
Before CPIASE, HUTCHESON, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We read the findings of the Tax Court taken together with its opinion as saying that, as a matter of fact, all the payments made by the taxpayers to the corporation were capital contributions of such character that, as against any third persons (such as, e.g., persons contracting with the corporation) the taxpayers would have to be regarded as stockholders and nothing else. As the Tax Court’s conclusion rests upon a determination of fact supported by substantial evidence, we cannot disturb it, even under a restricted interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239. Accepting that conclusion, the decision of the Tax Court is correct.
Affirmed.
That we may do so, see, e.g., Insurance & Title Guarantee Co. v. Commissioner, 2 Cir., 36 F.2d 842, 845; California Iron Yards Co. v. Commissioner, 8 Cir., 47 F.2d 514, 518; Producers’ Creamery Co. v. United States, 5 Cir., 55 F.2d 104, 108; Emerald Oil Co. v. Commissioner, 10 Cir., 72 F.2d 681, 683; Flynn v. Commissioner, 5 Cir., 77 F.2d 180, 183; California Barrel Co., Inc. v. Commissioner, 9 Cir., 81 F.2d 190, 193; Baker v. Commissioner, 6 Cir., 115 F.2d 987, 989.
Involved is the question of the credibility of the witnesses as to the taxpayers’ intentions, a question surely for the Tax Court.
See Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact (1944), 57 Harv.L.Rev. 753, 822-831; Buckminster’s Estate v. Commissioner, 2 Cir., 1944, 147 F.2d 331.
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_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BENNIS v. MICHIGAN
No. 94-8729.
Argued November 29, 1995
Decided March 4, 1996
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Thomas, and Ginsburg, JJ., joined. Thomas, J., post, p. 453, and Ginsburg, J., post, p. 457, filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined, post, p. 458. Kennedy, J., filed a dissenting opinion, post, p. 472.
Stefan B. Herpel argued the cause and filed briefs for petitioner.
Larry L. Roberts argued the cause for respondent. With him on the brief were John D. O’Hair and George E. Ward.
Richard H. Seamon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.
Briefs of amici curiae urging reversal were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the Institute for Justice by William H. Mellor III and Clint Bolick; and for the National Association of Criminal Defense Lawyers by E. E. Edwards III and Richard J. Troberman.
Richard K. Willard and Robert Teir filed a brief of amicus curiae for the American Alliance for Rights and Responsibilities et al.
Chief Justice Rehnquist
delivered the opinion of the Court.
Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, notwithstanding her lack of knowledge of her husband’s activity. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment.
Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency. The State then sued both Bennis and his wife, petitioner Tina B. Bennis, to have the car declared a public nuisance and abated as such under §§600.3801 and 600.3825 of Michigan’s Compiled Laws.
Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan’s indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car’s abatement. In reaching this disposition, the trial court judge recognized the remedial discretion he had under Michigan’s case law. App. 21. He took into account the couple’s ownership of “another automobile,” so they would not be left “without transportation.” Id., at 25. He also mentioned his authority to order the payment of one-half of the sale proceeds, after the deduction of costs, to “the innocent co-title holder.” Id., at 21. He declined to order such a division of sale proceeds in this case because of the age and value of the car (an 11-year-old Pontiac sedan recently purchased by John and Tina Bennis for $600); he commented in this regard: “[T]here’s practically nothing left minus costs in a situation such as this.” Id., at 25.
- The Michigan Court of Appeals reversed, holding that regardless of the language of Michigan Compiled Law § 600.3815(2), Michigan Supreme Court precedent interpreting this section prevented the State from abating petitioner’s interest absent proof that she knew to what end the car would be used. Alternatively, the intermediate appellate court ruled that the conduct in question did not qualify as a public nuisance because only one occurrence was shown and there was no evidence of payment for the sexual act. 200 Mich. App. 670, 504 N. W. 2d 731 (1993).
The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. 447 Mich. 719, 527 N. W. 2d 483 (1994). It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals’ interpretation of § 600.3815(2), the court then announced that, in order to abate an owner’s interest in a vehicle, Michigan does not need to prove that the owner knew or agreed that her vehicle would be used in a manner proscribed by § 600.3801 when she entrusted it to another user. Id., at 737, 527 N. W. 2d, at 492. The court next addressed petitioner’s federal constitutional challenges to the State’s abatement scheme: The court assumed that petitioner did not know of or consent to the misuse of the Bennis car, and concluded in light of our decisions in Van Oster v. Kansas, 272 U. S. 465 (1926), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), that Michigan’s failure to provide an innocent-owner defense was “without constitutional consequence.” 447 Mich., at 740-741, 527 N. W. 2d, at 493-494. The Michigan Supreme Court specifically noted that, in its view, an owner’s interest may not be abated when “a vehicle is used without the owner’s consent.” Id., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Furthermore, the court confirmed the trial court’s description of the nuisance abatement proceeding as an “equitable action,” and considered it “critical” that the trial judge so comprehended the statute. Id., at 742, 527 N. W. 2d, at 495.
We granted certiorari in order to determine whether Michigan’s abatement scheme has deprived petitioner of her interest in the forfeited car without due process, in violation of the Fourteenth Amendment, or has taken her interest for public use without compensation, in violation of the Fifth Amendment as incorporated by the Fourteenth Amendment. 515 U. S. 1121 (1995). We affirm.
The gravamen of petitioner’s due process claim is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. Cf. United States v. James Daniel Good Real Property, 510 U. S. 43 (1993). Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan’s indecency law. But a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use.
Our earliest opinion to this effect is Justice Story’s opinion for the Court in The Palmyra, 12 Wheat. 1 (1827). The Palmyra, which had been commissioned as a privateer by the King of Spain and had attacked a United States vessel, was captured by a United States warship and brought into Charleston, South Carolina, for adjudication. Id., at 8. On the Government’s appeal from the Circuit Court’s acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the priva-teering. The Court rejected this contention, explaining: “The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing.” Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings “the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs.” Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added).
In Dobbins’s Distillery v. United States, 96 U. S. 395, 401 (1878), this Court upheld the forfeiture of property used by a lessee in fraudulently avoiding federal alcohol taxes, observing: “Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault . . . and it has always been held . . . that the acts of [the possessors] bind the interest of the owner . . . whether he be innocent or guilty.”
In Van Oster v. Kansas, 272 U. S. 465 (1926), this Court upheld the forfeiture of a purchaser’s interest in a car misused by the seller. Van Oster purchased an automobile from a dealer but agreed that the dealer might retain possession for use in its business. The dealer allowed an associate to use the automobile, and the associate used it for the illegal transportation of intoxicating liquor. Id., at 465-466. The State brought a forfeiture action pursuant to a Kansas statute, and Van Oster defended on the ground that the transportation of the liquor in the car was without her knowledge or authority. This Court rejected Van Oster’s claim:
“It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples____They suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. . . .
“It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment.” Id., at 467-468.
The Van Oster Court relied on J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), in which the Court upheld the forfeiture of a seller’s interest in a car misused by the purchaser. The automobile was forfeited after the purchaser transported bootleg distilled spirits in it, and the selling dealership lost the title retained as security for unpaid purchase money. Id., at 508-509. The Court discussed the arguments for and against allowing the forfeiture of the interest of an owner who was “without guilt,” id., at 510, and concluded that “whether the reason for [the challenged forfeiture scheme] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced,” id., at 511.
In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), the most recent decision on point, the Court reviewed the same cases discussed above, and concluded that “the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense.” Id., at 683.. Petitioner is in the same position as the various owners involved in the forfeiture cases beginning with The Palmyra in 1827. She did not know that her car would be used in an illegal activity that would subject it to forfeiture. But under these cases the Due Process Clause of the Fourteenth Amendment does not protect her interest against forfeiture by the government.
Petitioner relies on a passage from Calero-Toledo, that “it would be difficult to reject the constitutional claim of... an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” 416 U. S., at 689. But she concedes that this comment was obiter dictum, and “[i]t is to the holdings of our cases, rather than their dicta, that we must attend.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 379 (1994). And the holding of Calero-Toledo on this point was that the interest of a yacht rental company in one of its leased yachts could be forfeited because of its use for transportation of controlled substances, even though the company was “ ‘in no way . . . involved in the criminal enterprise carried on by [the] lessee’ and ‘had no knowledge that its property was being used in connection with or in violation of [Puerto Rican Law].’” 416 U. S., at 668. Petitioner has made no showing beyond that here.
Justice Stevens’ dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: Objects in the former class are forfeit-able “however blameless or unknowing their owners may be,” post, at 459, but with respect to an instrumentality in the latter class, an owner’s innocence is no defense only to the “principal use being made of that property,” post, at 461. However, this Court’s precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero-Toledo, in which Justice Douglas noted in dissent that there was no showing that the “yacht had been notoriously used in smuggling drugs ... and so far as we know only one marihuana cigarette was found on the yacht,” 416 U. S., at 693 (opinion dissenting in part), might have been decided differently.
The dissent also suggests that The Palmyra line of cases “would justify the confiscation of an ocean liner just because one of its passengers sinned while on board.” Post, at 462. None of pur cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith-Grant, and we repeat here, that “[w]hen such application shall be made it will be time enough to pronounce upon it.” 254 U. S., at 512.
Notwithstanding this well-established authority rejecting the innocent-owner defense, petitioner argues that we should in effect overrule it by importing a culpability requirement from cases having at best a tangential relation to the “innocent owner” doctrine in forfeiture cases. She cites Foucha v. Louisiana, 504 U. S. 71 (1992), for the proposition that a criminal defendant may not be punished for a crime if he is found to be not guilty. She also argues that our holding in Austin v. United States, 509 U. S. 602 (1993), that the Excessive Fines Clause limits the scope of civil forfeiture judgments, “would be difficult to reconcile with any rule allowing truly innocent persons to be punished by civil forfeiture.” Brief for Petitioner 18-19, n. 12.
In Foucha the Court held that a defendant found not guilty by reason of insanity in a criminal trial could not be thereafter confined indefinitely by the State without a showing that he was either dangerous or mentally ill. Petitioner argues that our statement that in those circumstances a State has no “punitive interest” which would justify continued detention, 504 U. S., at 80, requires that Michigan demonstrate a punitive interest in depriving her of her interest in the forfeited car. But, putting aside the extent to which a forfeiture proceeding is “punishment” in the first place, Foucha did not purport to discuss, let alone overrule, The Palmyra line of cases.
In Austin, the Court held that because “forfeiture serves, at least in part, to punish the owner,” forfeiture proceedings are subject to the limitations of the Eighth Amendment’s prohibition against excessive fines. 509 U. S., at 618. There was no occasion in that case to deal with the validity of the “innocent-owner defense,” other than to point out that if a forfeiture statute allows such a defense, the defense is additional evidence that the statute itself is “punitive” in motive. Id., at 617-618. In this case, however, Michigan’s Supreme Court emphasized with respect to the forfeiture proceeding at issue: “It is not contested that this is an equitable action,” in which the trial judge has discretion to consider “alternatives [to] abating the entire interest in the vehicle.” 447 Mich., at 742, 527 N. W. 2d, at 495.
In any event, for the reasons pointed out in Calero-Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses “both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.” Calero-Toledo, supra, at 687. This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner’s consent to use it, petitioner was also potentially liable for her husband’s use of the car in violation of Michigan negligence law. Mich. Comp. Laws §257.401 (1979). “The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner.” Van Oster, 272 U. S., at 467-468.
Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. United States v. Fuller, 409 U. S. 488, 492 (1973); see United States v. Rands, 389 U. S. 121, 125 (1967).
At bottom, petitioner’s claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. This argument, in the abstract, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U. S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court’s confirmation of the trial court’s remedial discretion, see supra, at 446, and petitioner’s recognition that Michigan may forfeit her and her husband’s car whether or not she is entitled to an offset for her interest in it, Tr. of Oral Arg. 7, 9.
We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are “too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” Goldsmith-Grant, supra, at 511. The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore
Affirmed.
Mich. Comp. Laws § 750.338b (1979).
Section 600.3801 states in pertinent part:
“Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, , . is declared a nuisance, . . . and all. . . nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance.” Mich. Comp. Laws Ann. §600.3801 (West Supp. 1995).
Section 600.3825 states in pertinent part:
“(1) Order of abatement. If the existence of the nuisance is established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all furniture, fixtures and contents therein and shall direct the sale thereof in the manner provided for the sale of chattels under execution ....
“(2) Vehicles, sale. Any vehicle, boat, or aircraft found by the court to be a nuisance within the meaning of this chapter, is subject to the same order and judgment as any furniture, fixtures and contents as herein provided.
“(&) Sale of personalty, costs, liens, balance to state treasurer. Upon the sale of any furniture, fixtures, contents, vehicle, boat or aircraft as provided in this section, the officer executing the order of the court shall, after deducting the expenses of keeping such property and costs of such sale, pay all liens according to their priorities . . . , and shall pay the balance to the state treasurer to be credited to the general fund of the state.. ..” Mich. Comp. Laws §600.3825 (1979).
“Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required.” Mich. Comp. Laws §600.3815(2) (1979).
In Austin v. United States, 509 U. S. 602, 617 (1993), the Court observed that J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), “expressly reserved the question whether the [guilty-property] fiction could be employed to forfeit the property of a truly innocent owner.” This observation is quite mistaken. The Goldsmith-Grant Court expressly reserved opinion “as to whether the section can be extended to property stolen from the owner or otherwise taken from him without his privity or consent.” Id., at 512 (emphases added). In other words, the Goldsmith-Grant Court drew the very same distinction made by the Michigan Supreme Court in this case: “the distinction between the situation in which a vehicle is used without the owner’s consent,” and one in which, “although the owner consented to [another person’s] use, [the vehicle] is used in a manner to which the owner did not consent.” 447 Mich., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Because John Bennis co-owned the car at issue, petitioner cannot claim she was in the former situation.
The dissent, post, at 466-468, and n. 12, quoting Peisch v. Ware, 4 Cranch 347, 364 (1808), seeks to enlarge the reservation in Goldsmith-Grant into a general principle that “ ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.’” But Peisch was dealing with the same question reserved in Goldsmith-Grant, not any broader proposition: “If, by private theft, or open robbery, without any fault on his part, [an owner’s] property should be invaded, . . . the law cannot be understood to punish him with the forfeiture of that property.” 4 Cranch, at 364.
U. S. Const., Amdt. 8.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_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.
WILSON BANKING COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Circuit Court of Appeals, Fifth Circuit.
February 25, 1929.
Rehearing Denied March 25, 1929.
No. 5385.
St. Clair Adams, of New Orleans, La. (G. A. Wilson, of; Greenwood, Miss., on the brief), for petitioner.
Mabel Walker Willebrandt, Asst. Atty. Gen., Sewall Key and Harvey R. Gamble, Sp. Assts. to the Atty. Gen., and C. M. Charest, General Counsel, Bureau of Internal Revenue, and Thos. P. Dudley, Jr., Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C. (Irwin R. Blaisdell, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
In this case the material facts axe these: Petitioner is a Mississippi hanking corporation, with a capital stock of $25,000, all of which, except qualifying shares, is owned by G. A. Wilson. When the bank was organized, G. A. Wilson deposited eight promissory notes, of the face value of $174,100. The notes were paid at maturity. The interest, amounting to some $12,000, was credited to the surplus of the honk and the balance was credited to Wilson’s account. There were very few withdrawals from this account, and from time to time it was increased. However, it was always subject to be checked out by Wilson. Petitioner, in making his returns for profit taxes for 1919 and 1920, sought to include this account as capital. This was rejected by the Commissioner of Internal Revenue, and the tax determined accordingly. On appeal to the Board of Tax Appeals, the ruling of the Commissioner was sustained. The ease presents merely questions of fact, and we find nothing in the record that would warrant a reversal of the judgment.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
UNITED STATES of America, Plaintiff-Appellant, v. HAYS ROOFING & SUPPLY, INC., a corporation, Defendant-Appellee.
No. 71-2988.
United States Court of Appeals, Ninth Circuit.
Jan. 23, 1974.
William D. Keller, U. S. Atty., L. Douglas Brown, Asst. U. S. Atty., Los Angeles, Cal., Walter H. Fleischer, Edwin E. Huddleson, III (Argued) Judith S. Ziss, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
Oliver F. Green, Jr., William B. Campbell, Dennis E. Wollan, Geoffrey L. Thomas (Argued) of Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for defendant-appellee.
Before DUNIWAY and GOODWIN, Circuit Judges, and MURRAY, District Judge.
Honorable W. D. Murray, Senior United States District Judge, District of Montana, sitting by designation.
WILLIAM D. MURRAY, District Judge:
This is an action by the United States against a shipper of goods in interstate commerce for imposition of civil forfeitures under Section 222(h) of Part II of the Interstate Commerce Act. The lower court granted the motion to dismiss of appellee, Hays Roofing and Supply, Inc., and the government appealed. The judgment of the district court is affirmed.
The United States alleges that Hays Roofing hired James .Owen Miller to transport its products by motor carrier from South Gate, California, to Phoenix, Arizona. The complaint also states that Hays was aware at the time of hiring that Miller did not have a certificate of public convenience and necessity or a permit issued by the Interstate Commerce Commission authorizing interstate operations. The government asks that judgment be entered against Hays in the amount of $6,000 pursuant to 49 U.S.C. 322(h).
Section 222(h) of the Interstate Commerce Act (49 U.S.C. 322(h)) provides in relevant part as follows:
“Any motor carrier, broker, or lessor, or other person, or any officer, agent, employee, or representative thereof, . . . who shall fail or refuse to comply with the provisions of section 303(c) or section 306(a)(1) or section 309(a)(1) of this title shall forfeit to the United States not to exceed $500 for each such offense . . . All forfeitures provided for in this subsection . . . shall be recoverable in a civil suit in the name of the United States . . . .”
Sections 303(c), 306(a)(1) and 309(a)(1) prohibit interstate transportation of goods by motor carriers unless the Interstate Commerce Commission has issued a certificate or permit authorizing such transportation. Section 303(c) states:
[N]o person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, . . . unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation. . . . ”
The United States offers a three-prong argument to support its attempt to subject a shipper of goods in interstate commerce to civil forfeitures designed to punish motor carriers operating in violation of the Interstate Commerce Act. The government’s first contention is that Section 322(h), as amended, applies to shippers as well as motor carriers. This contention must be rejected.
Section 322(h) is applicable only when a motor carrier, broker, lessor, or “other person” fails or refuses to comply with the provisions of Sections 303(c), 306(a)(1) or 309(a)(1). Section 303(c) applies only to motor carriers i. e. those who “engage in any for-hire transportation business by motor vehicle.” See United States v. Williamson, 235 F. Supp. 836, 837 (S.D.Tex.1964). Hays Roofing has not engaged in any for-hire transportation business by motor carrier, and therefore could not possibly have violated Section 303(c).
No contention is made that Hays Roofing is either a common carrier or a contract carrier by motor vehicle, and thus Hays Roofing could not have violated Section 306(a)(1) or Section 309(a)(1). The inescapable conclusion is that Hays Roofing, as a shipper, cannot be subjected to the civil-forfeiture provisions of Section 322(h). United States v. Mont Stahlman Lumber, Inc., 362 F.Supp. 826, 828 (W.D.Pa.1973).
The government next argues that it can impose civil forfeitures upon the appellee by utilizing Section 2 of the Elkins Act in conjunction with Section 322(h). Section 2 of the Elkins Act, as amended, 49 U.S.C. 42, provides:
“In any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceeding be instituted before the Interstate Commerce Commission or be begun originally in any district court of the United States, it shall be lawful to include as parties, in .addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers.”
The government cites no cases, and the court has found none, in which Section 2 of the Elkins Act was used in the manner desired by the government here. The Elkins Act has been used extensively to subject shippers to equitable proceedings such as injunctions. This fact prompted the court in United States v. Phillips Petroleum Company, 36 F.Supp. 480 (D.Del.1941), to state that this section is aimed at enforcement of the Interstate Commerce Act as distinguished from punishment for its violation. Phillips, supra at 484.
Since Section 2 was drafted before the concept of civil forfeitures in Interstate Commerce cases was presented to Congress, the authors of the Elkins Act could not have intended this section to be a vehicle for punitive measures like those requested in this case. This court perceives no compelling reason for the expansion of Section 2 of the Elkins Act to encompass civil forfeitures by shippers. The punitive character of civil forfeiture requires a restrictive reading of the statute that is not necessary when the court is dealing with equitable measures serving remedial functions.
Finally, the government complaint alleges that a shipper can be subject to civil forfeitures pursuant to 18 U.S.C. Section 2 if it aids and abets a motor carrier in violating the Interstate Commerce Act. This allegation, however, appears to have been abandoned by the government in the light of United States v. American Carpet Mills, Inc., N.D.Ga., Civil Action No. 2180, June 22, 1970, which held that civil forfeitures under 322(h) could not be imposed on a shipper by virtue of the criminal aiding and abetting statute.
However, we need not rely on American Carpet Mills here since it is the opinion of the court that the activities of Hays Roofing in this case were not sufficient to constitute aiding and abetting. Under the test developed in United States v. Williamson, supra, knowledge that the motor carrier was operating without a certificate from the I.C.C. is not in itself sufficient to support a conviction under the aiding and abetting statute.
“Concluding, it should be made clear that the foregoing should not be construed as a holding that a shipper, or other person, may not conspire with a carrier to violate § 303(c); or that a shipper, or other person, may not be guilty as an aider or abettor if, in fact, he ‘aids, abets, counsels, commands, induces or procures’ the violation. The holding simply is that the knowing shipment of his goods by a shipper, and the payment of the proper tariff, does not constitute such shipper an aider or abettor. Such conduct merely makes it possible for the carrier to violate the law.” Williamson, supra at 838, 839 of 235 F. Supp.
This rule has been followed consistently in cases decided under the aiding and abetting statute. In United States v. J. & J. Truck Leasing, 258 F.Supp. 105 (D.Kan.1966), the court re-stated the rule and then went on to note the additional facts necessary to gain a conviction against a shipper for aiding and abetting a carrier’s violation of the provisions of the Interstate Commerce Act. Those facts are not present in this case. Most recently, the rule stated in Williamson was followed in United States v. Mont Stahlman Lumber, supra. The court stated in that case:
“Under this court’s understanding of the law, a shipper may aid and abet a carrier in violating §§ 303(c), 306(a)(1) and 309(a)(1), but the shipper must do more than merely hire the carrier despite knowledge that the carrier does not have proper authorization from the ICC.” Mont Stahlman, supra at 828, 829 of 362 F.Supp.
Under this test, Hays Roofing did not aid and abet Miller in his violation of the Interstate Commerce Act. Consequently, there is no merit in the government’s argument that civil forfeitures can be imposed on Hays Roofing by means of the aiding and abetting statute.
Affirmed.
. Facts established in J. & J. Truck Leasing included substantially lower shipping rates, a sufficient number of licensed carriers in the vicinity of the shipper to handle shipper demands, and false billing descriptions of such transportation costs as “truck rental” rather than freight charges,
Question: This question concerns the first listed respondent. 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:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
UNITED STATES v. CONSOLIDATED EDISON CO. OF NEW YORK, INC.
No. 357.
Argued April 24, 1961.
Decided May 22, 1961.
John B. Jones, Jr. argued the cause for the United States. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Rice, Acting Assistant Attorney General Sellers, Ralph S. Spritzer, Harry Baum and Grant W. Wiprud.
James K. Polk argued the cause for respondent. With him on the briefs were Richard Joyce Smith, Julius M. Jacobs and Harold F. Noneman.
Mr. Justice Whittaker
delivered the opinion of the Court.
Respondent brought this action in the United States District Court for the Southern District of New York to recover a claimed overpayment of federal income taxes for the year 1951. It keeps its books and files its returns on a calendar-year accrual basis. The case turns on the correct determination of the proper year of accrual and deduction of certain contested real estate taxes. Specifically, the question is whether the contested part of a real estate tax accrued (1) in the year it was assessed and, for the purpose — and as the only mode recognized by the local law — of avoiding seizure and sale of the property for the contested tax while the contest was pending, was “paid” by the taxpayer, or (2), in the year the contest was finally determined.
The District Court, following the holding of the Court of Claims in Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 135 F. Supp. 881, that such a “payment” of the tax “accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment,” 133 Ct. Cl., at 383-384, 135 F. Supp., at 885, held, without opinion, that the contested part of the tax accrued in the year of the “payment.” On appeal, the Court of Appeals, by a divided court, held that the contested part of the tax accrued in the year the contest was finally determined, and reversed the judgment. 279 F. 2d 152. It reasoned that inasmuch as respondent was “keeping its books on the accrual basis,” the contested part of the tax accrued “only when all events [had] occurred which determine [d] the fact and amount of the tax liability.” Id., at 155. To resolve the conflict between the decision below and Consolidated Edison Co. v. United States, supra, we granted certiorari. 364 U. S. 890.
During the years involved — 1946 through 1950— respondent owned numerous tracts of real estate in New York City which were subject to annual local property taxes. Under the' New York law, the City Council annually fixes the tax rate, and the City Tax Commission annually fixes the property valuations. Thus the amount of the tax on each tract is determined by multiplying the valuation by the tax rate. The tax rate is not contestable, but a timely application (commonly called a “protest”) may be made to the City Tax Commission to correct an erroneous valuation. Among other things, the protest must state the amount which the taxpayer “consider [s] was the full value of the property on January 25 [of the current] year” thus to establish the amount of the tax that is not contested. Upon exhaustion of this administrative procedure, a review of the Commission’s determination may be had by a judicial proceeding, commonly called a certiorari proceeding, in the State Supreme Court, which is the taxpayer’s sole and exclusive remedy. But the institution of such a suit does not stay or suspend the maturity of the tax bill, the accrual of 7% interest on it, nor the seizure and sale of the property to satisfy the tax lien. Thus, to obtain review, the taxpayer must either “pay” the tax or suffer the interest penalty and run the risk of seizure and sale of its property.
Though taxes for each of five years on hundreds of tracts are involved and the aggregate amount is very substantial, the parties very commendably stipulated in the District Court that the facts are sufficiently reflected, for the purposes of this suit, in the following simplified example:
In each of the years 1946 through 1950, respondent was notified of a tentative valuation which, at the established tax rate, would produce a tax of $100. Respondent then timely filed a bona fide protest (in respect of many, but not nearly all, of its tracts) stating a valuation which, at the established tax rate, would produce a tax of $85, and asking that the balance of the proposed valuation be stricken as excessive. After hearing, the Commission rejected the protest, and an assessment in the amount of $100 was made. Thereupon respondent, under protest and for the honestly stated purpose of avoiding the interest penalty and the seizure and sale of its property while it was contesting the Commission’s valuation by certiorari proceedings in the state court, remitted to the city cash in an amount equal to the tax of $100, and immediately thereafter commenced a certiorari proceeding in the proper court, in which it again admitted liability for a tax in the amount of $85, but denied all liability for any tax in excess of that amount. In December 1951, the court, upon the consent of the parties to the action, entered its order in (each of) the certiorari proceedings fixing respondent’s tax liability at $95, and thereupon the city forthwith returned $5 to respondent.
Although it was then engaged in a contest with the Commissioner in the Court of Claims over an identical question, namely, the proper income tax treatment to be accorded the $15 for each of the years 1938, 1939 and 1941 — which issue was decided by the Court of Claims in December 1955 in favor of the Government, Consolidated Edison Co. v. United States, supra—respondent, in terms of the illustrative example, accrued on its books and deducted on its federal income tax returns, for each of the years 1946 through 1950, the full $100; and in its return for the year 1951 — in which year the real estate tax liability was determined to be $95 — respondent failed to deduct the $10 from, and included the $5 in, its gross income for that year.
Believing that this treatment of the $15 in 1951 was erroneous and resulted in its paying a lesser amount of federal income taxes in each of the years 1946 through 1950, and more in the year 1951, than it should have paid, respondent filed in February 1955 its claim for refund of so much of its 1951 income taxes as resulted (1) from its failure to deduct the $10 of real estate tax that was determined, in that year, to be valid, and (2) from its inclusion in gross income of the $5 returned to it in that year. Upon rejection of that claim, respondent timely brought this action in the District Court to recover the refund claimed, and obtained the result already stated.
It is settled that each “taxable year” must be treated as a separate unit, and all items of gross income and deduction must be reflected in terms of their posture at the close of such year. Burnet v. Sanford & Brooks Co., 282 U. S. 359; Heiner v. Mellon, 304 U. S. 271; Guaranty Trust Co. v. Commissioner, 303 U. S. 493; Security Mills Co. v. Commissioner, 321 U. S. 281. And the parties agree that, under the applicable federal statutes, neither the Government nor an accrual-basis taxpayer may cause an item to be deducted in a year other than the one in which it accrued. United States v. Anderson, 269 U. S. 422; Security Mills Co. v. Commissioner, supra; United States v. Olympic Radio & Television, 349 U. S. 232. They also agree that the “touchstone” for determining the year in which an item of deduction accrues is the “all events” test established by this Court in United States v. Anderson, supra, and since reaffirmed by this Court on numerous occasions, so that it is now a fundamental principle of tax accounting. See, e. g., Lucas v. American Code Co., 280 U. S. 445; Brown v. Helvering, 291 U. S. 193; Dixie Pine Co. v. Commissioner, 320 U. S. 516; Security Mills Co. v. Commissioner, supra. The parties also recognize that this Court amplified, or as the Government says “added a refinement to,” the “all events” test by its holding, in Dixie Pine Co. v. Commissioner, supra, that an accrual-basis taxpayer could not, while “contesting liability in the courts,” deduct “the amount of the tax, on the theory that the state’s exaction constituted a fixed and certain liability,” but “must, in the circumstances, await the event of the state court litigation and might claim a deduction only for the taxable year in which its liability for the tax was finally adjudicated.” 320 U. S., at 519. That principle was specifically reaffirmed in Security Mills Co. v. Commissioner, supra.
That $85 of the $100 assessment was admitted to be owing and was intended to be paid and satisfied by the remittance, and thus accrued in the year - of the remittance, is not in dispute. Respondent’s good faith, in contesting $15 of the assessment, is not in dispute, for the Government expressly “disavow [s] any suggestion that the respondent . . . filed its claims against the City of New York in bad faith, . . . ealculatingly inflated those claims, or . . . failed to prosecute them with diligence.” Nor is it questioned that accrual of such taxes in the proper year accords with “good accounting” principles.
But concordance of the views of the parties ends at this point. The Government contends that the remittance by respondent to the city, in each of the years in question, of cash in an amount equal to the whole of the assessed tax admitted liability for, and was intended to and did constitute “payment” and “satisfaction” of, both the disputed and undisputed parts of the assessment; and that when “the taxpayer pays the item and thereby discharges its liability, the expense has been incurred and there is no longer any contingency which would prevent its accrual.” Respondent, on the other hand, insists that its remittance to the city was not intended to and did not admit liability for, nor constitute “payment” and “satisfaction” of, the contested $15 of the assessment, but was, in effect, a mere deposit, in the nature of a cash bond, required of respondent, in a practical sense, by the local law as the only available mode of avoiding the risk of seizure and sale of the property for the contested tax while its validity was being diligently contested in the only way allowed by the laws of the State.
Thus the very narrow issue here is whether the remittance admitted liability for, and constituted “payment” and “satisfaction” of, the contested part of the assessment and thereby rendered it accruable in the year of the remittance. Like the Court of Appeals, we think the respondent is right in its contention, and that $10 of the contested $15 of the tax accrued when liability in that amount was finally determined by the New York court in 1951, and that the $5, for which respondent was by that judgment held not liable, and which was returned to it by the city, was not income to respondent in 1951.
Although the Government attempts to distinguish the Anderson, Dixie Pine and Security Mills cases on the ground that “payment” of the contested taxes had not been made in those cases, it primarily relies on the decisions of the Court of Claims in Chestnut Securities Co. v. United States, 104 Ct. Cl. 489, 62 F. Supp. 574, and Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 135 F. Supp. 881.
The Chestnut Securities case turned on the question whether certain judicially contested state income taxes (for the years 1936-1938) accrued when they were paid in 1940, as claimed by the accrual-basis taxpayer, or when the final judgment upholding their validity was rendered in 1942, as contended by the Government. Squarely contrary to its contention here, the Government, relying on Security Mills Co. v. Commissioner, supra, there contended that “since the [taxpayer’s] accounts were kept and its tax returns made on the accrual basis, it could not take its deduction for the taxes . . . paid to the State . . . until the year 1942, when its suit'for their return was finally decided adversely to it.” On the facts of that case, the Court of Claims held that “the Government [was] wrong” in that contention. Although, in full consonance with the Security Mills case, the Court of Claims said “[o]ne is not entitled to accrue a debt or other liability which is asserted against him but which he disputes and litigates, until the litigation is concluded,” it went on to say “[b]ut if a liability is asserted against him and he pays it, though under protest, and though he promptly begins litigation to get the money back, the status of the liability is that it has been discharged by payment. It is hardly conceivable that a liability asserted against him, which he has discharged by payment, has not yet ‘accrued’ within the meaning of the tax laws and the terminology of accounting. Accrual, from the debtor’s standpoint, precedes payment, and does not survive it.” 104 Ct. Cl., at 494-495, 62 F. Supp., at 576. And after pointing to this Court’s use of the phrase “and failed to pay” in its holding in the Security Mills case that “Since [the taxpayer] denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the Government’s claim as an accrued liability,” the Court of Claims concluded: “In the instant case the taxpayer denied liability, but paid. We think it thereby ‘accrued’ the taxes and interest, if accrual is requisite at all, in the case of the debtor, when actual payment has occurred.” 104 Ct. Cl., at 495, 62 F. Supp., at 576.
The Consolidated Edison case involved the same parties, facts and questions as the present case, though in respect to earlier tax years. Although recognizing that this Court’s opinions in Security Mills Co. v. Commissioner, supra, and Dixie Pine Co. v. Commissioner, supra, had “settled” the law to be “that a taxpayer may not accrue an expense when he is denying liability and refusing and contesting its payment,” the Court of Claims rejected, as “not necessarily true,” the taxpayer’s argument “that there must therefore be. an admission or absence of denial of liability before an item may be accrued and that the payment of the liability within the taxable year has no effect on its accrual since payment was made under protest and litigation was immediately started to obtain a repayment” (133 Ct. Cl., at 382, 135 F. Supp., at 884); and, purporting to follow, but seemingly departing from, its decision in the Chestnut Securities case, the Court concluded “that payment of an item which is otherwise accruable in the taxable year accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment.” 133 Ct. Cl., at 383-384, 135 F. Supp., at 885. (Emphasis added.) On that conclusion the Court rendered judgment for the Government.
Just what the Court meant by the phrase we have italicized was not explained, but it is evident that if the tax item was “otherwise accruable in the taxable year,” payment — whether of a character that would constitute an admission of the asserted liability or a mere deposit to enable contest of the liability — certainly would not render the item non-aceruable; and if, in the absence of payment, the item was “otherwise accruable in the taxable year,” payment would be immaterial, or at least unnecessary, to the question of accruability. It thus appears that the Court’s judgment was contrary to its rule in that case, for, although it regarded the remittance as “payment” of the asserted tax liability, admittedly the contested part of the tax was not “otherwise accruable in the' taxable year.”
Disagreeing with the conclusion of the Court of Claims in the Consolidated Edison case, the Court of Appeals concluded, we think correctly, that the question of accruability of the tax — apart from the issue respecting “payment” and “satisfaction” — was governed by the “all events” test established by this Court in United States v. Anderson, supra (see note 5), as amplified and affirmed in Dixie Pine Co. v. Commissioner, supra, and reaffirmed as amplified in Security Mills Co. v. Commissioner, supra. See notes 6 and 7.
As to whether respondent’s remittance of the full $100 to the city, in the circumstances of this case, constituted an admission of liability for, and a “payment” and “satisfaction” of, the contested $15 of the assessment, the Court of Appeals recognized that this Court’s opinions in the Anderson, Dixie Pine and Security Mills cases refer to the fact that “payment” of the taxes sought to be deducted in those cases had not been made by the taxpayers, but it thought, and we agree, that those references were made only for the sake of complete accuracy to an important but, so far as those cases were concerned, a collateral matter, and not to the determinative considerations of those cases, which were the “all events” test as they state it.
“Payment” is not a talismanic word. It may have many meanings depending on the sense and context in which it is used. As correctly observed by the Court of Appeals, “A payment may constitute a capital expenditure, an exchange of assets, a prepaid expense, a deposit, or a current expense,” and “[w]hen the exact nature of the payment is not immediately ascertainable because it depends on some future event, such as the outcome of litigation, its treatment for income tax purposes must await that event.” 279 F. 2d, at 156. (Emphasis added.)
Of course, an unconditional “payment” made by a taxpayer in apparent “satisfaction” of an asserted matured tax liability is, without more, plain and persuasive evidence, at least against the taxpayer, that “all the events [have] occur [red] which fix the amount of the tax and determine the liability of the taxpayer to pay it,” United States v. Anderson, supra, at 441, and that the item so paid and satisfied has accrued.
But where, as stipulated by the parties in this case, the remittance or “payment” did not admit, but specifically denied, liability for, and was not intended to satisfy, the contested $15 of the assessment, but was, in effect, a mere deposit, “in the nature of a cash bond for the payment of [so much, if any, of the contested] taxes [as might] thereafter [be] found to be due” (Rosenman v. United States, 323 U. S. 658, 662, and see Lewyt Corp. v. Commissioner, 215 F. 2d 518, 523 (C. A. 2d Cir.)), and was made for the sole purpose of staying—there being no other way to stay—an otherwise possible seizure and sale of the property for the contested tax while its validity was being honestly and diligently contested in the only way allowed by the law of the State, it will not do to say that the taxpayer has made an unconditional “payment” in apparent “satisfaction” of the contested part of an asserted matured tax liability, and thereby rendered it immediately accruable.-
We therefore conclude that $10 of the contested $15 tax liability accrued not in the year of the remittance, but in 1951 when the New York court entered its final order determining that liability; and that the $5, for which respondent was held not liable by that judgment and which was returned to it by the city, was not income to respondent in 1951.
Affirmed.
The procedures allowed by the laws of New York for the contest of real property taxes are more fully set forth in Consolidated Edison Co. v. United States, 133 Ct. Cl. 376, 378, 135 F. Supp. 881, 882.
Respondent asserts that this treatment of the $15 in its 1951 federal income tax return was made under compulsion of the Commissioner's erroneous G. C. M. 25298, issued directly to it in 1947 (1947-2 Cum. Bull. 39), saying, “a contested tax liability accrues not later than time of payment, notwithstanding continuation of contest. The accrual basis of accounting relates to the deductibility of unpaid items,” and that the Commissioner insisted upon that treatment, despite his modification thereof in Mim. 6444 (1949-2 Cum. Bull. 11), saying in pertinent part, that “payment of [a] contested tax liability as a prerequisite for appeal is not deductible under G. C. M. 25298.”
The economic consequences to the parties arise from the fact that corporate income tax rates (normal plus surtax) were increased from 38% in 1946 to 50%% in 1951, and, in.this particular instance, more revenue would be produced by taking the deduction in 1946-1950 than in 1951. The taxpayer recognizes that, if its position be sustained, the Commissioner will have one year after entry of final judgment herein to reaudit the taxpayer's 1946-1950 returns and to assess deficiencies based upon deduction of the $15 in those years, in accordance with the provisions of §§ 1311-1315 of the Internal Revenue Code of 1954.
The applicable statutes are §§23 (c), 41, 42, 43 and 48 of the Internal Revenue Code of 1939 (26 U. S. C. (1952 ed.), §§23 (c), 41, 42, 43, 48). These provisions are the same as their counterparts in prior Revenue Acts and in the Internal Revenue Code of 1954. Inasmuch as those statutes are not really in contest in this ease, it would serve no useful purpose even to abstract them here.
In the Anderson case, this Court declared the so-called “all events” test as follows: “In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given acccounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee’s books. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued.” 269 U. S., at 441.
In the Dixie Pine case, this Court reaffirmed the “all events” test as follows: “It has long been held that in order truly to reflect the income of a given year, all the events must occur in that year which fix the amount and the fact of the taxpayer’s liability for items of indebtedness deducted though not paid; and this cannot be the case where the liability is contingent apd is contested by the taxpayer.” 320 U. S., at 519.
In the Security Mills case, this Court reaffirmed that test as follows': “It is settled by many decisions that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent, and this principle is fully applicable to a tax, liability for which the taxpayer denies, and payment whereof he is contesting.” 321 U. S., at 284.
In the Security Mills case, after saying “that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent,” the Court concluded that “[s]ince [the taxpayer] denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the [tax] claim as an accrued liability.” 321 U. S., at 284.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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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.
IOWA PUBLIC SERVICE COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Burlington Northern, Inc. (“BN”) and Chicago and North Western Transportation Co. (“CNW”), Intervenor-Respondents. BURLINGTON NORTHERN, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce Commission, Respondents. Iowa Public Service Company, Intervenor. BURLINGTON NORTHERN, INC., et al., Petitioners, v. The UNITED STATES of America and Interstate Commerce Commission, Respondents. Iowa Power & Light Company et al., Intervenors.
Nos. 79-1550, 79-1748 and 79-1749.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 16, 1980.
Decided March 16, 1981.
Rehearing Denied April 14, 1981.
Kathleen M. Dollar, Deputy Associate Gen. Counsel, I.C.C., Washington, D. C., for I. C. C.
R. Eden Martin, Washington, D. C., for Burlington Northern.
John M. Cleary, Washington, D. C., for Iowa Public Service.
John J. Powers, III, Attorney, Dept, of Justice, Washington, D. C., for United States.
Before LAY, Chief Judge, and ROSS and HENLEY, Circuit Judges.
HENLEY, Circuit Judge.
Burlington Northern, Inc. (BN), Chicago and North Western Transportation Co. (CNW), and Iowa Public Service Company (IPS) petition for review of an order of the Interstate Commerce Commission (ICC or Commission) served July 13, 1979, which prescribed maximum reasonable rates for unit-train shipments of coal from the Powder River Basin in Wyoming to Sergeant Bluff, Iowa.
IPS operates a coal-fired electricity generating facility at Sergeant Bluff, Iowa, consisting of four generating units (Neal Units 1, 2, 3 and 4). For several years, the Union Pacific Railroad has moved coal for Neal Units 1, 2 and 3 from origin mines in southern Wyoming to Council Bluffs, Iowa, and the CNW has moved the coal beyond to Sergeant Bluff. In 1973 planning began for construction of Neal Unit 4. On September 29, 1977 IPS executed a coal purchase agreement with Carter Oil Company to supply Neal Unit 4 with coal from a different source; namely, Carter’s mines near Gillette, Wyoming. IPS and BN were unsuccessful at efforts to agree upon a carriage rate for the movement of Carter coal to Sergeant Bluff, and, subsequently, BN published a rate of $10.69 per net ton, effective September 15,1978. IPS protested the rate, and the Commission instituted an investigation that resulted in its order of July 13, 1979. The Commission’s decision and order of July 13, 1979 found that the BN and CNW joint rate of $10.69 per net ton was unlawfully high, that a maximum reasonable rate should not exceed $8.23 per net ton, and that IPS was entitled to a refund measured by the difference between the maximum reasonable rate level and the rate which had been charged. On review, objections are raised to the Commission’s (I) finding of market dominance, (II) cost determinations, (III) use of a seven per cent additive above fully allocated costs, (IV) alleged failure to consider the energy implications of its regulatory action, and (V) authority to award refunds in this case.
I. Market Dominance.
Under the Railroad Revitalization and Regulatory Reform Act of 1976, or 4-R Act, P.L. 94-210, 90 Stat. 31, the Commission may not suspend a rate increase as being in excess of a reasonable maximum unless that carrier has market dominance over the transportation to which the rate applies. 49 U.S.C. § 10709.
The railroads allege that the Commission erred in concluding that BN and CNW have market dominance over coal movements from the Carter Oil Company mines in northern Wyoming to Sergeant Bluff, Iowa. We disagree.
The railroads’ argument turns on geographic competition, that is, the supposed availability of southern Wyoming coal supplies for IPS’s Neal Unit 4. The argument that geographic competition exists is convincingly rebutted by evidence in the record showing that IPS is committed to northern Wyoming coal reserves and that southern Wyoming coal reserves may be insufficient to supply Neal Unit 4.
In June 1978, when the challenged $10.69 rate was proposed, IPS was committed for three years to purchase coal for Neal Unit 4 from Carter Oil Company’s Rawhide and Caballo mines near Gillette, Wyoming. Later in 1978 further commitments to the northern Wyoming source of supply for a period of five years were made. Since no other rail lines serve these Carter mines, the Commission reasonably concluded that IPS is a captive shipper at least for the immediate future.
This conclusion is unaffected by evidence showing that IPS may wish to switch to coal supplies from its energy subsidiary, Rocky Mountain Energy Corporation. Although the Rocky Mountain group actively bid for the Neal Unit 4 supply contract, the company was apparently unable to secure sufficient uncommitted reserves to meet Unit 4’s projected needs. Testimony of IPS’s fuel supply manager before the Commission confirms the uncertainty regarding the sufficiency of southern Wyoming reserves.
Given this evidence and testimony, the Commission’s finding of market dominance is reasonably supported by substantial evidence and is not arbitrary and capricious. While geographic competition may be relevant in certain contexts to rebut a showing of market dominance, it is of less importance where the availability of other coal sources has not been established.
We reach the issue of geographic competition aware of possible inconsistency on the part of the Commission as to whether geographic competition may be considered in determining market dominance. See Ex Parte No. 320, Special Procedures for Making Findings of Market Dominance, Interim Report, 353 ICC 735, 904-05 (1976); cf. Ex Parte No. 320, Special Procedures for Making Findings of Market Dominance, Clarification of Prior Decisions, 359 ICC 735, 735 n.2, 736 n.7 (1979). See also Central Power & Light Co. v. United States, 634 F.2d 137, 172-175 (5th Cir. 1980) (remanding for clarification of whether the language or history of § 10709 permits consideration of geographic competition).
Should the Commission finally determine that geographic competition is not relevant to market dominance, our affirmance of the Commission’s finding, of course, would be unchanged. The railroads have offered no convincing argument against market dominance other than that based on geographic competition.
II. Cost Determinations.
Courts traditionally have applied a deferential standard in reviewing rate determinations by an agency, Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412 U.S. 800, 806, 93 S.Ct. 2367, 2374, 27 L.Ed.2d 350 (1973), but the courts have an obligation to determine whether the Commission’s decision comports with applicable law, whether there is evidence in the record to support the Commission’s findings, and whether the agency’s rationale is both discernible and defensible. San Antonio, Texas v. United States, 631 F.2d 831, 836 (D.C.Cir.1980); Burlington Northern, Inc. v. United States, 549 F.2d 83, 88-89 (8th Cir. 1977). Our analysis of the cost issues tracks closely the well-reasoned analysis of similar issues by the District of Columbia Circuit in San Antonio, Texas v. United States, 631 F.2d at 837-53, and the Fifth Circuit in Celanese Chemical Co. v. United States, 632 F.2d 568, 572-78 (5th Cir. 1980). Our analysis is also influenced by the Commission’s reconsideration of some of these issues in Unit Train Rates on Coal — Burlington Northern, Inc., I.&S. No. 9199 (served October 1, 1980). We believe it is necessary to remand certain of these cost issues to the Commission so that uniform policies can be developed and applied.
A. Fixed Plant Investment Additive.
IPS argues that the Commission’s use of both a fixed plant investment additive and Rail Form A in computing the maximum reasonable rate for this transportation double-counted the cost of certain items such as rails, ties, ballast, shops, engine houses and other fixed plant investments. In Unit Train Rates on Coal — Burlington Northern, Inc., I.&S. No. 9199 (served October 1, 1980), the Commission admitted that the use of the additive and Rail Form A double-counted these costs. Id., slip op. at Appendix A, 8-9. The District of Columbia Circuit also noted the double counting error in San Antonio, 631 F.2d at 841-44. We remand for reconsideration of this issue in light of these decisions.
B. Deferred Tax Account.
IPS next argues the Commission’s treatment of federal taxes resulted in overestimation of the rate base. IPS argues that' the Commission neglected to deduct the deferred tax account from the net investment base prior to calculating the rate to be assessed, contrary to the policy expressed in Ex Parte No. 338, 358 I.C.C. 844, aff’d as modified, 359 I.C.C. 270 (1978). The Commission admitted its error in I.&S. No. 9199 (served October 1,1980) (“Once the decision to normalize taxes is made, however, deferred taxes should be deducted from the net investment base prior to the calculation of any overall cost of capital.” Slip op. at Appendix A, 10). Accord San Antonio, 631 F.2d at 847. We remand to the Commission for reconsideration of this treatment of the deferred tax account.
C. Statutory Tax Rate.
IPS also argues that the Commission’s decision to adopt the statutory tax rate in railroad ratemaking proceedings is not appropriate in this case because there is no evidence to support the Commission’s findings that the sum of actual income taxes, deferred taxes, and the investment tax credit approximates the statutory tax rate. The Commission’s decision to use the statutory tax rate was based in part on its policy to assure that accelerated depreciation and the investment tax credit remain an incentive to capital spending. Ex Parte No. 338, 358 I.C.C. at 893-94. Accord San Antonio, 631 F.2d at 847. Because the use of the statutory tax rate is consonant with previous Commission policy, has found judicial support, see San Antonio, 631 F.2d at 846-47, and is a reasonable substitute for computation of actual taxes, we will not second-guess the Commission’s approach in this regard.
D. Allocation of Fixed Costs.
The railroads argue that the inconsistent use of the ratio and ton-ton/mile methods of allocating fixed costs will result in a revenue shortfall for the railroads. In San Antonio, the D.C. Circuit found that the use of the ratio method of allocating fixed costs in coal cases was reasonable and consonant with the general course of Commission practice in Western coal cases. We agree with the D.C. Circuit’s reasoning. San Antonio, 631 F.2d at 841 & nn.48-49.
E. Cost of Locomotive Investment.
The railroads argue that the Commission should have computed the rate base for this transportation on the basis of the full cost of new power units that had to be acquired because of the Sergeant Bluff movement, rather than the average cost of the locomotives in the pool of diesels that serves this movement. This argument was rejected by the D.C. Circuit in San Antonio, 631 F.2d at 838, and for the reasons stated therein we reject the railroads’ argument.
F. Return on Locomotive and Caboose Investment.
The railroads next argue that the rate of return figured on locomotive investment should have taken into account the railroads’ need to raise equity capital as provided for by the ratemaking provisions of the 4-R Act. 49 U.S.C. § 10704(a)(2). The Commission applied a 9.34% cost of capital rate to locomotives and cabooses, representing the interest rate of the railroads’ current trust certificates. The railroads argue that the cost of capital in railroad equipment is the overall cost of capital rate of the railroad, including equity and debt, and not the particular financing rate of debt instruments that use the equipment as collateral. The railroads would apply to this equipment the same cost of capital as that applied to other investments, here 10.6%.
The Commission reasoned that the 10.6% rate of return needed on general corporate funds was inapplicable because locomotive and caboose equipment is not purchased with general corporate funds. Evidence in the record shows that all of the locomotives in the pool acquired by BN in 1977 and 1978 were obtained by leasing. The railroads did not rebut this evidence of large-scale leasing. Accordingly, the Commission with reason declined to accept a cost of capital not necessarily incurred, applying instead a “rental payment” costing methodology to this equipment. We note also that the cost of capital determinations now challenged by the railroads were presented to the Commission by the railroads as an alternative.
In sum, the Commission’s treatment of locomotive capital costs withstands the arbitrary and capricious standard of review which applies to its ratemaking. Burlington Northern, Inc. v. United States, 555 F.2d at 640; see also Atchison, Topeka and Santa Fe Railway v. Wichita Board of Trade, 412 U.S. at 806, 93 S.Ct. at 2374 (plurality opinion); Arizona Grocery Co. v. Atchison, Topeka and Santa Fe Railway, 284 U.S. 370, 387-88, 52 S.Ct. 183, 185, 76 L.Ed. 348 (1932).
III. Seven Per Cent Additive.
The railroads and IPS, for different reasons, object to the Commission’s use of a seven per cent increment above fully allocated costs in computing the maximum reasonable rate for the transportation with which we are concerned. The D.C. Circuit, San Antonio, 631 F.2d at 850-53, and the Fifth Circuit, Celanese Chemical Co. v. United States, 632 F.2d 568, 576-77 (5th Cir. 1980), have described in detail their reasons for rejecting such increments above fully allocated costs as arbitrary and capricious. Accord, Union Pacific R.R. v. United States, 637 F.2d 764 (10th Cir. 1981). This court, like the D.C., Fifth and Tenth Circuits, cannot properly assess the Commission’s action when it supplies no reasoned analysis. On remand, the Commission is directed to explain more fully its reasons for selecting a particular increment, if any, above fully allocated costs, making sure that its decision is based on a thorough analysis of the relevant interests.
IV. Energy Implications.
The Justice Department argues that the Commission’s decision does not adequately consider the impact of its regulatory actions on the national energy policy. We agree and remand this case so that the Commission can comply with the Energy Policy and Conservation Act, Pub.L.No.94-163, § 382, 42 U.S.C. § 6362, and the regulations implementing this statute. 49 CFR §§ 1106.1-1106.8. See Celanese Chemical, 632 F.2d at 579.
V. Commission’s Power to Grant Refunds.
The railroads argue that the Commission’s decision, served July 13, 1979, came too late to serve as a basis for awarding refunds to IPS. We disagree. BN’s and CNW’s $10.69 joint rate went into effect September 15, 1978. The ten month extended deadline for a decision on this rate, as provided by 49 U.S.C. § 10707(b)(1) expired no earlier than July 15, 1979; consequently the decision was timely. We express no opinion herein as to whether the Commission can grant refunds on the basis of decisions issued after the expiration of time periods provided in 49 U.S.C. § 10707 (b)(1).
VI. Staggers Rail Act.
Pursuant to Fed.R.App.P. 28(j), the railroads have. moved for leave to refer to additional authorities. The railroads wish to place before the court Section 202 of the Staggers Rail Act of 1980, Pub.L. 96-448, Oct. 14, 1980, 94 Stat. 1895, which they allege deprives the Commission, and hence the court, of jurisdiction over the Sergeant Bluff rate as of the date the Act was signed into law.
We acknowledge the principle that when a law conferring jurisdiction is repealed without reservation as to pending cases, all cases fall with the law. Bruner v. United States, 343 U.S. 112, 116-17, 72 S.Ct. 581, 584, 96 L.Ed. 786 (1952). The present appeal, however, does not necessarily fall within this principle. Exceptions to retroactive application of a statute have been recognized where only private rights, as opposed to great national concerns, are involved, United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801), or where retroactive application would result in manifest injustice. Bradley v. School Board of Richmond, 416 U.S. 696, 716, 94 S.Ct. 2006, 2018, 40 L.Ed.2d 476 (1974) (dictum); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 282 n.43, 89 S.Ct. 518, 526 n.43, 21 L.Ed.2d 474 (1969) (dictum), citing Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964).
Assuming arguendo that the revenue to cost percentage here is not sufficient to invoke the Commission’s jurisdiction under the provisions of the Staggers Rail Act, this is a case in which manifest injustice precludes application of the Act.
The ninety day period statutorily allowed for the Commission’s determination of jurisdiction is long past. See 49 U.S.C. § 10709(b). All parties to this lengthy proceeding have looked to the Commission for an adjudication of their rights. Application of the Staggers Rail Act at this juncture could result in imposition of the $10.69 rate on IPS without an opportunity to be heard, in derogation of the parties’ expectations. Bradley v. School Board of Richmond, 416 U.S. at 720, 94 S.Ct. at 2020.
For this reason, we deny the railroads’ motion for leave to refer to additional authorities. We note also that as a general rule an agency is entitled to make the initial determination of its own jurisdiction. FPC v. Louisiana Power & Light Co., 406 U.S. 621, 647, 92 S.Ct. 1827, 1841, 32 L.Ed.2d 369 (1972).
. IPS filed a petition for review of the July 13, 1979 order in this court (No. 79-1550); BN and CNW petitioned for review of the order of July 13, 1979 and the supplementary order of July 16 in the District of Columbia Circuit. By order filed August 30, 1979, the Court of Appeals for the District of Columbia Circuit transferred the railroad’s review proceedings to this court.
. The decision and order served July 13, 1979 covered Unit-Train Rates on Coal — Burlington Northern, Inc. (I&S Docket No. 9199), Jowa Power and Light Company v. Burlington Northern, Inc. (Docket No. 36944), Annual Volume Rates on Coal — Rawhide Junction, Wyoming, to Sergeant Bluff, Iowa (Docket No. 37021), and Iowa Public Service Company v. Burlington Northern, Inc. and Chicago and North Western Transportation Company (Docket No. 37029).
I&S No. 9199 and No. 36944 involved Burlington Northern’s proposed rate for unit train movements of coal from Belle Ayr, Wyoming, to the Iowa Power & Light Company (I PL) generating station at Council Bluffs, Iowa. These two proceedings were remanded to the Commission by this court’s order of May 7, 1980. The Commission served its further decision and order on October 1, 1980. The Commission’s October 1, 1980 decision consolidated I&S Docket No. 9199 and Docket No. 36944 with Docket No. 37322, Coal, Belle Ayr and Eagle Junction, WY, to Council Bluffs, Iowa, and Docket No. 37354, Iowa Power and Light Company v. Burlington Northern, Inc. BN filed a petition for review of the October 1, 1980 decision which was heard by this court in December, 1980.
The proceedings at issue here were commenced by IPS filing a petition for investigation (ICC Docket No. 37021) and complaint (ICC Docket No. 37029) seeking a lower rate on coal moved by BN from the Powder River Basin to BN’s connection with CNW near Omaha, Nebraska, and then by CNW to IPS’s electric generating station at Sergeant Bluff, Iowa. The United States and the Interstate Commerce Commission are respondents pursuant to 28 U.S.C. § 2322 and FRAP 15(a). This court has jurisdiction under 28 U.S.C. §§ 2321(a), 2342(5), and 2344, as amended by Public Law No. 93-584, 88 Stat. 1917.
. The contract called for escalating purchases of coal beginning September 1, 1978 until August 31, 1983, leveling off at an annual rate, beginning in 1980, of approximately 2,000,000 tons. IPS had options to terminate the contract as early as September 1, 1981, and could extend the contract through August 31, 1998, subject to a series of additional options to terminate.
. Burlington Northern, Inc. v. United States, 555 F.2d 637, 640 (8th Cir. 1977), held that the Commission’s duty under § 202(b) of the 4-R Act, 49 U.S.C. § l(5)(a-d), to make a finding of market dominance over the service to be rendered did not apply to proceedings begun before passage of the 4-R Act. The investigation in this case (I.C.C. Docket No. 37021) began by order of the ICC dated September 12, 1978, served September 14, 1978. This investigation began before the passage of the Revised Interstate Commerce Act, P.L. 95-473, § 10701-11916, 49 U.S.C. § 10101-11916, 92 Stat. 1337-1470 (October 13, 1978). Thus, the duty of the Commission was to determine if the carrier had “market dominance over the service to be rendered,” 4 — R Act, § 202(b), 49 U.S.C. § l(5)(b), rather than to determine if the carrier had “market dominance over the transportation to which the rate applies,” Revised Interstate Commerce Act, § 10709, 49 U.S.C. § 10709, 92 Stat. 1382. Any difference in the language between the two phrases is not substantive, H.R.No.95-1395, 95th Cong., 2d Sess. 5, reprinted in [1978] U.S.Code Cong. & Ad.News 3009, 3013, because the 1978 revisions were made merely for clarity and consistency, id. at 79-80, [1978] U.S.Code Cong. & Ad.News at 3088-89. Consequently, focus by the Commission, Government, IPS and BN on the language of § 10709 is not inappropriate.
. Geographic competition is described by the Commission as “shipper use of alternate destinations or sources for the products to which the rate applies.” Ex Parte No. 320, Special Procedures for Findings of Market Dominance, Interim Report, 353 ICC 874, 900 (1976).
. We acknowledge difficulty in stating the standard of review which applies to the Commission’s market dominance determination. The difficulty in specifying an appropriate standard of review derives from the unsettled nature of the market dominance showing.
Under the provisions of 49 U.S.C. § 10709(b), the Commission is required to make its market dominance determination within ninety days of the institution of a section 10707 proceeding. The Commission has taken the position that a relevant factor in defining the scope of the market dominance inquiry is the rapidity with which the Commission can determine the issue. Ex Parte No. 320, Special Procedures for Findings of Market Dominance, Interim Report, 353 ICC 874 (1976). In an extension of this reasoning, the Commission here argues that the ninety day deadline precludes a full evidentiary hearing on market dominance. Accordingly, the Commission contends, the market dominance determination is not an adjudication “on the record” to which the substantial evidence standard of review applies.
Assuming arguendo that the allegedly narrower arbitrary and capricious standard applies, we find that the difference between the two standards is largely semantic in the context of the present record. See also Pacific Legal Foundation v. Department of Transportation, 593 F.2d 1338, 1343 n.35 (D.C.Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979); Associated Industries of New York State, Inc. v. Department of Labor, 487 F.2d 342, 349-50 (2d Cir. 1973). See also National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 705 (2d Cir. 1975) (Lumbard, J., concurring in the result); K. Davis, Administrative Law Treatise § 29.01-2 at 284, 285 (1980 Supp.); Note, Judicial Review of Facts in Informal Rulemaking: A Proposed Standard, 84 Yale L.J. 1750 (1975).
. Our disposition does not require us to address one of the Commission’s alternative grounds for finding market dominance, namely, a revenue-to-variable-cost ratio of 236% for the Sergeant Bluff traffic. See 49 CFR § 1109.1(g)(2) (ratio of 160% triggers a rebuttable presumption of market dominance). Because we vacate some of the Commission’s cost determinations, we are unable to determine whether BN’s market dominance over this transportation could be supported by an analysis of the ratio of revenue to variable costs.
. The Commission computed the cost of service as if the carriers were using a straight-line method of depreciation even though the carriers actually are using an accelerated depreciation schedule. Under this method (normalization) the railroads receive the benefit of a tax deferral and the advantage of charging rates as if the higher tax rate had been paid.
. At the revenue need level, the Commission restated an after-tax cost of capital rate of 9.64% for locomotives and cabooses. The 9.64% figure represents a combined use cost (depreciation with an overhead factor) and interest cost (at the current equipment trust certificate rate). It approximates a “rental payment” as a basis for return on this equipment investment.
. Because we remand several cost issues to the Commission, it is not possible to determine whether the revenue-to-variable-cost percentage here is so low as to result in a loss of jurisdiction under Section 202 of the Staggers Rail Act (to be codified at 49 U.S.C. § 10709(d)(2)).
. Division 1 of the Commission found that the railroads have market dominance on December 6, 1978. The Commission affirmed this finding on petition for reconsideration in its July 13, 1979 decision.
The Staggers Rail Act of 1980 was signed into law on October 14, 1980. Section 710(a) provides that the relevant jurisdictional criteria shall take effect on October 1, 1980.
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:
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sc_authoritydecision
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
LUJAN, SECRETARY OF THE INTERIOR v. DEFENDERS OF WILDLIFE et al.
No. 90-1424.
Argued December 3, 1991
Decided June 12, 1992
Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which Rehnquist, C. J., and White, Kennedy, Soutek, and Thomas, 33., joined, and an opinion with respect to Part III-B, in which Rehnquist, C. J., and White and Thomas, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined, post, p. 579. Stevens, J., filed an opinion concurring in the judgment, post, p. 581. Blackmun, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 689.
Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael Young.
Brian B. O’Neill argued the cause for respondents. With him on the brief were Steven C. Schroer and Richard A. Duncan
Terence P. Ross, Daniel J. Popeo, and Richard A Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the City of Austin et al. by William A Butler, Angus E. Crane, Michael J. Bean, Kenneth Oden, James M. McCormack, and Wm. Robert Irvin; for the American Association of Zoological Parks & Aquariums et al. by Ronald J. Greene and W. Hardy Callcott; for the American Institute of Biological Sciences by Richard J. Wertheimer and Charles M. Chambers; and for the Ecotrop-ica Foundation of Brazil et al. by Durwood J. Zaelke.
A brief of amici curiae was filed for the State of Texas et al. by Patrick J. Mahoney, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Nancy N. Lynch, Mary Ruth Holder, and Shannon J. Kilgore, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Robert A Butterworth, Attorney General of Florida, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Lee Fisher, Attorney General of Ohio, and Jeffrey L. Amestoy, Attorney General of Vermont, Victor A Kovner, Leonard J. Koerner, Neal M. Janey, and Louise H. Renne.
Justice Scalia
delivered the opinion of the Court with respect to Parts I, II, III-A, and IY, and an opinion with respect to Part III-B, in which The Chief Justice, Justice White, and Justice Thomas join.
This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1586, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.
I
The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:
“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modifica- . tion of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” 16 U. S. C. § 1536(a)(2).
In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior, and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpreting § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 61 Fed. Reg. 19926; 50 CFR 402.01 (1991).
Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary’s motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F. 2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary’s motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents’ merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F. 2d 117 (1990). We granted certiorari, 500 U. S. 915 (1991).
II
While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. Ill, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and . . . more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III — “serving] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984).
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not. .. th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.
The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.” Gladstone, supra, at 115, n. 31.
When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of Kennedy, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505.
Ill
We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.
A
Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increases] the rate of extinction of endangered and threatened species.” Complaint ¶ 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id., at 734-735. To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “ ‘special interest’ in th[e] subject.” Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 343 (1977).
With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members— Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American ... role ... in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] developing] . . . Egypt’s . . . Master Water Plan.” App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” Id., at 145-146. When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” Id., at 318.
We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species — though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 461 U. S., at 102 (quoting O’Shea v. Littleton, 414 U. S. 488, 495-496 (1974)). And the affiants’ profession of an “inten[t]” to return to the places they had visited before — where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species — is simply not enough. Such “some day” intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require. See supra, at 560.
Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” 16 U. S. C. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question.
Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 281, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.
B
Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, “suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations . . . [are], even when premised on allegations of several instances of violations of law,... rarely if ever appropriate for federal-court adjudication.” Allen, 468 U. S., at 759-760.
The most obvious problem in the present case is redress-ability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority, see, e. g., 16 U. S. C. § 1533(a)(1) (“The Secretary shall” promulgate regulations determining endangered species); § 1535(d)(1) (“The Secretary is authorized to provide financial assistance to any State”), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with the agencies, see § 1536(a)(2) (“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any” funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary’s authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.)
Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary’s authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents’ alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced. The Court of Appeals tried to finesse this problem by simply proclaiming that “[w]e are satisfied that an injunction requiring the Secretary to publish [respondents’ desired] regulatio[n] . . . would result in consultation.” Defenders of Wildlife, 851 F. 2d, at 1042, 1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding. The short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action.
A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the non-agency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. There is no standing.
IV
The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may com-menee a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter.” 16 U. S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a “procedural righ[t]” to consultation in all “persons” — so that anyone can file suit in federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F. 2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them). Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view.
We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandéis wrote for the Court:
“[This is] not a case within the meaning of . . . Article III ... . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .” Ibid.
In Massachusetts v. Mellon, 262 U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:
“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have no such case.... [T]heir complaint... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.” Id., at 488-489.
In Ex parte Lévitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black’s appointment to this Court violated the Ineligibility Clause, Art. I, §6, cl. 2. “It is an established principle,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433-434 (1952) (dismissing taxpayer action on the basis of Mellon).
More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government’s failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” We held that such a suit rested upon an impermissible “generalized grievance,” and was inconsistent with “the framework of Article III” because “the impact on [plaintiff] is plainly undifferentiated and ‘common to all members of the public.’ ” Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, §6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, “standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance . . . . We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind . . . .” Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have, the Government act in accordance with law was not judicially cognizable because “‘assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. Ill without draining those requirements of meaning.’” Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal’s execution on the basis of “ ‘the public interest protections of the Eighth Amendment’ once again, “[t]his allegation raise[d] only the ‘generalized interest of all citizens in constitutional governance’... and [was] an inadequate basis on which to grant... standing.” Whitmore, 495 U. S., at 160.
To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 17
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond2_8_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plainitff-Appellant, v. Parley PROBST and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendants-Appellees. UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plaintiff-Appellee, v. Parley PROBST, Defendant-Appellant, and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendant-Appellee.
Nos. 125-69, 126-69.
United States Court of Appeals, Tenth Circuit.
April 20, 1970.
Rehearing Denied June 5, 1970.
John S. Boyden, Salt Lake City, Utah (Stephen G. Boyden, Salt Lake City, Utah, on the brief), for Ute Indian Tribe, appellant in No. 125-69 and appellee in No. 126-69.
Wayne L. Black, Salt Lake City, Utah (Robert D. Moore, Salt Lake City, Utah, on the brief), for Parley Probst, appellee in No. 125-69 and appellant in No. 126-69.
James J. Smedley, Heber, Utah (David Sam, Duchesne, Utah, on the brief), for Oranna B. Moosman, appellee in both Nos. 125-69 and 126-69.
Before MURRAH, Chief Judge, and BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
We have here a three-way fight over Indian land. Plaintiff-appellant Ute Indian Tribe sued for certain equitable relief and for cancellation of a deed given by defendant-appellee Oranna Moosman as administratrix of the estate of Elizabeth Bumgarner Poowegup to defendant-appellant Parley Probst. Jurisdiction lies under 28 U.S.C. § 1362 because the matter in controversy arises under the Act of August 27, 1954, 25 U.S.C. § 677 et seq. The answer of Probst asserts the validity of the deed and counterclaims for damages. The administratrix denies that the Tribe has any right to the land and, by way of cross-claim against Probst, asserts that the deed to him is void. The district court held that the administratrix was entitled to the land. Both the Tribe and Probst appeal.
The Act provides for the division of the assets of the Tribe between the full-blood and mixed-blood groups, the termination of federal supervision over the latter, and the development of a program for such termination over the former. After the division of the assets between the two groups, the mixed-bloods were to devise a plan for the distribution of its assets among its members. 25 U.S.C. § 6771. If a majority of the mixed-blood group decided that partition of any land was impracticable and, if the Secretary of the Interior approved, the land could be sold and the proceeds divided among members of the group. 25 U.S.C. § 6771 (5). Before the termination of federal supervision, a mixed-blood could dispose of his interest in acquired tribal property only with the approval of the Secretary. See 25 U.S.C. § 677n and 25 CFR § 243.3 (1966 ed.). Federal supervision over tribal land terminated when a patent issued thereto. 25 CFR § 243.2(h). Until August 27, 1964, a patent conveying any tribal land to a mixed-blood had to provide that until that date members of the Tribe had the right of first refusal of an offer to sell. 25 U.S.C. § 677n and 25 CFR § 243.4.
In the division between the groups, the mixed-bloods received the 3,200 acres of land in question. They decided that partition was impracticable and that the land should be sold. It was appraised at $26,600. Secretarial approval is conceded.
Elizabeth, a mixed-blood, submitted the high bid of $26,016 for the land. She did not have the necessary money and interested Probst, a non-Indian, in the land. A written contract was prepared and executed on October 28, 1959, whereby Elizabeth sold to Probst for $35,000 and Probst went into immediate possession. The contract recognized that no patent had been issued and that Elizabeth would have to comply with the first-refusal provision of the statute. Elizabeth gave Probst a $35,000 mortgage on the land to assure compliance with the contract terms. The mortgage was duly recorded. Neither the contract nor the mortgage was submitted to the Secretary for his approval.
On August 11, 1960, the Secretary promulgated regulations as authorized by the Act. 25 U.S.C. § 677z. See 25 CFR §§ 243.1-243.12 (1966 ed.). A patent was issued to Elizabeth on September 20, 1960. It contained the first-refusal provisions required by the statute and regulations. On November 11, 1960, Elizabeth and Probst executed an amendment to the October 28, 1959, contract. It provided that certain escrowed funds be released to Elizabeth; that the required offering should not be made “until such time as the Party of the First Part [Probst] requests that the same be made”; and that if such offering was made at Probst’s request certain conditions for his protection should be included within the offer.
Elizabeth was killed in an accident on November 27, 1963, without making the offer and without conveying to Probst. Oranna was appointed administratrix of Elizabeth’s estate. Probst filed a creditor’s claim against the estate on the basis of the 1959 sale contract and mortgage. Pursuant to court order, the administratrix conveyed the land to Probst by a September 21,1964, deed which was recorded on October 5, 1964. The pending suit was brought by the Tribe on September 20, 1967.
The trial court held that Probst was guilty of fraud; that Elizabeth was not in pari delicto; that the first-refusal provisions “were as much or more for the protecton of the Indian owner as for the protection of the members of the Tribe”; that public policy favored the Indian owner; that the impossibility of reconstructing what would have occurred had there been an offering by Elizabeth and the increase in value of the property supported the award of the land to the administratrix; and that she was not barred by any statute of limitations, by laches, or by estoppel.
The construction and application of § 677n is decisive. The land was a tribal asset. It was real property as that term is used in the section because it was acquired by a mixed-blood. See definition of “real property” in 25 CFR § 243.2 (g). The patent to Elizabeth contained the first-refusal provision. Neither she nor her administratrix made the required offer. The question is the effect of such non-action.
The arguments of the parties lead us into many by-paths which need not be traveled. The Act was intended to distribute tribal property and terminate federal supervision over the mixed-bloods. See § 677 and House Report No. 2493, 2 U.S.Code Cong. & Admin.News ’54, pp. 3355-3359. We are aware of no legislative history which illuminates the intent of the first-refusal provisions. The reliance of the Tribe and the administratrix on the provision of § 677i that a contract made in violation of that section shall be null and void is misplaced. As we read that section it applies to undivided interests and not to real property which a mixed-blood has acquired by purchase. Our concern is whether the statute confers upon the Tribe the unconditional right to meet the price at which the selling mixed-blood offers land acquired from tribal assets.
Contrary to the trial court, we believe that Congress, by incorporating § 677n into the Act, had in mind primarily the protection of the Tribe and only secondarily, if at all, the protection of the selling mixed-blood. The first-refusal provision gave the Tribe, for a ten-year period, the opportunity to recover land which it had lost by the division of assets between the two groups. The language of § 677n means that Congress believed it preferable that tribal land acquired by a mixed-blood, who determined to sell before 1964, return to the Tribe if the Tribe wanted it and could match the offering price. This procedure does not assure a higher price to the mixed-blood, because the Tribe is required only to meet the offering price. Only in the event two or more members of the Tribe compete for acquisition of the land does bidding take place. 25 CFR § 243.7.
The statute must be construed and applied to effectuate the congressional intent. United States v. American Trucking Associations, Inc., 310 U.S. 534, 542, 60 S.Ct. 1059, 84 L.Ed. 1345; see also Federal Trade Commission v. Fred Meyer, Inc., 390 U.S. 341, 348-352, 88 S.Ct. 904, 19 L.Ed.2d 1222. We believe that when a mixed-blood determined within the ten-year period to dispose of his acquired interest, the Tribe had the right to have the property offered to it in accordance with the statute and regulations. Elizabeth determined to sell the land at or before the time when she entered into the first contract with Probst. She did not offer the land to the Tribe. Her administratrix in turn did not offer it, but instead waited until the expiration of the ten-year period and then gave Probst a deed. The Tribe was thus deprived of its statutory right. It makes no difference whether this result was intentional or unintentional or whether it was the upshot of a fraudulent scheme, good-faith ignorance, or ineptness. Whatever the reason, the inescapable fact is that the Tribe was not given the opportunity to reacquire the land.
Probst argues that the assertion of this right is barred by the Utah statute of limitations, Utah Code Ann. 1953, § 78-12-26(3), which provides that a fraud action must be brought within three years after the discovery by the aggrieved party of the fraudulent act. Holmberg v. Armbrecht, 327 U.S. 392, 395-397, 66 S.Ct. 582, 90 L.Ed. 743, holds that a suit in a federal court to enforce in equity a federally created right is not controlled by the forum statute of limitations. The Tribe seeks in federal court equitable relief from the denial of a federal statutory right. There is no applicable federal statute of limitations. Under Holmberg the state statute does not apply and the question is whether the Tribe is chargeable with laches.
The essence of the defense of laches is prejudice to a defendant through unconscionable delay by a plaintiff in the assertion of his claim. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551, and Potash Co. of America v. International Minerals & Chemical Corp., 10 Cir., 213 F.2d 153, 154. Unconscionable delay can occur only after a party discovers, or by the exercise of reasonable diligence could have discovered, the wrong of which he complains. Here the wrong was the denial to the Tribe of its right of first refusal. To sustain his claim of knowledge on the part of the Tribe, Probst relies on November 18, 1959, minutes of a tribal meeting stating that Elizabeth was contemplating the sale of the land, the recording of the mortgage, the payment by Probst of taxes on the land, a 1960 telephone call between the lawyers for the Tribe and Probst, a conversation after Elizabeth’s death among Probst, his lawyer, and a tribe official, and the records of the Bureau of Indian Affairs showing that Probst advanced the purchase price to Elizabeth. These facts, considered separately or together, do not show any action by Probst or Elizabeth to deny to the Tribe its statutory right of first refusal. The denial of that right first occurred in the November 11, 1960, amendment to the October 28, 1959, sale agreement. In that document Elizabeth agreed not to offer the land to the Tribe without a request from Probst. The Tribe did not have knowledge of the amendment until the summer of 1966. Even if the Tribe is charged with constructive notice of the recorded deed from the administratrix to Probst, we believe that the delay of less than three years in the institution of the suit was not unconscionable. In any event, Probst has shown no prejudice resulting from the delay. He has been in possession of the land since 1959 and has enjoyed the benefits of its use. In our opinion laches is no bar to the claim of the Tribe.
The question remains of what relief the court should fashion to remedy the wrong. When federally secured rights are invaded, federal courts must adjust their remedies to grant the appropriate relief. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423; see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189. It is impossible to reconstruct what would have occurred if Elizabeth had made the required offering. In addition, the ten-year period fixed by the statute has passed.
To do equity a decree should put the parties in the position where they would have been if the required offer had been made. From our review of the record we are convinced that this should be done without regard to all the charges and countercharges of fraud, misconduct, and bad faith. When everything else is put aside, the fact remains that Probst, Elizabeth, and the administratrix by their actions deprived the Tribe of a federally created right and that right must be vindicated by affording the Tribe an opportunity to acquire the land.
The administratrix points out that the offer required by § 677n must be made “to the members of the tribe” and argues that the Tribe itself may not be the purchaser of the land. We are not persuaded. Under the regulations, 25 CFR § 243.6, the superintendent was required to notify the Tribe of any offers to sell. As found by the trial court in an unchallenged finding of fact, the Tribe had on occasion purchased property offered by mixed-bloods between 1960 and 1964 and these purchases had been approved by the Secretary. Two letters from Assistant Secretaries of the Interior state that the offering required by the Act ran to the Tribe as well as to its members. Construction of an act by the agency charged with its administration should be followed unless there are compelling indications that it is wrong. Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371. Here there are no such indications. What the members of the Tribe can do individually they can do collectively as a tribe.
The administratrix argues that to permit the Tribe to purchase will deprive her of the advantage which might be secured through competitive bidding. The argument comes too late. If either she or Elizabeth desired competitive bidding, they each had time to make the offer which the statute requires; and they chose not to do so. In any event, the first-refusal provision is primarily for the benefit of the Tribe and its full-blood members and only incidently for the benefit of the selling mixed-blood. We see no reason why the Tribe should not have an opportunity to buy the land without putting it up for bidding.
A decree should be entered permitting the Tribe to purchase the land within a reasonable time by the payment to Probst of his purchase price, $35,000, plus interest thereon from October 28, 1959, to November 11, 1960. We cut off the interest on the latter date because then Probst and Elizabeth made the amendment to the contract which circumvented the statute. The payment by Probst of taxes on the land an^d the minor improvements which he made thereon are set off by the fact that he has had the use of the land for over ten years. The decree should make appropriate provisions for investiture of title to the land in the Tribe upon the payment by it of the required amount to Probst.
Reversed and remanded for further proceedings consistent with this opinion.
. Section 677n provides:
“Any member of the mixed-blood group may dispose of his interest in the tribal assets prior to termination of Federal supervision, ’ subject to the approval of the Secretary. In the event a member of the mixed-blood group determines to dispose of his interest in any of said real property at any time within ten years from August 27, 1954, he shall first offer it to the members of the tribe, and no sale of any interest, prior to termination of Federal supervision, shall be authorized without such offer to said members of the tribe in such form as may be approved by the Secretary. After termination of Federal supervision the requirement of such offer, in form to be approved by the Secretary, shall be a covenant to run with the land for said ten-year period, and shall be expressly provided in any patent or deed issued prior to the expiration of said period.”
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant 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 "transportation". Your task is to determine what subcategory of business best describes this litigant.
Martin RADOVICH, Libelant-Appellant, v. CUNARD STEAMSHIP CO., Ltd., Respondent-Impleading Petitioner-Appellee, v. JOHN T. CLARK & SON and Gourock Ropework Co., Ltd., Respondents-Impleaded.
No. 342, Docket 29867.
United States Court of Appeals Second Circuit.
Argued April 25, 1966.
Decided July 18, 1966.
Kaufman, Circuit Judge, dissented.
Chester A. Hahn, New York City (Sylvia Miller, New York City, on the brief), for libelant-appellant.
William J. Brennan, New York City (Lord, Day & Lord, New York City, on the brief), for respondent-impleading petitioner-appellee.
Joseph Arthur Cohen, New York City (Alexander, Ash & Schwartz, New York City; Sidney A. Schwartz, New York City, on the brief), for respondent-impleaded-appellee John T. Clark & Son.
Before SMITH, KAUFMAN and FEINBERG, Circuit Judges.
FEINBERG, Circuit Judge:
This is an appeal by libelant Martin Radovich from a decree of the district court dismissing his libel for personal injuries against the shipowner, Cunard Steamship Co., Ltd. For the reasons indicated below, we reverse.
Radovich, a longshoreman, was working aboard Cunard’s R.M.S. Mauretania on the morning of July 2, 1961, helping to unload cargo. Radovich was on deck as an “extra man,” participating in the discharge of automobiles through a hatch. An “extra man” holds a guide line attached to the car to keep it from striking anything on deck as it is carried through the air. Cunard supplied a standard 3% inch, three-strand rope for the “Burton” fall, which controls horizontal motion of the cargo. The longshoremen fixed the rope in a single purchase, in which a single length is connected to the wire fall, which controls vertical movement. In a double purchase, two pulleys and two lengths of rope are used, decreasing the speed of the operation but increasing the strength of the rigging. The unloading began with the removal of several small foreign cars; after an hour and a half, the longshoremen attempted to unload a much heavier (3,600 pound) sedan. The car was lifted through the hatch and moved across the deck toward the pier. At a point above the railing, the Burton fall rope parted and the car fell; its sustaining bridle struck and injured Radovich, who was knocked to the deck. The rope supplied by Cunard was new, unused, and without latent defect. Claims of negligence and unseaworthiness were held unfounded by the trial court, and the libel was dismissed. Cunard had impleaded libelant’s employer, John T. Clark & Son, and was awarded litigation expenses as against this stevedoring company because of the longshoremen’s negligence in using a single purchase.
Radovich argues first that his proof that the rope snapped suddenly in the midst of the ordinary performance of the operation raised a presumption under the doctrine of res ipsa loquitur that the rope was insufficient for its intended purpose, and Cunard did not adduce sufficient evidence to explain away or rebut this presumption. This statement of the res ipsa doctrine is faulty in a number of respects, but it is unnecessary to dwell on this point. It suffices to say that the trial judge found that the rope was new, unused, and without latent defect and broke solely because too great a strain was placed upon it and that these findings are clearly supported by the evidence.
Radovich’s other claim is more substantial. The trial judge found that the sedan was too heavy for the single purchase, that the sole reason the rope parted was that the longshoremen tried to lift the car without re-rigging the gear, and that a double purchase would have been effective. Accepting this finding arguendo, Radovich concludes that this proves unseaworthiness. The trial court reasoned that the use of the single purchase was the cause of the accident and, being an act, the cause was not a condition (unseaworthiness), but rather was operational negligence by the longshoremen. The cases in this circuit do make a distinction between operational negligence and an unseaworthy condition negligently created, denying the ship’s liability in the former case. The distinction was recently re-affirmed in Norfleet v. Isthmian Lines, Inc., 355 F.2d 359 (2d Cir. 1966), and Skibinski v. Waterman S.S. Corp., 360 F.2d 539 (2d Cir. 1966).
The difference between operational negligence and unseaworthiness has been questioned in this circuit and is not accepted in some other jurisdictions. The difficulty lies in defining when negligent conduct ends and an unseaworthy condition begins. The court below characterized the distinction as “metaphysical” and a quick glance at some of our cases engenders sympathy for a trial judge attempting to reconcile them. Thus, in Grillea v. United States, 232 F.2d 919 (2d Cir. 1956), a leading case on this point, the wrong hatch cover was placed over a pad-eye “only a short time” before libelant, a longshoreman, stepped on it and it gave way beneath him. This was held (2-1) to constitute a condition of unseaworthiness. On the other hand, in Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752, 756 (2d Cir.) (per curiam en banc), cert. denied, 371 U.S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962), also frequently cited on this issue, a boom buckled while a rain tent was being raised and the falls of a winch were being stretched to a dangerously large angle. This court affirmed (7-2) a finding that no condition of unseaworthiness had been created. In Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir. 1950), cert. denied, 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343 (1951), the manner of hooking up two bridles to lift a heavy piece of metal was unsafe and rendered the ship’s gear unseaworthy. In Skibinski v. Waterman S.S. Corp., supra, plaintiff was injured because an open-mouth cargo hook without any locking device was used to lower a ladder which fell upon plaintiff; this court affirmed (2-1) a finding that the ship was unseaworthy. In Massa v. C. A. Venezuelan Navigacion, 332 F.2d 779 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 186 (1964), this court affirmed a finding that pallets hooked to a loading mechanism were reasonably fit, even though tongs had been placed in the wrong holes. In Spinelli v. Isthmian S.S. Co., 326 F.2d 870 (2d Cir.) (per curiam), cert. denied, 377 U.S. 935, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), the trial judge found that a winch was not defective and that the accident happened because a stevedore changed from loads of six pipes on a winch to loads of nine pipes, thus creating too much of a strain on the winch; this court affirmed a finding that there was no unseaworthiness. In Reid v. Quebec Paper Sales & Transp. Co., 340 F.2d 34 (2d Cir. 1965), this court affirmed (2-1) a finding that a ladder, which a fellow-worker failed to secure, rendered the ship unseaworthy.
If anything emerges from these cases other than the difficulty of apply' ing the act-condition (or operational negligence-unseaworthiness) dichotomy, it is that the findings of the trier of fact should be left undisturbed, if the law to be applied to the facts is properly understood. Thus, Puddu, Spinelli, Massa, Reid, Skibinski, and Strika were all affirmances of the trier of fact (the jury in the last case; the judge in the others). We believe that when the jury is properly instructed as to the law, the findings on the issue of whether operational negligence had given way to a condition of unseaworthiness should ordinarily be left undisturbed, even though a different jury might reach a contrary result. Since this assumes a correct impression of the governing law by the trier of fact, when the instructions are improper, the verdict cannot stand. Norfleet v. Isthmian Lines, Inc., supra. Similarly, while there may be less leeway for inconsistent results when the trier of fact is a judge, see Mamiye Bros. v. Barber S.S. Lines, Inc., 360 F.2d 774 (2d Cir. 1966), here too the finding should ordinarily stand unless the court manifests an incorrect conception of the applicable law.
Applying these standards to this case, it is clear that Judge Cashin felt himself bound by two cases he considered indistinguishable from his own: Puddu v. Royal Netherlands S.S. Co., supra, and Spinelli v. Isthmian S.S. Co., supra. Thus, he stated:
In substance, this case is indistinguishable from the Puddu and Spinelli cases, supra. Too much stress was placed on serviceable equipment and that directly resulted in the injury to the libellant. In this Circuit such an act is operational negligence— it does not create an unseaworthy condition.
However, those cases did not preclude a finding of unseaworthiness by the court below. In Puddu and Spinelli, as indicated above, the issue was whether the (judge-made) findings of the trial court were clearly erroneous. By the same token, these cases did not hold that a contrary finding would have been clearly erroneous. If anything, Strika and Skibinski, supra, would seem closer to this case than Puddu and Spinelli. In both, unseaworthiness was based upon the type of loading mechanism used by longshoremen (in Strika, two bridles, instead of one, to lift a heavy piece of metal, and in Skibinski, an open-mouth (“S” shaped) cargo hook to lower a ladder). Both cases are strikingly similar to the instant case where use of a single strand of rope in a lifting operation, rather than a double strand, created a dangerous condition. Cf. Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959) (winch safety catch adjusted beyond the tolerance of the load). Therefore, since the court incorrectly regarded itself as bound to apply the operational negligence doctrine, we reverse. Upon retrial, the court can focus on the key issues of precisely what the act of “operational” negligence was, and whether that negligent act had come to a stop before the injury occurred. For example, there is a difference between an unsafe plan of operation, which creates a dangerous condition from the beginning of its execution, and a faulty execution of a proper plan. In determining the “act” of negligence, the trial court would have to decide whether use of the single-purchase to lift the 3,600 pound sedan was such a negligent plan which created the dangerous condition immediately upon its inception.
While we feel that the single-purchase was inappropriate and unreasonable for the use it was applied to, and that at the time the lifting of the heavier sedan began a condition of unseaworthiness already existed, we would not necessarily reverse a contrary determination on these key issues by a trial court not mistaken as to its power under the applicable law. Our dissenting brother does not want to “inflict on the district court the impossible task of dealing with words and phrases that are like beads of quicksilver.” If by this he means the distinction between operational negligence and an unseaworthy condition, we agree, as indicated above, that it is difficult to draw the line between them. A position that it is impossible to do so with fairness and reason in fact poses the question of whether the distinction should not be dispensed with altogether. However, we leave that issue for another day; we simply hold today that the facts in the instant case allow a finding of actionable unseaworthiness, and that any impression gleaned from our prior decisions that such a finding is impermissible is erroneous.
Reversed and remanded for proceedings consistent with this opinion.
. Cunard had also attempted to implead Gourock Ropework Co., Ltd., the alleged supplier of the rope used by the longshoremen. However, the claim against Gouroek was abandoned because Cunard was unable to serve process upon it.
. See Note, The Doctrine of Unseaworthiness in the Lower Federal Courts, 76 Harv.L.Rev. 819, 827-28 (1963).
. See Reid v. Quebec Paper Sales & Transp. Co., 340 F.2d 34, 37 (2d Cir. 1965). (“One does not have to be unduly cynical to look askance at this distinction, for every act of negligence, no matter how short-lived, creates an unsafe condition for those exposed to it.”)
. Ferrante v. Swedish Am. Lines, 331 F.2d 571 (3d Cir.), cert. dismissed, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20 (1964); Scott v. Isbrandtsen Co., 327 F.2d 113 (4th Cir. 1964). Contra, Billeci v. United States, 298 F.2d 703 (9th Cir. 1962). See also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548 n. 11, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).
. In Grillea, the trier of fact apparently did not reach the issue.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
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songer_respond2_2_3
|
N
|
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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
In re MARQUETTE MANOR BLDG. CORPORATION. NATIONAL BUILDERS BANK OF CHICAGO v. BROWN et al.
No. 6570.
Circuit Court of Appeals, Seventh Circuit.
June 2, 1938.
Rehearing Denied July 15, 1938.
Arthur J. Hughes, Frank Michels, and C. S. Macaulay, all of Chicago, 111., for appellant.
Charles W. Mead, Gustav Andreen, Jr., and Harry S. Harned, all of Chicago, 111. (Edward G. Berglund, of Chicago, 111., oí counsel), for appellees Brown and others.
Michael Gesas and Edward G. Berg-lund, both of Chicago, 111., for appellees Becker and Smith.
Before SPARKS, and MAJOR, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This is an appeal from an order entered December 6, 1937, by the court below reducing the claim of the Bondholders’ Committee filed in the corporate reorganization proceedings of the debtor, from $135,900 to $74,300. The court decreed that bonds aggregating $61,600, included in the Committee’s claim, be subordinated in lien, which accounts for the reduction in the allowed claim. The, master to whom the matter was referred made a report recommending such reduction. Exceptions were filed to' such report, which were overruled by the court and the report approved. The appeal is taken from this order.
On October 4, 1932, Terrill Bond and Mortgage Company (hereinafter referred to as Terrill), executed its collateral note in the amount of $25,000 to appellant and pledged various securities, including bonds of the debtor here in controversy. This note was renewed from time to time, with some changes in the amount and character of the collateral until March 1, 1934, when the last note, maturing March 30, 1934, was given. By the terms of the pledge, appellant was authorized to sell said collateral, without notice at public or private sale in case of non-payment of the loan at maturity. Appellant claims it had an agreement with Terrill that upon the sale of the collateral, appellant might become the purchaser thereof. The debtor, of course-, was not a party to such agreement and neither was the bondholders’ committee. In March of 1933, appellant was advised that the bonds pledged with it were in default and a foreclosure suit had been instituted in the State Court.
On March 31, 1933, a bondholders’ committee was organized consisting of S. N. Becker, Chairman, Roy J. Smith and Myron D. Goldberg. Edward G. Berglund was designated as Counsel to the committee, and appellant as depositary. Goldberg was appellant’s cashier and appears to have had the controlling voice in the affairs of the committee. As a member of the committee, he was in a position to and did become familiar with the value of, the proceeds from, and the expenses incurred in connection with the various properties, securing the collateral which 'appellant held for the Terrill note, and especially the property of the debtor securing the bonds in question.
At the time of the organization of the committee, appellant held, as collateral security for the Terrill note, bonds of debtor in the sum of $61,600, together with various other bonds and securities. On May 6, 1933, appellant deposited with the committee the said bonds of the debtor held by it as collateral and on June 19, 1933, a certificate of deposit was issued to Terrill, assigned to and retained by appellant.
On June 11, 1935, after numerous conferences among the officials of appellant, including Goldberg, appellant gave public notice that it would sell all of the’ collateral held by it as security for the note on June 14, 1935, at 10:00 in the forenoon at the Clark Street entrance of the County Building in the City of Chicago. The public notice consisted only of the posting of three notices in the City of Chicago. The attorney for the bondholders’ committee was given two days’ notice by telephone, but neither of the other two members of the committee, nor the bondholders, were given any notice. Goldberg, as cashier of appellant, was authorized on its behalf to bid at such sale $5,000 for such collateral security, and, if necessary, in order to purchase the same, to bid as high as $25,000. No other bidders appeared at the sale and Goldberg, on behalf of appellant, purchased the collateral for the initial bid of $5,000. The collateral thus purchased by appellant consisted of bonds of the par value of $61,-600 of the debtor (those in controversy) ; bonds of the par value of $29,600 of Paul-ina Mansions; bonds of the par value of $49,800 of Marquette-Chateau Building; notes signed by various churches in the aggregate amount of approximately $125,-000, and a judgment against the American Hospital in the sum of $20,020.57.
The master found that appellant received payment in full of its note from the collateral purchased at such sale, not including the subordinated bonds in question, and we think this finding is supported by substantial evidence. While we find no direct finding as to the exact amount due upon appellant’s note at the time of the sale, yet the master does find that on March 30, 1934, which was the'date of its maturity, there was an unpaid balance on said note of $22,662 and the amount due on June 4, 1935 is readily ascertainable by adding interest for such period to the amount found to be due and unpaid. While an officer of appellant testified that the collateral was not worth more than the amount of the bid, yet the records of appellant disclose that within fifteen days after the sale the collateral was set up on the books of appellant at a “total true value or actual worth of $92,551.62.” It was also shown that shortly thereafter an agreement was entered into between appellant and the trustees of the American Hospital with reference to the judgment against said hospital in the sum of $20,068.02; that appellant received $5,000 in cash in said settlement and a first mortgage upon real estate owned by the hospital in the sum of $18,777 payable at the rate of $500 per month, and in addition thereto, appellant was paid another $4,000 in cash, which it claims was for attorney fees and expenses in connection with said transaction, but the record seems to be silent as to whom or in what amounts said sum was expended by appellant. In addition to this, appellant expects to receive the sum of $6,304 on account of the bonds of Paulina Mansions which were involved in another reorganization proceeding. • There was also testimony as to a notation appearing on the back of the Terrill note, made by an officer of appellant, which indicated that the note had been fully paid.
The essential controversy is whether appellant was entitled to make a profit on the sale of the collateral security or whether it was only entitled to receive payment of the Terrill note. Appellant contends it was entitled to make a profit on the transaction; in other words, to realize all it could from the securities purchased at the collateral sale, while appellees say that appellant occupied a fiduciary relation and was entitled to nothing more than the payment of its note. The lower court adopted appellees’ theory and we think correctly so. We have examined the authorities upon which appellant relies and they are not in point. True, it is generally held that the holder of collateral security under authority to sell may purchase the same at such sale without any restriction upon his right to make a profit. In other words, the purchaser at such sale is permitted to step in the shoes of the assignor of the collateral. That, no doubt, would have been the situation here had appellant exercised its right of sale under the circumstances originally created by tjie assignment of the collateral to it, but those circumstances were materially altered by subsequent events.
After the organization of the bondholders’ committee, of which appellant’s cashier was a conspicuous member, and the designation of appellant as the depositary for said committee, the rights, and especially the duties devolving upon appellant were of an entirely different character.
The depositary agreement of which appellant, as depositary, the committee and bondholders were parties, expressly provided that the title to all deposited securities vested in the committee immediately upon their deposit with the depositary; the committee was authorized to execute any and all transfers and assignments of bonds deposited with it and to have and exercise all the rights and powers of absolute owners with reference to said bonds, and in fact to have complete control of all compromises, releases or settlements made with reference to said bonds. The committee was also authorized in its discretion to give bondholders notice of any proposed action and, in case it so decided, its action was to be binding upon such bondholders unless they filed their written dissent thereto, in which case' they were to have permission to withdraw their bonds. The purpose of the formation of the bondholders’ Committee must have been for the protection of those who deposited their bonds and to obtain by reorganization, compromise or settlement that which would be the most advantageous to them.
It is difficult to see how this purpose could be served with appellant occupying a dual, and perhaps a three-fold position. As a bank it was properly interested in the collection of the Terrill loan; through its cashier it was serving as a member of the committee and was also acting as its depositary. It was in the interest of appellant, as a bank, to purchase the collateral offered at the sale at a low price. It was ,the duty of the committee and the bank, as its depositary, to sell the bonds at the best price possible, for it is apparent the more realized from such sale, the less would be the indebtedness against the property securing the bonds and the greater would be the security for other bondholders. The least appellant could have done was to notify all members of the committee of the sale, and under the circumstances we think it was obliged to see that all bondholders had notice. Ordinarily, no doubt, the duty of notifying the bondholders would rest upon the committee, but where, as here, we find appellant’s chief agent an important member of the committee, it seems appellant was not without responsibility in this respect.
Our attention is called to no authority where a court has considered a proposition such as is here presented. There is much authority, however, to the effect that those who serve in a fiduciary capacity are not permitted to do so for their own gain. Typical of such cases is that of Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418, where the court on page 588, 41 S.Ct. on page 201, said:
“Ambrose, had, as receiver, the affirmative duty to endeavor to realize the largest possible amount from the Schwab note. Baker v. Schofield, 243 U.S. 114, 37 S.Ct. 333, 61 L.Ed. 626; Robertson v. Chapman, 152 U.S. 673, 681, 14 S.Ct. 741, 38 L.Ed. 592. To this end it was his duty to endeavor to have the land, when sold under the trust deed, bring the largest possible price. J. H. Lane & Co. v. Maple Cotton Mill, 146 C.C.A. 415, 232 F. 421. When he agreed with Smith and Wilson to join in the purchase if Wilson should become the successful bidder, he placed himself in a position in which his personal interests were or might be, antagonistic to those of his trust. Michoud v. Girod, 4 How. 503, 552, 11 L.Ed. 1076. It became to his personal interest that the purchase should be made by Wilson for the lowest possible price. The course taken was one which a fiduciary could not legally pursue. Magruder v. Drury, 235 U.S. 106, 119, 120, 35 S.Ct. 77, 59 L.Ed. 151. Since he did pursue it and profits resulted the law máde him accountable to the trust estate for all the profits obtained by him and those who were associated with him in the matter, although the estate may nbt have been injured thereby.”
Concluding as we do that appellant, under the circumstances, was acting in a fiduciary capacity, and was obligated in connection with the committee of which it was a part, to refrain from disposing of the bonds in question except in a manner most advantageous to other bondholders who had deposited their bonds, and having failed to discharge its duty in this respect, it necessarily follows that appellant should not be permitted to make a profit, huge or small, from the transaction. We are of the opinion that appellant was entitled to have the obligation owing it, represented by the Terrill note, discharged in full. As heretofore stated, the master and the court below found it was so discharged. We have examined the record rather carefully with reference to this controverted question of fact and are satisfied that the evidence in support of such conclusion was not only substantial, but convincing. This obligation having been thus discharged, appellant was entitled to nothing more. To hold otherwise would give it an advantage which would be neither fair nor equitable under the presented circumstances.
The decree of the District Court' is affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_origin
|
A
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. ST. REGIS PAPER COMPANY, Defendant-Appellant.
No. 62, Docket 29746.
United States Court of Appeals Second Circuit.
Argued Sept. 20, 1965.
Decided Jan. 19, 1966.
J. Joseph Smith, Circuit Judge, dissented.
Horace R. Lamb, New York City (Le-Boeuf, Lamb & Leiby, H. Richard Wach-tel, James H. Durand, New York City, on the brief), for defendant-appellant.
James F. Buckley, Atty., U. S. Dept, of Justice (Donald F. Turner, Asst. U. S. Atty. Gen., Lionel Kestenbaum, Atty., U. S. Dept, of Justice, Robert L. Wright, Acting Asst. Atty. Gen., Robert B. Hum-mel, Atty., Dept, of Justice, Washington, D. C., on the brief), for plaintiff-appellee.
Dunnington, Bartholow & Miller, New York City, Briggs & Morgan, St. Paul, Minn., on the brief of Bemis Bros. Bag Co. as amicus curiae, in support of defendant-appellant.
Before MOORE, SMITH and ANDERSON, Circuit Judges.
. Moreover, while § 5(1) was briefly mentioned in the report of the House committee which added § 16 to the FTCA and in the report of the conference committee on the amendment as finally passed, neither report mentioned § 16. See H.R.Rep. No. 1613, 75 Cong., 1st Sess. 4 (1937) ; H.R.Rep. No. 1774, 75th Cong., 3d Sess. 9-11 (1938). Also, the records of the FTC, which strongly supported the amendment, are silent with respect to- the intended relationship between § 5(1) and § 16. Finally, the legislative history of the finality and civil penalty provisions added to the Clayton Act in 1959,15 Ü.S.C. § 21(g), (1), which were patterned after the FTCA, contains little discussion of the civil penalty method of enforcing Commission orders and contains no explanation of the failure to include in the Clayton Act a certification provision similar to § 16 of the FTCA. See H.R.Rep. No. 580, 86th Cong., 1st Sess. (1959); 2 U.S.Code Cong. & Admin. News, S6th Cong., 1st Sess. pp. 1808-1816 (1959). It was assumed by some, however, that a certification procedure would normally be used. Hearings on H.R. No. 432 Before the House Committee on the Judiciary, 86th Cong., 1st Sess. 1, 17 (1959).
MOORE Circuit Judge.
In 1959 the Federal Trade Commission (FTC) issued a consent cease and desist order prohibiting appellant, St. Regis Paper Co. and 16 other manufacturers of multiwall paper shipping sacks, from engaging in certain concerted pricing practices. During the years 1962, 1963 and 1964, the Antitrust Division of the United States Justice Department convened two grand juries in the United States District Court for the Eastern District of Missouri to investigate possible violations of the Sherman Act, 15 U.S.C. §§ 1, 2, by appellant and others, arising out of their pricing practices. No indictment, however, was returned against any party. Thereafter, the Attorney General, at the request of the FTC and in reliance on information obtained during the three-year grand jury investigation commenced the present suit in the United States District Court for the Southern District of New York to recover civil penalties under Section 5(1) of the Federal Trade Commission Act (FTCA), 15 U.S.C. 45(l), in the amount of $230,000 for the alleged violation by appellant of the 1959 FTC consent cease and desist order.
Subsequently, appellant moved to dismiss the complaint asserting that the district court lacked subject matter jurisdiction since the FTC had not, in accordance with its usual practice, certified the case to the Attorney General pursuant to Section 16 of the FTCA, 15 U.S.C. § 56. Appellant contended that the requirements of Section 16 were jurisdictional and that the Attorney General had no power to proceed under Section 5(1) absent an FTC certification. The district court denied the motion, finding that the Section 16 certification procedure was not “so essential a part of the statutory scheme” that congressional intent would be frustrated if the Attorney General proceeded under Section 5(1) without it. The court concluded that Section 16 merely defines an administrative function of the FTC, “a method to be used by * * * [it] in the normal course of discharging its duty,” which does not affect the power of the Attorney General to institute civil penalty suits under Section 5(1). United States v. St. Regis Paper Co., 240 F.Supp. 36, 38 (S.D.N.Y.1965).
Upon appellant’s motion, the district court amended its decision to conform to the requirements of the Interlocutory Appeals Act, 28 U.S.C. § 1292(b). Thereupon, appellant applied to this court for leave to appeal and the application was granted April 7, 1965.
This appeal very possibly raises for the first time the question of whether Section 16 of the FTCA, which provides that whenever the FTC has reason to believe that anyone subject to a Commission cease and desist order is liable to a penalty under Section 5(1) of the FTCA, “it shall certify the facts to the Attorney General, whose duty it shall be to cause appropriate proceedings to be brought” to enforce Section 5(1), constitutes an absolute limitation on the Attorney General’s power to commence suits for civil penalties under Section 5(1). Appellant contends that Section 16- and Section 5(1) of the FTCA must be read and applied together, and points out that this is the first civil penalty suit in which the Attorney General has proceeded under Section 5(1) on his own motion. The Government, while conceding that civil penalty suits are customarily initiated by FTC certification, regards that procedure as merely a convenient means for informing the Attorney General of possible violations of the Commission’s orders. It contends that Section 5(1) fully empowers the Attorney General to initiate civil penalty suits on the basis of independently obtained information, regardless of the Commission’s view concerning the alleged violation of its order, and asserts that the courts have implicitly recognized the jurisdictional completeness of Section 5(1). The question of the interrelationship between Section 5(0 and Section 16, however, was not raised in any case cited by the Government, see United States v. American Greetings Corp., 168 F.Supp. 45 (N.D. Ohio), aff’d 272 F.2d 945 (6th Cir. 1958); United States v. Piuma, 40 F. Supp. 119 (S.D.Cal.), aff’d 126 F.2d 601 (9th Cir. 1941); United States v. Hindman, 179 F.Supp. 926 (D.N.J.1960), nor has it been raised in any case litigated to date under the FTCA.
It is generally recognized that whether procedural requirements such as those set forth in Section 16 of the FTCA are mandatory cannot be determined by merely examining the form of the statute involved, i. e., by a mere literal reading of the law, but “can only be determined by ascertaining the legislative intent. If a requirement is so essential a part of the plan that the legislative intent would be frustrated by a noncompliance, then it is mandatory.” Vaughn v. John C. Winston Co., 83 F.2d 370, 372 (10th Cir. 1936); Van Keppel v. United States, 206 F.Supp. 42 (D.Kan.1962). See generally 3 Sutherland, Statutory Construction §§ 5801-5826 (3d ed. 1943). Unfortunately, the legislative history of Sections 16 and 5(1) is sparse and unilluminating and, thus, sheds little light on their intended relationship. Both provisions were enacted as part of the 1938 Wheeler-Lea Amendment to the FTCA which was aimed primarily at broadening the FTC’s jurisdiction by granting it power to regulate “unfair or deceptive acts or practices in commerce” in addition to “unfair methods of competition in commerce,” and at eliminating the cumbersome procedures for the enforcement of FTC cease and desist orders by providing that they would become final unless an appeal were taken within the statutory time period provided. 15 U.S.C. §§ 45(a), (g). Both Section 5(1) and Section 16 were introduced into Congress and included in the 1938 amendment with little explanation or elaboration in hearings or debates. **See Austera, Five Thousand Dollars a Day, ABA Section of the Antitrust Law 285, 289 (1962). The Government urges, however, that a remark made by Congressman Lea while discussing the relation between Section 16 and Section 14 of the FTCA, 15 U.S.C. § 54, which provides for fines and imprisonment for false advertising in violation of 15 U.S.C. § 52(a), to the effect that the Attorney General could prosecute violations of that section on his own motion, without awaiting FTC certification, demonstrates that certification is equally dispensable with respect to Section 5(1) civil penalty suits. We do not feel that this expression of opinion has any significance for the problem presented here. The Government’s position fails to recognize the fundamental difference in kind between the rule of conduct enforced under Section 5(1) — a cease and desist order issued by the FTC in an adjudicatory proceeding or with the consent of the party proceeded against, and the rule of conduct enforced under Section 14(a) a federal criminal statute. While it is reasonable to presume that when Congress enacts a criminal statute it intends to authorize the Attorney General to enforce the statute on his own motion, i. e., public policy favors the unencumbered enforcement of criminal laws, no such presumption of public policy operates here where the authority of the Attorney General to punish violations of FTC cease and desist orders is at issue.
Since there is no direct evidence of congressional intent with respect to the relation between Section 5(1) and 16, it must be ascertained by examining the purposes and objectives of the FTCA as a whole in terms of objective criteria, i. e., the relevant inquiry is “how, one supposes, it [the legislative scheme] * * * would appear to a ‘reasonable’ interpreter.” Bishin, The Law Finders: an Essay in Statutory Interpretation, 38 So.Cal.L.Rev. 1, 3 (1965). We regard the view that Section 5(1) fully empowers the Attorney General to initiate civil penalty suits as inconsistent with the grant of far-reaching and exclusive regulatory power to the FTC in Section 5 of the FTCA, 15 U.S.C. § 45(1). It is highly unlikely that Congress intended to grant the Attorney General plenary power to punish violations of Commission orders in view of the fact that when it enacted Sections 5(a) and (b) -of the FTCA, 15 U.S.C. § 45(a), (b), it granted the FTC exclusive authority to enforce the proscription against unfair methods of competition and deceptive acts or practices in commerce and, also, granted the FTC exclusive authority to issue orders to cease and desist from such practices. The duty and responsibility for determining what business practices fall within the purview of Section 5 and for determining whether cease and desist orders issued to eliminate the anti-competitive effects of those practices have been complied with or violated was delegated solely to the FTC. While one objective of the 1938 Wheeler-Lea amendment, including Section 5(1), was to “streamline” the procedure for enforcing the Commission’s cease and desist orders, it is nowhere indicated that Congress by providing a civil penalty enforcement procedure intended to transfer the responsibility for interpreting and investigating violations of such orders to the Attorney General.
It must be kept in mind that the “Federal Trade Commission Act is not a revenue-raising or penal measure,” Quaker Oats Co. Trade Reg. Rep. (FTC Complaints, Orders, Stipulations, 1961-1963) [[15858 at 20651 (April 25, 1962) (Elman, Comm., dissenting), but is one “in which Congress, to make its policy [to preserve and promote competition] effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process.” United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 363, 94 L.Ed. 401 (1950). The fact that the FTC has the exclusive power and expertise to formulate policy in its efforts to maintain competition and regulate unfair business practices commands the conclusion that Congress intended it to have the exclusive power to implement that policy by initiating civil penalty suits under Section 5(1). It is sufficient that the Attorney General has a kind of veto power in that he can refuse to prosecute cases certified to him when, in reliance on his own legal expertise, he considers the evidence insufficient to warrant prosecution.
In support of its contention that Section 16 does not affect the power of the Attorney General to commence suits for civil penalties under Section 5(1) the Government relies heavily on decisions which have construed allegedly analogous statutory requirements as non-jurisdictional. In United States v. Morgan, 222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198 (1911), the United States sought to prosecute a drug dealer for violation of Section 44 of the Pure Food & Drug Act of June 30, 1906, 34 Stat. 768 (repealed —its modern counterpart is the Federal Food, Drug & Cosmetic Act, 21 U.S.C. §§ 301-392) which provided that any dealer who shipped adulterated or mis-branded goods in interstate commerce was guilty of a misdemeanor. It was contended that the suit was improper since a provision in the act requiring the Department of Agriculture to provide potential defendants with a hearing prior to certifying facts to the Attorney General for prosecution of alleged violations of the Act had not been complied with. Since another sectioil of the Act expressly empowered the Attorney General to prosecute violations of the Act upon the complaint of a state health officer, the Court concluded that Congress did not intend the hearing procedure to be mandatory. See also United States v. Dot-terweich, 320 U.S. 277, 278-279, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (relied on Morgan for similar construction of Section 305 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 335). In United States v. Gris, 247 F.2d 860 (2d Cir. 1957), this court held that the Congressional authorization of the Federal Communications Commission to request the Attorney General to prosecute violations of the Federal Communications Act, 47 U.S.C. §§ 501, 605, did not affect his power to prosecute violations on his own motion. In both Morgan and Gris, the court refused to impose limitations on the general power of the Attorney General to enforce federal criminal statutes in the absence of a more explicit direction from Congress. These cases clearly cannot be relied on to guide our construction of Section 16 of the FTCA, for we are not concerned either with the scope of the Attorney General’s authority to enforce federal criminal statutes or with the effect of a statutory provision authorizing an administrative agency to initiate prosecutions of such statutes on his power to prosecute. (Admittedly, the Attorney General has the primary responsibility for enforcing federal criminal laws.) Rather, we are concerned with the extent of his authority to prosecute violations of FTC cease and desist orders which the Commission has the primary responsibility for issuing and interpreting. Moreover, in contrast to the legislative scheme set forth in the Pure Food & Drug Act of June 30, 1906, dealt with by the Court in United States v. Morgan, supra, Section 16 of the FTCA constitutes the exclusive penalty enforcement provision provided by Congress for Section 5(1). In Section 16, which specifically refers to Section 5(1), Congress prescribed the circumstances under which civil penalty actions for violations of Commission orders shall be commenced and the officer of the United States who shall prosecute them and in Section 5(1) it prescribed the amount of the penalty and the appropriate manner for filing a suit.
Our conclusion that Sections 16 and 5(1) were intended to be mutually inter-dependent disposes of the Government’s attempt to invoke the plenary authority of the Attorney General to prosecute all civil actions in which the United States is interested, 28 U.S.C. § 507(a) (2), (b) as a basis for permitting him to initiate suits under Section 5(1). The general duty of United States Attorneys to conduct litigation on behalf of the United States can be invoked only in the absence of statutory directions delineating the circumstances under which civil actions can be instituted, i. e., “ ‘except as otherwise provided by law’,” 28 U. S.C. § 507(a), such as those set forth in Section 16 of the FTCA. E. g., United States v. State of California, 332 U.S. 19, 27-29, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947); see United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964 (1956).
In determining the effect— mandatory or directory — to be given Section 16, it is not only appropriate for this court to examine the nature and objectives of the FTCA as a whole but “a significant consideration * * * is a comparison between the results to which each such construction would lead.” Holbrook v. United States, 284 F.2d 747, 752 (9th Cir. 1960); 3 Sutherland, supra, |[ 5806. Concurrent surveillance and enforcement of FTC cease and desist orders by the Commission and the Attorney General would necessarily involve the possibility of conflicting interpretations of such orders. Thus, such a system could result in stultifying the Commission’s implementation of its policies, for the Attorney General in proceeding under Section 5(1) might well pass adversely on practices considered perfectly proper by the Commission and which, as a result of the FTC’s compliance procedures, may have been undertaken with the Commission’s consent. Moreover, the situation might arise where a penalty suit threatens injury to competition, i. e., a small company or a new entrant into a highly competitive or highly concentrated market might be prevented from effectively competing in that market by the payment of a large penalty and litigation expenses. If the Commission were not able to exercise control over the situation and effect compliance with its order through some means other than a civil penalty suit, it could not effectively perform its regulatory function. In addition, to require the Commission to relinquish control over a carefully formulated order at the instant it is issued would defeat the purpose of granting it wide discretion in determining the type of order best suited to combat the competitive ills it uncovers, FTC v. National Lead Co., 352 U.S. 419, 428, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957); cf. FTC v. Mandel Bros., 359 U.S. 385, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959); see generally Comment, 29 U.Chi.Law Rev. 706 (1962), to wit, “to exercise a special competence in formulating remedies to deal with problems in the general sphere of competitive practices,” FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 803, 96 L.Ed. 1081 (1952). It is readily apparent that broad discretion and exclusive authority to select ■ the means for enforcing the Commission’s orders is a necessary corollary of its wide discretion and exclusive power to formulate the order being enforced. Thus, appellant’s position, namely, that the certification procedure provided for in Section 16 should be considered the exclusive means for initiating civil penalty suits authorized in section 5(1) is entirely consistent with the responsibilities of the Commission and the regulatory function it is expected to perform.
To relinquish jurisdiction to the Attorney General after the issuance of a cease and desist order would he most unrealistic, for the Commission alone knows the scope of its orders and has been “provided with staffs to institute proceedings and to follow up decrees and police their obedience * * * [which] are expected to * * * take the lead in following through to effective results.” United States v. Morton Salt Co., 338 U.S. 632, 640, 70 S.Ct. 357, 363, 94 L.Ed. 401 (1950). In recognition of the fact that “the public interest expressed in the Act is not secured simply by collecting fines and penalties,” Quaker Oats Co. Trade Reg. Rep. (FTC Complaints, Orders, Stipulations 1961-1963) ¶ 15858 at 20651 (Elman, Comm., dissenting), and to implement “the basic objective of the Commission, not to exact penalties, but to secure compliance,” Austern, supra 323, the Commission has developed practices and procedural rules designed to effect voluntary compliance with its orders. Mr. Morehouse, FTC Assistant General Counsel in charge of compliance, described the practice of the Commission prior to certifying a case to the Attorney General in the following manner:
We never yet have requested a certification without notifying the respondent that he is considered to be in violation and affording him an opportunity, if he wishes, to come in and discuss the matter in the Compliance Division * * * In other words, we don’t immediately jump down his throat. We * * * see if we can get together and get him to amend his practices so that he can conform to what we think is the requirement of the order * * * [Moreover,] respondent is afforded an opportunity to submit, along with what I send up to the Commission for Certification, a full statement * * * of his position to the Commission.
Hearing on H.R. 432 Before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. 20-23 (1959). See also FTC Annual Report 1961 55-58.
The Commission’s compliance report procedure supplements this practice by providing those subject to the Commission’s orders guidance with respect to future conduct, i. e., advance approval or disapproval of particular business practices, and constitutes “a dedicated effort to help businessmen, both large and small, to bring their practices into compliance with the law, without resort to litigation.” Remarks of FTC Chairman Paul Rand Dixon before the Senate Appropriations Committee, reported in 5 Trade Reg. Rep. fl 50119 at 55125 (1965). Each respondent named in an order is required to file with the FTC within sixty days after its service a written report setting forth the manner in which compliance will be effected. The FTC reviews the reports and advises “each respondent whether the actions set forth therein constitute compliance with the Commission’s order.” FTC Rules of Procedure § 3.26(a), 16 C.F.R. § 3.26(a) (Supp. 1965). In addition, those subject to FTC orders can request advice from the Commission as to whether certain conduct will conform to the terms of an order and the Commission “[o]n the basis of facts submitted, as well as other information available to [it] * * * will inform the respondent whether or not the proposed course of action, if pursued, would constitute compliance with its order." FTC Rules of Procedure § 3.26(b), 16 C.F.R. § 3.26(b) (Supp.1965).
On the other hand, the Attorney General has no staff of experts continually checking on compliance with FTC orders. Since he has no authority to enforce the FTCA and has no influence or role to play in the formulation of cease and desist orders issued thereunder, his office is simply not equipped or designed to intelligently police the Commission’s orders or to develop and maintain a broad, consistent policy in this area. As the Supreme Court has noted “the Commission alone is empowered to develop-that enforcement policy best calculated to achieve the ends contemplated by Congress * * Moog Indus., Inc. v. FTC, 355 U.S. 411, 413, 78 S.Ct. 377, 379, 2 L.Ed.2d 370 (1958). Were the Attorney General permitted to concurrently review with the FTC the validity of the business practices of those subject to the Commission’s orders, the value of the Commission’s practices and rules designed to promote voluntary compliance and avoid the rigors of litigation would be greatly impaired. No respondent couiu ever reach an understanding with the Commission without also seeking the approval of the Attorney General. In addition, a system of dual surveillance and enforcement would unjustly hamper those subject to orders by creating uncertainty and doubt as to what course of action to follow. Congress could not have intended such a result because reason and experience dictate that businessmen operating under the terms of a Commission order “should be relieved insofar as possible of uncertainties with regard ‘to their enterprises and investments and a clear path indicated which they can travel without anxiety.’ ” Note, 38 Ind.L.J. 377, 379 (1963). Under present practice, once the Commission accepts a proposed method of compliance, it is highly unlikely that it will, without notice or opportunity to discontinue the previously approved conduct, initiate a civil penalty suit for violation of the order. See FTC Rules of Practice § 3.26(c), 16 C.F.R. § 3.26(c) (Supp. 1965); cf. Vanity Fair Paper Mills, Inc. v. FTC, 311 F.2d 480, 488 (2d Cir. 1962). Adoption of the Government’s position would deal a serious blow to the reasonable expectations of those who consented to cease and desist orders with the FTC upon the understanding that the compliance procedures and certification practice followed by the FTC would remain in effect for the duration of the order. Thus, it is reasonable to conclude, along with appellant, that Section 16 was designed to protect persons and businesses subject to the Commission’s orders from unwarranted penalty suits and to provide them, in conjunction with the judiciary, with the specialized experienced guidance of the Commission. The fact that a respondent can adequately defend against ill-founded civil penalty actions by the timely utilization of the Federal Rules of Civil Procedure does not justify the Attorney General’s invocation of the judicial process in the first instance. Certainly pre-certification screening by the FTC, required by Section 16, eliminates to a large extent the possibility that unnecessary time and money will be expended in litigation by those subject to Commission’s orders and the public.
Additionally, a system of dual surveillance and enforcement of FTC orders would in all probability jeopardize the Commission’s vitally important consent order procedure, FTC Rules of Practice § 2.1-2.4, 16 C.F.R. § 2.1-2.4 (Supp. 1965), since under such a system cease and desist orders would not provide reliable guidance. Businessmen could hardly be expected to consent to orders to cease and desist knowing that the Attorney General could disregard the Commission’s interpretation of the negotiated order and invoke Section 5(1) on his own motion.
Thus, it is apparent that the circumstances here are in no way similar to those which confronted the court in United States v. Hinman Farms Prods. Inc., 156 F.Supp. 607 (N.D.N.Y.1957) relied on by the Government. There, a suit to collect moneys allegedly owing to the Market Administrator for failure to make payments required by a regulation issued by the United States Department of Agriculture was opposed on the ground that the defendant had not been granted a prior administrative hearing as assertedly required by Section 8a(7) of the Agricultural Marketing Agreement Act, 7 U.S.C. § 608a. The court found that the authorized hearing procedure was merely intended to provide the Agriculture Department with an alternative means for investigating possible violations of its regulations and that no hearing was necessary where a violation had been discovered through other means. The court reasoned that the practicalities of the situation, i. e., under the defendant’s view of Section 8a(7) each refusal by a milk handler to make payments would require a hearing, militated against treating the hearing requirement as a condition precedent to a suit for payment. Id. at 610. Contrariwise, the practicalities of effectively and fairly enforcing the Commission's cease and desist orders, discussed above, militate in favor of treating the requirements of Section 16 as a jurisdictional prerequisite to a Section 5(1) civil penalty suit.
Finally, the fact that the certification procedure has in the past been rigidly adhered to by the Commission and the Attorney General attests to the desirability of restricting the interpretation and enforcement of the Commission’s orders to the Commission. This suit marks the first time in the 27-year history of the 1938 amendments in which the Attorney General has proceeded under Section 5(J) without FTC certification pursuant to Section 16. While agency practice does not constitute conclusive proof of legislative intent, consistent adherence to the certification procedure indicates, at the very least, that the Commission and the Attorney General consider it an extremely effective and practical means for enforcing the Commission orders. This is evidenced by the fact that “in forwarding civil penalty cases to the Attorney General for filing in the U. S. District Court, the * * * [Compliance] Division prepares all necessary pleadings and a trial memorandum, and attorneys of the Division usually participate in and often conduct the trials.” 1962 FTC Ann.Rep. 61-62; see 1961 FTC Ann.Rep. 55, 58.
The Government notes, however, that the Commission in a letter to the Justice Department during the pendency of this appeal, stated that it does not view certification as jurisdictional, see Letter from FTC to James Buckley, Attorney, Department of Justice, June 28, 1965, and urges that the FTC’s construction of the act which it administers is entitled to substantial weight. Under the circumstances, we do not agree. The significance of this recent expression of opinion is not only undermined by years of agency practice to the contrary but it is important to note that the practical reason for disregarding Section 16 here and probably for the above-mentioned view of the FTC, is a recent Third Circuit decision which held that the FTC, while conducting a compliance investigation, cannot obtain access to information produced at a grand jury investigation conducted by the Attorney General. In re Grand Jury Proceedings, 309 F.2d 440 (3d Cir. 1962). Thus, it is unlikely that the FTC could have obtained access to the matters which occurred before the Missouri grand jury that investigated the pricing practices of appellant and it would have had to conduct a separate investigation to ascertain whether appellant had violated the 1959 order. But, as the Third Circuit noted, the quality of the FTC investigation would not have been impaired by its lack of free access to grand jury evidence since the FTC has plenary power to investigate compliance with its orders and to subpoena witnesses and documents. Id. at 444. In sum, we cannot sanction the abdication of the Commission’s duties and responsibilities under the FTCA, especially its duty to predicate certification on a reasonable belief that an order has been violated, for the sake of an administrative shortcut. There is no merit in the Government’s in terrorem argument that to require a Commission investigation of possible violations of its orders where the Attorney General, as here, is in possession of the relevant evidence would serve no useful purpose and would unduly burden the Government by duplicating investigative effort. The fact that duplication might occur in the sense that the same evidence would be examined by both Government bodies is irrelevant. The crucial point is that the Commission’s judgment concerning the legal consequences of the evidence investigated cannot be duplicated, and it is that judgment which Congress intended should form the sole basis for utilizing the civil penalty enforcement mechanism provided in Section 5(1).
To conclude, we hold that Congress intended Section 16 of the FTCA to be jurisdictional, not directory, and that its requirements must be satisfied by the FTC prior to the commencement of a civil penalty suit by the Attorney General under Section 5(J). This view of the interrelationship between Sections 5(J) and 16 is both fair and reasonable in view of the Commission’s extensive investigative powers; experience and pre-occupation with trade regulation; and close relation to its cease and desist orders, evidenced by its compliance report procedures and pre-cer-tification practice. Additionally, it yields the most effective mechanism- — • free from uncertainty and the threat of inter-governmental conflict — for effectuating the objectives and purposes of the FTCA.
The decision of the district court is reversed, and the case is remanded for disposition consistent with this opinion.
. During October 1962 the Antitrust Division of the United States Justice Department,' pursuant to regular liaison procedure, notified the FTC of the pending grand jury investigation. On July 30, 1963 the Chairman of the Commission at its request sent a copy of the 1959 order to the Attorney General and requested him to “initiate appropriate proceedings under Section 16 of the Federal Trade Commission Act * * * looking to the recovery of civil penalties should your examination of the results of the * * * investigation indicate a violation of the Commission’s order.”
. § 5(1) of the Act, 15 U.S.C. § 45(Z) provides in pertinent part that:
Any person, partnership, or corporation who violates an order of the Commission to cease and desist after it has become final, and while such order is in effect, shall forfeit and pay to the United States a civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and may be recovered in a civil action brought by the United States.
Bight other civil penalty suits were simultaneously commenced in the United States District Court for the Southern District of New York against other manufacturers of multiwall paper shipping sacks that had consented to the 1959 cease and desist order. The aggregate amount of penalties claimed in all the actions, including this one, is $865,000.
. § 16 of the Act, 15 U.S.C. § 56 provides that:
Whenever the Federal Trade Commission has reason to believe that any person, partnership or corporation is liable to a penalty under section 54 of this title or under subsection (l) of section 45 of this title, it shall certify the facts to the Attorney General
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_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.
TEXAS & P. RY. CO. v. UNITED STATES.
No. 14287.
United States Court of Appeals, Eighth Circuit.
June 13, 1951.
Otto Atchley, Texarkana, Tex. (Atchley & Vance, Texarkana, Tex., on the brief), for appellant.
Leo Meltzer, Attorney, Department of Justice, Washington, D. C. (James M. Mclnerney, Asst. Atty. Gen., R. S. Wilson, U. S. Atty., Charles A. Beasley, Jr., Asst. U. S. Atty., Fort Smith, Ark., and James O. Tolbert, Attorney, Interstate Commerce Commission, Washington, D. C., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The Texas and Pacific Railway Company appeals from a judgment in a civil action brought by the United States under the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16.
So far as material on this appeal the complaint charged the Texas and Pacific with five separate violations of the Acts, committed in hauling five admittedly defective freight cars between two points in the joint freight and terminal yards of Texas and Pacific Railway Company and the Missouri-Pacific Railroad Company in Tex-arkana, U. S. A., the movement of the cars beginning in Arkansas and ending in Texas. The United States admits that if the movement of cars was in fact by the Missouri-Pacific and not by the Texas and Pacific, as the latter contends, there was no violation of the Safety Appliance Acts by either railroad under the proviso in 45 U.S.C.A. § 13.
The facts were stipulated. Texarkana is the southern terminus of one branch of Missouri-Pacific and the northern terminus of one branch of Texas and Pacific. Greater Texarkana lies in both Arkansas and Texas. The line separating the two States runs through the Union Station and the terminal yards of the railroads. Missouri-Pacific is the owner of all tracks and facilities in the yards in Arkansas, and Texas and Pacific is the owner of all tracks and facilities in the yards in Texas. For many years the terminal yards have been operated as joint yards for the use and benefit of both railroads under an agreement between them. Prior to March 30, 1933, the yards were operated by Missouri-Pacific for the benefit of both railroads, and thereafter under the same contract by Texas and Pacific. On July 1, 1935, the agreement between the railroads for the operation of the yards was changed, and thereafter and at all times pertinent in this case the operation of the yards has been as provided in the new agreement.
Five freight cars with defective appliances were brought into that portion of the freight yards belonging to the Missouri-Pacific by the Missouri-Pacific from some point north of Texarkana. On arrival they were inspected and found to possess the defects charged in the complaint. The necessary repairs were such that they could not be made at the point in the joint yards where the cars were found to be defective. The nearest point on the Missouri-Pacific lines where it maintained for its sole use facilities available for making the repairs necessary was 64 miles north of Texarkana at Gurdon, Arkansas. But, approximately 3,000 feet from the point where the cars were inspected and found to be defective, there were available repair facilities in that portion of the joint yards in Texarkana owned by the Texas and Pacific. The cars were moved from the point of inspection to the repair tracks just mentioned and were there repaired. When they left the repair tracks they contained no defects in violation of any of the requirements of the Safety Appliance Acts.
Under the contract of July 1, 1935, each railroad granted to the other the right to use any and all property and facilities owned by it in’ the joint yards. In the agreement the component parts of the joint yards were classified as joint freight station facilities, joint coach facilities, joint gas compressing facilities, joint engine-house facilities, and joint yard facilities. Joint yard facilities were defined as including “Car shops, repair track facilities, material racks, shop machinery, tools and equipment and other facilities appurtenant to the inspection and repairing of cars.” The contract also provided for the operation of the joint yards under the direct supervision of a terminal train master subject to the orders of the superintendent of each of the railroads relating to its business in the joint yards. Mechanical facilities were under the supervision of a general foreman subject to the orders of the master mechanic of each of the railroads relative to its work. No person was permitted to hold the office of terminal train master or general foreman except upon the approval of both the railroads.
The contract fixed the time and manner for the transfer from one railroad to the other of cars or property brought into the joint yards by one railroad for delivery to the other for further transportation. It provided that in the case of a loaded or empty car arriving in the joint yards with a penalty defect which could not be repaired at the point where the defect was discovered, possession of the car and its contents should pass to the receiving railroad only when the necessary repairs had been made on the repair tracks in the joint yards; and that the facilities and equipment, including the railway tracks used in the operation of the joint yards, when being used by one railroad in its work should be deemed the property of that road during the period of such use, and the employees in the joint yards when engaged on the work of either of the railroads should be for the time so engaged employees of the road for which the work was done.
The salaries of the terminal train master, of the general foreman, and of all employees working in the joint yards, including the labor cost of inspection, removing cars to repair tracks, and repairing defective cars, were paid by the Texas and Pacific which was reimbursed by the Missouri-Pacific for its proportion of such costs, the contract providing for the allocation of the costs of operation between the railroads in the ratio that the cars required to be handled by each respectively bore to the total cars handled.
The defective cars were hauled by engines owned by the Texas and Pacific and manned by employees of the joint yards from the point where discovered defective in Arkansas to the joint yard repair tracks in Texas where the necessary repairs were made by joint yard employees.
After finding the facts as stipulated, the court concluded as a matter of law that, since.the cars did not become defective while being 'hauled or used on its line, the Texas and Pacific violated the provisions of the Safety Appliance Acts in hauling the cars from the point of inspection to the repair tracks; and that the contract between the railroads did not vary the absolute mandate of the Acts and had no binding effect upon the Government. The United States interprets the court’s findings and conclusions as a finding of fact that the movement of the defective cars was done by the Texas and Pacific. If such was the court’s finding of fact, it is clearly erroneous because contrary to all the evidence. On the other hand, if the court concluded as a matter of law, as apparently it did, that the movement of the defective cars was by the Texas and Pacific, the court was wrong. Of course, the contract did not and could not vary the terms of the statute. But we know of nothing in the Safety Appliance Acts which condemns a contract for the joint operation of terminal yards and the use by each road of the facilities owned by the other in such operations where the two roads meet end to end as do the Missouri-Pacific and the Texas and Pacific at Texarkana. The contract for the operation of the joint yards was in the interest of the efficient and economical operation of both railroads. We find nothing in it which conflicts with the letter or the spirit of the Safety Appliance Acts. We hold, as the United States concedes in its brief, that the contract between the roads is valid and binding upon them.
It follows that the joint yard employees who inspected the cars and found them defective, who moved them to the repair tracks, and who repaired the defects were Missouri-Pacific employees; and the facilities, including the engine, the tracks, and the tools used in the operation, were for the time being Missouri-Pacific facilities. The movement of the defective cars was by the Missouri-Pacific “upon its line” within the meaning of the Safety Appliance Acts.
We have found no cases dealing with facts exactly like the facts in this case. Our conclusion, we think, finds support in Philadelphia & R. R. Co. v. United States, 3 Cir., 191 F. 1, and United States v. New York Cent. R. Co., D.C.N.D.N.Y., 70 F. Supp. 761. In both cases it is held that where one railroad under a valid agreement uses the tracks of another for the operation of its trains, the tracks of the second railroad while being used by the first are a part of the first railroad’s lines within the meaning of the Safety Appliance Acts. And see also Gray v. Louisville & N. R. Co., D.C.E.D.Tenn., 197 F. 874, 876.
Reversed and remanded to the District Court with directions to dismiss the complaint.
. “Provided,, That where any ear shall have been properly equipped, as provided in sections 1-16 of this title, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by this section or section 6 of this title, if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point * *
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_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
U. S. FIBRES, INC., a Michigan Corporation, Plaintiff-Appellant and Cross-Appellee, v. PROCTOR & SCHWARTZ, INC., a Pennsylvania Corporation, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. U. S. EQUIPMENT COMPANY, a Michigan Corporation Third-Party Defendant-Appellant and Cross-Appellee.
Nos. 73-2091 to 73-2093.
United States Court of Appeals, Sixth Circuit.
Jan. 17, 1975.
William H. Merrill, Detroit, Mich., Paul L. Nine, Carl J. Marlinga, Warren, Mich., for plaintiff-appellant.
Neill T. Peters, F. R. Damm, Detroit, Mich., for defendant-appellee.
Before CELEBREZZE and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the purchasers of manufacturing equipment sued the seller-manufacturer for damages. The plaintiffs sought to recover for alleged breach of express and implied warranties, fraud and negligence. In its counterclaim the defendant sought recovery on an account, which was undisputed, and damages allegedly incurred by it as the result of fraudulent misrepresentations of the plaintiffs. Following two lengthy hearings the district court entered judgment in favor of the defendant on all claims of the plaintiffs and on the stated account. The counterclaim based on fraud was dismissed. We affirm.
A complete statement of the facts and legal issues as developed in the district court is set forth in its opinions which are reported at 358 F.Supp. 449 and 358 F.Supp. 467. In dealing with the appeal we will attempt to avoid unnecessary repetition of matters covered in the reported opinions. The plaintiffs will be referred to as Fibres and the defendant as Proctor. The Uniform Commercial Code (UCC) applies to the transactions between the parties and they provided that the law of Pennsylvania governs the construction and interpretation of their written agreements. The various issues on appeal will be treated separately, though briefly, in view of the extended treatment of each by the district court.
The two contracts clearly contained an express warranty against defects in materials or workmanship. Proctor spent large sums in replacing and reworking portions of the equipment which were admittedly defective. However, Fibres maintains that other express warranties were created by detailed description of the ovens in the typewritten portion of the contracts and that these warranties could not be excluded by inconsistent disclaimer language appearing in later printed portions of the contracts. This argument overlooks the fact that both contracts, in the typewritten portions and before the description of the ovens, under the heading PERFORMANCE, provided that “in view of the variables present effecting (sic) the capacity of the machine, no guarantee can be extended.” Immediately following this disclaimer was a statement that “the Company’s standard warranty outlined later in this contract does apply.” The printed warranty clause, identical in both contracts, was as follows:
LIABILITY CLAUSE: The Companys liability hereunder shall be subject to the following:
General:
1. The Company warrants the machine against defects in materials or workmanship, but makes no other warranties, express or implied (except as set forth under “Patents”) unless the word “guarantee” is used. Warranties of merchantability or of fitness for a particular purpose or arising from a course of dealing or usage of trade, are specifically excluded. The Purchaser agrees that any affirmations of fact, description of the machine or sample or model machine herein referred to, whether or not the same relate to production or capability of the machine to perform, are not the basis of this contract, unless the word “guarantee” is used in connection therewith, in which case the same shall be express warranties.
Between the two disclaimers was the description upon which Fibres relies for its claim of express warranties. In the first contract the pertinent language was: “This conveyor is especially designed to hold a tolerance of ± 1/32" across the width of the batt, based on a 30 pound per square foot compressive force.” The second contract stated that —-“This conveyor is especially designed with a deflection tolerance of ± 1/32" across each conveyor plate. This deflection is further based on a uniformly distributed load of 30 pounds per sq. ft.” It is provided in UCC § 2-313(l)(b) that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Exclusion of express warranties is permissible under § 2 — 316(1) of the UCC, which provides that language or conduct creating warranties and that tending to negate them “shall be construed wherever reasonable as consistent with each other. . . . ”
If the machinery involved had been tried and proven in the manufacturing process in which Fibres intended to employ it, or if it had been sold by specification alone, the description might be held to create an express warranty. S — C Industries v. American Hydroponics System, Inc., 468 F.2d 852 (5th Cir. 1972). However, the evidence fully supports the finding of the district court that the parties were attempting to put together a combination of machinery to fabricate a product by an “unproven process.” Furthermore, the general manager of Fibres, Mr. Steuernagel, was fully aware of the “variables” referred to in the disclaimer of guarantee of performance. The language of description referred only to the expectations of the designers and in no way guaranteed that these expectations would be met. Furthermore, there is substantial evidence that executives of Fibres who participated in the purchase of the equipment never expected it to produce finished pads having a thickness tolerance of ± 1/32 inch across their width. Thus, this descriptive language was not “part of the basis of the bargain.” UCC § 2-313(l)(b). The district court correctly determined that the language which excluded an express warranty was not inconsistent with the language of description, UCC § 2-316(1), and gave it effect.
Fibres contends that it was entitled to recover under implied warranties of fitness for a particular purpose and of merchantability. An implied warranty of fitness for a particular purpose exists only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . ..” UCC § 2-315. There is abundant factual support in the record for the district court’s finding that Fibres, acting through its agent Steuernagel, did not rely on Proctor’s skill or judgment in selection of the equipment with which it proposed to make dry resinated pads by Steuernagel’s new “secret process.” Therefore, there could be no implied warranty of fitness.
Reliance upon the seller is not a requirement in the case of implied warranties of merchantability. If the seller is a “merchant,” such a warranty is implied in every contract for the sale of goods “[u]nless excluded or modified.” UCC § 2-314. This warranty may be excluded only by language which mentions merchantability and is conspicuous. UCC § 2 — 316(2). The exclusion in this case, which was contained in the previously quoted liability clause, used the word “merchantability.” Thus, the question is whether this disclaimer was “conspicuous” as defined in UCC § 1 — 201(10):
(10) “Conspicuous”: A term or clause, is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.
Fibres relies principally on Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964), which applied Pennsylvania law in holding that a disclaimer “in the same color and size of other type used for the other provisions” of a contract was not conspicuous. Id. at 593. In that case the court was dealing with a warranty of fitness for a particular purpose rather than one of merchantability. A fundamental question was the meaning of “as is” in the dealings between the parties. In the present case the heading under which the disclaimer appeared met the requirement of § 1— 201. Neither in Boeing, supra, nor in the Pennsylvania cases relied on by Fibres, is it clear that the court considered contracts in which a heading in bold-type capital letters of the same size as all other headings, appeared at the beginning of the exclusion clause. We do not read these cases as holding the Pennsylvania rule to be that there can be no disclaimer as a matter of law if type of the same color and size is used in the text even though the heading is in capital letters.
It is significant that the official UCC comments under Section 1 — 201(10) state—
10. “Conspicuous.” New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.
As we have pointed out, near the beginning of each contract, in the typed portion where guarantee of performance was excluded, there was a reference to “the Company’s standard warranty outlined later in this contract.” From exhibits introduced by Proctor it is clear that the liability clauses of the contracts were scrutinized with care by Fibres. One examining these contracts was put on notice by the early disclaimer of performance that only the standard warranty of Proctor applied. The testimony of Fibres executives was that they were familiar with the contents of the printed portions of the contract. There was no surprise. Knowing that they were employing an untried combination of components, which had been successfully operated separately but not together, in an attempt to produce a familiar product by a new process, the principals of Fibres could not realistically have expected Proctor to extend the warranties which they now claim. Under the facts of this case the district court correctly held that attention could reasonably be expected to be called to the disclaimer. Conspicuousness is a question of law for the court. Adams Van Service, Inc. v. International Harvester Corp., Pa. Court of Common Pleas, Allegheny County (1973), 14 UCC Rep. Serv. 1142.
In denying Fibres’ claim based on fraud the district court found that Proctor made no material misrepresentations of fact. Upon conflicting evidence the court determined that it had never been the intention or understanding of the parties that Proctor guaranteed that the equipment would produce pads of uniform thickness. Having had no experience with this particular operation, Proctor could only give an opinion as to how the equipment would perform. Furthermore, the claim of Fibres that Proctor concealed its knowledge from Fibres that the equipment would not produce pads of uniform thickness is not borne out by the record. Fibres officials Clapp and Steuernagel testified that Proctor’s chief inspector told them before production began that he did not believe it was possible to maintain a tolerance of 1/32 inch across the pads with the type conveyor that was being used. When Christianson, a sales representative of Proctor, referred to this tolerance it was never with reference to the finished product. He described the success of the dryer in a different procedure and predicted similar results using Steuernagel’s “secret process.” This and other evidence relied upon by Fibres fell far short of establishing the elements necessary for proof of fraud.
All of the foregoing issues were decided by the district court on a motion for an involuntary dismissal under Rule 41(b), Fed.R.Civ.P. The court incorporated findings of fact in its opinion granting the motion, and we apply the “clearly erroneous” standard of review prescribed by Rule 52(a). Though there was a great deal of conflict in the testimony of witnesses, the findings of the district court are supported by substantial evidence and may not be set aside by this court. Furthermore, no erroneous application of rules of law to these facts has been demonstrated by Fibres.
Following the second hearing the district court made a finding of no actionable negligence on the part of Proctor. The recitation by the court of numerous problems encountered by Fibres in attempting to produce satisfactory batting is not inconsistent with this finding as Fibres contends. At the request of Fibres these problems were treated as defects in materials or workmanship and were remedied by Proctor at its own expense. Once these extended repairs were completed the ovens operated properly until Fibres went out of business. In finding that Proctor was not negligent either in design or manufacture the District Judge made a detailed analysis of the design and manufacture of the equipment. The finding is not clearly erroneous and may not be set aside by this court.
Having found no negligence on the part of Proctor the court had to consider the issue of contributory negligence only as it related to Proctor’s counterclaim. The evidence clearly supports the finding that as early as June, 1966 Fibres seriously overloaded the equipment. However, the court also found that there was no proof that either party realized at the time that overloading was occurring. It therefore held that Fibres had no duty to advise Proctor of this fact. Since Proctor’s counterclaim was based on the claim that Fibres’ failure to inform it of the overloading constituted fraud, no recovery was allowed. In view of these holdings it is clear that no damages were withheld from Fibres or awarded to Proctor by the district court on the basis of its findings with respect to overloading the equipment. Thus the extensive discussion in briefs of the existence and extent of overloading is immaterial in view of our conclusion that the district court’s findings on the negligence claim and the counterclaim for fraud must stand.
This court’s determination that the district court correctly denied any recovery by Fibres renders extended discussion of the clauses which limited damages under the contracts unnecessary. However, we note that UCC § 2-719 permits limitation or exclusion of consequential damages so long as it is not unconscionable. Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), aff’d, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). See also Cryogenic Equipment, Inc. v. Southern Nitrogen, Inc., 490 F.2d 696 (8th Cir. 1974); K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970), 7 UCC Rep.Serv. 679.
The record supports the district court’s finding that “ . . . there was uneven resin distribution in much of plaintiff’s product.” Such uneven resin distribution explained the lack of uniform thickness in the pads, according to credited testimony. Thus, even if it were held that express and implied warranties existed with respect to the thickness tolerance of the pads or that Proctor did misrepresent the capability of the equipment to produce pads of uniform thickness, Proctor’s derelictions would not have been the cause of Fibres’ claimed losses. The one component of the entire production line that was clearly the responsibility of Fibres was the “lawn fertilizer spreader” which introduced dry resin into the cotton fibres to produce dry resinated pads. As the district court noted, the dryer “only receives what is fed into it.” If Steuernagel’s method of introducing the resin in this manner failed to produce an even distribution and this failure sufficiently explains the uneven thickness of the finished pads, the deficient result cannot be charged to Proctor under any theory of law.
Separate appendices were filed by the parties to this appeal. Rule 30 of the Federal Rules of Appellate Procedure provides for a single appendix. Furthermore, the brief of appellants exceeded the length permitted by Rule 28(g), Fed. R.App.P. Failure to follow these rules results in an unwarranted burden on the court.
Affirmed on appeal and cross-appeal. Each party will bear its own costs.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
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.
BARTKUS v. UNITED STATES, and three other cases.
Circuit Court of Appeals, Seventh Circuit.
June 8, 1927.
Nos. 3874-3877.
1. Conspiracy <§=>25 — Conspiracy statute does not make it crime to conspire that some person other than conspirators shall commit crime.
Conspiracy statute makes it crime for two or more persons to conspire to commit offense, but does not make it crime to conspire that some person other than conspirators shall commit it.
2. Conspiracy <§=>43(6) — Indictment for conspiracy should state essential elements of substantive offense constituting object of conspiracy.
Though technical precision is not required, essential elements of substantive offense should bo stated, when describing object of conspiracy in indictment.
3. Conspiracy <§=43(6) — In indictment for conspiracy that bankrupt corporation withhold property from trustee, allegation that corporation had been adjudged bankrupt and trustee appointed held not essential (Bankruptcy Act, | 29b, cl. I [Comp. St. § 9613]).
In indictment for conspiracy that corporation, as bankrupt, should fraudulently conceal property from its trustee in violation of Bankruptcy Act, § 29b, cl. 1 (Comp. St. § 9613), allegation that corporation had been adjudged bankrupt and trustee had been appointed held not essential.
4. Conspiracy <§=43(12) — In prosecution for conspiracy to withhold property from bankruptcy trustee, there was no fatal variance between allegation that bankrupt was “electrical company” and proof that it was “electric company.”
In prosecution for conspiracy that bankrupt corporation should withhold property from trustee, there was no fatal variance between indictment charging that corporation was Bridgeport Electrical Company and proof that it was Bridgeport Electric Company.
5. Conspiracy <§=47 — Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee.
Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee, though some of bankrupt’s property found its way into their possession.
6. Criminal law <§=l 159(2) — Circuit Court of Appeals cannot weigh evidence.
Circuit Court of Appeals is not permitted to weigh evidence in criminal case.
7. Conspiracy <§=>47 — Commission of crime may be evidence that those committing it conspired to commit it.
Though crime of conspiracy may be completed without actual commission of crime which is its object, commission of such crime may be evidence that those committing it conspired to commit it.
8. Conspiracy <§=>23 — One defendant alone cannot be convicted of conspiracy.
Where evidence was insufficient to support conviction of three of four defendants for conspiracy that bankrupt corporation withhold property from trustee, conviction of the other will be set aside also, since one person cannot commit crime of conspiracy.
In Error to the District Court o£ the United States for the Eastern Division of the Northern District of Illinois.
Alfons Bartkus, Victor Kelps, Adolph Nevar, alias Adolph Niewiardowski, and William Dronsuth were convicted of conspiracy that a bankrupt should conceal property from bis trustee, and they separately bring error.
Reversed and remanded, with direction.
John M. Zane, of Chicago, Ill., for plaintiffs in error.
George E. Q. Johnson and Edward J. Hess, both of Chicago, Ill., for the United States.
Before EVAN A. EVANS, PAGE, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
Plaintiffs in error were convicted of violating that portion of the conspiracy statute which provides: “If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * * or imprisoned, * * * or both.” Comp. St. § 10201.
The offense against the United States sought to be charged as the object of the conspiracy is the violation of clause 1 of section 29b of the Bankruptcy Act,, which, though amended since, at the time of the commission of the .alleged offense read: “A- person shall. be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense, of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy.” Comp. St. § 9613.
In substance the indictment charges that one of the plaintiffs in error, Bartkus, .was president and manager of the Bridgeport Electrical Company, a corporation, and ‘ as such president and manager dominated the acts and doings thereof, and that the plaintiffs in error, anticipating and expecting that an involuntary petition in bankruptcy would be filed against the company, and that thereafter it would be adjudged a bankrupt, and that in said bankruptcy proceedings a trustee would be appointed of and for the estate in bankruptcy of the company, did conspire, combine, confederate and agree together “to the end and for the purpose that said Bridgeport Electrical Company, a corporation, while a bankrupt as aforesaid, unlawfully, knowingly, wilfully, and fraudulently should conceal from said trustee in bankruptcy of said Bridgeport Electrical Company, a corporation, a large amount of property, to wit, the sum óf thirty five thousand dollars ($35,-000.00), and, to wit, a large quantity of merchandise and electrical goods, and goods for the manufacture of electrical appliances, and fixtures (a further and more particular description thereof is to said grand jurors unknown) of the value of, to wit, thirty five thousand dollars ($35,000.00).” Various overt acts are alleged to have been done by the defendants in pursuance of and in furtherance of said conspiracy and to effect the object of the same.
The statute makes it a crime for two or more persons to conspire to commit — that is, themselves commit — the offense. It does not, in terms, make it a crime to conspire that some person other than the conspirators shall commit it. This probably accounts for the averment in the indictment that Bartkus was president of and dominated the Bridgeport Company. Bearing in mind that he who does a thing through another does it himself, we may construe the indictment to charge that plaintiffs in error conspired to commit the crime by causing the company to commit it. It is only by so construing it that the indictment can be held to charge the crime defined by the statute.
Although- technical precision is not required, it would seem that the essential elements of the substantive offense should be stated when describing the object of the conspiracy.' The statute denounces concealment from the trustee of property belonging to the estate in bankruptcy. There is no averment in this indictment that the property intended to be concealed was the property of the estate in bankruptcy.
The objection that there is no allegation that the corporation had been adjudged a bankrupt and a trustee had been appointed for it, is not well taken. Cohen v. United States (C. C. A.) 157 F. 651; Steigman v. United States (C. C. A.) 220 F. 63.
It is urged that there is a fatal variance between one material averment and the proof. The indictment charged that it was contemplated that the Bridgeport Electrical Company should be adjudged a bankrupt, and that it should conceal property. The evidence shows that the correct name of the corporation was the Bridgeport Electric Company, and it is claimed that this is a fatal variance. This contention cannot prevail, under the case of Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118, where the charge was embezzlement of money from “National Granite State Bank” and the proof showed the correct name to be “National Granite State Bank of Exeter,” and under the ease of Beavers v. United States (C. C. A.) 3 F.(2d) 860, where the defendant was charged with having stolen from interstate commerce, and the indictment alleged that the freight was shipped by “Duke & Co.” and the evidence showed the shipment was by “W. B. Duke Sons & Co.”
As was stated by the Supreme Court in Bennett v. United States, 227 U. S. 333, at page 338, 33 S. Ct. 288, 289 (57 L. Ed. 531): “The essential thing in the requirement of correspondence between the allegation of the namo of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense.”
Plaintiffs in error contend that the evidence does not sustain the charge; that there is no evidence upon which to base the finding that Kelps, Nevar and Dronsuth conspired with Bartkus to have the company commit the offense; that is, to have the company, while a bankrupt, conceal its property from its trustee.
Government’s counsel insist that the evidence is sufficient, and review it in their brief. They conclude their review with this language:
“It thus appears that this corporation operated by defendant, Bartkus, must have been know by him to be approaching bankruptcy; that, notwithstanding this, the purchases of merchandise in the name of that company rapidly increased, and by calculations most favorable to the bankrupt, resulted in a shortage of, to wit, $27,000; that after court proceedings were had and notiee posted upon the premises of bankrupt, said defendant, with others, made numerous trips removing merchandise that ostensibly belonged to the trustee in bankruptcy. As above stated, these defendants were related; in the samo general line of business, their places of business being about one mile apart, and, at least, some of the merchandise purchased by the bankrupt found its way, under very suspicious circumstances to possession of the other defendants, namely in a private garage, three or four miles distance away in a residential district. True, defendants seek to explain their possession of' these goods by asserting purchase of the same, bat the record in this case indicates that these alleged purchases were had in the. months of November and December when defendant, Bartkus, was increasing his purchases from others, and by their very defense they were put on notiee that the Bridgeport Electric Company was insolvent. It will also be observed that while some of the defendants made the defense that they purchased this material from the Bridgeport Electric Company, their brother-in-law, Bartkus, informed them the company was in need of money, and at the very time he was in the act of withdrawing $7,500 from the treasury of the company.”
An examination of the record discloses that this is as strong a statement of the facts proved as the evidence warrants. If it be conceded that the evidence shows that Bartkus planned to have the company, of which he was president and which he dominated, commit the offense, we do not think it establishes that Kelps, Nevar, and Dronsuth, or any one of them, participated in his plan.
The most that can be said of the evidence relating to occurrences before the company became bankrupt, is that it shows that some time before the bankruptcy some merchandise which had been purchased by, and therefore was at one time owned by the bankrupt, found its way into the possession of Kelps, Nevar, and Dronsuth. It is sought to characterize this possession as fraudulent upon the ground that Kelps, Nevar, and Dronsuth were brothers-in-law of Bartkus; that they were engaged in the same business in which he was engaged; that their place of business was about a mile from his, while the garage in which the merchandise was found was three or four miles away, in a residential district ; and upon the further ground that, before the bankruptcy, Bartkus had informed them that the Bridgeport Company was in need of money. These are the suspicious circumstances relied on by government’s counsel.
The fact that some merchandise which had been purchased by bankrupt (and alsc^ may have been sold by it) found its way into the possession of Kelps, Nevar, and Dronsuth, even under the suspicious circumstances mentionéd,- does not go-' far tó establish that they ■conspired with Bartkus to commit the crime charged. The record shows that the merchandise which found its way into this garage was not of large amount or value. Government’s counsel say it was “at least, some.” No effort was made to take possession of it for the bankrupt.
While we may not weigh the evidence, we deem it proper'to say that it appears from the record that Kelps, Nevar, and Dronsuth took the witness stand themselves and gave testimony, which, if true, disposes of the supposed incriminating circumstances urged against them. They testified that they bought and paid for the goods, and explained why they had merchandise stored in a residential neighborhood — that their business was putting electrical equipment into residences. This testimony was corroborated by other witnesses and was not contradicted in any way.
- This brings us to the consideration of the •evidence that, after notice of the bankruptcy, Bártkus, “with others,” took away property which -the government said “ostensibly” belonged to the trustee. The evidence upon this fails -to establish that the ■ property taken away actually belonged- to the Bridgeport -Company: Indeed, “ostensibly” is stronger .than.the whole evidence warrants.
■[7] This taking could only be relevant to show the' intent of the alleged conspirators. While to complete the crime of- conspiracy the actual 'commission of the crime which- is its object is not necessary, its commission may be evidence that those committing it conspired to commit it; bn the familiar principle that persons are held to intend to do what they actually-'do.- So-here, concealment after .bankruptcy' by -"alleged conspirators would strongly tend to prove that- they planned to ■so- oondeal. But-the evidence shows that ■ Kelps, Nevar, and Dronsuth- were not “the others” -with Bartkus. No- one of them was present or Was shown -to have had any knowledge" of it. As, evidence that they conspired to do this particular thing, it has no probative •forcé whatever. We are-not now concerned with the question whether, if a conspiracy were proved,- 'they would be bound by Bartkus’ acts. If a conspiracy to conceal had been otherwise established, the act of Bartkus ' would be the act of' all the conspirators. But the acts'of Bartkus, "even if done'in pursuance- of á plan formed by him, if done with- ' out 1^ie participation and knowledge of Kelps, Nevar,- and Dronsuth, do not tend to show that they participated in his plan.
The'-facts proved may warrant -the conclusion that Bartkus planned to conceal the bankrupt’s property as alleged, but they are not sufficient to support a verdict that Kelps, Nevar, and Dronsuth participated with him in such plan. The verdict and judgments against Kelps, Nevar, and Dronsuth cannot stand; and as one person alone cannot commit the crime of conspiracy, and as there is no evidence to support the averment as to other conspirators unknown, the verdict and judgment as to Bartkus must also be set . aside.
Reversed and remanded, with- direction to grant a new trial.
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_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Sylvia DOWNES, Plaintiff-Appellant, v. Marguerite BEACH and Robert Doty, Defendants-Appellees.
No. 77-1535.
United States Court of Appeals, Tenth Circuit.
Submitted Sept. 28, 1978.
Decided Nov. 30, 1978.
Paul A. Baca, Denver, Colo., for plaintiff-appellant.
Samuel Berman and Harry R. Sayre of Adams & Sayre, Denver, Colo., for defendants-appellees.
Before McWILLIAMS, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
This is an appeal from a judgment entered in a suit commenced under 42 U.S.C. § 1983. Allegations were that plaintiffs, including Sylvia Downes, had been discharged from their employment as nurses by the Las Animas-Huerfano Counties Health Board for exercise of their First Amendment rights. The trial court granted a motion for summary judgment in favor of defendants-appellees Marguerite Beach and Robert L. Doty, the responsible supervisory officers, and against Ms. Downes.
The only question on appeal is the appropriateness of the grant of the motion for summary judgment under the circumstances of this case.
Downes and the other plaintiffs had been employed as nurse practitioners by the Las Animas-Huerfano Counties Health Department in its Children and Youth Project in Trinidad, Colorado for several years. Conflicts arose between these nurses and their supervisors over the working conditions and administration of the project. In a letter dated March 14, 1975, signed by several employees, including Downes, a “sick out” and mass resignations were threatened if certain demands were not met. The other nurse plaintiffs participated in a “sick out” on March 26 and 27, 1975, and were fired. In an action they brought in the federal district court five other nurse plaintiffs received jury verdicts totalling $4,550 against defendants Beach and Doty. Responding to a motion for new trial the court found that the “sick out” was not constitutionally protected free speech, and entered judgment n. o. v. dismissing those plaintiffs from the case. They have not appealed.
Ms. Downes, not an original plaintiff, was allowed to join that suit after it was commenced. The jury brought in a verdict in her favor for a total of $14,000 against Beach and Doty. The court granted a motion for new trial on the Downes claim, stating that although she was absent from work on the “sick out” days she had testified that she had obtained actual sick leave authorization, had a doctor’s appointment, and missed work until April 21, 1975 because of emergency surgery. The judge said it was not clear from the record whether she had resigned upon discovery that her co-workers had been fired, or had been dismissed. Then the order stated:
Beside the fact that it is not clear whether Sylvia Downes resigned or was dismissed, the First Amendment issue remains viable only in her case. This fact is of greater significance to our decision to grant her a new trial. If she did not participate in the “sick out,” we cannot hold as a matter of law that Defendants dismissed her for a constitutionally permissible and sufficient reason. The jury was told that they need only find that the termination of Plaintiffs was based in part upon constitutionally impermissible reasons. Assuming that Sylvia Downes was dismissed for constitutionally impermissible reasons, it might have been that there also existed sufficient and constitutionally neutral reasons for her dismissal.
Thereafter defendants-appellees filed a motion for summary judgment against Ms. Downes supported by an affidavit of the project director, various exhibits and a brief. The exhibits showed Ms. Downes as a signer of the March 14,1975 letter threatening the “sick out” and resignation; she had applied in February for annual and educational leave to attend a high school reunion and human sexuality workshop during the period March 26 through April 4, 1975; and defendant Beach on March 24, had denied all leave requests because of staffing problems.
Exhibits also included a March 28, 1975 letter from Beach and Doty to Downes indicating they accepted her verbal resignation, and were requesting the Colorado Department of Health to terminate her employment. The letter cited absences without proper notification as the reasons for the requested termination. Joan Truby, Director of Public Health Nursing, Colorado Department of Health, also sent a letter (Exhibit 5) to Downes, dated March 28, indicating possible disciplinary action due to improper absences. On April 24, 1975, Downes wrote to the Colorado Department of Health (with copies sent to Beach and Doty) and indicated that she considered herself constructively dismissed (Exhibit 6). A similar letter to Joan Truby was dated May 5, 1975 (Exhibit 7). The final document was a referee’s decision of the Colorado Labor Department finding Ms. Downes had been constructively discharged and granting her full award benefits (Exhibit 8).
In response Downes submitted an affidavit declaring simply that she did not voluntarily resign, that she was forced into submitting a letter of separation by the action of the defendants, and that she would not have resigned but for the actions defendants took which indicated they no longer wanted her to work in their agency.
Following this exchange the trial court granted the defendants’ motion for summary judgment. The key portion of its order was as follows:
Assuming that Plaintiff was wrongfully discharged, as found by the Referee, Defendants contend that they violated no First Amendment rights of Plaintiff. That is the critical issue of this case. See Mt. Healthy City School District Bd. of Ed. v. Doyle, 45 U.S.L.W. 4079, 4082 [429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471] (Jan. 11, 1977). Plaintiff has set forth no facts to indicate that she was dismissed in violation of her First Amendment rights.
The instant situation is not one where there is a contractual right to continued employment, nor where the individual has tenure rights guaranteed under the state or federal law. We agree that the case is controlled by Mt. Healthy City School Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), decided just two weeks before the trial court order granting the new trial to Ms. Downes. Mt. Healthy involved an untenured school teacher whose contract had not been renewed. The teacher had been involved in several disruptive incidents at school, and most recently had released to the local radio station the school principal’s memorandum on teacher dress and appearance.
The Court held that a three-step process should be used to determine if the teacher’s constitutional rights had been violated. The burden is on the plaintiff to show, first, that his or her conduct is constitutionally protected, and second, that the conduct was a substantial or motivating factor in his dismissal. Third, if the plaintiff satisfies this burden, the defendant must show “by a preponderance of the evidence that it would have reached the same decision as to . reemployment even in the absence of the protected conduct.” 429 U.S. at 287, 97 S.Ct. at 576.
The trial court considered the summary judgment motion against the backdrop of the Mt. Healthy decision. After reviewing the proffered affidavits, exhibits, and arguments, the trial court found that there remained no disputed material facts as to whether Downes’ constitutional rights had been violated. The court put particular emphasis on Downes’ failure to set forth in her affidavit opposing the motion any facts giving rise to a genuine dispute on the constitutional issue.
While it is true that matters in the record and all reasonable inferences to be drawn therefrom must be construed in favor of the party opposing a summary judgment motion, Rule 56(e) of the Federal Rules of Civil Procedure indicates that the party against whom the motion is raised has a responsibility to demonstrate the existence of a material fact:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
With respect to the constitutional question, Downes did not set forth specific facts as contemplated by the rule. Downes nevertheless contends that the record of the previous trial, together with the court’s order granting a new trial, demonstrated the existence of a factual controversy precluding summary judgment on the constitutional question. We must decide whether the court erred in not considering the record of the prior proceeding.
We recognize that courts have, on occasion, considered records of earlier trials in evaluating summary judgment motions. See, e. g., United States v. Sinclair Ref. Co., 126 F.2d 827, 831 (10th Cir. 1942). We also recognize that this Circuit has announced that the court has the power to go beyond the parties’ pleadings and evaluate evidence in the record to determine the appropriateness of summary judgment.
While it is the duty of the trial court to grant a motion for summary judgment in an appropriate case, the relief contemplated by Rule 56 is drastic, and should be applied with caution to the end that the litigants will have a trial on bona fide factual disputes. Under the rule no margin exists for the disposition of factual issues, and it does not serve as a substitute for a trial of the case nor require the parties to dispose of litigation through the use of affidavits. The pleadings are to be construed liberally in favor of the party against whom the motion is made, but the court may pierce the pleadings, and determine from the depositions, admissions and affidavits, if any, in the record whether material issues of fact actually exist. If, after such scrutiny, any issue as to a material fact dispositive of right or duty remains the case is not ripe for disposition by summary judgment, and the parties are entitled to a trial.
Bushman Constr. Co. v. Conner, 307 F.2d 888, 892-93 (10th Cir. 1962). The use of the word “may” in the Bushman opinion is significant. Our rule in that ease permitted, but did not compel, the court to search beyond the evidence proffered in connection with the motion. While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out.
We simply decline to place upon the court the litigant’s burden of bringing to the court’s attention the existence of a factual dispute. The party who has the most to lose if no genuine factual controversy is found is in the best position to demonstrate the existence of a dispute. If the party opposing the motion decides to forego submitting proof that a relevant factual dispute exists, he does so at his peril.
The method by which the relevant facts are called to the court’s attention is not rigid. It may be done by affidavit, reference to particular sworn testimony in a trial transcript, or by similar procedures. Whatever procedure is employed, it is the responding party’s burden to ensure that the factual dispute is portrayed with particularity, without relying on the trial court’s memory of prior proceedings and without depending on the trial court to conduct its own search of the record.
In this case, Downes contends that a genuine issue of fact could have been discovered by a review of the record of the prior trial. Downes did not draw the court’s attention to the particular testimony or portions of the record that support her contention. She proffered only an affidavit that focused on an uncontested issue — whether she was discharged or whether she resigned. We cannot say the court had an obligation to uncover what Downes failed to produce. Whatever the record of the earlier trial may have contained, we decline to find that the court abused its discretion in refusing to conduct an independent search for a factual dispute. We therefore hold that summary judgment was properly entered.
. Bruce v. Martin-Marietta Corp., 544 F.2d 442, 445 (10th Cir. 1976).
. It is conceivable, of course, that the party opposing the motion may succeed without making an effort to demonstrate the existence of a material fact dispute. This could arise if the movant fails to carry the burden of establishing the nonexistence of a dispute. See Ad-ickes v. S. H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); 6 Moore’s Federal Practice fl 56.23, at 56-1387 (2d ed. 1948 Supp. 1976).
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:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
MAHON, TRUSTEE IN BANKRUPTCY, et al. v. STOWERS et al.
No. 73-1131.
Decided April 15, 1974
Per Curiam.
This litigation arose out of the bankruptcy of Samuels & Co., a large meat packing concern with plants in various parts of Texas. Respondents had. sold cattle to Samuels, for which they received checks in payment, but bankruptcy ensued before the checks had been paid by the drawee bank. With the consent of all parties the receiver and the. trustee of the bankrupt estate continued to sell meat from the cattle that had been slaugh-: . tered and packaged by Samuels and held the proceeds of áuch sales subject to disposition by the referee. Respondents sought reclamation of the cattle which they had sold to Samuels, and asserted a concomitant right to the. proceeds from sale of the packaged meat. C. I. T. Corporation, which held a perfected lien on the bankrupt’s inventory and other property, and the trustee in bankruptcy opposed the respondents’ claim.
The referee made findings of fact and conclusions of law which sustained the respondents’ position. The District Court upheld the referee’s findings of fact, but reversed the judgment on the grounds that under the applicable provisions of the Texas Business. and Commercial Code the claims of the trustee and C. I. T. were superior to that of -respondents. The Court of Appeals for the Fifth Circuit, however, agreed with the referee and reversed the District Court judgment because it read the Packers and Stockyards Act, 42 Stat'. 159/7 U. S. C. § 181 et seq., and certain regulations issued by the .Secretary of Agriculture thereunder, as establishing the superiority of respondents' claim notwithstanding Texas law. We disagree with this reading of the applicable provisions of the Packers and Stockyards Act, and therefore grant certiorari and reverse the judgment of the Court of Appeals.
I
The uncontested facts in this case are contained in the findings of the bankruptcy referee. The referee found that respondents, for a period of some ten days before Samuels filed a Chapter XI petition under the Bankruptcy Act, had been selling live cattle to Samuels for slaughter on a “grade and yield'' basis, and that this was a recognized custom and usage in the trade. Under this usage the contract price is left open at the time of delivery to the purchaser, who slaughters the livestock and allows the carcasses to chill for approximately 24 hoürs. At that time they are graded by the United States Department of Agriculture and the price is determined. The purchaser then gives the seller a check for the established amount. The referee further found that Samuels was subject to the regulations of the Packers and Stockyards Act, and that all of the livestock in question had been delivered to Samuels at its plant- in Mount Pleasant, Texas, where it was slaughtered and then graded by the Department of Agriculture.
Until the livestock is actually graded and the yield determined, the sellers can identify their particular -livestock, but once the carcasses are processed and the meat packaged, identification is no longer possible. When the ■petition for bankruptcy was'filed in this case, none of the . respondents was able to identify his own particular livestock, but the referee found that at least some of the carcasses sold by respondents . were on Samuels’ premises at that time. The referee also determined.that no proceeds from sale of packaged meat could be identified as realized from carcasses'delivered by respondents.
Examining- the competing claims, the referee found that at all .times material to the action C. I. T. was the holder of a duly perfected security interest in all livestock, animal carcasses, packaged and unpackaged meat, packing materials, and other inventory owned by Samuels or in which Samuels may have had an interest.' At the time the bankruptcy petition was filed Samuels was indebted to C. I. T. in an amount in excess of $1,800,000. C. I. T. had been advancing large sums weekly to Samuels, and the bankruptcy was precipitated on May 23, 1969, when C. I. T., deeming itself to be insecure, refused to make a weekly advance of approximately $184,000 which Samuels needed to continue its operations. The referee found that C. I. T. “knew or should have known” of-the method by which Samuels bought livestock from respondents on a grade- and-yield basis. He further found that no respondefit held a security agreement with Samuels, and that none had filed a financing statement reflecting the transactions with Samuels.
The referee reasoned from these facts that respondents and Samuels- had intended to transact their sales business on a cash, rather than a credit, basis, and. that title to the livestock “did not pass from plaintiff to bankrupt until payment was made to plaintiff.” Therefore, he concluded, C. I. T.’s perfected lien could hot attach to the livestock in Samuels’ inventory until the checks issued in payment were subsequently honored. Any other decision would, he said, make the cattle sellers “a' species of involuntary creditor against their wishes and intent,” although they had complied with normal selling arrangements under the Packers and Stockyards Act. He found it unnecessary for the respondents to identify proceeds from the sale of specific carcasses which they had delivered, and placed the duty on C. I. T. to show that the funds to which it laid claim had not been received from the sale of carcasses furnished by respondents.
• The District Court accepted the refereé’s findings of fact but reversed on the law. Turning to the provisions of the Texas Business and Commercial Code, which are largely counterparts of the Uniform Commercial Code, the court found that the respondents by their delivery of the cattle had retained only a security interest in those animals and the proceeds therefrom. It further found that the respondents had taken no action to perfect their security interest nor attempted to utilize any right of reclamation they might have had under Texas law. Delivery of the cattle, to Samuels on this basis enabled it to transfer good title to a good-faith purchaser for value, a category of persons which included both C. I. T. and the trustee in bankruptcy. The District Court also found that respondents were unable to “establish their right to possession by ownership .. . [by] identify[ing] positively, the property sought to be reclaimed in either its-original or substituted form.”
The District Court was in turn reversed by a divided Court of Appeals for the Fifth Circuit.' Although that court conceded that C. I. T. would have a superior right to the sales proceeds were the transaction governed solely by the provisions of the Texas Business and Commercial Code, it found that the Packers and Stockyards Act, 7 U. S. C. § 181 et seq., along with the regulations promulgated thereunder and the relevant usages of trade, made Samuels a trustee of' the proceeds received from the sale of cattle delivered by respondents. The court stated:
“The reasoning of these cases and. the impact of the Packers and Stockyards Act convinces this court that more than an unperfected security interest subject to reclamation is reserved for the cattle seller. Not by contract but by statute and regulation a packer lacks full dominion over the carcasses until the seller has been paid. Where the packer defaults by the issuance of a bad check (and destroys the identity of the security by processing the carcasses into fungible meat products), the seller is the beneficiary of a trust imposed by remedial statute.”
The right of the cattle sellers to funds thus found to be specifically held in trust for their benefit was deemed superior to the general perfected lien of C.' I. T. on Samuels’' inventory.
II
This Court .has'•■previously held that an ordinary debtor-creditor relationship requires more than the post-bankruptcy disappointment of the creditor to convert it into a trust relationship. See McKee v. Paradise, 299 U. S. 119 (1936). Examining a claim by employees that funds held for their general benefit by an employee association were funds' held in trust, the Court in McKee ^stated:
"The bankrupt was a debtor which had failed to pay its debt. We know of no principle upon which that failure can be treated as a conversion of property held in trust. At no time throughout the whole period was there á trust fund or res. No fund was segregated or set up by special deposit or in any manner. When the wages became due, there was no such fund but only the general assets of the employer and its obligation to pay a debt. . . . The fact that the failure to pay the association was án acute disappointment and was especially regrettable as the claimant was an association of employees, cannot avail to change the debtor into a trustee or enable the creditor to obtain a preference over other claims against a bankrupt estate.” Id., at 122-123.
The Court therefore held that the employees .were entitled- to share in the bankrupt’s assets only in the position of a general unsecured creditor. .
Similarly, we believe that the - Court of , in concluding that in this case a trust relationsnip existed between Samuels and respondents, placed more weight on the Packers and Stockyards Act, and corresponding regulations and practices, than they will properly- bear. For although the Act does regulate methods of payment and recordkeeping procedures for persons defined as "packers” by thé Act, we must remember that the “chief evil” at which it was aimed was “the monopoly of the packers, enabling them unduly and arbitrarily to lower prices' to the shipper who sells, and unduly and arbitrarily to increase the price to the consumer who buys.” Stafford V. Wallace, 258 U. S. 495, 514-515 (1922). We find no evidence in either the Act or the regulations that: packers are to hold cattle or carcasses in trust until the sellers actually convert into cash the checks given them as payment for each sale.
We noté at the outset that Samuels is subject to the Packers and Stockyards Act solely as a “packer” ráther than as a “stockyard owner,” “market agency,” or “dealer.” This difference is important, for the Act regulates packers in a different manner than it does those in the other enumerated categories. Thus, for example, the bonding requirement's of 7 U. S. C. § 204 are not applicable to packers, nor does the Act give a private cause of action against packers, as it does against stockyards, market agéncies, and dealers. 7 U. S. C. § 209. An implicit fiduciary obligation which would override state commercial law and establish a special priority in bankruptcy, such as the Court of Appeals found to exist here, must therefore be extracted either from the specific sections relating to packers, or from the few general sections which are applicable to all categories Of persons subject to tht: Act.
The specific provisions dealing with packers impose no such duty, The only section which might possibly be relevant to this question, 7 U. S. C. § 192, deals generally with unlawful practices of packers, placing heavy emphasis on practices which might be considered to be in restraint of trade. Enforcement of this section is the responsibility of the Secretary of Agriculture, who is given authority to hold hearings and enter binding orders. But there is no indication that, lurking within this intention to control deceptive and monopolistic practices in the packing industry, lies a further intention to guarantee persons who sell cattle to such packers a special favored position in regard to the packers' assets. Nor do the general provisions show such an intent. Those sections are primarily concerned with recordkeeping, allocation of responsibility between the Secretary of Agriculture and the Federal Trade Commission, and the authority of the Secretary of Agriculture to promulgate appropriate rules and regulations to carry out the provisions of the Act.
The Court of Appeals did not rest its decision upon the Act itself, however, but rather upon two regulations promulgated by the Secretary of Agriculture. The first regulation, 9 CFR § 201.43 (b), requires that a packer “before the close of the next business day following the purchase of livestock and the determination of the amount of the purchase price, transmit or deliver to the seller or his duly authorized agent the full amount of-the purchase price, unless otherwise expressly agreed between the parties before the purchase of the livestock.” The second regulation, 9 CFR § 201.99, requires a packer “purchasing livestock on a . . . carcass grade and weight basis” to “maintain the identity of each seller’s livestock and the carcasses therefrom” and, after determination of the purchase price, to deliver to the seller a “true written, account of such purchase” incorporating the pertinent terms. The Court of Appeals reasoned that these regulations, read in conjunction, were intended to provide cattle sellers with special protection when forced to deal on a carcass grade-and-weight basis. The protection fashioned by the Court of Appeals was to make a packer, such as Samuels, a trustee for the proceeds of any sale derived from cattle delivered under these provisions.' We believe that that conclusion was erroneous.
We think that a fair reading of 9 CFR § 201.99 reveals its overriding concern that cattle sellers, having delivered their livestock into .the hands of a purchasing packer prior, to actual determination of the purchase, price, receive a fair and accurate accounting of the proceeds of their sale. A seller operating without the, benefit of such provisions clearly would face substantial risk that his livestock might be mingled with other livestock of lesser value and thereby become indistinguishable from livestock delivered by other sellérs, or that he might become subject to arbitrary weighing practices on the part of the packers. Regulation 201.99 insupes that the packers both observe principles of fair dealing in determining, the proceeds of the sale and also maintain sufficient records so that the sellers and the Secretary of Agriculture can exercise proper supervision. But there is no indication in this record that Samuels failed to comply with the provisions of Regulation 201.99. Respondents complained, not that Samuels commingled their livestock, or failed to provide fair pricing, but rather that bankruptcy intervened before checks in the concededly proper amount cleared the bank on which they were drawn. And Regulation 201.99 simply does not address itself to this problem.
Regulation 201.43, though more to the point, likewise fails to support the imposition of a trust on Samuels. • It requires packers, market agencies, and dealers purchasing. livestock to make payment within one business day following the determination of the amount of the purchase price, but does not meet the question of whether a seller, failing to receive payment within that time, has a special claim against the defaulting payor. Respondents argue strongly that this regulation'insures prompt payment, and that the. failure to make prompt payment is a prohibited deceptive practice under the Act. While, this contention may well be true, it does not necessarily support a conclusion that the regulation, designed to regulate payment procedures between a buyer and seller, was also intended to determine security rights between the sellers and third parties holding a-valid claim on the packer’s assets.. Whatever might be the. policy reasons for insuring that packers did not take unnecessary advantage of cattle sellers by holding funds for their own purposes, it is hard to see that those reasons would automatically require that such sellers stand on better footing than persons who have extended secured credit to a packer. And the regulation in no way suggests an intention to override established principles of state commercial law which might strike a different balance.
When the Secretary has desired to impose trust relationships by regulation, he has chosen language which clearly effectuates that purpose. Regulation 201.42, 9 CFR § 201.42, deals specifically with the subject of custodial accounts, and provides- in subsection (a) that payments made to a market agency or licensee are to be considered trust funds until a payee custodial account has been paid in full. Subsection (b) requires that any market agency or licensee engaged in selling livestock “on a commission or agency basis” establish a custodial account for the sales proceeds. Subsection (e) requires-establishment of custodial accounts when market agencies or licensees representing buyers of livestock misuse funds entrusted to them for that purpose.
Had the Secretary deemed it lawful and desirable to require that packers or other persons purchasing livestock establish trust accounts on behalf of the sellers until payment was actually received, such a provision could easily have been included within these regulations. Its absence suggests the Secretary expected that cattle sellers, making sales to packers in the ordinary course of business, would assume- the normal risks of insolvency which any seller in that situation assumes. Their interests, like that of similarly situated sellers, would depend for protection upon their taking of appropriate steps under the commercial law of the various States in which they did business.
The cases cited by the Court of Appeals to support its position require no different conclusion.. The case most heavily relied on, Bowman v. Department of Agriculture, 363 F. 2d 81 (CA5 1966), cited for the proposition that a packer’s obligation to pay is that of a fiduciary, dealt not with packers at all, but rather with a person who was a stockyard owner, market agency, and dealer. The court in that case did discuss the duty of prompt payment-by such a person,, but the discussion occurred in the context of a discussion of the test for insolvency. The court there concluded that a definition .of insolvency dealing with the relation of current assets and current liabilities was appropriate in this instance, since the ability to meet current obligations and to make prompt payment was necessary to effect the beneficial purposes of the Act. The only specific discussion of trustee relationships, however, occurs in a separate discussion on the matter of custodial bank accounts. As discussed above, this discussion would be relevant to the obligation of market agencies under Regulation 201.42 to maintain custodial accounts and to refrain from commingling their own funds with the funds of the persons for whom they act. The other cases cited by the Court of Appeals do not deal with packers, or deal with them in a totally different situation from that presented here. None of the cases holds or even intimates that packers hold livestock and carcasses as trustees until cash proceeds are realized by the sellers.
Ill
We hold that, on the undisputed facts of this case, nothing in the Packers and Stockyards Act or the regulations issued by the Secretary under the Act overrides the Texas Business and Commercial Code in determining the respective rights of the parties to the funds held by the trustee. We do note, however, that an isolated passage at the end of the Court of Appeals’ opinion states that the “Packers and Stockyards Act and Regulations 201.42 and 201.99 thereunder comprise a course of dealing and usage of trade known to both the bankrupt packer and C. I. T., which had financed it for an extended period.” 483 F. 2d 557, 563.. While we hold that the Act and regulations do not ex proprio vigore override the provisions of Texas law determining priorities to the funds in question, we do not mean to say that a course pf conduct mandated by the Act or regulations might not, just as any other course of conduct, be relevant or even dis-positive under state law. The District Judge, herself a longtime Texas practitioner and then state court judge before taking the federal bench, determined otherwise here. To the extent that respondents in appealing to the Court of Appeals challenged that determination, it will of course be open for adjudication in the Court of Appeals on remand.
The petition for certiorari is granted, the judgment of the'Court of Appeals is ■ reversed, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Tex. Bus, & Com. Code §§ 1.201 (37) and 2.401 (a) (1968).
Id., § 9.312(c) (1968).
Id., §2.702 (b) (1968). The Court further noted that, in any event, the rights of C. I. T. and the bankruptcy trustee would not have been affected by a demand for reclamation under the Code. See § 2.702 (c).
Id:, §2.403 (a) (1968).
483 F. 2d 557, 563.
See 7 U. S. C. §191.
See id., § 201 (a).
See id., §201 (c).
See id., §201 (d).
Id., §§ 191-195.
Id., §§221-229.
Title 9 CFR § 201.43 (b) reads:
“(b) Purchasers to pay promptly for livestock. Each 1 packer, market agency, or dealer purchasing livestock shall, before the close of 'the. next business day following the purchase of livestock arid the determination of the amount of the purchase price, transmit or' deliver to the seller or his duly authorized agent the full amount of the purchase price, unless otherwise expressly agreed between the parties before the purchase of the livestock. Any such agreement shall be disclosed in the records of any market agency or dealer selling the livestock, and in the purchaser^ records and on the accounts or other documents issued by the purchaser relating to the transaction. The provisions of this section shall not be construed to permit any transaction prohibited by § 201.61 (a) relating to financing''by market agencies selling on a commission basis .”
Titie 9 CFR § 201.99 reads:
“(a) Each packer purchasing livestock on a carcass grade, carcass weight,. oi' carcass grade and weight basis shall, prior to such purchase, make known to the seller, or to his duly authorized agent, the details of the purchase contract. Such details shall include, when applicable, expected date and place of slaughter, carcass price, condemnation terms, description of the carcass trim, grading to be used, accounting, and any special conditions.
“(b) Each packer purchasing livestock on a carcass grade, carcass weight, or carcass grade and weight basis, shall maintain the identity of each seller’s livestock and the carcasses therefrom and shall, after determination of the amount of the purchase price, transmit or deliver to the seller, or his duly authorized agent, a true written account of such purchase showing the number, weight, and price of the. carcasses of each grade (identifying the grade) and of the ungraded carcasses, an explanation of any condemnátions, and any other information affecting final accounting. Packers purchasing livestock on such a basis shall maintain sufficient records to substantiate the settlement of each transaction.
“(c) When livestock are purchased by a packer on a carcass weight or carcass grade and weight basis, purchase and settlement therefore shall be on the basis of carcass price. This paragraph does not apply to purchases of livestock by a packer on a guaranteed yield basis.
“(d) Settlement and final payment for livestock purchased by a packer on a carcass weight or carcass grade and weight basis shall be on actual (hot) carcass weights. The hooks, rollers, and gambrels or other similar equipment used at a packing establishment in connection with the weighing of carcasses of the same species of livestock shall be uniform in weight. The tare"weight siall include only the weight of such equipment: Provided, however, That until July. 1, 1968, these packers who shroud carcasses befo'e weighing them may include in the tare weight the average weght of the shrouds and pins.
“(e) Settlement and final payment for livestock purchased by a packer on a USDA carcass grade shall be on an official (final— not preliminary) grade. If settlement and final payment are based upon any grades other than official USDA grades, such other grades shall be set forth.in detailed written specifications which shall be made available to the seller or his duly authorized agent. For purposes of settlement and final payment for livestock purchased on a grade or grade an.d weight basis, carcasses shall be final graded before the close of the second business day following the day .the livestock are slaughtered,”
Glover Livestock Comm’n Co. v. Hardin, 454 F. 2d 109- (CA8 1972).
Bruhn’s Freezer Meats of Chicago v. Department of Agriculture, 438 F. 2d 1332 (CA8 1971); Swift & Co. v. United States, 393 F. 2d 247 (CA7 1968).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_crossapp
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
FEAR RANCHES, INC., Appellant, v. H. C. BERRY, d/b/a Berry Ranch Co., et al., Appellees.
No. 73-1297.
United States Court of Appeals, Tenth Circuit.
Sept. 25, 1974.
Milton A. Oman, Salt Lake City, Utah, for appellant.
Frank H. Allen, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., for appellees, H. C. Berry, d/b/a Berry Ranch Co., and Berry Land and Cattle Co., Inc.
Charles C. Spann, Grantham, Spann & Sanchez, Albuquerque, N. M., and Kreh-biel & Alsup,- Clayton, N. M., for appel-lee, Kelly Perschbacker.
Before JONES, SETH and DOYLE, Circuit Judges.
Of the Fifth Circuit, sitting by designation.
SETH, Circuit Judge.
An opinion on the first appeal of this case was filed as Fear Ranches, Inc. v. H. C. Berry, et al., 10 Cir., 470 F.2d 905. On the first appeal, all issues were disposed of except as to a point concerning the custom and usage prevailing in New Mexico. On this point the trial judge received evidence but made no finding. The case was remanded for additional findings. These have now been made and the case is before us as No. 73-1297.
The trial court on remand, in Supplemental Findings of Fact, found that:
“There is a usage of trade in the cattle industry in New Mexico that a knowledgeable buyer, relying entirely on his own judgment, in buying cattle from a knowledgeable seller, who makes no representations as to the condition of the cattle, takes the animals as he selects them and there are no implied warranties of the fitness of the cattle.”
This Finding No. 7 excludes any implied warranty of fitness for a particular purpose. The finding of the buyer’s reliance on his own judgment is supported by the record. This self-reliance included the matter of whether or not the cattle were free from disease. This was the only issue remaining after the original opinion.
The judgment is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
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songer_circuit
|
A
|
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.
DAVID L. SKINNER & CO., Inc., et al. v. HITCHCOCK et al.
No. 2832.
Circuit Court of Appeals, First Circuit.
Sept. 15, 1933.
MORTON, Circuit Judge, dissenting.
C. Harold Baldwin and Spaulding, Baldwin & Shaw, all of Boston, Mass., for appellants.
William Harold Hitchcock, of Boston, Mass., for appellees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This ease originally came before this court on a petition for leave to appeal. While no transcript of the record in the District Court was filed with the petition, the facts on which the alleged erroneous ruling of the District Court was made are simple, and at the time of the hearing on the petition for leave to appeal were orally stated to this court by the parties. The petition for appeal was allowed and opportunity given the petitioner to file a transcript of the record in the District Court, and ten days given to each party in which to file briefs after the filing of the transcript with the clerk of this court.
This has been done. No new facts other than those agreed upon by the parties at the time of the hearing on the petition, or any new authorities cited in the briefs filed within the ten-day period in addition to those cited in the brief filed by the receivers in opposition to the granting of the petition, appear.
It now appears from the record that the only issues of fact raised by the answers to the petition in bankruptcy are: Whether an act of bankruptcy was committed by the appointment of a receiver in the state courts for the Nantasket Steamboat Company because of its insolvency; whether it was insolvent on the date of the filing of the petition in bankruptcy; and whether two of the three petitioning creditors participated in the state receivership proceedings to the extent of estopping them from joining in such petition.
Of course, no facts bearing on these issues are found in the record. Neither do any grounds appear therein on which the motion for postponement of the hearing was based.
The single issue of law raised by the assignment of errors is whether an order of the District Court continuing the hearing on the issues raised on the petition in bankruptcy and answers thereto filed June 12, 1933, until after September 15, 1933, without fixing any definite date for such hearing, is in compliance with section 18d of the Bankruptcy Act (11 USCA § 41 (d), which requires the issue thus raised to be determined “as soon as may be.”
The order of the District Court, which is the basis of the appeal, issued on motion of the appellees that the hearing on the issued thus raised “be continued until on or about September 15,1933,” and against the protest of the appellants, is as follows:
“Upon the foregoing motion, after hearing William Harold Hitchcock, petitioner, and C. Harold Baldwin of counsel for the petitioning creditors,
“It is ordered that hearing be continued until after September 15,1933.”
It may be that, by the time this opinion is filed, the question raised by the assignment of errors will have become of little concern to the parties to the cause, but an interpretation of section 18d of the act is essential for the future guidance of both court and counsel.
It is undoubtedly true that some discretion is permitted the District Court under section 18d of the act in fixing the time of hearing on the issues raised by a petition in bankruptcy and answer thereto, yet it is perfectly clear that Congress intended by the provisions of the act to have the issue of bankruptcy determined at an early date. The reasons therefor are so plain as not even to require a statement thereof.
While this court cannot control a proper exercise of judicial discretion by the District Court in such cases, it is of the opinion that the postponement of such hearing to an indefinite date more than three months after the filing of an answer is a clear abuse of the discretion vested in the District Court under the section above referred to. Adams v. Foster, 5 Cush. (Mass.) 156; Bentley v. Ward, 116 Mass. 333; Silverstein v. Daniel Russell Boiler Works, Inc., 254 Mass. 137, 149, 149 N. E. 795.
To approve of such an order would, in effect, defeat the obvious purpose of section 18d of the act.
The order of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
SULLIVAN v. UNITED STATES.
No. 8436.
Circuit Court of Appeals, Sixth Circuit
Jan. 9, 1941.
A. E. Funk, of Frankfort, Ky. (J. J. Leary, Earl S. Wilson, and A. E. Funk, all of Frankfort, Ky., on the brief), for appellant.
Keith L. Seegmiller, of Washington, D. C. (John T. Metcalf, of Lexington, Ky., and Julius C. Martin, Wilbur C. Pickett, and Samuel Flatow, all of Washington, D. C., on the brief), for appellee.
Before HICKS, SIMONS, and HAMILTON, Circuit Judges.
HICKS, Circuit Judge.
Suit by appellant upon two War Risk Insurance policies. The question is, whether the court erred in sustaining appellee’s motion to dismiss upon the ground that the suit was barred by the statute of limitations.
The complaint alleged, that appellant became totally and permanently disabled within the life of the policy, on October 29, 1919. The statute began to run from that date. United States v. Towery, 306 U.S. 324, 331, 59 S.Ct. 522, 83 L.Ed. 678. Appellant had therefore until July 3, 1931, Sec. 19 of the World War Veterans’ Act, 38 U.S.C.A. § 445, to sue.
The. complaint alleged that appellant applied for benefits under the policies for total and permanent disability to the Veterans Bureau on March 26, 1931. The act provides “that this limitation is suspended for the period elapsing between the filing in the bureau of the claim sued upon and the denial of said claim by the direc-' tor. * * * ” Appellant therefore had ninety-nine days after the denial of his claim within which to sue. United States v. Green, 6 Cir., 84 F.2d 449.
The complaint alleged, that on or about November 11, 1932, appellant was notified by the Veterans Administration that on November 9, 1932, the Insurance Claims Council had refused his claim on the ground that the evidence submitted in connection therewith was insufficient to show that he became permanently and totally disabled for insurance purposes at the time of his discharge or at any time thereafter. In his first amended complaint appellant averred that he had received the following letter from the Director:
“Dear Sir: November 11, 1932.
“Your claim for payment of insurance on account of permanent and total disability from the date of your discharge from military service has received careful consideration in this office and you are informed that on November 9, 1932, the Insurance Claims Council rendered a decision to the effect that the evidence submitted in connection with your claim is not sufficient to show that you became permanent and total for insurance purposes at the time of your discharge nor at any time subsequent to your discharge. It will, therefore, be impossible for this Administration to make payment of any insurance to you.
“If you wish, you may consider this decision as final and in that event the suspension of the statute of limitations as provided in Section 19 of the World War Veterans Act, 1924, as amended, ceases from and after the date this letter reaches your present address. This may be treated as a letter of disagreement if you desire to institute suit in a proper court to recover on your insurance contract on the theory that you did become permanent and total for insurance purposes at a time when you had insurance in force with this Administration.
“Your compensation folder will now be decentralized to the Regional Office of this Administration at Louisville, Kentucky. All future correspondence by you in regard to your claim should, therefore, be directed to that office.
“Respectfully
“(Signed) IT. L. McCoy,
“Director of Insurance.”
We have italicized portions of this letter.
The denial of appellant’s claim by the Council and his notification thereof by the letter of the Director were both clear cut and decisive. The “disagreement” as a prerequisite to suit, existed. The decision of the Council made under the authority and direction of the Director, Sec. 5 of the World War Veterans’ Act, 38 U.S.C.A. § 426, was final and upon receipt of the letter appellant might have appealed to the Director had he exercised this right within sixty days therefrom.' Vet. Adm. Reg. 3204. Had he appealed, the , limitation would have been suspended during the period the claim was pending in the Veterans Administration. Howard v. United States, 6 Cir., 97 F.2d 987; Simmons v. United States, 4 Cir., 110 F.2d 296, 299. But, according to the allegations of the complaint, he made no effort to appeal until May 28, 1935, which was of course too late. Fie had the alternate remedy of suing within ninety-nine days after his receipt of the letter, which he admits was about the date upon which it was written; but he did not commence his action until April 30, 1937, and the bar of the statute had long since fallen.
We are not concerned with the recitations of the complaint touching appellant’s efforts to renew his claim after it was barred (Ball v. United States, 6 Cir., 101 F.2d 272, 274; Neely v. United States, 4 Cir., 115 F.2d 448, 452); nor with the effect of the Act of June 29, 1936, Ch. 867, Sec. 404, 49 Stat. 2034, 38 U.S.C.A. § 445d, which provides that in addition to the suspension of the limitation as heretofore indicated, the claimant shall have ninety days from the date of the mailing of the notice of denial within which to sue, because such provision has no application to a barred suit. Dowell v. United States, 5 Cir., 86 F.2d 120, 122.
Judgment 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_sentence
|
A
|
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".
In re James R. HOLLOWAY.
No. 92-3085.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 12, 1993.
Decided June 11, 1993.
Elliott Schulder, Washington, DC, argued the cause for appellant.
Ann Simon, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With her on the briefs were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., Washington, DC.
Three organizations filed a joint amicus curiae brief. Elizabeth Taylor, Washington, DC, was on the brief for Public Defender Service for District of Columbia. (James W. Klein, Washington, DC, also entered an appearance.) William B. Moffitt, Alexandria,
VA, was on the brief for the Nat. Ass’n of Criminal Defense Lawyers. Roger M. Adel-man, Washington, DC, was on the brief for the Criminal Law and Individual Rights Section of the District of Columbia Bar.
Before: MIKVA, Chief Judge, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
Dissenting opinion filed by Chief Judge MIKVA.
STEPHEN F. WILLIAMS, Circuit Judge:
On October 8, 1991, in the course of a six-defendant drug trial (United States v. Rascoe), District Judge Norma Holloway Johnson entered an oral order holding one of the defense counsel, James R. Holloway, in criminal contempt. Judge Johnson later that day issued a written order and certificate of contempt pursuant to Fed.R.Crim.P. 42(a). On March 10, 1992, Judge Johnson imposed sentence in the form of a $1,000 fine. Because we find that there was an adequate basis to support the contempt conviction and no procedural error, we affirm.
Sufficiency of the Evidence
Judge Johnson convicted appellant under 18 U.S.C. § 401, which provides that:
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
Neither the contempt order, the contempt certificate, nor the record indicates which of the three subsections Judge Johnson invoked. Subsection (2) is clearly inapplicable: an attorney is not an “officer” of the court within the meaning of 18 U.S.C. § 401(2). See Cammer v. United States, 350 U.S. 399, 404-05, 76 S.Ct. 456, 458-59, 100 L.Ed. 474 (1956); In re Brown, 454 F.2d 999, 1003 (D.C.Cir.1971). Because we find the conviction valid under subsection (3), we need not address subsection (1).
The elements of contempt under § 401(3) are straightforward. First, the alleged contemnor must “[d]isobe[y] or resist[ ] ... [the] lawful writ, process, order, rule, decree, or command” of the court. 18 U.S.C. § 401(3). Of course, the relevant order or command must be sufficiently “clear and unequivocal at the time it is issued.” Traub v. United States, 232 F.2d 43, 47 (D.C.Cir.1955). Whether an order is clear enough depends on the context in which it is issued and the audience to which it is addressed. See, e.g., United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir.1991); accord United States v. Turner, 812 F.2d 1552, 1567 (11th Cir.1987) (“[e]ven an egregiously vague order may be thought adequate to cover conduct so gross as to fall within its core.”).
Second, although § 401(3) does not explicitly mention mens rea, wrongful intent is necessary. The disregard of authority must be willful; willfulness ‘“may be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty.’” In re Farquhar, 492 F.2d 561, 564 (D.C.Cir. 1973) (quoting Sykes v. United States, 444 F.2d 928, 930 (D.C.Cir.1971)); see also United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974) (stating that criminal contempt requires “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful”) (emphasis added) (internal quotations omitted). While the reviewing court may not affirm if the cited conduct has not been contumacious, see United States v. Lumumba, 794 F.2d 806, 811 (2d Cir.1986), the analysis of intent properly encompasses the contemnor’s behavior in related incidents such as disobedience or resistance to other orders of the court. See id.; see also Farquhar, 492 F.2d at 564 (contrasting aberrational with recurrent lapses when analyzing intent).
In deciding whether the evidence is sufficient to support a contempt conviction, we use the familiar standard for any criminal conviction, asking whether “a fair-minded and reasonable trier of fact [could] accept the evidence as probative of a defendant’s guilt beyond a reasonable doubt”. In re Joyce, 506 F.2d 373, 376 (5th Cir.1975); accord In re Brown, 454 F.2d 999, 1008 (D.C.Cir.1971).
The key colloquy — set forth verbatim in Judge Johnson’s certificate of contempt and in Appendix A to this opinion — occurred during Holloway’s direct examination of Officer Darrell Young, conducted by Holloway on behalf of his client, Kelvin Rascoe. Before that passage, Young testified that he prepared an arrest form for Rascoe — known as a “PD 163” — that contained a narrative statement of facts relating to the arrest and alleged offense. Young also confirmed the earlier testimony of Officer Edward Trues-dale, who said that Young, in preparing the statement of facts for his PD 163, had relied on information provided by Truesdale and a third officer. In addition, Young confirmed Truesdale’s testimony that Young had not personally observed any of the events reported in Young’s PD 163. See Tr. 10/8 at 70-71, 74, 76-77; see also Tr. 9/30 at 48-49.
After eliciting that evidence, Holloway proceeded to ask Young a series of questions regarding what information did and did not appear in the fact statement of his PD 163. See Tr. 10/8 at 72-73. Following an objection, the court ruled the line of inquiry impermissible because Young had no personal knowledge about any of the information in the statement. See id. at 73. This ruling led to a question from Holloway, to which Young replied unequivocally, “I don’t have any personal knowledge of the crime being committed” — namely, the “transaction ... indicated in that first paragraph [of the PD 163].” Id. at 77 (latter quotation taken from appellant’s question).
Now we come to the incident that is at issue and is quoted in full in Appendix A. First, Holloway asked the court for permission to mark for identification a document in the court’s own case files — a “Gerstein statement”, i e., an affidavit filed to provide a proper basis for the judicial finding of probable cause that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), requires to justify restraint after an arrest. That document contained a narrative statement to which yet another officer, Robert Condit, had sworn after Young completed his PD 163. Holloway stated that he wanted to show Young the Gerstein affidavit to enable Young to compare it to his PD 163 and to offer an opinion on whether Condit photocopied the statement of facts from Young’s PD 163 onto the Gerstein affidavit. The Court ruled that such an opinion would be “totally irrelevant”. Tr. 10/8 at 78.
Hplloway responded that he wanted to have Young make the comparison in preparation for a planned examination of Condit about where he obtained the information for his Gerstein statement. Although it is difficult to tell exactly what Holloway was trying to achieve by having Young compare the statement of facts from his PD 163 with the text of Condit’s Gerstein affidavit (which contained an obvious photocopy of the PD 163’s statement), as best as we can tell Holloway was pursuing this inquiry in a roundabout effort to avoid an earlier evidentiary ruling of the court. Whether that was his purpose or not, Judge Johnson’s prior ruling is worth a look, as it parallels her ruling here and thus illuminates Holloway’s state of mind.
In the prior ruling, the judge barred Holloway from attempting to impeach Officer Truesdale — the only witness with firsthand knowledge of the events surrounding the arrest — with the contents of Young’s PD 163. See Tr. 9/30 at 50-51, 55-56. Truesdale had testified that when he confronted Rascoe while executing the search of the house, Ras-coe was tossing ziplock bags containing white rocks into the air and onto the floor. Holloway confronted Truesdale with the PD 163 that Truesdale had prepared for Rascoe’s girlfriend/codefendant, in which Truesdale stated that he saw Rascoe tossing ziplock bags containing white rocks onto the floor; Truesdale’s PD 163 did not mention his tossing them into the air. See id. at 55-56. If Holloway could have confronted Truesdale with Young’s PD 163, in which Young also stated that Rascoe was tossing the bags onto the floor (i.e., he too omitted any “into the air” reference), he could have reemphasized the “discrepancy” that he had already shown in Truesdale’s testimony. Judge Johnson properly refused to allow such questioning, which would have been cumulative and which in any event lacked a foundation such as a showing that Truesdale saw Young’s PD 163 and adopted it, a possibility Truesdale expressly denied. See id. at 49. Putting that aside, however, it appears that Holloway wanted Young to attest that Condit’s affidavit contained a photocopy of the statement of facts from Young’s PD 163 so that Holloway later could revisit the “into the air” discrepancy when questioning Condit.
Regardless of where Holloway may have been trying to go with his examination, Judge Johnson informed him that he must first establish a foundation by inquiring whether Young had ever seen the Gerstein affidavit before. Id. at 79. Appellant asked “I cannot ask [Young] to compare the two documents?” and the court responded, “No, no, no.” Id. at 81. After Holloway asked the judge to explain her ruling, the judge obliged him, explaining yet again the prerequisite to his use of the document — “you must ask him if he has seen that document, not just those paragraphs contained in it”. Id. at 82.
Appellant proceeded with his examination and asked Young, “Do you know what that document is?” Id. at 83. Yet again Judge Johnson stepped in and informed Holloway that he was not heeding her directive, telling him that “we must determine if he’s ever seen it before.” Id. Judge Johnson then herself asked the witness whether he had ever seen the document before. After the witness said, “No, Ma’am”, the judge reminded Holloway about the required threshold showings and their absence. Id.
Appellant doggedly persisted down the precluded path and asked again if the witness knew what the document was. As before, the judge intervened, this time pointedly telling Holloway “[i]f he has never seen it before, we are not going to ask him if he knows what it is.” Id. at 84. Appellant then tried to avoid the clear import of the judge’s statement, slyly asking Young, “Have you seen it now? Have you looked at it just now?” Id. Young said “Yeah, I see it now”, and Holloway then asked Young, “Can you now tell us what ... that document is?” Id.
After sustaining the prosecutor’s objection, the judge laid down a clear warning: “This is the last time I’m going to tell you the objection is sustained.” Id. Undeterred, appellant persisted in his effort to have Young look at the Gerstein statement and compare it with his PD 163, and asked Young whether he “recognize[d] any of the wording set forth in that document?” Id. At this point Judge Johnson held him in contempt. Id.
In challenging the conviction, appellant argues that “the terms of the district court’s ‘order’ concerning the permissible scope of questioning on the Condit affidavit were unclear.” Appellant’s Brief at 37. A study of the transcript convinces us that Judge Johnson had made herself as clear as language permits. Through her repeated explanations, the questions she asked the witness, and her rulings in response to objections, the judge made it plain that she would not allow the witness to compare the wording in the documents unless it were first established that the witness had seen the Gerstein affidavit before. Appellant and amici seek to interject some ambiguity into the judge’s directions, but the record belies their Derrida-like efforts; Holloway’s penultimate, disingenuous question — whether the witness had seen the documents “now” — makes clear that he knew what the judge meant. “To provide a defense to criminal contempt, [a] mistaken construction [of an order] must be one which was adopted in good faith and which, given the background and purpose of the order, is plausible.” United States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir.1974). Moreover, an alleged contemnor may not avoid an otherwise legitimate conviction “by ‘twisted interpretations’ or ‘tortured constructions’ of the provisions of the order.” Id. (internal citations omitted). That is exactly what Holloway seeks to do here. In context, Judge Johnson clearly conveyed the message that she would not allow Young to be questioned about Condit’s affidavit unless Young had seen the affidavit before.
Our review of the conviction under § 401(3) also requires us to decide whether a reasonable factfinder could have concluded beyond a reasonable doubt that the appellant disobeyed Judge Johnson’s orders with culpable intent. Holloway’s devious pretense that it would be enough if Young saw the document in court that very day (a theory that would make Judge Johnson’s ruling completely meaningless) points strongly in the direction of willfulness. A “mere ‘paper compliance’ will support a finding of willfulness.” Greyhound, 508 F.2d at 532. We need not, however, rest on the cited colloquy alone. Other episodes of Holloway’s conduct in the Rascoe trial render the conclusion that he acted with culpable intent almost inescapable. See Lumumba, 794 F.2d at 811 (relying on non-cited conduct in the same trial as evidence of intent); Farquhar, 492 F.2d at 564 (similar).
The first of these occurred during a two-day pre-trial suppression hearing. Appellant was cross-examining Officer Condit in an effort to establish the defectiveness of a search warrant executed at a house where Rascoe lived; if the warrant were shown to be defective, Rascoe could have excluded crack cocaine that the police found in his hands when he was confronted during the search. Appellant’s theory was that Condit knew the dwelling was a rooming house before applying for the warrant but nevertheless described the structure as a unitary dwelling in his affidavit. See Tr. 9/24 at 72-75. The witness repeatedly testified that he did not know it was a rooming house. The appellant persisted in his questioning and ultimately the judge sustained an objection and told him that he was “beating a dead horse.” Tr. 9/24 at 75. The following disobedience of an explicit order then occurred:
By Mr. Holloway:
Q. After you entered the house [to execute the warrant] on March 8, you discovered, did you not, that, in fact, this was a rooming house divided up into separate rooms; right?
[The prosecutor]: Your Honor, I will object for the purpose of what they discovered on March 8 is irrelevant to this motion hearing.
The Court: What he discovered once he got in is irrelevant, and I will sustain the objection.
By Mr. Holloway:
Q. You now know, do you not, sir, that, in fact, that this residence is a rooming house?
The prosecutor: Objection, Your Honor. The Court: Mr. Holloway, how many times do I have to tell you not to ask the question? Now, I just told you that that last question was inappropriate. You came back and asked the same question again. Now, Mr. Holloway, you are an experienced attorney, very experienced attorney, and I would not like to have to hold you in contempt of Court for defying a direct order. Do not ever ask a question again that I have just ruled is inadmissible.
(Tr. 9/24 at 75-76.)
The next morning, prior to selection of the jury, Holloway moved to withdraw as counsel in the Rascoe ease. Tr. 9/25 at 13-14. An exchange occurred between him and the judge (set out in full in Appendix B), in which the judge made clear her insistence on obedience to her rulings. In denying the motion, she assured Holloway that he should have nothing to fear because she had not held anyone in contempt in her eighteen years as a judge. At the same time, however, she warned him at least three times (see emphases) that he would be expected to comply with her orders. Prior warnings are evidence of willfulness when they go unheeded. See In re Niblack, 476 F.2d 930, 932 (D.C.Cir.1973).
A third incident involved the cross-examination of an expert witness, a chemist, who had analyzed narcotics found in Rascoe’s bedroom. Counsel for one of Rascoe’s co-defendants had sought and had obtained an in limine ruling prohibiting questions about a crack pipe that was seized at the same time as the cocaine and placed in the same evidence envelope. (No criminal charges were filed against Rascoe or any of his co-defendants relating to the pipe). After ruling in the co-defendant’s favor, the judge stated that “no one is going to mention that crack pipe that is in Exhibit No. 11 [the evidence envelope]”. Tr. 10/3 at 11; see also id. at 17-18. Holloway told the court that he intended to introduce evidence about the crack pipe in Rascoe’s defense case, and the judge informed Holloway that that was permissible. Id. at 11. Holloway later sought a further clarification of the court’s ruling, asking the judge if she “would prohibit any cross-examination as to any other items [i.e., the crack pipe] that would be in the [evidence envelope]?” Judge Johnson responded, “Most assuredly, because there was nothing on direct about it.” Id. at 20.
During his cross-examination, Holloway took the envelope containing the pipe and asked the chemist if there was any “residue in that item.” Id. at 48. Both the defense attorney who won the in limine ruling and the prosecutor objected, and, after sustaining the objections, Judge Johnson called Holloway to the bench and asked him why he had asked his question. After hearing the explanation, Judge Johnson found that appellant had been “determined to avoid following a direct instruction of the court”, that he had asked the question about the pipes even though she had told him he “should not ask any such questions about those pipes”, and that “there is no way you misunderstood me.” Id. at 50-51.
After reviewing the cited colloquy, the episodes of prior disobedience and the judge’s explicit warnings, we find that a reasonable trier of fact could have concluded beyond a reasonable doubt that Holloway “willful[ly] disregarded] or disobe[yed]” Judge Johnson’s orders about the permissible scope of examination of Officer Young. Farquhar, 492 F.2d at 564; accord Sykes v. United States, 444 F.2d 928, 930 (D.C.Cir.1971). Therefore all of the elements of a § 401(3) offense could properly be found.
Use of Summary Contempt Procedure
Appellant also alleges that it was improper for the presiding judge to employ the summary procedures of Fed.R.Crim.P. Rule 42(a) instead of the notice and hearing procedures of Rule 42(b). He is mistaken.
A judge unquestionably has the “power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him.” Taylor v. Hayes, 418 U.S. 488, 497, 94 S.Ct. 2697, 2702-03, 41 L.Ed.2d 897 (1974) (citing Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888)). When a judge invokes that power, we review the decision that summary procedures were necessary very deferentially — for abuse of discretion. See United States v. Meyer, 462 F.2d 827, 843 (D.C.Cir.1972).
Judge Johnson unquestionably was on solid ground in determining that the necessity of preserving order justified use of Rule 42(a). By the time the judge actually held Holloway in contempt, she had repeatedly warned him — without any apparent effect — to heed her rulings on pain of potential contempt. In the line of questioning that produced the contempt conviction, she at least three times reiterated her order about the threshold showing required to inquire about the Gerstein affidavit, and warned Holloway in open court that his continued inquiries violated the order. By the time Judge Johnson moved under Rule 42(a), she had a compelling need to terminate the improper questioning of Young, to deter future intentional violations of her orders, and to vindicate judicial authority to control the courtroom.
As appellant correctly notes, precedent reflects the “principle that only ‘[tjhe least possible power adequate to the end proposed’ should be used in contempt cases.” United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975) (quoting Anderson v. Dunn, 19 (6 Wheat.) U.S. 204, 231, 5 L.Ed. 242 (1821)). During the course of the trial, however, appellant repeatedly had been told that certain lines of questioning were impermissible and also that failure to comply with orders could lead to contempt. None of this worked. Moreover, in the line of questioning that led to the conviction, Judge Johnson tried a variety of less drastic measures before holding appellant in contempt — explaining the basis for her ruling and reiterating the order, intervening to conduct the critical questioning herself, issuing another, more pointed, warning, and finally saying, “Mr. Holloway, this is the last time I’m going to tell you the objection is sustained.” Tr. 10/8 at 84. Only then did the judge hold appellant in summary contempt. Given her heroic efforts to win compliance, one is hard pressed to see what lesser remedy she could reasonably have employed. The record certainly gives no basis for thinking that more orders, warnings, or threats would have produced improvement.
Finally, Holloway claims that the interest in a “fair and impartial assessment of the charges” required Judge Johnson to forego Rule 42(a)’s summary procedures and to refer the matter to another judge. The cases indeed bar the use of summary contempt procedures when alleged misconduct is of “such a personal nature” as to create actual or likely “embroilment” between the judge and alleged contemnor, or where “the judge adopts an adversary posture with respect to the alleged contemnor, even if he has not been personally attacked.” United States v. Meyer, 462 F.2d 827, 841 (D.C.Cir.1972); accord Taylor v. Hayes, 418 U.S. 488, 501, 503, 94 S.Ct. 2697, 2704, 2705, 41 L.Ed.2d 897 (1974). Neither is present here. Holloway made no personal attacks on the judge. Compare Mayberry v. Pennsylvania, 400 U.S. 455, 456, 458, 91 S.Ct. 499, 500, 501, 27 L.Ed.2d 532 (1971) (contempt could not be tried by presiding judge after alleged con-temnor in open court called the judge, inter alia, a “dirty sonofabitch,” and told him to “[g]o to hell”). Nor is there any evidence that Judge Johnson adopted an adversary posture with respect to the appellant — unless we treat as such her insistence on remaining in charge. But to do so would seem to rule out summary contempt across the board, which Rule 42 plainly does not contemplate.
Propriety of the Sentence
Finally, appellant claims that Judge Johnson’s sentence on the contempt conviction — a $1,000 fine — was excessive. We review a criminal contempt sentence for “abuse of discretion”, Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958), but with a direct power to revise. Noting that Congress had imposed no specific limit on contempt punishments, Justice Harlan wrote in Green that “[ajppellate courts have ... a special responsibility for determining that the [contempt] power is not abused, to be exercised if necessary by revising themselves the sentences imposed.” Id. When assessing the propriety of a sentence, this court considers factors such as “the necessity of achieving compliance with the court’s order, the gravity of the offense, ... the importance of deterring such acts in the future,” and “the financial resources of the offending party.” Drivers, Chauffeurs and Helpers Local No. 639 v. Penello, 420 F.2d 632, 634 (D.C.Cir.1969).
After considering those factors, we do not find the fine excessive. First, we are unpersuaded by Holloway’s argument that because he obeyed after being held in contempt (and evidently engaged in no further misconduct thereafter), and because Judge Johnson did not actually impose the fine until months after the event, we may infer that a $1,000 fine was unnecessary to gain compliance with the order. Such an argument is nonsense; as soon as Judge Johnson held Holloway in contempt, he was on notice that something would happen, possibly something quite drastic. If we reduce the fine to a trivial amount, future contemnors will face less of a hazard. Similarly, while we appreciate that as an assistant federal public defender Holloway does not earn a salary at the top of the range for lawyers, the fine cannot have a material deterrent effect if it is trivial. In addition, while the conduct at issue did not involve threats toward the judge or disrespectful conduct, it is nonetheless serious to ignore one’s duty to “protect the processes of orderly trial, which is the supreme object of the lawyer’s calling.” Offutt v. United States, 348 U.S. 11, 13, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954) (Frankfurter, J.) (quoting Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717 (1952)). Finally, we note that Holloway was no courtroom tyro: he has practiced for twelve years, and “has been engaged in the practice of federal criminal defense work exclusively for over ten (10) years” with Federal Defender Offices in Chicago, the Virgin Islands, and Washington, D.C. Affidavit of James R. Holloway at 2, filed with Motion to Vacate Conviction. During those years, appellant has “represented hundreds of criminal defendants.” Pre-Sen-tencing Statement of James R. Holloway, Sent.Tr. 3/10/92 at 15. Given Holloway’s willingness repeatedly to disregard the judge’s orders, and thereby also to undermine the court’s authority, we do not think it an abuse of discretion to assess punishment in the form of a $1,000 fine.
Appellant and amici have embellished their briefs with unexceptionable remarks about the critical role that an independent and unbowed bar plays in preserving the liberty that defines our nation and that we are sworn to protect. We agree. As the Supreme Court stated in In re McConnell:
it is ... essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases. An independent judiciary and a vigorous, independent bar are both indispensable parts of our system of justice.
370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434 (1962).
Nonetheless, the advocate in our legal system is expected to abide by the rulings of the presiding judge. “[I]f the ruling is adverse, it is not counsel’s right to resist it ... his right is only respectfully to preserve his point for appeal.” Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 454, 96 L.Ed. 717 (1952). Absent such a requirement, trials would wander down every by-way, no matter how impermissible, in a sprawling chaos that would render the adjudication close to random. In the long run, such chaos is hardly in the interests of defendants as a whole, much less in the interest of society.
The judgment of conviction and sentence are affirmed.
So ordered.
APPENDIX A
On October 8, 1991, during trial in United States v. Rascoe, the following colloquy occurred. It was cited in full by Judge Johnson as the basis for her contempt conviction of appellant James R. Holloway.
[Tr. 10/8, p. 77] Mr. Holloway: Judge, I would like to mark something that’s in the file and show the witness something that’s in the file.
The Court: No. You can tell me what you want from the file, and Mrs. Pacori will get it out, but you are not going to mark anything in that file.
Mr. Holloway: There’s a paperclip where it is.
The Court: Tell me what you want.
Mr. Holloway: There’s a paperclip where it is.
The Court: Pass me the file.
Mr. Holloway: There’s a pink paperclip.
The Court: You’d better approach the bench.
(At the bench)
The Court: Why do you choose to show this to that officer?
Mr. Holloway: Judge, that is the statement of facts that he wrote on the 163 word-for-word. I’m going to show it to him and ask him to compare the statement in that document to the [Tr. 10/8, p. 78] statement of facts that he wrote on the 163 he compared, and to compare those two statements as to whether they are identical or not.
The Court: Well, this statement is sworn to on the 9th of March, 1991, and it is sworn to by Robert Condit. So, maybe Robert Condit chose to take that man’s statement exactly. How can he tell us where Condit got this from? This thing— Mr. Holloway: That was not my question. My only question would be to ask him to look at that and compare it to the statement that he prepared and to give us — to give us his indication of whether this statement — how that statement compares to the statement that he wrote.
The Court: Totally irrelevant.
Mr. Holloway: It’s very relevant, Judge. It’s the foundation I’m laying for questions to Officer Condit as to that statement of facts and where it came from, and whether that statement represents the statement of facts that was prepared by this witness, and whether he got that statement of facts from the 163 statement of facts prepared by this witness. And Your Honor can look at them. I will bring the 163 up here so you can look at it.
The Court: You don’t have to.
Mr. Holloway: They’re identical. They’re word-for-word, identical.
The Court: So?
[Tr. 10/8, p. 79] Mr. Holloway: In fact, it looks like it’s been xeroxed, that the statement of facts from the 163 has been xeroxed onto this Gerstein statement of facts that was filed.
The Court: The what?
Mr. Holloway: Gerstein, G-E-R-S-T-EI-N, the statement of facts that was filed in the Superior Court the following day. The Court: But my point to you, Mr. Holloway, and I will repeat it again, that 163 is dated March 8, 1991, is it not? Mr.
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:
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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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOTHAM INDUSTRIES, INC., and Crawford Plastics Corp., Respondents.
No. 7160.
United States Court of Appeals First Circuit.
Jan. 14, 1969.
Warren M. Davison, Washington, D. C., attorney, with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Corinna Lothar Metcalf, Washington, D. C., attorney, were on brief, for petitioner.
Jerome Medalie, Boston, Mass., with whom David I. Riemer, Julius Thannhauser and Cohn, Riemer & Pollack, Boston, Mass., were on brief, for respondents.
Before ALDRICH, Chief Judge, STALEY, Senior Circuit Judge, and McENTEE, Circuit Judge.
Of the Third Circuit, sitting by designation.
ALDRICH, Chief Judge.
This is a petition for enforcement of an order of the National Labor Relations Board based upon certain conduct in connection with a promise of a wage increase in alleged violation of section 8(a) (1) of the Act. 29 U.S.C. § 158(a) (1). The facts are somewhat complex and, in their totality, unusual. At Fitchburg, Massachusetts, in a single building, respondents operate two different but related businesses, Gotham Industries, Inc. and Crawford Plastics Corp., which for present purposes constitute a single enterprise. In July 1963 a union began organizing Gotham’s employees and an election was held that November. The union received less than 20% of the votes. The regional director set the election aside because of misconduct by Gotham, and directed that a new election be held “at a date and time to be determined.” In January 1964 the union filed unfair labor practice charges, which were sustained by a trial examiner and by the Board. Gotham Indus., 1964, 150 N.L.R.B. 63. Gotham’s nonacceptance required review by this court. At the hearing before us Gotham pressed only the alleged overbreadth of the order. Since in this particular it had failed to protect its rights, in May 1966 we directed, without a reported opinion, that the order be enforced. Gotham apparently complied with the order, including the 60-day posting requirement, on or before August 30, 1966, as on that date it was sent the customary compliance letter.
With this background we turn to the facts upon which the present findings of violation are based. In early August 1966 some of the older employees in Crawford’s molding room held a meeting of the day shift to demand a wage increase. At their invitation plant superintendent Stauble attended and agreed to discuss their demands with Robert Gottsegen, general manager of both companies. So informed, Gottsegen investigated, and before the end of the month told certain Crawford employees that a wage increase would be made in December. Formal notification of the increase was received by the Gotham and Crawford employees on September 14 and 22, respectively.
On September 23 the regional director informed Gottsegen that a “rerun” election would be scheduled shortly. After he designated the date the union filed an unfair labor practice charge predicated essentially upon the promised wage increase, and the regional director promptly cancelled the designation.
Thereafter, on October 17, in response to a request by employee Arsenault for a 20 cent raise, Stauble informed her that he could not comply because “the union has stepped in and taken away the 10 cent raise.” On October 27, Gottsegen, in response to further inquiries about the fate of the promised raise, distributed a notice to all employees which stated, inter alia,
“As you know, the Retail Wholesale Department Store Union has filed with the National Labor Relations Board unfair labor practice charges alleging that this pay increase was an unfair labor practice. The Company thinks this charge is absurd and is doing everything in its power to prevent the union from denying our employees this very much needed and very much deserved increase. We are unable to understand why the union, who says they are interested in our employees’ welfare, is trying to interfere with our giving you higher pay. Our lawyers are now presenting our views regarding this pay increase to the National Labor Relations Board and we hope to have further information on this in about ten (10) days.
You need this pay increase, you deserve this pay increase, and we intend to give it to you.”
And, finally, on December 1, the wage increase was instituted.
General Counsel’s complaint, filed January 10, added to the charge concerning the promise of a wage increase, charges that from and after September 22 respondents’ officers and agents, particularly Stauble, threatened the employees with retracting the promise of a wage increase if the employees continued to adhere to the union, and that on October 27 they posted a notice that the union was seeking to prevent the wage increase. The charge of threatening to take away the wage increase was contradicted by the notice itself, and was not established. Certain other charges made in the complaint were also not supported, and need not detain us.
After hearing, the trial examiner concluded, as an ultimate finding, that in August respondents “knew that subsequent to the expiration of the 60-day posting period, required by the Board’s order * * * a rerun election would be scheduled * * * and that it was for reasons closely related to the impending employees’ election that * * * the announcement of a year-end pay increase was made.” He also found that the statements of Stauble and the October 27 notice regarding the union’s intentions were misrepresentations seriously prejudicial to the union and to a free election, and thus supported a conclusion that the initial promise of wage increases was improperly motivated. He recommended that a section 8(a) (1) order be made as to both of these matters. The Board affirmed. Gotham Indus., 1967, 167 N.L.R.B. No. 91.
We deal first with the promise of a wage increase. Board counsel conclude, “The record in this case amply warrants the Board’s finding of unlawful motivation” for the wage increase, and thus satisfies the Supreme Court’s holding in NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435, that section 8(a) (1) “prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” We agree with the Board’s acceptance from the outset of the necessity of showing improper motivation for this 8(a) (1) violation. Having done so, and in light of the fact that the employer came forward with affirmative evidence of proper business justification, the ultimate burden was upon the Board to show that the promise was primarily motivated by an antiunion purpose. Jervis Corp., Bolivar Division v. NLRB, 6 Cir., 1967, 387 F.2d 107, 113 n. 4; NLRB v. Crosby Chem., Inc., 5 Cir., 1960, 274 F.2d 72, 74 n. 5; see also NLRB v. Billen Shoe Co., 1 Cir., 1968, 397 F.2d 801, 803.
Passing the exceptional employer who may raise wages out of fraternal generosity, we suppose that most nonunion employers give raises for one or both of two reasons: to keep employees, old and new, in the plant, and to keep unions out. As to the latter it cannot be that every time it can be shown that an employer was seeking to stay one step ahead of unionization he was guilty of an unfair labor practice; the situation must have sufficiently crystallized so that some specific orientation exists. It would be a sorry consequence if the Labor Relations Act were to be construed as causing every nonunionized employer to think twice before initiating a wage increase lest some union should appear and claim that it had been frustrated. Cf. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 114 (1964). At a minimum it must be that to establish improper motivation requires a showing that an employer knows or has knowledge of facts reasonably indicating that a union is actively seeking to organize, or else that an election is, to use the Board’s word, impending. See Norfolk Livestock Sales Co., 1966, 158 N.L.R.B. 1595; Sigo Corp., 1964, 146 N.L.R.B. 1484, 1486; Imco Container Co. v. NLRB etc., 4 Cir., 1965, 346 F.2d 178, 180. Cf. NLRB v. Radcliffe, 9 Cir., 1954, 211 F.2d 309, 315, cert. denied Homedale Tractor & Equipment Co. v. NLRB, 343 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657. We are concerned here only with the latter alternative as there was no suggestion of any organizational activities, let alone activity that might have come to respondents’ attention.
The examiner treated the issue of respondents’ knowledge one way; the Board, in its argument before us, in another. We consider first the examiner’s approach. He concluded that respondents “well knew that another representation election was in the offing.” There was no direct evidence, however, of such knowledge, and the conclusion was exclusively an inference. Indeed, all the affirmative evidence was to the contrary. The testimony was that, prior to September 23, no one had informed any representative of the respondents that an election was still possible. Respondents’ express denials of knowledge were unshaken on cross-examination. In addition, there was evidence that respondents had been informed by their counsel in May 1966, after our decision, that the likelihood of reappearance of the union, in' light' of its substantial defeat and the lengthy period of subsequent inactivity, was remote. Even more negative than inactivity, we would think that if in August the employees were interested in a union they would have exerted their efforts in that direction rather than in endeavoring to persuade the respondents on their own.
The trial examiner gave certain facts as supporting his inference of knowledge that an election was impending. The first was that the order of election was still outstanding. This, of course, was true. Whether it meant that the union was still interested after what the examiner termed a “somewhat unique” delay, and interested at that particular moment, is another matter. The second was that the delay had been due to respondents’ fault. We agree as to the fault but, again, the relevancy of that to a presently active union interest seems less than inescapable. Finally, the trial examiner disbelieved respondents’ witnesses, saying that their denial that they were expecting an election “strains credulity.” Whether this disbelief was regarded by him as affirmative proof to the contrary we cannot be certain, but, if so, it was a violation of a fundamental principle. Janigan v. Taylor, 1 Cir., 1965, 344 F.2d 781, cert. denied 382 U.S. 879, 86 S.Ct. 163,15 L.Ed.2d 120. In any event, we find the examiner’s statement of reasons unimpressive, standing alone, and on the record as a whole even more so.
Whether because Board counsel, too, were doubtful, or merely wanted another string to their bow, they have suggested other grounds, specifically, the Board’s “well known” practice not to hold rerun elections until the termination of the posting period even though this may effectuate a delay until a court of appeals order. Asked for a reference to this practice, counsel cite the Board’s Field Manual, and then concede that this manual was not available to the public until after the events in question. Next, they cite the practice of “blocking charges,” by which an election “may,” the word is the Board’s, be postponed. Surprenant Mfg. Co. v. Alpert, 1 Cir., 1963, 318 F.2d 396. No case has been cited for a blocking charge lasting two and a half years, and no impelling logic that, if so, the election will then be sought by the union. Finally, counsel supplement the lack of proof that such should have been anticipated by saying that if respondents had inquired of the regional director as to a coming election they would have had the answer.
We must make the all too frequent response that if counsel want to establish something they should do so at the hearing, and the examiner should find it. But, more particularly, we must criticize a claim based on what, allegedly, would have been learned (in August) from the regional director. If the issue had been respondents’ negligence, the examiner, not counsel, might possibly have found it to be negligent to rely on their counsel without asking the regional director. However, the issue in wrongful motivation cases is “what the employer believed and not whether that belief was reasonable.” Raytheon Co. v. NLRB, 1 Cir., 1964, 326 F.2d 471, 475. Counsel’s assertion does not go beyond the latter.
While we are far from persuaded of the validity of the examiner’s finding of respondents’ knowledge that an election was impending, we need not rest our decision on that. Assuming a proper finding of knowledge, which is a necessary ingredient, the Board was still faced with the burden of meeting respondents’ showing of a proper business purpose. See n. 5, supra. As to this the examiner, while admitting that “it is not for the Trial Examiner to sit in judgment on Respondents’ business acumen,” concluded that “no adequate business reason was advanced for the departure from the Respondents’ past practice of announcing general wage and fringe benefits at the end of the calendar year. * * * ” (Emphasis supplied.)
It is true that respondents’ practice was to give wage increases and other benefits near the end of the year and to announce them about a month in advance. Respondents asserted, however, three business justifications for the earlier announcement: the employee meeting demanding a wage raise, an increasing tightening of the local labor market, and the impending passage of a higher minimum wage rate. The examiner found the first factually supported but unpersuasive as a motivating factor, the second factually unsupported, and the third factually supported as well as a motivating factor, but a very minimal one. We may accept the last conclusion, but not the others. We find both the first and second reasons to be factually proven, and highly persuasive.
While agreeing that the trial examiner is the primary judge of credibility and recognizing that he may have some expertise by his experience in determining whether an employer was genuinely motivated by proffered reasons, we cannot accept his denigration of the significance of the August meeting of the employees. This meeting was, concededly, self-generated, and not an event trumped up by the respondents. Present were at least twenty-five employees (the minimum estimate was 75% of the shift, some employee witnesses put it higher) of the day shift of the major department. On the undisputed testimony, a number of employees threatened to leave if an increase was not granted. Two decided to quit without even waiting. Yet the trial examiner concluded: “In the light of the fact that at the time Respondents’ joint payroll was substantially in excess of 200 employees, it seems most unlikely that the meeting in question, involving as it did only part of one shift in one department, would cause the Respondents to accelerate the announcement of an across-the-board wage increase for over 200 employees that would not become effective until the following December.” Passing the fact that the first night shift was already working and could not attend without permission, we do not follow the logic that one shift would want better wages while others would not. And surely there should be some documentation for the implied assumption that the day shift, only, could be raised without producing discontent in the others. Such evidence as there was on this subject was directly to the contrary.
It is very easy for the examiner to say there was no “adequate” reason for the early announcement of the wage increase. Even with his ex post facto view of the situation, however, he makes no suggestion of what respondents were to do short of offering such satisfaction to dissident employees. If an examiner is going to exercise business judgment, he should at least offer some business alternative.
We might agree that if counsel for the General Counsel could have shown the employees’ demand to have been unreasonable, respondents’ motive in acquiescing might have been subject to scrutiny. No such proof was offered. On the undisputed testimony, respondents in the summer of 1966 were having serious difficulties maintaining a sufficient manpower level. Apparently in their business there was always considerable employee turnover. Respondents testified, however, that this had been causing increasing difficulties. The examiner disposed of this testimony in a single sentence. “Whereas her [respondents’ office manager’s] statistics on turnover indicated a high rate during 1966, on cross-examination she testified as to other data which established that turnover at the Fitchburg plant had been a continuing problem for several years and that, in fact, the rate had been even higher at Crawford in 1965 and at Gotham in 1964, than it was in 1966.” Apart from the misleading implication of the totally irrelevant last clause, it would have been more to the point to explain away respondents’ testimony that in the summer of 1966 absenteeism and turnover were higher, while at the same time business needs were increasing. Respondents testified that in 1964 and 1965 replacements were readily available, but in 1966 machine “downtime” due to unfilled positions cost them significant orders. To corroborate management’s belief in the tightening labor market in Fitchburg, respondents introduced proof of their increasing “Help Wanted” advertising costs — $9 in 1964, $96 in 1965, and $999 in 1966. If such testimony was untrue it should have been readily refutable. To dismiss it all because respondents always had turnover and absenteeism problems, and adding a reference to purely intramural fluctuations between Gotham and Crawford, is indicative of how difficult it was for the examiner to find tangible evidence favorable to the union.
Two other answers are suggested. The first is respondents’ 1963 misconduct. Possible recidivism, however an unfortunate fact of life, is not, in our opinion, a substitute for proof that a particular act was primarily motivated by a purpose to interfere with employees’ rights to organize. Neither is the examiner’s reference to respondents’ October conduct. If what respondents did then was an unfair labor practice, a matter we will come to, that would be sufficient of itself. If it was not, all it did was show that respondents in October were anti-union. We agree that this warrants the belief that they were so oriented in August and September, but, again, a general anti-union animus, however important it may be in resolving doubtful questions, cf. NLRB v. Simplex Time Recorder Co., 1 Cir., 1968, 401 F.2d 547, 548, n. 1, is not of itself sufficient to overcome a demonstrated substantial business purpose for a particular act. We have said this before. See cases collected in NLRB v. Billen Shoe Co., supra. If the law is that every employer who shows a business need is nevertheless subject to the ipse dixit of some trial examiner simply because it does not like unions, we are reviewing roulette, not legitimate regulation. The finding of an unfair labor practice with respect to the promise of a wage increase cannot stand.
With regard to the October 27 notice to the effect that the union was seeking to take away the wage increase, the examiner stated, without discussion or explanation, that this was an unfair labor practice because it “was a misrepresentation which seriously prejudiced the Union and interfered with the rights of the employees to have a free election.”
Before reaching the fundaments of this ruling we pause to ask whether there was a misrepresentation at all. As the examiner pointed out, the union’s charge did not in terms request that the wage promise be rescinded. However, respondents sought to offer into evidence a “Notice to All Employees” form which the Board, prior to the bringing of the formal complaint, proposed as part of a settlement. This concluded,
“WE WILL, should the above-named Union so request, rescind the wage increase granted employees effective December 2, 1966.”
The examiner excluded this offer. Board counsel argue that he did so correctly, because settlement negotiations are wholly privileged. This overlooks the well-recognized exception regarding admissions of fact as distinguished from hypothetical or provisional concessions conditioned upon the settlement’s completion. See generally, Wigmore, Evidence, § 1061; Factor v. Commissioner, 9 Cir., 1960, 281 F.2d 100, 125, cert. denied 364 U.S. 933, 81 S.Ct. 380, 5 L.Ed.2d 365. If the proposed notice was what the Board wanted, presumably it was a statement of the union’s position, and admissible as such when the Board later says its position was different. Its exclusion was prejudicial error.
The question remains whether we should order a new hearing to determine the truth of respondents’ view that the union was seeking, by its unfair labor practice charge, to revoke the wage increase obtained by the efforts of another group of employees until it could be the negotiator, or whether the Board’s position is untenable in any event. We believe the latter.
The Board’s decision was reached without any apparent consideration of three important matters. First, with respect to its finding that the notice interfered with a free election, we ask what has become of the Board’s familiar rule that prejudice depends upon lack of opportunity to reply in time. Ralston Purina Co., 1964, 147 N.L.R.B. 506; Pepperell Mfg. Co. v. NLRB, 5 Cir., 1968, 403 F.2d 520. On October 27 no election was even scheduled. Next we ask what has become of the companion rule that prejudice depends upon the ability of the replying party effectively to rebut the substance of the misrepresentation. See Celanese Corp., 1958, 121 N.L.R.B. 303, 307, enforcement denied 7 Cir., 279 F.2d 204, vacated and remanded per curiam 365 U.S. 297, 81 S.Ct. 689, 5 L.Ed.2d 688, enforcement denied 291 F.2d 224, cert. denied 368 U.S. 925, 82 S.Ct. 360, 7 L.Ed.2d 189; United Steelworkers v. NLRB, D.C.Cir., 1968, 393 F.2d 661, 664; NLRB v. Trancoa Chem. Corp., 1 Cir., 1962, 303 F.2d 456, 3 A.L.R.2d 879. See, in general, Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L.Rev. 38, 82-91 (1964). We find it difficult to imagine a misrepresentation, if it was such, that could be more quickly, or more effectively, answered. All the union needed to d° was publish a statement that respondents had misdescribed its position and that it was not seeking to nullify the wage increase. It has been well said in such event, “[t]he remedy is for the union to answer them, not a cease and desist order.” NLRB v. TRW-Semiconductors, Inc., 9 Cir., 1967, 385 F.2d 753, 760.
So far as we can discover, the Board has never held that a statement which was immediately and fully correctable, if it was untrue, was a significant interference with an election even when one was about to be conducted. We are extraordinarily surprised that it should do so here, entirely without discussion, when the election had already been indefinitely postponed.
There is an even more serious difficulty. Section 8(c) of the Act, 29 U.S.C. § 158(c) provides as follows.
“(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”
The Board took no note of this statute. Yet it must be that the October notice was neither a promise ñor a threat. A threat must relate to something over which the speaker has at least partial control. NLRB v. Teamsters etc., Local 901, 1 Cir., 1963, 314 F.2d 792, 794. The October 27 notice was merely an assertion that the union had possible power to accomplish something unpleasant; respondents threatened nothing and promised nothing except, and unconditionally, to endeavor to do what the employees wanted. Cf. Peter J. Schweitzer, Inc. v. NLRB, 1944, 79 U.S.App.D.C. 178, 144 F.2d 520, where the promise was not unconditional. Nor, likewise, could the Board contend this was a threat to do anything to coerce employees from exercising their right to file unfair labor practice charges or to unionize. Cf. NLRB v. Agawam Food Mart, Inc., 1 Cir., 1967, 386 F.2d 192. In sum, the Board’s decision in this matter is as unsupportable as it is unprecedented.
A decree will be entered setting aside the order of the Board.
. Retail, Wholesale and Department Store Union AFL-CIO.
. There were four separate complaints in the charge, but only the first is of any note here. It stated :
“1. That the employer promised the workers benefits in a leaflet distributed to the workers within the past month. Such benefits include the promise of a wage increase of 10 cents per hour for the week starting December 1st, 1966. These promises were made by the employer to interfere with union organizational activity and to interfere with the employees rights under section 7 of the Act.”
. With respect to what is presently in issue, the affirmance was without opinion. We in no way criticize this practice, but for convenience we will from time to time hereafter speak only in terms of the trial examiner.
. See Perl, Granting of Benefits During a Representation Election: Validity of NLRB General Rule, 18 Labor L.J. 643, 647 (1967) ; cf. Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fietive Formality, 77 Yale L.J. 1269, 1306 (1968).
. This burden of proof is consistent with the latest Supreme Court rulings as to the proof of improper motivation in section 8(a) (3) violations in NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027. Although improper motivation is not a required element in all 8(a) (1) violations as it usually is in 8(a) (3) violations, the Court’s rulings are applicable to the situation in this case where the Board has in effect made motivation an essential element to this 8(a) (1) violation. It seems appropriate that the grant of benefits should come within the second category established in the Great Dane case — conduct causing a comparatively slight harm to employee rights — and not the first category, of inherently destructive conduct. Thus, although the employer would have the .burden of coming forward with a substantial and legitimate business justification once the Board had shown a harmful effect, the burden would remain on the Board and “an affirmative showing of improper motivation must be made.” 388 U.S. at 34, 87 S.Ct. at 1798. This means an affirmative showing that it was not the business purpose that caused the employer’s action. NLRB v. Billen Shoe Co., supra.
. Insofar as criticism was implied by the use of this phrase, we note that an across-the-board increase had been given to another department earlier in the year. We note, also, that attracting new employees, which was one of respondents’ problems, see infra, is not likely to be accomplished by a wage increase simply for senior employees.
. The statement concerning the prior turnover rates of the two entities was irrelevant to the question whether other conditions existing in the summer of 1966 aggravated respondents’ admittedly proven chronic turnover problems. It was even more than irrelevant to use separate statistics for Gotham and Crawford, which were a single business entity in everything but corporate structure and treated as such by the Board, when the combined statistics for the two clearly showed a constantly increasing turnover.
. Like the examiner, we do not deal separately with Stauble’s October 17 statement to employee Arsenault. If this could be thought of as different in import from the October 27 notice not only was it an isolated incident, but any difference was shortly corrected by management’s notice. Cf. NLRB v. Garland Corp., 1 Cir., 1968, 396 F.2d 707.
. As a simple example, if a party says the defendant broke his arm and he would settle for so many dollars, the dollar amount would be inadmissible, but the assertion he broke his arm would be admissible if he later claimed it was his leg. Cf. Nau v. Commissioner, 6 Cir., 1958, 261 F.2d 362, 364-365.
. Because of the lack of clarity of the trial examiner’s opinion, we refuse to take this opportunity to pass upon the Board’s apparent attempt to undercut the established dichotomous treatment of pre-election misrepresentations, depending upon the remedy. See Christensen, Free Speech, Propaganda and the National Labor Relations Act, 38 N.Y.U.L.Rev. 243, 275-78 (1963), an article we are pleased to cite although it greatly overstates what we held in NLRB v. Trancoa Chem. Corp., supra.
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_usc1sect
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160
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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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Mary Z. ASSEO, etc., et al., Plaintiffs, Appellees, v. PAN AMERICAN GRAIN COMPANY, INC., and Pan American Grain Manufacturing Company, Inc., Defendants, Appellants.
No. 86-1119.
United States Court of Appeals, First Circuit.
Heard Sept. 10, 1986.
Decided Nov. 10, 1986.
Antonio Moreda-Toledo with whom More-da, Moreda & Arrillaga, Hato Rey, P.R., was on brief, for defendants, appellants.
Michael J. Israel with whom Joseph E. Mayer, Asst. Gen. Counsel, John W. Horn-beck, Deputy Asst. Gen. Counsel, Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, and Harold J. Datz, Associate Gen. Counsel, Washington, D.C., were on brief, for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, ALD-RICH and COFFIN, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.
Pan American Grain Company and Pan American Grain Manufacturing Company (collectively referred to as Pan American Grain), appeal from an order of the United States District Court for the District of Puerto Rico granting a temporary injunction. The injunction was requested by the Regional Director of the National Labor Relations Board pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. §§ 151, 160(j) (1982). The district court enjoined Pan American Grain, pending the Board’s final disposition in this case, to cease and desist from its conduct in violation of the National Labor Relations Act; to reinstate four employees alleged to have been discriminatorily discharged; to recognize and bargain with the Union as the representative of Pan American Grain’s production and maintenance employees; and to post in its plant a copy of the court’s opinion. We affirm the district court’s order.
Pursuant to unfair labor practice charges filed by the Congreso de Uniones Industr-iales de Puerto Rico (hereinafter “the Union”), the Regional Director issued various complaints, consolidated complaints and amended consolidated complaints against Pan American Grain, as employer, in the period between July 23, 1985 and December 12, 1985.
The complaints alleged that Pan American Grain had violated section 8(a)(1), (3) and (5), 29 U.S.C. § 158(a)(1), (3), (5) (1982), of the Act by interrogating employees concerning their support for the Union; discharging employees because of their support for the Union; threatening employees with physical harm, dismissals, loss of wages and benefits and other reprisals, because of their support for the Union; threatening plant closure because of Union activity; creating the impression of surveillance; granting wage increases and promising benefits in exchange for employees’ repudiation of the Union; circulating and soliciting signatures on a petition disavowing the Union; and refusing to recognize and bargain with the Union as the majority representative of the employees. These unfair labor practices allegedly occurred before and after a union representation election was held. They supposedly continued through the beginning of hearings concerning them held by an administrative law judge of the Board. Starting on October 21,1985, these administrative hearings proceeded until suspended on October 25. In December 1985, acting under section 10(j), the Regional Director sought temporary injunctive relief against Pan American Grain. The district court held a three-day evidentiary hearing, at which it accepted into evidence transcripts of employee testimony before the AU, and also heard live testimony from other employees and from officials of Pan American Grain. The court subsequently issued its opinion and order for temporary injunctive relief to which this appeal is addressed.
Section 10(j) of the Act authorizes interim injunctive relief to maintain the status quo pending the Board’s ultimate decision on the merits of the underlying unfair labor practice claims. Fuchs v. Hood Industries, 590 F.2d 395, 397 (1st Cir.1979). In the interim proceeding, the district court is not expected to decide the merits of the unfair labor practice claims, since that is the Board’s responsibility. Rather, the district court must determine whether there is reasonable cause to believe that the alleged unfair labor practices were committed. To do so, the court need only find that the Regional Director’s position is fairly supported in the evidence. Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d 953, 959 (1st Cir.1983). At the same time, as we there pointed out, the strength of that position, viz., the relative likelihood that the Board will eventually succeed on the merits, must be considered in connection with the other criteria that determine the appropriateness of injunctive relief, see infra.
This court’s review is limited to whether the district court was clearly erroneous in finding reasonable cause to believe that there were unfair labor practices and whether it abused its discretion in granting injunctive relief. Union de Tronquistas de Puerto Rico v. Arlook, 586 F.2d 872, 876 (1st Cir.1978).
I. THE UNFAIR LABOR PRACTICES
We believe the record afforded reasonable cause for the district court to believe that the unfair labor practices occurred. Employees testified to each of the alleged unfair labor practices before either the AU or the district court. Pan American Grain asserts that their testimony furnished inadequate support for the court’s findings because the company presented affidavits from each testifying employee contradicting his own testimony.
The district court, however, could reasonably disregard the affidavits. Pan American Grain’s attorney testified to sitting alone with each individual employee in a room at the employer’s office, and there drafting and notarizing the affidavits. When confronted with the affidavits, each employee testified that the only reason he had subscribed to the statements was because he felt that to refuse would result in reprisals, such as discharge, or plant closing.
It is true that a district court’s function in a section 10(j) case is not to weigh the credibility of contradictory evidence, and so decide the merits. However, to determine whether the Regional Director’s position was fairly supported, the court had to decide whether the affidavits were a reason not to credit the employees’ otherwise persuasive testimony. The circumstances surrounding the making of the affidavits, and the employee-affiant’s testimony as to the coercive pressures, provided reasonable grounds for disregarding them.
Pan American Grain asserts that the district court should not have accepted into evidence transcripts from the hearing before the AU, claiming that they were inadmissible hearsay. This argument is without merit. Affidavits and other hearsay materials are often received in preliminary injunction proceedings. The disposi-tive question is not their classification as hearsay but whether, weighing all the attendant factors, including the need for expedition, this type of evidence was appropriate given the character and objectives of the injunctive proceeding. Compare SEC v. Frank, 388 F.2d 486 (2d Cir.1968) with Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 198 (9th Cir.1953). Testimony from an administrative hearing before a labor board AU was used in Fuchs v. Hood Industries, 590 F.2d 395, 398 (1st Cir.1979). See also Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) (for preliminary injunction trial court may consider otherwise inadmissible evidence when to do so will prevent irreparable harm).
In this case the court conducted an evidentiary hearing of its own at which it heard live testimony from a number of witnesses, and it also considered the transcript of the testimony received in so much of the unfair labor practice proceedings before the AU as had so far taken place. Essentially the same issues being examined by the district court were also at issue before the AU, and appellants had the opportunity to cross-examine each witness in the hearing before the AU. Later, at the injunctive hearing, appellants could have sought to recall any of these witnesses for further examination had they wished. We believe the nature of the hearing before the AU made it entirely appropriate for the district court to review the transcript of that hearing in determining whether there was reasonable cause to believe that unfair labor practices had taken place.
We conclude that the district court’s determination of reasonable cause was supported in the record and that its factual findings were not clearly erroneous.
II. THE PROPRIETY OF INJUNC-TIVE RELIEF
Once reasonable cause is established, this court reviews whether the district court abused its discretion in determining that the particular injunctive relief was just and proper. When determining whether injunctive relief is just and proper in a section 10(j) proceeding, the “whole panoply of discretionary issues with respect to granting preliminary relief must be addressed.” Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d at 958. In this circuit the standards for granting preliminary injunctive relief are
(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.
Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981).
In this case, we think the court below was entitled to conclude that, without an interim bargaining order, irreparable harm would result because of the continuing nature of Pan American Grain’s violations. Testimony before the district court showed that the employer continued its threats of discharge or plant closings even during the hearings before the AU on the previous unfair labor practices. If an employer is allowed to continue overt violations of the Act, it may in extreme cases succeed in so undermining union strength as to render ineffective any final relief that might be afforded by the Board.
The District of Columbia Circuit stated in International Union of Electrical Workers v. NLRB, 426 F.2d 1243, 1249 (D.C. Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970),
Employee interest in a union can wane quickly as working conditions remain apparently unaffected by the union or collective bargaining. When the company is finally ordered to bargain with the union some years later, the union may find that it represents only a small fraction of the employees.
Similarly, the Second Circuit has observed,
Just as a cease and desist order is ineffective as final relief ... it is, in certain cases, also insufficient as interim relief. If an employer faced with a union demand for recognition based on a card majority may engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the union’s losing an election, and is then merely enjoined from repeating those already successful violations until final Board action is taken, the Board’s adjudicatory machinery may well be rendered totally ineffective. A final Board decision ordering a new election will leave the union disadvantaged by the same unfair labor practices which caused it to lose the first election. Even if the Board finally orders bargaining, probably close to two years after the union first demanded recognition, the union’s position in the plant may have already deteriorated to such a degree that effective representation is no longer possible. Only if the district courts may issue interim bargaining orders can the union’s viability be maintained to the degree necessary to make final Board adjudication in the form of an election or a bargaining order meaningful.
Seeler v. Trading Port, Inc., 517 F.2d 33, 37-38 (2d Cir.1975). Here, the seriousness of the unfair labor practices reflected in the Regional Director’s evidence was such that the district court could properly believe that, without an interim bargaining order, the Union would suffer irreparable harm.
As to the reinstatement of the four employees, arguably the possibility of subsequent relief by the Board in the form of reinstatement with back pay precludes a finding of irreparable harm. Whether this is so, however, depends on the particular circumstances, and we cannot say the district court exceeded its discretion in determining, here, that subsequent reinstatement with back pay would not suffice. In addressing a similar argument, the Third Circuit said,
The [district] court also noted that there was no need for a reinstatement order because the Board, if it found that the discharges were in retaliation for engaging in protected activity, could order reinstatement with back pay. That reasoning, however, misapprehends the purpose of section 10(j) relief. When the Board files an application for such relief it is not acting on behalf of individual employees, but in the public interest.... That interest is in the integrity of the collective bargaining process. If union supporters are excluded from the bargaining process pending resolution of unfair labor practice charges, the position of the designated bargaining representative will in all likelihood be substantially undermined. All members of the bargaining unit may be affected by such an erosion of union support. Furthermore, the discharge of “active and open union supporters ... risk[s] a serious adverse impact on employee interest in unionization.” Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir.1980). When the Board, faced with an employer’s resort to tactics calculated to undermine union support at a critical stage of the bargaining process, seeks section 10(j) relief, the focus of attention should not be on what relief may ultimately be granted to individual employees but on the likelihood of harm to the bargaining process in the interim.
Eisenberg v. Wellington Hall Nursing Home, Inc., 651 F.2d 902, 906-07 (3d Cir.1981).
While the granting of an interim bargaining order and the reinstatement of employees, are burdensome to the employer, and should not be imposed as a matter of course in all cases, we are unable to say, on this record, that the burdens to the employer equal or exceed the likely harm to the Union if this relief is not granted. The employer’s burden will only last until the Board’s final determination. The employer can condition the continued efficacy of an agreement (if indeed any agreement is reached) upon the final disposition by the Board. See Kaynard, 625 F.2d at 1054.
The record also supports, as it must for an injunction to issue, a finding of a likelihood of success on the merits. Numerous employees testified to various violations by the employer such as offering money for a vote against the Union, threats to discharge employees who supported the Union, and threats to close the plant should the Union prevail. To be sure, the four employees who were discharged were prominent among those who testified. They could be biased. However, others with less apparent reason to be biased against the employer also testified to the unfair labor practices. We believe the evidence as a whole, which included much evidence of flagrant misconduct, supports a finding of a likelihood of success on the merits. This flagrancy goes far to overcome what, standing alone, in the case of some of the employees, might otherwise seem persuasive reasons for discharge.
Finally, we find that the public interest will not be adversely affected by the granting of injunctive relief. To the contrary, the public has an interest in ensuring that the purposes of the Act be furthered. See Seeler v. Trading Port, Inc., 517 F.2d at 37-38.
Having found that the district court’s order satisfied the usual requirements for injunctive relief, arguably our task is complete. However, since we are dealing with the extreme remedy of an interim bargaining order, we comment further on the suitability of such relief. When reviewing a Board order which, without an election having been held and won by the Union, requires an employer to bargain with the Union, this court expects the Board to have presented specific examples and precise reasons for concluding that “(1) the employer’s unfair labor practices so undermined the Union’s majority that conducting a fair election would be unlikely; (2) the employer’s unlawful conduct was likely to continue; and (3) the ordinary remedies of back pay, reinstatement, and posting of notices would be inadequate to ensure a fair election.” NLRB v. American Spring Bed Manufacturing Co., 670 F.2d 1236, 1247 (1st Cir.1982). When an interim bargaining order is sought under section 10(j), an analogous showing is needed. The Second Circuit stated the standard as follows:
We hold only that when the Regional Director makes a showing, based on authorization cards, that the union at one point had a clear majority and that the employer then engaged in such egregious and coercive unfair labor practices as to make a fair election virtually impossible, the district court should issue a bargaining order under § 10(j). In such a case the election process has been rendered so meaningless by the employer, that the authorization cards are a clearly superior gauge of employee sentiment. A bargaining order then becomes a just and proper means of restoring the pre-unfair labor practices status quo and preventing further frustration of the purposes of the Act.
Seeler v. Trading Port, Inc., 517 F.2d at 40.
In the present case, the Board’s evidence showed there was clear majority support for the Union prior to the alleged unfair labor practices. Out of 22 eligible employees, 16 signed Union authorization cards. The Board has also presented significant evidence that the unfair labor practices were so egregious as to make a fair election virtually impossible. Employees testified to threats of personal harm, dismissals, or plant closings, and there was evidence of actual discriminatory dismissals. The Board’s evidence tended to show that a supervisor instigated a petition disavowing interest in the Union, and that employees signed the petition out of fear of reprisals. Thus the court below could conclude that prospects for a fair rerun election were slight. On the showing made, the district court did not abuse its discretion in granting an interim bargaining order.
Pan American Grain argues that the district court could not properly reinstate the four employees since five or six months had passed since they were discharged. Pan American Grain points to our comments in Maram v. Universidad Interamericana, 722 F.2d at 958, criticizing a delay of four months in a similar case. However, the Maram court observed that “[a] busy administrative agency [the NLRB] cannot operate overnight. The very fact that it must exercise discretion, and that its decision is entitled to presumptive weight ... indicate that it should have time to investigate and deliberate.” Maram, 722 F.2d at 960. In the present case, the Board points out that Pan American Grain’s alleged misconduct continued over many months, resulting in the Board’s filing of several amendments to the original complaint. While we are not happy with the delay, we cannot say that the Board was so dilatory as to preclude the granting of this relief.
We would close with one generalization. The Board asserts that it does not lightly institute section 10(j) proceedings, and only did so in this case after its investigation revealed a continuing pattern of violations. Well and good, but we emphasize that in any case where the preliminary relief is essentially the final relief sought, the likelihood of success should be strong. This must particularly be so in Board cases, where final decisions are often remotely distant. We would not want the Board to feel at ease after obtaining a preliminary injunction. Rather, we take a section 10(j) request to be a promise of a speedy disposition, with the risk of dissolution, or modification, by the court, on motion of the employer, if the promise is not kept. Solien v. United Steelworkers of America, 593 F.2d 82, 88 (8th Cir.1978), cert. denied, 444 U.S. 828, 100 S.Ct. 54, 62 L.Ed.2d 36 (1979); Kennedy v. San Francisco-Oakland Newspaper Guild, 430 F.2d 317 (9th Cir.), vacated as moot and remanded for dismissal, 400 U.S. 3, 91 S.Ct. 12, 27 L.Ed.2d 2 (1970). This should not be a heavy burden on the Board. If the case is clear enough to warrant a preliminary order, final disposition should normally not prove difficult.
Affirmed.
. It is unclear that Pan American Grain raised a timely objection to use of the transcripts. We can find nothing in the record to support their assertions that they did object. If they did not object on hearsay grounds, they waived the point. Fed.R.Evid. 103(a)(1).
. In California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 1938, 26 L.Ed.2d 489 (1970), the Supreme Court recognized the trustworthiness of using prior testimony where (1) the circumstances of the prior testimony were similar to the typical trial, (2) the testimony was given under oath, and (3) the attorney for the party against whom it was used was present when the prior testimony was given and had every opportunity to cross-examine. The Court approved the use of such testimony (in the context of the confrontation clause) regardless of whether or not the witness was presently available to testify-
. Pan American Grain asserts that the appropriate bargaining unit contained 32 employees, and therefore no majority support was shown. However, at the hearing before the ALJ the Board produced evidence that the disputed employees were independent contractors, who are paid by commission, and were ineligible to vote in the union representation election.
Pan American Grain also argues that the union majority support was coerced. There is no evidence, however, that initial union support was anything but voluntary. There was evidence at the hearing before the AU that after the alleged unfair labor practices by the employer began, one employee tore up his union card, which he admitted he originally voluntarily signed. That employee testified that subsequently he received threats from union adherents and was under pressure to sign a new authorization card. While the existence of allegations of subsequent improper behavior by union adherents is relevant to the ultimate decision on the merits, the district court’s primary focus was whether there was initial voluntary majority support for the union, thereby making an interim bargaining order appropriate. Subsequent increases or decreases in union support, which may or may not have been caused by inappropriate behavior by either the employer or union adherents, is not relevant to the question of whether there was initial majority union support.
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 29? Answer with a number.
Answer:
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songer_circuit
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C
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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.
FRIEDMAN’S EXP., Inc. et al. v. MIRROR TRANSP. CO., Inc.
No. 9443.
Circuit Court of Appeals Third Circuit.
Argued May 18, 1948.
Decided Aug. 19, 1948.
Edgar Watkins, of Atlanta, Ga. (Edmond J. Dwyer, of Newark, N. J., on the brief), for appellant.
John B. Siefken, of New York City (McCauley & Henry and Thomas A. Brennan, all of New York City, on the brief), for Hears Corporation, amicus curise.
Parker McCollester, of New York City (Frederick M. Porter and Lord, Day & Lord, all of New York City, on the brief), for American Newspaper Publishers Ass’n, amicus curias.
August W. Heckman, of Jersey City, N. J., for appellee.
Before BIGGS, McLAUGHLIN, and KALODNER, Circuit Judges.
BIGGS, Circuit Judge.
The question presented by the appeal at bar is a narrow one: Is the transportation of comic sections of The New York Sunday Mirror from Wilkes-Barre, Pennsylvania, to points in New York and in New Jersey, within the exemption conferred by Section 203(b) (7) of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 303(b) (7), which provides, “Nothing in this chapter * * shall be construed to include * * * motor vehicles used exclusively in the distribution of newspapers * * * ”. The transportation involved is from the printer in Wilkes-Barre to the office of the Mirror in New York City and to the Mirror’s wholesale outlets in New York and New Jersey in delivering the comic sections to retailers who assemble the comic sections with other portions of the Sunday newspapers for sale to the public. The appellants, one of which, Friedman’s Express, Inc., performed the transportation service in question prior to the engagement of the appellee, Mirror Transportation Co., Inc., complained in the court below that the appellee had not obtained a certificate for the transportation from the Interstate Commerce Commission and sought an injunction. The trial court, proceeding to final hearing on affidavits, refused the injunction and dismissed the suit on the ground that the appellee’s vehicles were used exclusively in the distribution of newspapers. See D.C., 71 F.Supp. 991. The appeal at bar followed.
It is argued that while a comic section is a part of a newspaper it is not in fact a newspaper which today consists of many parts or sections; that a comic section is no more a newspaper than a sweatband is a hat or unassembled automobile parts are in fact an automobile. The appellants insist that the word “distribution” used in clause (7) of the subsection must be deemed to have a very different meaning than the terms “transportation” or “transporting” generally employed in the same subsection in respect to exemptions. “Distribute”, say the appellants, means to give out or divide a commodity among a number and its synonym is “allot” but “transportation” means to carry or convey a commodity from one place to another: , consequently, since comic sections are not newspapers and must be combined with other sections to form newspapers, the service performed by the appellee was transportation to places of processing and was not distribution which requires the allotment or division of the newspapers to or among the public. At least we so apprehend the appellants’ argument.
Little light is thrown on the use of the word “distribution” in Section 203(b) (7) by the legislative history. It appears that the Wheeler bill, which later, as amended, became the Motor Carrier Act, Part II of the Interstate Commerce Act, contained no provision for exemption of motor vehicles engaged in carrying newspapers. S. 1629, 74th Cong., 1st Sess. (1935). Representatives of the American Newspaper Publishers’ Association had come before the Committee on Interstate and Foreign Commerce and requested exemption of vehicles carrying newspapers from any regulation which might tend to interfere with the speed and fluidity of deliveries. See Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives, 73rd Cong., 2nd Sess., on H. R. 6836, A Bill to Regulate the Transportation of Passengers and Property in Interstate and Foreign Commerce by Motor Carriers Operating on the Public Highway and for Other Purposes, pp. 379-387 (1934). The House Committee print of S. 1629, June 26, 1935, carried an exemption reading, “9. Motor Vehicles while used exclusively in the distribution of newspapers or periodicals.” In a later print of the same bill, July 20, 1935, the phrase “or periodicals” was omitted. The ninth exemption became the seventh exemption and apparently has since remained as now written. The sub-committee report on S. 1629, 74th Cong., 1st Sess. (1935), signed by Representative Samuel B. Pettingill as chairman, carried the following statement, “Your sub-committee has seen fit to add to the exemption under this bill, a provision exempting trucks engaged ‘exclusively in the handling of livestock and unprocessed agricultural products; also newspapers’. There was some question as to whether or not they would be included in the casual hauler exemption.” This amendment was agreed to in the House on July 31, 1935. See Cong.Rec., Vol. 79, Part 11, at p. 12220. This is the sum of pertinent information that the parties have been able to offer or we have been able to obtain respecting the origin of clause (7) of the subsection. In respect to this legislative history, the appellants assert that it is evident from it that Congress intended to exempt the “final distribution” of newspapers.
We do not agree and conclude that the judgment of the court below must be affirmed. It would be of small value to attempt a definition of the word “newspaper” in this opinion. Several definitions have been cited to us We shall not attempt a definition other than to say that a typical modern Sunday newspaper embraces not only comic sections but financial sections, news sections, sports sections, magazine sections, and various special supplements. These may relate to book reviews or to world events 1****** or be in the form of the “Sunday Mirror Magazine” which begins with an article “Final Regal Rites for Exotic ‘Radiant Jade’ ” and ends with an essay on crime called “13 Steps in Central Park”. The field of a modern newspaper is as broad and catholic as the field of its readers. Some members of the public seem to regard the comic strip as the newspaper rather than as part of a newspaper.
We think that Congress did not intend to make a fine-spun distinction between the distribution of newspapers and parts or sections of newspapers. The word “newspapers” used in the statute in our opinion was intended to embrace all or any of the component parts of a modern newspaper, each equally important to various public groups and to embrace the whole or any section thereof which is ready in form to be brought into the hands of the public.
Next, we conclude that it is unnecessary, in this case at least, to define the distinction between “transportation” and “distribution” even if we accept the limited meaning which the appellants would impose upon the latter word. We think that appellee’s service meets the test of distribution, for the transportation of the ■comic sections from Wilkes-Barre to New York City, to the Mirror office and to other wholesale points in New York and in New Jersey, is a clearly defined step in the distribution of the New York Sunday Mirror. In short, the appellee’s service is transportation but it is also distribution in that finished sections of the newspaper are thereby started on the road which brings them ultimately, and at no very distant point either in space or in time, into the hands of the public.
We note that the Interstate Commerce Commission, Division S, at No. MC-10843, in an opinion dealing primarily with a collateral matter, stated, “Although we conclude that applicant [the appellee herein] has failed to establish that its proposed operation would be consistent with the public interest and the national transportation policy, it may, under the provisions of section 203(b) (7) of the act continue its present service in the transportation of newspaper supplements from Wilkes-Barre to New York, N. Y., New Brunswick, Newark, Elizabeth, North Bergen and Jersey City, N. J., so long as its vehicles are used exclusively in that service.” The opinion of the Commission on the very question before us, albeit expressed by way of dictum, confirms our own view.
The judgment of the court below will be affirmed.
The exception as to safety provisions which follows the word “chapter” is not pertinent in the instant case.
No contention is made that the vehicles used by the appellee were not employed exclusively in the service described.
The court below filed no separate findings of fact and conclusions of law, nor did it set out in its opinion any pertinent finding on this point as required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and therefore this court has no finding of fact before it on this issue. The statement of fact in our opinion is culled from the appellants’ brief which states that the “pertinent facts are undisputed.”
We take this occasion to point out again the desirability of literal compliance by the trial courts of this circuit with the provisions of Rule 52(a).
Clause (1) of Section 203(b) will serve as an example, viz., “motor vehicles employed solely in transporting school children The clauses of the subsection use the words “transporting” or “transportation” throughout except in clause (6) “motor vehicles used in carrying property * * consisting in the main of live stock or agricultural products, and (7), the dause under discussion.
These definitions, cited by the appellants, were procured from Funk & Wagnalls New International Dictionary.
The appellants cite State v. King, 135 Me. 5, 23, 24, 188 A. 775, 785, which points out the public interest in the speedy and unlicensed “transportation” of newspapers by motor vehicle. The case is not apposite or really helpful to either side in the present controversy.
They vary from that of Words and Phrases, 1st Series, Vol. 5, p. 4792: “A newspaper is defined by Webster as a sheet of paper, printed and distributed at stated intervals, for conveying intelligence of passing events, advocating opinions, etc.; a public print that circulates news, advertisements, proceedings of legislative bodies, public announcements, etc. Burrill Law Dictionary defines it as a ‘paper or publication issued in numbers at stated intervals, conveying intelligence of passing events.’ ” to that contained in the National Encyclopedia, Vol. 7, p. 271: “A publication containing chiefly news of current events, feature articles and advertising, and issued at fixed intervals, usually daily, semi-weekly, or weekly.” The first definitions are the more conservative; the last, the broader.
See for example the “New York Times Book Review” and the “New York Times Magazine”.
Issue of May 16, 1948.
In this connection we offer as an interesting exhibit of Americana the following excerpt from p. 12 of the appellee’s brief which states what we believe to be simple facts: “That the public actually awaits the issues of the comic .section was nest illustrated some years ago when the Boston Traveler decided to eliminate ‘Somebody’s Stenog’. The switchboard was hopelessly tied up for twenty-four hours by irate customers. The cartoonist who draws Winnie Winkle once asked for suggestions for Winnie’s clothes and he received more than 15,000 replies. When Blondie was expecting ‘Cookie’, the second child of the Bum-steads, Chic Young thought it would be .a great idea for Blondie to ask suggestion for a name. There followed a deluge •of over 40,000 letters flooding the editors of member papers. When Milton Caniff •dreamed up a scene showing the death ■of Raven Sherman in ‘Terry and the Pirates’ he was deluged with mail offering sympathy. A number of letters were accompanied by beautiful floral offerings. The impact of Raven’s death affected the entire nation. One Pennsylvania paper, which did not carry the strip, published Raven’s death as a front page item. Students at Loyola University at Chicago gathered on the campus the day Raven was buried in the hills north of Chunking, and paid tribute to the late heroine by facing East for a moment of silence. Caniff was finally forced to go on the radio and explain Raven’s death. When Orphan Annie’s dog Sandy became lost, the artist received a wire from Henry Ford: ‘Please do all you can to help Annie find Sandy. We are all interested.’ ”
This report will not be printed in full in the permanent series of Motor Carrier Reports of the Commission.
The attempt of the appellee to gain a certificate of public necessity to operate as a contract carrier from certain points in New York and New Jersey to Wilkes-Barre to the end that its motor vehicles would not have to return empty t« Wilkes-Barre.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_casetyp1_7-3-5
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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 - misc economic regulation and benefits".
GROUP HEALTH INCORPORATED, Plaintiff-Appellee, v. BLUE CROSS ASSOCIATION and Blue Shield of Greater New York, Defendants-Appellants, United States Department of Health and Human Services, Intervenor-Defendant-Appellant.
Nos. 703, 704, Dockets 85-6314, 85-6324.
United States Court of Appeals, Second Circuit.
Argued Feb. 3, 1986.
Decided June 20, 1986.
Susan E. Harkins, Asst. U.S. Atty., for S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Jane E. Booth, Asst. U.S. Atty., New York City, of counsel), for in-tervenor-defendant-appellant.
Robert A. Bicks, New York City (Alan C. Drewsen, David H. Kagan, Breed, Abbott & Morgan, New York City, of counsel), for defendants-appellants.
John M. O’Connor, New York City (Mark Weldon, DeForest & Duer, New York City, of counsel), for plaintiff-appellee.
Before FEINBERG, Chief Judge, and VanGRAAFEILAND and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal concerns the relationship between a provider of insurance for medical and health services under Medicare and the fiscal intermediaries through which this provider elected to receive reimbursement from the federal government. One issue is whether or not the fiscal intermediaries were government agents acting within the scope of their authority. The government urges us to find that these intermediaries acted as government agents and are therefore entitled to absolute official immunity. Lurking in the background of this appeal are collateral questions regarding the viability of a Federal Torts Claims Act (FTCA) action begun by the provider in which it seeks to hold the government liable for the actions of the fiscal intermediaries, as government agents. Yet, in the FTCA suit, the government claims, interestingly enough, that the intermediaries are not its agents. Burrowing to the root of this tangle, it becomes clear that these contradictory claims are interrelated. Moreover, in their present posture the cases are too inchoate and tentative for us to undertake appellate jurisdiction.
Blue Cross Association (Association), Blue Cross/Blue Shield of Greater New York (Blue Cross), and the United States Department of Health and Human Services (HHS) appeal from an August 12, 1985 decision and order of the United States District Court for the Southern District of New York (Leisure, J.) denying their motion for summary judgment, 69 F.Supp. 625. The Association, Blue Cross and HHS (collectively, the defendants) argue that they are entitled to an immediate appeal from the denial of their claim of absolute immunity pursuant to the collateral order doctrine, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and that this Court has pendent appellate jurisdiction to review the other arguments advanced on appeal. For reasons to be discussed shortly, we do not believe the decision appealed from falls within that small class of cases encompassed by the collateral order doctrine and therefore dismiss this appeal.
I. FACTUAL BACKGROUND
A. Proceedings
Group Health Incorporated (GHI) seeks damages from the Association and Blue Cross on causes of action sounding in negligence, misrepresentation and breach of the warranty of authority. GHI alleges it suffered a monetary loss as a result of Blue Cross’ disallowance of Medicare reimbursement for interest incurred by Hillcrest General Hospital (Hillcrest), a private hospital which GHI owned from 1974-1980.
GHI commenced the instant action in New York State Supreme Court, New York County. After the Association and Blue Cross removed the action to the Southern District pursuant to 28 U.S.C. § 1442(a)(1) (1982), GHI moved to remand the case to state court. HHS then filed a motion to intervene as a defendant in the action. On June 13, 1984 the district court (Sweet, J.) denied GHI’s motion to remand finding that Blue Cross’ actions in denying the reimbursement for interest were taken under color of governmental authority. Group Health Inc. v. Blue Cross Ass’n, 587 F.Supp. 887, 889-91 (S.D.N.Y.1984). Since Blue Cross acted as a fiscal intermediary on HHS’ behalf, GHI’s claim could be removed to federal court. It also granted HHS’ motion for permissive intervention under Fed.R.Civ.P. 24(b)(2) and consolidated plaintiff GHI’s separate proceeding against the United States. Id. at 891-93. In that action GHI alleges that the United States is liable under the FTCA for the negligent and wrongful acts of Blue Cross, the Association and HHS.
Following limited discovery, defendants moved on November 5, 1984 for summary judgment. Judge Leisure denied the motion and defendants appealed. GHI has moved to dismiss this appeal for lack of appellate jurisdiction.
B. The Parties
GHI is a not-for-profit health service corporation organized and operating pursuant to Article 43 of the New York Insurance Law, N.Y.Ins.L. §§ 4301 et seq. (McKinney 1985). Blue Cross also is a not-for-profit corporation organized under the New York Insurance Law providing health insurance coverage to subscribers in the greater New York area. The Association is incorporated under the Illinois General Not-For-Profit Corporation Act and has a membership that includes Blue Cross as well as 67 other Blue Cross Plans operating throughout the country.
The Medicare program is a federally funded health insurance program for the aged and the disabled. 42 U.S.C. §§ 1395 et seq. (1982). It consists of two parts — A and B. Part A provides insurance coverage for hospital, related post-hospital, home health and hospice care. 42 U.S.C. § 1395c. The cost of providing Part A services is principally assumed by the Federal Hospital Insurance Trust Fund, which is funded by Social Security taxes. 42 U.S.C. § 1395i. Part A benefits may only be paid to providers of Medicare services. 42 U.S.C. § 1395f(a). Providers participating in Part A are prohibited from charging eligible patients for services covered by Medicare. 42 U.S.C. § 1395cc(a)(l)(A). Part B is an optional supplementary insurance program that covers payment of medical and health services not covered under Part A, for example, physicians’ services. It is financed by payments from enrollees as well as funds provided by the federal government. 42 U.S.C. § 1395j.
GHI functioned as a carrier under Part B of the Medicare program and Hillcrest was a provider of Medicare services. Under 42 U.S.C. § 1395h(a) providers of inpatient services must choose to be reimbursed either by HHS or by a fiscal intermediary, a private organization under contract with HHS to serve as a conduit for reimbursement. The fiscal intermediary determines the amount of reimbursement due the provider and makes the reimbursement. It also resolves disputes concerning reimbursement decisions, 42 C.F.R. §§ 421.-100(e) & (f) (1985), and “serve[s] as a center for, and communicate[s] to providers, any information or instructions furnished to it by the Secretary, and serve[s] as a channel of communication from providers to the Secretary....” 42 U.S.C. § 1395h(a). HHS may review the fiscal intermediaries’ initial reimbursement determinations. See 42 C.F.R. § 405.1885(b) (1985).
In this case the Association and Blue Cross served as fiscal intermediaries under Part A. With HHS’ approval, the Association entered into a subcontract with Blue Cross, under the terms of which the Association delegated some of its assignments to Blue Cross. Pursuant to this subcontract and to Hillcrest’s election, Blue Cross acted as Hillcrest’s fiscal intermediary. The subject matter of this appeal involves reimbursement of Hillcrest under Part A during the six years it was owned by GHI.
C. The Events
In January 1973 GHI began exploring the possibility of acquiring a private hospital. GHI proposed to use its subscriber funds to acquire Hillcrest, and to accomplish this it was necessary to obtain the New York State Insurance Department’s (Insurance Department) approval. In a letter dated June 22, 1973 GHI formally requested approval of the Insurance Department. On September 5, 1973 representatives of GHI and Blue Cross met to discuss the plans then underway to purchase Hill-crest. The following January GHI submitted to the Insurance Department an amended application to purchase Hillcrest which was approved on February 15, 1974.
Before GHI purchased Hillcrest, it requested Blue Cross’ advice as to whether an interest return on the mortgage funds used to make the purchase would be included in the calculation of Hillcrest’s Medicare and Blue Cross reimbursement rates. In a telephone conference on February 4, 1974, Mr. Ingram of Blue Cross informed Dr. Yaegar of GHI that “the Blue Cross Board of Directors did approve the interest return on investment.” Blue Cross did not consult the Secretary or the Association at any time prior to ruling that this interest would be reimbursable for Medicaid purposes. On February 28, 1974 GHI purchased Hill-crest.
In a letter dated March 26, 1974 from William F. McMann, Assistant Commissioner of the New York State Health Department, the Department rejected the proposed change in Blue Cross reimbursement because under Health Department Regulations, only proprietary organizations, and not Article 43 not-for-profit corporations, were entitled to a return on equity. The Department did conclude that, were GHI to make a loan from restricted funds to Hill-crest, interest paid on such loans would be a reimbursable cost. GHI informed Blue Cross by letter dated May 21, 1974 that it would give a $6 million mortgage to Hill-crest payable over 30 years at a nine percent rate to be repaid through constant monthly payments, with a standard annual repayment of $579,600. Blue Cross confirmed in a letter dated June 11, 1974, that these terms were acceptable for Medicare and Blue Cross reimbursement and that the interest on the loan, if paid according to schedule, would be included in calculating Blue Cross and Medicare reimbursement.
Hillcrest included the interest expense— representing a 9 percent return on the funds used to purchase the hospital — in its annual Medicare cost reports for fiscal years 1974 through 1980. In 1977 during its audit of Hillcrest’s 1975 costs report, Blue Cross learned that Hillcrest had not paid any interest to GHI in 1974 or 1975. Blue Cross referred the matter to HHS which, through its Regional Medicare Director, notified Blue Cross on September 29, 1978 that the interest was not reimbursable under Medicare. HHS ruled that GHI’s purchase of Hillcrest was an investment — not a loan. Even were the transaction to be construed as a loan, HHS stated that the interest was not reimbursable because GHI and Hillcrest were related entities. Further, Hillcrest’s failure to pay interest was additional evidence that GHI and Hillcrest were not dealing at arm’s length. HHS concluded that it was “unable to understand how Blue Cross could have ruled that the ‘loan’ transaction [was] a reimbursable cost____ [Authoritative Medicare decisions can only come from written policy established by the Medicare Bureau or from consultation with this office.” Blue Cross subsequently disallowed reimbursement for the interest payments.
Hillcrest requested a hearing before the Provider Reimbursement Review Board (PRRB) to appeal the interest disallowance for the 1974 through 1976 fiscal years. On September 19, 1980 the PRRB upheld the disallowance because GHI’s purchase of Hillcrest did not constitute a loan from donor restricted funds, and the transaction between GHI and Hillcrest was not at arm’s length. This decision became final on November 18, 1980 when the Secretary declined to affirm, reverse or modify. GHI brought an action against the Secretary in the Southern District of New York (Carter, J.), and that court granted the Secretary’s motion for summary judgment. The court found the administrative decision supported by substantial evidence and held that the Secretary was not estopped from reversing Blue Cross’ initial determination. We affirmed the district court’s judgment in an unpublished order and the Supreme Court denied GHI’s petition for certiorari.
II. PROCEEDINGS
A. The Complaint
GHI asserts eight causes of action against Blue Cross and the Association; the first five pertain to reimbursement under the Medicare program and the last three to reimbursement under the Blue Cross reimbursement system. GHI alleges that Blue Cross was negligent and grossly negligent in (1) failing to consult the Secretary before representing that the interest was reimbursable; (2) falsely representing that Medicare would reimburse the interest; and (3) misrepresenting that it was authorized to act as the Secretary’s agent in determining whether the interest was reimbursable under Medicare. Against the Association, GHI alleges that (4) it is responsible for Blue Cross’ wrongs; and (5) it was negligent and grossly negligent in failing properly to supervise Blue Cross. The sixth through eighth claims allege that Blue Cross breached its agreement with GHI by refusing to include the rate of return in the reimbursement calculation and that Blue Cross is estopped from changing its position in that regard.
B. District Court Decision
Following limited discovery, Blue Cross and the Association moved for summary judgment on the first five claims arguing that GHI could not have relied on Blue Cross’ decision that the interest was reimbursable because GHI purchased Hillcrest before Blue Cross made such a written representation, and even if GHI did rely on Blue Cross’ representation, such reliance did not, as a matter of law, give rise to a claim for relief under Heckler v. Community Health Services, 467 U.S. 51,104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). Finally, the Association and Blue Cross argued that these claims were barred by sovereign immunity. HHS joined in defendants’ motion for summary judgment and raised the additional defense of official immunity.
The district court denied all aspects of defendants’ motion for summary judgment on claims one through five. With respect to the sovereign immunity defense, it held that GHI’s action was not against the United States and that a material question of fact existed as to whether Blue Cross’ actions in interpreting the Medicare regulations were outside the scope of its authority. It applied a balancing test when it ruled that the Association and Blue Cross were not federal officials for immunity purposes, weighing the injustice caused by denying an injured plaintiff its remedy against the pressures placed upon an individual serving as a federal official, were that individual to be held liable for actions authorized by the government. Having concluded that these parties could not be “deemed” federal officials, the district court found it unnecessary to decide whether Blue Cross was acting within the scope of its authority. It further stated that even if the Association and Blue Cross could be considered federal officials, the existence of a question of fact concerning the scope of Blue Cross’ authority precluded summary judgment. Finally, it rejected defendants' claim that, as a matter of law, GHI could not rely on its fiscal intermediary’s misrepresentation. GHI’s complaint was distinguished from Heckler, on the following grounds: (1) Heckler addressed the question of whether the government could be estopped from recovering funds expended by a health care provider in reliance on an incorrect interpretation of the Medicare regulations by a fiscal intermediary rather than the question of whether a health care provider could hold its fiscal intermediary liable for the intermediary’s own negligence; (2) Unlike the provider in Heckler, GHI received a written statement from Blue Cross that the return would constitute a reimbursable cost; (3) A material issue of fact existed as to whether it was reasonable for GHI to believe that Blue Cross had referred the matter to HHS.
III. JURISDICTION
Ordinarily under 28 U.S.C. § 1291 (1982) denial of a motion for summary judgment is an unappealable order. See Pacific Union Conf. of Seventh-Day Adventists v. Marshall, 434 U.S. 1305,1306, 98 S.Ct. 2, 3, 54 L.Ed.2d 17 (1977); New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 759 (2d Cir.1977). In Cohen v. Beneficial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225, the Supreme Court recognized that “[t]he effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete.” Thus, we must first address the threshold question of whether there is jurisdiction to review the district court’s order denying summary judgment based on some exception to § 1291 that permits an appeal from an interlocutory order.
In Cohen, the Supreme Court construed § 1291 as disallowing appeals from district court decisions that were nonfinal. Id. Even fully consummated decisions are not appealable when there are intermediate steps along the way to final judgment in which they will merge. For “[t]he purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Id. For an interlocutory order, such as the one before us, to be appealable it “must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue completely separate from the merits of the action, and [ (3) ] be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Abney v. United States, 431 U.S. 651, 658-59, 97 S.Ct. 2034, 2039-40, 52 L.Ed.2d 651 (1977); In re Agent Orange Product Liability Litigation, 745 F.2d 161, 163 (2d Cir.1984).
In Coopers & Lybrand the Supreme Court elaborated on the two distinct purposes served by the finality requirement of § 1291 and the statute’s relationship to nonfinal orders that are appealable. First, § 1291 reflects a legislative decision that limiting appellate review to final orders “prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequence, but a single controversy.” 437 U.S. at 471, 98 S.Ct. at 2459 quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). Second, the Court emphasized that the final judgment rule preserves the proper balance between appellate and trial courts when disputed factual questions are involved. The Court reasoned:
[Allowing appeals of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process and thus defeats one vital purpose of the final-judgment rule — ‘that of maintaining the appropriate relationship between the respective courts____ This goal, in the absence of most compelling reasons to the contrary, is very much worth preserving.’
Id. at 476, 98 S.Ct. at 2462.
Defendants argue that we have jurisdiction to review the district court’s decision denying their motion for summary judgment on the absolute immunity defense. The Supreme Court, they point out, has held on several occasions that orders denying summary judgment on claims of absolute or qualified immunity are immediately appealable as collateral final orders. See, e.g., Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985) (Attorney General qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S.Ct. 2690, 2696-97, 73 L.Ed.2d 349 (1982) (Presidential immunity); Helstoski v. Meanor, 442 U.S. 500, 505-08, 99 S.Ct. 2445, 2447-48, 61 L.Ed.2d 30 (1979) (Speech or Debate Clause); Abney v. United States, 431 U.S. at 659-62, 97 S.Ct. at 2040-41 (Double Jeopardy Clause).
Further, defendants contend that on appeal from a collateral final order, an appellate court has discretion to review other related nonappealable issues in the case “where ‘[t]here is sufficient overlap’ ” as defined by the doctrine of pendent appellate jurisdiction. San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985) quoting Sanders v. Levy, 558 F.2d 636, 643 (2d Cir.1976), aff'd en banc, 558 F.2d 646 (2d Cir.1977), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Therefore, according to defendants, we are not only vested with jurisdiction to review the denial of their claim of absolute immunity from suit, but also the related issue of whether GHI’s misrepresentation claims are barred as a matter of law. We cannot agree.
Although defendants have alleged a nonfrivolous claim that fiscal intermediaries in the Medicare program are entitled to official immunity, see San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d at 254-55, this appeal must be dismissed. Defendants’ claim of absolute immunity is not within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the ac-tion____” Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. We reach this conclusion for two reasons. First, the immunity question cannot be decided without addressing GHI’s underlying claims on the merits, including such essential and disputed questions of fact as, for example, whether Blue Cross acted within the scope of its authority. At this stage in the litigation the immunity issues presented are not solely questions of law. See Coopers & Lybrand, 437 U.S. at 476, 98 S.Ct. at 2462 (disputed factual questions preclude appeal of nonfinal order); Evans v. Dillahunty, 711 F.2d 828, 830 (8th Cir.1983) (motions for summary judgment based upon absolute or qualified immunity are appealable only if the underlying facts are undisputed and the immunity question is solely a question of law).
Second, to force GHI to litigate its claims against Blue Cross and the government separately when the claims and factual issues are “but a single controversy” results in an inefficient use of judicial resources. Coopers & Lybrand v. Livesay, 437 U.S. at 471, 98 S.Ct. at 2459 quoting Eisen, 417 U.S. at 170, 94 S.Ct. at 2149. Were we to find that Blue Cross and the Association were not immune, we might be simultaneously disposing of GHI’s FTCA claims against the government, since the two defendants would not have been acting as government agents. Given that “the purpose [of § 1291] is to combine in one review all stages of the proceeding that effectively may be reviewed”, Cohen, 337 U.S. at 546, 69 S.Ct. at 1225, judicial economy suggests that all of the closely intertwined immunity issues — including those raised but not now before us under the FTCA — proceed together in the district court before the same judge. Assuming a trial, the jury and non-jury actions doubtless can be tried in one consolidated action with joint discovery and appropriate allocation of decision-making authority so as to result in one final judgment that will be effectively reviewable.
IV. CONCLUSION
For the foregoing reasons, this appeal from a nonfinal interlocutory order denying summary judgment is dismissed for lack of appellate jurisdiction.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_weightev
|
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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
BOWLES, Adm’r, OPA, v. HAYES et al.
No. 9122.
Circuit Court of Appeals, Third Circuit.
Argued March 4, 1946.
Decided April 17, 1946.
Albert M. Dreyer, of Washington, D. C. (George Moncharsh, Deputy Adm’r for Enforcement, Milton Klein, Director Litigation Div., and David London, Chief Appellate Branch, all of Washington, D. C., Howard L. Fussell, Enforcement Atty., of Wilmington, Del., and Kenneth V. Fisher, Regional Litigation Atty., of New York City, on the brief), for appellant.
H. Albert Young, of Wilmington, Del., for appellees.
Before BIGGS, MARIS and O’CON-NELL, ¡Circuit Judges.
BIGGS, Circuit Judge.
Suit was filed in the court below by the Administrator of the Office of Price Administration to restrain the defendants from prosecuting a tenant for criminal trespass under the provisions of Section 5234, Revised Code of Delaware of 1935. The complaint alleges in substance that the criminal prosecution is in reality an attempted eviction of the tenant in violation of the Maximum Rent Regulation for Housing (8 HR. 7328), particularly Section 1388.-1181 and Section 6 thereof, promulgated under the Emergency Price Control Act of 1942, 50 U.S.C.A.App. § 901 et seq. The point raised is novel. The facts follow.
In 1937 one of the defendants, Mrs. Hayes, rented an apartment in Dover, Delaware, to David or his mother. Mrs. David occupied the apartment until her death in December, 1945. Thereafter, it was occupied by David. After Mrs. David’s death, Mrs. Hayes demanded possession of the premises. David refused to quit them. On or about January 2, 1946, Mrs. Hayes appeared before the defendant, Burton, a Justice of the Peace of Kent County, Delaware, and made an affidavit in the usual form alleging that David was a wilful trespasser. Magistrate Burton issued a warrant to his constable, the defendant Knight. David was arrested and was confined in jail for a week because of his inability to raise bail. Thereafter, having made bail, he was released. The complaint filed in the court below alleges that the charges against David were withdrawn, asserting, however, that the defendants “ * * * threaten to again arrest * * * David as an alleged trespasser * * * ”, Actually, as appears from the evidence the criminal prosecution has been held in abeyance by the defendants pending the disposition of the case at bar. The complaint prays for preliminary and permanent injunctions to restrain the defendants from prosecuting David.
The defendants filed an answer in substance admitting the allegations of the complaint. They asserted also that the court below was without jurisdiction to proceed in the cause. It was stipulated that the case be heard as if on final hearing.
At the hearing before the District Court Mrs. Hayes’ Dover counsel testified that he stated to David, “We will give you one week to get out, or else we will do something about it”, and that “All we were interested in was getting him [David] out of that property as a trespasser.”
In the court below Mrs. Hayes contended that David’s mother was the tenant and that David was not; that the relation of landlord and tenant did not exist between herself and David. There was some evidence that David’s mother, if she was the tenant, was in arrears for at least one month’s rent, viz., that for December, 1945. There was also testimony to the effect that David had paid all rent due and that he was the tenant or a subtenant of Mrs. Hayes at the time of the criminal prosecution. The court below made no findings in respect to these questions of fact and it is not within our jurisdiction to resolve them. The learned District Judge, citing Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 882, 87 L.Ed. 1324, pointed to the familiar rule that courts of equity ordinarily will not restrain a criminal proceeding unless there be a showing of danger of irreparable injury “both great and immediate”. He concluded that no evidence was adduced tending to show such danger and denied the Administrator’s motion for an injunction. The Administrator has appealed.
We must determine, therefore, the naked question whether the Administrator may restrain a criminal prosecution in a state tribunal, the criminal proceeding clearly being designed to serve in lieu of a civil action for ejectment.
Section 4(a) of the Emergency Price Control Act of 1942 provides, “It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person * * * to do or omit to do any act, in violation of any regulation or order under section 2 * * Section 205(a) of the Act states: “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 * * *, he may make application to the appropriate court for an order enjoining such acts or practices, * * * and upon a showing hy the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” Section 205(c) provides, “The district court shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and, concurrently with State and Territorial courts, of all other proceedings under section 205 of this Act.”
Section 6(a) of the pertinent Rent Regulation states: “So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto * * * There follow immediately certain exceptions not here pertinent. Paragraph (b) of the section provides that no tenant shall be removed or evicted, other than as stated in the exceptions not here pertinent, unless the Administrator has issued a certificate (commonly called a “certificate of eviction”) certifying that the landlord may pursue his remedies against the tenant “in accordance with the requirements of the local law”. It is clear that no such certificate was issued by the Administrator to Mrs. Hayes.
“Suits to enjoin violations. — In common with substantially all regulatory statutes, the bill authorizes the official charged with the duty of administering the act to apply to any appropriate court, State or Federal, for an order enjoining any person who has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of the bill. Such courts are given jurisdiction to issue whatever order to enforce compliance is proper in the circumstances of each particular case.”
The language of Section 6(a) of the Regulation, hereinbefore quoted, “ * * * no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, * * * ” requires consideration. Actions by a landlord to evict a tenant or to recover possession of demised premises, ordinarily at least, are civil actions. Exclusion from possession usually occurs when a landlord locks the doors of the premises and thus keeps the tenant out. Exclusion from possession is a kind of self-help which the landlord may employ without seeking the aid of a court. It follows that it was not the intent of the framers of the regulation to limit its prohibitions to civil actions brought by a landlord against a tenant. The meaning of the phrase, “or otherwise”, should not be restricted by the doctrine ejusdem generis to civil actions brought by a landlord to eject a tenant or to self-help by a landlord to exclude a tenant from demised premises. The' prohibition of the regulation was intended to extend to any act committed by the landlord, whether in the courts or outside of the courts, looking to the eviction of the tenant.
The Act is remedial. Its legislative history clearly indicates this. It was the intention of Congress to vest in the Administrator a broad authority to proceed in the district courts of the United States or in state tribunals of concurrent jurisdiction to enjoin “such acts or practices” as might interfere with the administration of the Act. See subparagraphs (a) and (c) of Section 205. Congress empowered the Administrator to procure injunctions against “such acts or practices” by a landlord as would violate the statute or the regulations. Evicting a tenant, unless the landlord possesses the certificate hereinbefore referred to, is such an act or practice. It follows that if a landlord prosecutes his tenant for criminal trespass in order to evict him and to regain possession of the demised premises, the landlord’s act is such as falls within the prohibition of the statute and the regulation. It is clear, therefore, that the court below possesses the power to enjoin the defendants from the criminal prosecution of David.
As the court below pointed out, Mr. Chief Justice Stone stated in Douglas v. City of Jeannette that to justify an injunction to stay a criminal proceeding the danger of injury to the complainant must be “both great and immediate”. But in the Jeannette case the suit to enjoin the criminal proceeding was brought by the private individuals who were threatened thereby. The Supreme Court pointed out that these persons could assert their defenses in the state tribunals and that it would be assumed that the state courts would have due regard for the defendants’ constitutional rights; that if the defendants’ rights were disregarded the decisions of the state courts were subject to review by the Supreme Court. David cannot assert as a defense to the charge of wilful trespass the provisions of the Emergency Price Control Act or the regulation because he, as an individual, has no rights under the Act. All rights under the Act run to the public and the Administrator is their guardian, the official person designated by Congress to enforce the statute. See Parker v. Porter, Price Administrator, Em.App., 154 F.2d 830. The Administrator on the other hand cannot intervene in the criminal proceeding before the magistrate for he has no standing to do so. He must proceed by way of Section 205(a) and (c) if he is to enforce the statute.
The facts of the case at bar are closer to the circumstances of Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892, than to those of the Jeannette case. Mrs. Willingham sued in a Georgia court to restrain the issuance of certain rent orders under the Emergency Price Control Act. In the cited decision Mr. Justice Douglas stated that the exceptions to the application of Section 265 of the Judicial Code, 28 U.S.C.A. § 379, enumerated in Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed 100, 137 A.L.R. 967, required an addition, that “There should now be added * * * the exception created by the Emergency Price (Control Act of 1942” [321 U.S. 503, 64 S.Ct. 645] ; that the rule embodied in Section 265, designed to avoid collision between state and federal authorities, does not come into play in cases growing out of the Emergency Price Control Act of 1942. See also Brown v. Wright, 4 Cir., 137 F.2d 484.
The decision of the Supreme Court in Case, Commissioner, v. Bowles, Administrator, 66 S.Ct. 438, 443, also is suggestive of the result which we should reach in the case at bar. In the cited case the question was whether or not provisions of the Constitution of the State of Washington relating to the sale of certain lands should prevail over the Emergency Price Control Act and a regulation which set a price above which such lands should not be sold. Mr. Justice Black stated: “Where as here, Congress has enacted legislation authorized by its granted powers, and where at the same time, a state has a conflicting law which but for the Congressional Act would be valid, the Constitution marks the course for courts to follow. Article VI provides that ‘This Constitution and the Laws of the United States * * * made in Pursuance thereof * * * shall be the supreme Law of the Land * * *.’ ” The Commissioner of Public Lands of Washington was enjoined from consummating the sales.
We conclude that the basis of the decision of the court below was erroneous and that a District Court of the United States, or a state court of concurrent jurisdiction, should enjoin a criminal proceed ing for wilful trespass where as here the proceeding was instituted to evict a tenant in violation of the Emergency Price Control Act. It is a breach of legal discretion not to do so. To hold otherwise would be to emasculate the statute. It should be noted that a civil ejectment action and the criminal proceeding under consideration in effect stand in pari passu. Neither may be proceeded with since either would cause the eviction of the tenant.
In the absence of pertinent findings by the court below we cannot determine as a matter of law whether or not David was a tenant or a subtenant within the purview of the regulation or whether there was an arrearage of rent or other circumstances which might afford the benefit of an exception to" the landlord under Section 6. If, upon remand, there is found to be no arrearage of rent and Mrs. Hayes may not claim the benefit of an exception, a permanent injunction should issue. Pending the determination of these and all other pertinent issues a preliminary injunction should be granted by the court below.
. The order of the court below is reversed and the cause is remanded with the direction to proceed in accordance with this opinion.
The pertinent portion of the statute follows: “Whoever shall wilfully enter into, upon, or trespass upon the ways, lands or premises of another in this State, shall be guilty of a nuisance. Any constable or other conservator of the peace, the owner or occupier of such ways, lands or premises, his agent or employee, or any other person or persons whom he, or any of them may call to their or his assistance, shall have authority to arrest such offender, either with or without warrant, either upon the premises, or in immediate flight therefrom, and if with warrant, then at any place, and take him before a justice of the peace, or Municipal Court of a city, in the County where the offense is committed; such justice of the peace or Municipal Court is hereby authorized to hear and determine every such case in a summary manner, and if he shall find such person guilty of the charge, shall, for each offense, impose a fine of not more than five dollars and costs. The person so found guilty may also be held in recognizance with good security to keep the peace, and not to trespass for one year, in the penal sum of one hundred dollars. If the fine and costs are not paid, or recognizance not given when recognizance is required, the justice or Municipal Court shall commit such offender to the County prison or workhouse, for a term not exceeding thirty days. All prosecutions, proceedings and costs, where not herein otherwise directed, shall be the same as in other criminal eases before such justices of the peace and Municipal Court.”
See 77th Congress, 2nd Session, Senate Report No. 9-31, p. 10, to accompany H.R. 5990. The Report in explaining the purpose of Section 205(a) of the Act states in pertinent part:
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appfed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. MANN. SAME v. SIEGEL.
Nos. 6951, 6956.
Circuit Court of Appeals, Seventh Circuit.
Oct. 30, 1939.
Rehearing Denied Dec. 5, 1939, Jan. 9, 1940.
Owen A. West, of Chicago, 111., for appellant. Mann.
Jacob S. Rothstein, of Milwaukee, Wis., for appellant Siegel.
Val Nolan, U. S. Atty., B. Howard Caughran, Asst. U. S. Atty., and Paul A. Pfister, all of Indianapolis, Ind.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
EVANS, Circuit Judge.
The appellants, Mann and Siegel, were indicted and tried together on charges set forth in an indictment which contained three counts, only two (one and three) of which are here involved. The third count charged a conspiracy to violate the revenue law and the first, the unlawful possession of a still set up in violation of the revenue act. Upon conviction each defendant was sentenced to the penitentiary. Each has appealed. Their appeals were heard at one time and will be disposed of in one opinion.
Upon failure of counsel for Mann to file a brief and upon Mann’s request, as an alleged pauper, this court appointed Attorney Owen West to represent him. We are indebted to him for a clear and able presentation of defendant Mann’s case.
The first count of the indictment charged unlawful and knowing possession, custody, and control of a still set up and suitable for the manufacture of intoxicating liquor, said still not being registered as required by law. Sec. 1162, 26 U.S.C.A. The third count charged conspiracy to defraud the United States of revenue, etc. Both defendants were acquitted on the second count and convicted on the first and third counts. The court set aside the conviction of Siegel on the first count, but on the third count sentenced him to imprisonment for two years and to pay a fine of $1,000. The verdict of guilty on both counts against defendant Mann was allowed to stand, and he was sentenced to three years’ imprisonment and to pay a fine of $1,000.
On these appeals, defendant Siegel challenges the sufficiency of the evidence to support his conviction on count three. He also charges a prejudicial interruption of the cross-examination of a witness by the court. In addition to the errors assigned by Siegel, counsel for Mann challenges the sufficiency of the evidence to sustain conviction on either count.
Mann was sentenced to the penitentiary for three years. The maximum imprisonment penalty which could be imposed on each of counts one and three is two years. Inasmuch as the sentence was for three years, counsel argue, and logically, that failure ' of evidence to support conviction on either count must result in a reversal of the judgment against Mann.
Is the evidence sufficient to sustain the verdict of guilt against both Siegel and Mann on count three and to sustain Mann’s conviction on count one ? Our study of. the evidence leads us to make an affirmative answer.
In reaching this conclusion and in making the following fact statement, we have accepted the Government’s version of contradicted statements, for we are under obligation to accept the jury’s judgment where veracity is in issue. Accepting this well-settled rule of law, we can only look to the record to see if any substantial testimony, not inherently unbelievable, appears, which supports the verdict.
Appellant Mann argues that inasmuch as the court set aside the verdict against Siegel on count one on evidence almost similar to that on which he was convicted, he, too, should have been freed of the charge found in this first count. The answer to this contention is — The conviction of Siegel on count one may also have been supported by competent evidence, and furthermore Mann may not complain because his confederate received a more favorable sentence than he. Mann’s guilt and sentence are not to be determined by the court’s or jury’s estimate, false or sound, of a confederate’s character or by the extent of a coconspirator’s guilty participation in the substantive offense.
Nine defendants were indicted. One was not apprehended, although his guilt was clear. He was too fleet of foot when the raid on the still was made, and he has been successful in concealing himself since. Of the remaining eight defendants, five pleaded guilty. Siegel and Mann have consistently asserted their innocence.
Mann testified in his own defense. Siegel did not. Mann’s testimony was flatly contradicted on material facts by ten witnesses. These ten witnesses were disinterested. Uncontradicted and undisputable facts also placed Mann in an embarrassing position, which necessitated explications. His attempted explanations were rather sorry and the jury may have reached the conviction that he was either a stranger to, or hardly on speaking terms with, a character called truth.
Inferences from facts may be quite as persuasive as direct or positive testimony. A jury might well have asked of Mann— Why tell so many falsehoods? Why carry title to a truck in another’s name? Why carry a false telephone number on the truck ? Why, a false business address ? Why adopt a fictitious name with a false residence on the body of your track?
Nor is direct evidence of guilt lacking. Mann left Chicago about midnight and with another party (a defendant, a Mr. Wasielewski, who pleaded guilty but who did not testify on the trial) traveled for one hundred and fifty miles on Sunday night to the location of the still. Reaching the destination about 3:30 A. M., his truck turned off the road, went through a small corn field, then over an untraveled field to “a woods.” His truck carried a valuable load of still equipment and supplies. Mann says he went solely to drive the truck back, that he was ignorant of the contents of the load, or of the purpose of the trip and of its destination. The truck load consisted of a 75 horse power boiler, two electric motors, and three water pumps, 300 pounds of cement, 200 pounds of asbestos and boiler bases, etc., and this material was hauled to its destination to repair and increase the capacity of a 1500 gallon a day still which had been operated until its boiler had blown up a few days previously.
One of the defendants said he was waiting the arrival of a truck with the new boiler and was to give warnings to the truck driver, if necessary. While thus waiting and watching, he was seized by revenue agents shortly before the truck and the defendant appeared. Another witness testified that codefendant W, who was driving the truck when the arrest was made, said he had been sent “to show Mann where to take the stuff down to the still site.” This and other statements made at this time by W in Mann’s presence, in response to pertinent inquiries as to how and why they were bringing a truck loaded (but concealed by tarpaulin) with still supplies to an out of the way place — off the road— behind a corn field — in the woods — at 3 A. M. Sunday night — were not satisfactorily explained.
As to Siegel’s participation in the conspiracy, little need be said. It may be conceded that the direct testimony connecting him with the offense is not so clear or persuasive as the testimony against Mann. There was, however, testimony showing both Siegel’s and Mann’s participation in the business of hauling sugar by trucks owned and operated by them. A jury could have found that they were both interested in the truck that carried the load of still equipment on the night in question. Siegel made the down payment of $100 when this truck was purchased. He paid for the repair to the body of the old truck which was placed on the chassis of the new truck. He paid garage bills, gas and oil charges for this and other trucks in the garage.
Of significance was a circumstance which occurred when Mann was in jail shortly after his arrest. He was endeavoring to get released on bail. He communicated with his wife, he says, but not directly. He sent a telegram to his mother-in-law, copy of which was in the Government’s possession. Therein he said, “Unable to understand delay. Ask Phil to lend money. Will pay upon release.” Defendant Siegel’s first name was Phil. Not long after sard wire was sent, Phil Siegel’s nephew, a Chicago lawyer,' put up $10,000 as bail to obtain Mann’s release. Mann explained that he meant another Phil when his attention was called to the name “Phil.” However, he had already disputed ten other witnesses on material facts and the jury was justified in assuming that Attorney Siegel of Chicago, nephew of defendant, Philip Siegel, was not acting as a volunteer in putting up $10,000 of securities to obtain Mann’s release.
The fact which is the hardest to explain to a stranger to the trial who reads the records without the trial court’s advantage of seeing and hearing the witnesses, is the presence of Mann in an out of the way place on Sunday morning at 3:30 A. M., in a truck carrying a large load of valuable still equipment, off the road, a few rods from the location of a 1500 gallon a day still.
The difficult position which defendant was in may account for his strained efforts to prove his innocence and his willingness to dispute the testimony of any one.
One fellow, a Mr. Slesur, testified that he, not Mann, was the party guilty on count one. He said he purchased the supplies and he owned the still for which the new boiler was purchased. His testimony was not persuasive. It was wholly uncorroborated. Although the material sent down was expensive, he was unable to tell from whom the boiler was purchased.
Mr. Slesur said:
“I bought those things on Ogden Avenue and the pumps I bought on Lake Street at some dealers. * * * The still cost me $3300. I borrowed the money from some friends. I'bought the boiler on credit. I don’t know the name from whom I bought the boiler. * * * I got my sugar from some friends, some Italian fellows in Chicago. I got it in Chicago at the freight yard where I picked' it up.”
A kinship apparently exists between certain crimes as it does in the conduct of criminals participating in certain crimes. Detection of such perpetrators may follow familiar lines. Conduct of a party when apprehended in the act or arrested in the vicinity of the crime is often indicative of a guilty or innocent state of mind. False statements at such time (as here made by Mann) might well be expected of a guilty party while truthful statements, even though embarrassing, will come from the lips of the innocent. Mann said, when arrested and within a few rods of the still, he knew nothing of the nature of the equipment he was hauling, thus disputing his own subsequent statement as well as that of the defendant S. He also professed innocence of the existence or location of the illicit still. He thereby disputed W who was present at that time and said, “I was along on the truck to show Mann the location of the still site.”
Night and darkness often are chosen for the commission of crime. Selection of Sunday from about midnight to 3 A. M. is in harmony with the conveyance of still equipment to the place of crime. Difficulty in locating or getting to a still (here present) is suggestive of the operation of an illicit still. The ease with which one finds his way to or from a hidden, off-the-road spot on a big truck is one of many straws which helps point the way to truth.
Possession of stolen goods gives rise to a presumption of guilt in theft cases under certain conditions. Presence near a large still in a hidden spot with a truck loaded with still accessories of large value at 3 A. M. in the morning also creates presumptions and calls for explanations. Explanations are generally matters for juries to analyze and weigh. Credibility of witnesses bears on acceptability of explanations. Here, the jury rejected defendant’s professions of innocence in the face of stubborn facts plainly pointing to his guilt. It was another case so common in criminal trials — professions of innocence by the accused opposed by indisputable facts pointing to guilt.
It is self-evident that someone supplied the money and the enterprise necessary to purchase equipment and set up and operate the still with a 1,500 gallon a day capacity. Moreover, it was no dumb clod such as fired the engine, mixed the mash, and acted as look-out for revenue agents, who conceived and executed this illegal enterprise. The jury must have realized that the execution of this enterprise necessitated the possession and delivery of large quantities of sugar, yeast, and other ingredients that make up “mash.” It necessitated the sale of liquor in violation of law — slyly, secretly, and clandestinely. All these facts the jury must have weighed, although no direct testimony established them.
Counsel for defense correctly rely upon the presumption of innocence that attends their clients throughout the trial. They properly rely heavily upon the burden of proof which rests upon the Government to establish guilt beyond a reasonable doubt by evidence which is clear and which is not as consistent with the theory of innocence. They ignore, however, the fact that evidence, and most persuasive evidence, may be other than the spoken word. Physical facts do not bend nor yield to personal interest or to selfish or interested motives. Credibility is not involved when an illicit still, secreted in an out-of-the-way place, speaks. One who asks jurors to accept his assertion of innocence in the face of the fact that he was at the site of a large illegal still at 3:30 A. M. in the morning in a truck owned by him, with hundreds of dollars of equipment therein, sent to repair a large illegal still, which had broken down, and which truck and repairs were awaited expectantly that night, by those whose task was to keep the fires burning and a sharp look-out for revenue agents, may not be disappointed if the jury accepts the physical facts and their strong inlerences instead of the words — the professions of innocence of the accused. And moreover, once they are convinced on a material fact issue that the accused spoke falsehoods, the said jury might well have rejected other testimony by the same party given, unless supported by corroborative evidence.
Nor can this — an appellate court — overestimate the advantages which the jury enjoyed in seeing and hearing the defendant Slesur. So far as direct testimony is concerned, Slesur absolved Mann from liability on count one. But in cases where there is much conflicting evidence the spoken word may not be conclusive. A witness speaks to the jury not alone through his lips. His story may be so ridiculously unbelievable, so contrary to physical facts, so imaginative as to out-fable fairy lore. If Slesur owned and operated the still, then surely the jury must have found that he falsified when he said he bought the boiler (shortly before) on credit but from one he knew not; that he bought sugar from some Italians of South Chicago whom he did not know— down “in the yards of South Chicago”— that he purchased pumps from someone unknown, but on credit — without a word of this improbable story corroborated when all could have been supported by other testimony. Well might the jury have doubted and rejected the balance of this man’s story unless corroborated. In fact, it was not merely uncorroborated, the motive for its falsity was not absent.
The trial judge in our opinion properly left both defendants’ guilt to the jury. Two cases which we have read with interest are Barton v. United States, 4 Cir., 267 F. 174; and Girgenti v. United States, 3 Cir., 81 F.2d 741. The former supports the Government’s position. The defendant may well urge the reading of the latter case. The facts in a broad sense are not dissimilar to our case. Yet there are differences, and it is the differences in each case which determine which case should be taken from the jury.
Other assignments of error, we have examined. They are not properly preserved. Neither do they impress us as substantial or prejudicial even if we agreed that the rulings were erroneous, which we do not.
The judgments are affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_usc1
|
11
|
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.
GEORGOUSES et al. v. GILLEN et al.
Circuit Court of Appeals, Ninth Circuit.
February 20, 1928.
Rehearing Denied March 19, 1928.
No. 5230.
Bankruptcy <@=>396(5) — Bankrupts’ filing of homestead claims after adjudication held ineffective to create homestead exemption (Bankr. Act, § 47, as amended in 1910, and § 70a [II USCA §§ 75, 110] Civ. Code Ariz. I9I3> pars. 3288, 3289, 3292).
Under Bankruptcy Act, § 70a (11 USCA § 110), bankrupts’ title to their property passed to bankruptcy trustee on date of adjudication, and their subsequent filing of homestead claims under Civ. Code Ariz. 1913, pars. 3288, 3289, 3292, was ineffective to defeat trustee’s title to property involved; such state exemption statutes not being self-executing, but requiring filing of notice of homestead claim to create homestead status, and amendment of 1910 to Bankruptcy Act, § 47 (11 USCA § 75), vesting trustee with all rights and remedies of creditors holding lien on bankrupts’ property, did not diminish title vested in trustee under section 70a (11 USCA § 110).
Appeal from the District Court of the United States for the District of Arizona.
In the matter of John G. Georgouses and others, bankrupts. From an order confirming an order of the referee denying bankrupts’ homestead' exemption claims, bankrupts, opposed by D. M. Gillen, bankruptcy trustee, and others, appeal.
Affirmed.
Samuel White, of Phoenix, Ariz., for appellants.
Thomas W. Nealon and Thomas A. Flynn, both of Phcenix, Ariz., for appellee.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
DIETRICH, Circuit Judge.
On January 11, 1926, the four appellants, residing and engaged in the restaurant business at Phoenix, Ariz., were individually and as co-partners adjudged involuntary bankrupts, upon a petition filed a short time prior thereto. In their schedules, filed 10 days later, each claimed a homestead exemption. Upon a hearing had in proceedings for the withdrawal from administration of the property so claimed, the referee entered an order denying all the claims, which was thereafter confirmed by the District Judge. From the order of confirmation, the bankrupts prosecute this appeal. Two of them, James C. and Tony Georgouses, have abandoned their claims and stipulated that their appeals may be dismissed.
From the stipulation of facts it appears that the property in question, consisting of a single tract of agricultural land near Phcenix, was purchased with the funds of the partnership, and title thereto was, at least up to May 8, 1924, in the name of the appellant John G. Georgouses, who held it in trust for the partnership. The land wa: used by the partnership for dairying purposes, and continued in such use and in the possession of the partnership until it was taken over by a receiver appointed in the bankruptcy proceedings on December 31, 1925. There were, however, received in evidence instruments in the form of deeds, bearing date May 7, 1924, with notarial seal of the same date, and signed by John G. Georgouses, purporting to convey to appellants severally portions of or interests in the premises. These instruments were not placed on public record until December 24, 1925, a week before the institution of the bankruptcy proceeding.
By paragraph 3288 of the Revised Statutes of Arizona (Civ. Code 1913), it is provided that any head of a family residing in the state may hold as a homestead, exempt from execution, land in a compact body not to exceed the value of $4,000. But by paragraph 3289 it is further provided that, to avail himself of this privilege, the claimant must file for record in the office of the recorder of the county in which the property is situated a verified claim of a prescribed form. And paragraph 3292 provides that: “The homestead shall, from the date of the recording the claim of homestead, be exempt from attachment * * * and forced sale, and from sale under any judgment or lien existing prior to the recording of such claim, except a mortgage. * * * No such sale made after the recording of the claim of homestead shall be valid or convey any interest in such homestead, whether made under a judgment existing before or after the recording of such claim.”
No such claim was ever filed by any one of the appellants until January 27, 1926, 16 days after the adjudication, on which date each one of them executed in due form and filed for record a claim for the identical share of or interest in the dairy land conveyed to him by the deed already referred to as bearing date May 7, 1924. Whether, in view of the relation of the property to the partnership estate, the filing of homestead claims before the institution of the bankruptcy proceeding would have operated to defeat the claims of creditors against either the partnership or the individual members thereof, we do not deem it necessary to decide. Admittedly, the state exemption statute is not self-executing, and when the petition in bankruptcy was filed no part of the property had a homestead status.
We find no escape from the view that the case of White v. Stump, 266 U. S. 310, 45 S. Ct. 103, 69 L. Ed. 301, is controlling. True, the Arizona statute is not identical with the state statute there involved, and we are not unmindful that the language of a decision is not infrequently to he understood as qualified by the specific facts and issues under consideration; but in that case the Supreme Court apparently establishes a general standard, the basic principle of which is equally applicable to the instant .ease. Said the court:
“The provisions before cited show — some expressly and others impliedly — that one common point of time is intended and that it is the date of the filing of the petition. The bankrupt’s right to control and dispose of the estate terminates as of that time, save only as to ‘property which is exempt.’ Section 70a [11 USCA §' 110]. The exception, as its words and the context show, is not of property which would or might he exempt if some condition not performed were performed, hut of property to which there is under the state law a present right of exemption — one which withdraws the property from levy and sale under judicial process.”
Citing the amendment of 1910 to section 47 of the Bankruptcy Act (11 USCA § 75), to the effect that a trustee in bankruptcy is deemed to be vested with all the rights and remedies of creditors holding a lien on the bankrupt’s property, etc., appellants argue that the trustee has only a lien upon the property of the estate, and that, therefore, under the Arizona statute, differing in that respect from the Idaho law, the subsequent filing of the homestead claim defeats this as well as other liens. But that is to misapprehend the scope and purpose of the amendment. Under section 70a, the trustee, upon his appointment and qualification, is “vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt,” excepting only exempt property. In other words, without further or other proceeding, upon the trustee’s qualification he steps into the shoes of the bankrupt, taking his title and succeeding to all his rights. In re Britannia Mining Co. (C. C. A.) 203 F. 450. But in the practical administration of the law it was found that for the protection of creditors in certain contingencies it was necessary that the trustee be also invested with the rights and powers which creditors having specific liens might have exercised but for the institution of bankruptcy proceedings. Hence the amendment to section 47, which in no wise diminishes the title vested in him by virtue of section 70a, but under certain conditions places him in a position superior to that which he would occupy merely as a grantee or successor in interest of the bankrupt. 2 Collier on Bankruptcy (13th Ed.) p. 1053.
We are therefore of the opinion that, when the homestead claims here were filed, the title to the- property and the right of possession thereof had passed beyond their reach.
The decree below is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TRADERS & GEN. INS. CO. v. SHOEMAKE et al.
No. 4478.
United States Court of Appeals Tenth Circuit.
Sept. 29, 1952.
George E. Fisher, Oklahoma City, Okl. (James E. Grigsby, Oklahoma City, Okl., on the brief), for appellant.
Duke Duvall, Oklahoma City, Okl. (Dudley, Duvall & Dudley, Oklahoma City, Okl., on the brief), for appellees.
Before, PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
PER CURIAM.
Trigg Drilling Company was engaged in the drilling of a deep well in Oklahoma. A. J. Alexander and J. R. Townsend, employees of the company, were working at the well. Ernest L. Shoemake and Ernest L. Shoemake, Jr., were co-partners engaged in business as Shoemake Butane Company. While butane gas was being delivered from a truck owned by Shoemake Butane Company to a storage tank at the well an explosion occurred and Alexander and Townsend sustained personal injuries. An award was made to each of the injured workmen under the Workmen’s Compensation Act of the state. Traders & General Insurance Company, the insurance carrier of Trigg Drilling Company, paid the awards and thereafter instituted this action against Ernest L. Shoemake and Ernest L. Shoemake, Jr., to recover as damages the amounts it has paid. The issues as finally joined were negligence of the 'defendants arid contributory negligence on the part of Alexander and Townsend. The cause was tried to a jury; a verdict in favor of the defendants was returned; judgment was entered .accordingly; and the plaintiff appealed.
The only contention urged for reversal of the judgment is that the verdict of the jury in favor of the defendants is not sustained by any substantial evidence. But plaintiff did not move for a directed verdict, and it is well settled that such a motion or other like request is necessary to raise on appeal the legal question of the insufficiency of the evidence to support the judgment. In the absence of a motion or request of any kind for a directed verdict, the insufficiency of the evidence to support the verdict and judgment based thereon is not open to review in this court. New York Life Insurance Co. v. Doerksen, 10 Cir., 75 F.2d 96; Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175; Edwards v. Craig, 7 Cir., 138 F.2d 608; Itzkall v. Carlson, 2 Cir., 151 F.2d 647; Jorgensen v. York Ice & Machinery Corp., 2 Cir., 160 F.2d 432, certiorari denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349; Boston Insurance Co. v. Fisher, 8 Cir., 185 F.2d 977.
The judgment is Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT et al. v. RODRIGUEZ et al.
No. 71-1332.
Argued October 12, 1972
Decided March 21, 1973
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 59. Brennan, J., filed a dissenting opinion, post, p. 62. White, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 63. Marshall, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 70.
Charles Alan Wright argued the cause for appellants. With him on the briefs were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, J. C. Davis and Pat Bailey, Assistant Attorneys General, and Samuel D. McDaniel.
Arthur Gochman argued the cause for appellees. With him on the brief was Mario Obledor.
Briefs of amici curiae urging reversal were filed by George F. Kugler, Jr., Attorney General, pro se, and Stephen Skillman, Assistant Attorney General, for the Attorney General of New Jersey; by George W. Liebmann and Shale D. Stiller for Montgomery County, Maryland, joined by Francis B. Burch, Attorney General of Maryland, Henry R. Lord, Deputy Attorney General, E. Stephen Derby, Assistant Attorney General; William J. Badey, Attorney General of Alabama; Gary K. Nelson, Attorney General of Arizona, James G. Bond, Assistant Attorney General; Evelle J. Younger, Attorney General of California, Elizabeth Palmer, Assistant Attorney General, Edward M. Belasco, Deputy Attorney General; Duke W. Dunbar, Attorney General of Colorado; Robert K. Killian, Attorney General of Connecticut, F. Michael Ahern, Assistant Attorney General; W. Anthony Park, Attorney General of Idaho, James R. Hargis, Deputy Attorney General; Theodore L. Sendak, Attorney General of Indiana; Charles M. Wells, Harry T. Ice, Richard C. Turner, Attorney General of Iowa, George W. Murray, Assistant Attorney General; Vern Miller, Attorney General of Kansas, Matthew J. Dowd and John C. Johnson, Assistant Attorneys General; Ed W. Hancock, Attorney General of Kentucky, Carl T. Miller, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana; James S. Erwin, Attorney General of Maine, George West, Assistant Attorney General; Robert H. Quinn, Attorney General of Massachusetts, Lawrence T. Bench, Assistant Attorney General, Charles F. Clippert, WiUiam M. Saxton, Robert B. Webster; A. F. Summer, Attorney General of Mississippi, Martin R. McLendon, Assistant Attorney General; John Danforth, Attorney General of Missouri, D. Brook Bartlett, Assistant Attorney General; Clarence A. H. Meyer, Attorney General of Nebraska, Harold Mosher, Assistant Attorney General; Warren B. Rudman, Attorney General of New Hampshire; Louis J. Lefkowitz, Attorney General of New York; Robert B. Morgan, Attorney General of North Carolina, Burley B. Mitchell, Jr., Assistant Attorney General; Helgi Johanneson, Attorney General of North Dakota, Gerald Vandewalle, Assistant Attorney General; Lee Johnson, Attorney General of Oregon; Daniel R. McLeod, Attorney General of South Carolina, G. Lewis Argoe, Jr., Assistant Attorney General; Gordon Mydland, Attorney General of South Dakota, C. J. Kelly, Assistant Attorney General; David M. Pack, Attorney General of Tennessee, Milton P. Rice, Deputy Attorney General; Vernon B. Romney, Attorney General of Utah, Robert B. Hansen, Deputy Attorney General; James M. Jeffords, Attorney General of Vermont; Chauncey H. Browning, Jr., Attorney General of West Virginia, Victor A. Barone, Assistant Attorney General; Robert W. Warren, Attorney General of Wisconsin, and Betty R. Brown, Assistant Attorney General; and by John D. Maharg and James W. Briggs for Richard M. Clowes, Superintendent of Schools of the County of Los Angeles, et al.
Briefs of amici curiae urging affirmance were filed by David Bonderman and Peter Van N. Lockwood for Wendell Anderson, Governor of Minnesota, et al.; by Robert R. Coffman for Wilson Riles, Superintendent of Public Instruction of California, et al.; by Roderick M. Hills for Houston I. Flournoy, Controller of California; by Ramsey Clark, John Silard, David C. Long, George L. Russell, Jr., Harold J. Ruvoldt, Jr., J. Albert Woll, Thomas E. Harris, John Ligtenberg, A. L. Zwerdling, and Stephen I. Schlossberg for the Mayor and City Council of Baltimore et al.; by George H. Spencer for San Antonio Independent School District; by Norman Dorsen, Marvin M. Karpatkin, Melvin L. Wulf, Paul S. Berger, Joseph B. Bobison, Arnold Forster, and Stanley P. Hebert for the American Civil Liberties Union et al.; by Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, and Abraham Sofaer for the NAACP Legal Defense and Educational Fund, Inc.; by Stephen J. Poliak, Ralph J. Moore, Jr., Richard M. Sharp, and David Rubin for the National Education Assn, et al.; and by John E. Coons for John Serrano, Jr., et a!.
Briefs of amici curiae were filed by Lawrence E. Walsh, Victor W. Bouldin, Richard B. Smith, and Guy M. Struve for the Republic National Bank of Dallas et al., and by Joseph R. Córtese, Joseph Guandolo, Bryce Huguenin, Manly W. Mumford, Joseph H. Johnson, Jr., Joseph Rudd, Fred H. Rosenfeld, Herschel H. Friday, George Herrington, Harry T. Ice, Cornelius W. Grafton, Fred G. Benton, Jr., Eugene E. Huppenbauer, Jr., Harold B. Judell, Robert B. Fizzell, John B. Dawson, George J. Fagin, Howard A. Rankin, Huger Sinkler, Robert W. Spence, Hobby H. McCall, James R. Ellis, and William J. Kiernan, Jr., Bond Counsel.
Mr. Justice Powell
delivered the opinion of the Court.
This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint was filed in the summer of 1968 and a three-judge court was impaneled in January 1969. In December 1971 the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U. S. 966 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court.
I
The first Texas State Constitution, promulgated upon Texas’ entry into the Union in 1845, provided for the establishment of a system of free schools. Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the “erection ... of school buildings” and for the “further maintenance of public free schools.” Such local funds as were raised were supplemented by funds distributed to each district from the State’s Permanent and Available School Funds. The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement, was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support. The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes, served as the disbursing arm for most state educational funds throughout the late 1800’s and first half of this century. Additionally, in 1918 an increase in state property taxes was used to finance a program providing free textbooks throughout the State.
Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.
In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities. Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child. Although the amount was increased several times in the early 1940’s, the Fund was providing only $46 per student by 1945.
Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas’ changing educational requirements, the state legislature in the late 1940’s undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee’s efforts led to the passage of the Gilmer-Aikin bills, named for the Committee’s co-chairmen, establishing the Texas Minimum Foundation School Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas.
The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible — as a unit — for providing the remaining 20%. The districts’ share, known as the Local Fund Assignment, is apportioned among the school districts under a formula designed to reflect each district’s relative taxpaying ability. The Assignment is first divided among Texas’ 254 counties pursuant to a complicated economic index that takes into account the relative value of each county’s contribution to the State’s total income from manufacturing, mining, and agricultural activities. It also considers each county’s relative share of all payrolls paid within the State and, to a lesser extent, considers each county’s share of all property in the State. Each county’s assignment is then divided among its school districts on the basis of each district’s share of assessable property within the county. The district, in turn, finances its share of the Assignment out of revenues from local property taxation.
The design of this complex system was twofold. First, it was an attempt .to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program’s architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children but that would not by itself exhaust any district’s resources. Today every school district does impose a property tax from which it' derives locally expendable funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program.
In the years since this program went into operation in 1949, expenditures for education- — from state as well as local sources — have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%. In the last decade alone the total public school budget rose from $750 million to $2.1 billion and these increases have been reflected in consistently rising per-pupil expenditures throughout the State. Teacher salaries, by far the largest item in any school’s budget, have increased dramatically — the state-supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years.
The school district in which appellees reside, the Edge-wood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State’s impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960 — the lowest in the metropolitan area — and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property — the highest in the metropolitan area — the district contributed $26 to the education of each child for the 1967— 1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248. Federal funds added another $108 for a total of $356 per pupil.
Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.
Although the 1967-1968 school year figures provide the only complete statistical breakdown for each category of aid, more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970-1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967-1968 school year. Indeed, state aid alone in 1970-1971 equaled Edgewood’s entire 1967-1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970-1971. These recent figures also reveal the extent to which these two districts’ allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant. It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each.
Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F. Supp., at 282. Finding that wealth is a “suspect” classification and that education is a “fundamental” interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. Id., at 282-284. On this issue the court concluded that “[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications.” Id., at 284.
Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications. If, as previous decisions have indicated, strict scrutiny means that the State’s system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a “heavy burden of justification,” that the State must demonstrate that its educational system has been structured with “precision,” and is “tailored” narrowly to serve legitimate objectives and that it has selected the “less drastic means” for effectuating its objectives, the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that “[n]o one familiar with the Texas system would contend that it has yet achieved perfection.” Apart from its concession that educational financing in Texas has “defects” and “imperfections,” the State defends the system’s rationality with vigor and disputes the District Court’s finding that it lacks a “reasonable basis.”
This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
II
The District Court’s opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees’ challenge to Texas’ system of school financing. In concluding that strict judicial scrutiny was required, that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes, and on cases disapproving wealth restrictions on the right to vote. Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand.
We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive.
A
The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States, is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged “poor” cannot be identified or defined in customary equal protection terms, and whether the relative — rather than absolute- — nature of the asserted deprivation is of significant consequence. Before a State’s laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below.
The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court’s opinion and of appellees’ complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” or (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect.
The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted .the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois, 351 U. S. 12 (1956), and its progeny, the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some “adequate substitute” for a full stenographic transcript. Britt v. North Carolina, 404 U. S. 226, 228 (1971); Gardner v. California, 393 U. S. 367 (1969); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958).
Likewise, in Douglas v. California, 372 U. S. 353 (1963), a decision establishing an indigent defendant’s right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy.
Williams v. Illinois, 399 U. S. 235 (1970), and Tate v. Short, 401 U. S. 395 (1971), struck down criminal penalties that subjected indigents to incarceration simply because of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.
Finally, in Bullock v. Carter, 405 U. S. 134 (1972), the Court invalidated the Texas filing-fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided “no reasonable alternative means of access to the ballot” (id., at 149), inability to pay occasioned an absolute denial of a position on the primary ballot.
Only appellees’ first possible basis for describing the class disadvantaged by the Texas school-financing system — discrimination against a class of definably “poor” persons — might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect ... to contend that the ‘poor’ live in 'poor’ districts .... Thus, the major factual assumption of Serrano — that the educational financing system discriminates against the 'poor’ — is simply false in Connecticut.” Defining “poor” families as those below the Bureau of the Census “poverty level,” the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas — those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people — defined by reference to any level of absolute impecunity — are concentrated in the poorest districts.
Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to “guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by ‘A Minimum Foundation Program of Education.’ ” The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures “every child in every school district an adequate education.” No proof was offered at trial persuasively discrediting or refuting the State’s assertion.
For these two reasons — the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education — the disadvantaged class is not susceptible of identification in traditional terms.
As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family’s children.
The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University’s Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees’ theory, noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F. Supp., at 282 n. 3.
If, in fact, these correlations could be sustained, then it might be argued that expenditures on education— equated by appellees to the quality of education — are dependent on personal wealth. Appellees’ comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, and whether a class of this size and diversity could ever claim the special protection accorded “suspect” classes. These questions need not be addressed in this case, however, since appellees’ proof fails to support their allegations or the District Court’s conclusions.
Professor Berke’s affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin show only that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts— 96 districts composing almost 90% of the sample — the correlation is inverted, i. e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination.
This brings us, then, to the third way in which the classification scheme might be defined — district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education. Alternatively, as suggested in Mr. Justice Marshall’s dissenting opinion, post, at 96, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level.
However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. -
We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention: They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U. S. 365, 375-376 (1971) ; Kramer v. Union School District, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U. S. 618 (1969). It is this question — whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution — which has so consumed the attention of courts and commentators in recent years.
B
In Brown v. Board of Education, 347 U. S. 483 (1954), a unanimous Court recognized that “education is perhaps the most important function of state and local governments.” Id., at 493. What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:
“Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Ibid.
This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U. S. 205, 213 (Burger, C. J.), 237, 238-239 (White, J.), (1972); Abington School Dist. v. Schempp, 374 U. S. 203, 230 (1963) (Brennan, J.); McCollum v. Board of Education, 333 U. S. 203, 212 (1948) (Frank-furter, J.); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U. S. 79 (1907).
Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice Harlan, dissenting from the Court’s application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that “[virtually every state statute affects important rights.” Shapiro v. Thompson, 394 U. S., at 655,
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_issuearea
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G
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue 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.
NATIONAL LABOR RELATIONS BOARD v. EXCHANGE PARTS CO.
No. 26.
Argued December 11, 1963.
Decided January 13, 1964.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Cox, Arnold Ordman and Norton J. Come.
Karl H. Mueller argued the cause and filed a brief for respondent.
Mr. Justice Harlan
delivered the opinion of the Court.
This case presents a question concerning the limitations which §8 (a)(1) of the National Labor Relations Act, 49 Stat. 452 (1935), as amended, 29 U. S. C. § 158 (a)(1), places on the right of an employer to confer economic benefits on his employees shortly before a representation election. The precise issue is whether that section prohibits the conferral of such benefits, without more, where the employer’s purpose is to affect the outcome of the election. We granted the National Labor Relations Board’s petition for certiorari, 373 U. S. 931, to clear up a possible conflict between the decision below and those of other Courts of Appeals on an important question of national labor policy. For reasons given in this opinion, we conclude that the judgment below must be reversed.
The respondent, Exchange Parts Company, is engaged in the business of rebuilding automobile parts in Fort Worth, Texas. Prior to November 1959 its employees were not represented by a union. On November 9, 1959, the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, advised Exchange Parts that the union was conducting an organizational campaign at the plant and that a majority of the employees had designated the union as their bargaining representative. On November 16 the union petitioned the Labor Board for a representation election. The Board conducted a hearing on December 29, and on February 19, 1960, issued an order directing that an election be held. The election was held on March 18, 1960.
At two meetings on November 4 and 5, 1959, C. V. McDonald, the Vice-President and General Manager of Exchange Parts, announced to the employees that their “floating holiday” in 1959 would fall on December 26 and that there would be an additional “floating holiday” in 1960. On February 25, six days after the Board issued its election order, Exchange Parts held a dinner for employees at which Vice-President McDonald told the employees that they could decide whether the extra day of vacation in 1960 would be a “floating holiday” or would be taken on their birthdays. The employees voted for the latter. McDonald also referred to the forthcoming representation election as one in which, in the words of the trial examiner, the employees would “determine whether . . . [they] wished to hand over their right to speak and act for themselves.” He stated that the union had distorted some of the facts and pointed out the benefits obtained by the employees without a union. He urged all the employees to vote in the election.
On March 4 Exchange Parts sent its employees a letter which spoke of “the Empty Promises of the Union” and “the fact that it is the Company that puts things in your envelope . . . .” After mentioning a number of benefits, the letter said: “The Union can’t put any of those things in your envelope — only the Company can do that.” Further on, the letter stated: “. . . [I]t didn’t take a Union to get any of those things and ... it won’t take a Union to get additional improvements in the future.” Accompanying the letter was a detailed statement of the benefits granted by the company since 1949 and an estimate of the monetary value of such benefits to the employees. Included in the statement of benefits for 1960 were the birthday holiday, a new system for computing overtime during holiday weeks which had the effect of increasing wages for those weeks, and a new vacation schedule which enabled employees to extend their vacations by sandwiching them between two weekends. Although Exchange Parts asserts that the policy behind the latter two benefits was established earlier, it is clear that the letter of March 4 was the first general announcement of the changes to the employees. In the ensuing election the union lost.
The Board, affirming the findings of the trial examiner, found that the announcement of the birthday holiday and the grant and announcement of overtime and vacation benefits were arranged by Exchange Parts with the intention of inducing the employees to vote against the union. It found that this conduct violated §8 (a)(1) of the National Labor Relations Act and issued an appropriate order. On the Board’s petition for enforcement of the order, the Court of Appeals rejected the finding that the announcement of the birthday holiday was timed to influence the outcome of the election. It accepted the Board’s findings with respect to the overtime and vacation benefits, and the propriety of those findings is not in controversy here. However, - noting that “the benefits were put into effect unconditionally on a permanent basis, and no one has suggested that there was any implication the benefits would be withdrawn if the workers voted for the union,” 304 F. 2d 368, 375, the court denied enforcement of the Board’s order. It believed that it was not an unfair labor practice under § 8 (a) (1) for an employer to grant benefits to its employees in these circumstances.
Section 8 (a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, arid shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a)(3).” 49 Stat. 452 (1935), as amended, 29 U. S. C. § 157.
We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not “interfere with” the protected right to organize.
The broad purpose of § 8 (a)(1) is to establish “the right of employees to organize for mutual aid without employer interference.” Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 798. We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect. In Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678, 686, this Court said: “The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats or domination.” Although in that case there was already a designated bargaining agent and the offer of “favors” was in response to a suggestion of the employees that they would leave the union if favors were bestowed, the principles which dictated the result there are fully applicable here. The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. The danger may be diminished if, as in this case, the benefits are conferred permanently and unconditionally. But the absence of conditions or threats pertaining to the particular benefits conferred would be of controlling significance only if it could be presumed that no question of additional benefits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is tenable.
Other Courts of Appeals have found a violation of §8 (a)(1) in the kind of conduct involved here. See, e. g., Labor Board v. Pyne Molding Corp., supra; Indiana Metal Products Corp. v. Labor Board, supra. It is true, as the court below pointed out, that in most cases of this kind the increase in benefits could be regarded as “one part of an overall program of interference and restraint by the employer,” 304 F. 2d, at 372, and that in this case the questioned conduct stood in isolation. Other unlawful conduct may often be an indication of the motive behind a grant of benefits while an election is pending, and to that extent it is relevant to the legality of the grant; but when as here the motive is otherwise established, an employer is not free to violate § 8 (a)(1) by conferring benefits simply because it refrains from other, more obvious violations. We cannot' agree with the Court of Appeals that enforcement of the Board’s order will have the “ironic” result of “discouraging benefits for labor.” 304 F. 2d, at 376. The beneficence of an employer is likely to be ephemeral if prompted by a threat of unionization which is subsequently removed. Insulating the right of collective organization from calculated good will of this sort deprives employees of little that has lasting value.
Reversed.
See, e. g., Indiana Metal Products Corp. v. Labor Board, 202 F. 2d 613 (C. A. 7th Cir.); Labor Board v. Pyne Molding Corp., 226 F. 2d 818 (C. A. 2d Cir.).
The italics appear in the original letter.
The inference was made almost explicit in Exchange Parts’ letter to its employees of March 4, already quoted, which said: “The Union can’t put any of those . . . [benefits] in your envelope — only the Company can do that.” (Original italics.) We place no reliance, however, on these or other words of the respondent dissociated from its conduct. Section 8 (c) of the Act, 61 Stat. 142 (1947), 29 U. S. C. § 158 (c), provides that the expression or dissemination of “any views, argument, or opinion” “shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.”
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:
|
sc_casesource
|
087
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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.
COLUMBIA ARTISTS MANAGEMENT INC. et al. v. UNITED STATES et al.
No. 775.
Decided May 24, 1965.
Seymour D. Lewis and Ralph F. Colin for appellants.
Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum and Elliott H. Moyer for the United States, and Theodore R. Kupferman for appellee Summy-Birchard, Inc.
Per Curiam.
The motion to affirm is granted and the judgment is affirmed.
Question: What is the court whose decision the Supreme Court reviewed?
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Answer:
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songer_origin
|
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 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.
UNITED STATES of America, Appellee, v. Eric Marshall NAGLER, Appellant.
No. 808, Docket 73-1194.
United States Court of Appeals, Second Circuit.
Argued April 26, 1973.
Decided May 17, 1973.
Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for appellant.
Thomas R. Maher, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appel-lee.
Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges.
Of the United States Court of Appeals for the Tenth Circuit, sitting by designation.
MANSFIELD, Circuit Judge:
Eric Marshall Nagler appeals from a judgment of conviction for failure to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a), entered after a trial in the Eastern District of New York before Judge Anthony J. Travia, sitting without a jury. Appellant was sentenced to three years imprisonment. and was released on bail pending this appeal. The question before us is whether the denial of appellant’s claim for classification as a conscientious objector to combatant and noncombatant training and service (1-0 status) and his consequent retention in a I-A classification resulted from a denial of due process. We conclude that the Local Board did not provide adequate reasons for its rejection of appellant’s conscientious objection claim, that appellant was thus subject to an invalid induction order, and that his conviction based on that order must therefore be reversed.
The essential facts are undisputed. Appellant duly registered with Local Board 41 in Brooklyn, New York, on June 6, 1960. He was classified I-A on October 18, 1961, but on December 11, 1963, he was reclassified II-S until June 1964 because he had enrolled as a full-time graduate student in psychology at Queens College. On December 16, 1964, he was again classified I-A. After receiving information five days later from Queens College that appellant was still pursuing a graduate degree part-time, the Local Board reviewed his classification on January 20, 1965, but concluded that the new information did “not warrant reopening.” On September 22, 1965, Nagler was continued in a I-A classification, and on November 1 he was ordered to report November 12 for an Armed Forces Physical Examination. He reported for the examination as required, though he had in the interim, by letter dated November 5, 1965, requested from his Local Board SSS Form 150, the Special Form for Conscientious Objectors.
The Local Board received appellant’s completed application for conscientious objector status on November 22, 1965, along with seven letters in support of it. The Government concedes that his application “made out a prima facie case for reclassification as a conscientious objector.” Appellant based his claim on religious beliefs, including belief in a Supreme Being, which led him to “three deeply felt guiding forces: nonviolence, respect for the individual, and responsibility to the community.” He noted his Jewish background, but stressed “freedom of religion” and recorded his membership in the National Ethical Youth Organization of the New York Ethical Culture Society and its Executive Committee when he was in high school, as well as membership in the Fellowship of Reconciliation, the Committee for a Sane Nuclear Policy, and the New York Her-petologieal Society. He also stated that he was “opposed to all war,” that his conscience would not allow him to take part in killing, and that “non-violence is always a possible alternative when nations are at odds” and should be followed if at all possible in situations of individual attack, though if there were no alternatives he allowed that he would in the final analysis fight for his life. Appellant cited his brother, also a conscientious objector, as the one person most influential in guiding him towards pacifism.
No action was taken by the Local Board on Nagler's claim until seven months later, just after he wrote to them requesting permission to leave the United States for a two-month period. On June 14, 1966, he received notification of a discretionary interview before the Local Board, to be held on the following day, June 15. Following his appearance, his claim for classification as a conscientious objector was rejected by the Local Board and his request for a permit to depart the country was denied. The Board’s minutes of his appearance and of its disposition include the following notations:
“Reg. appeared requests deferment on grounds of being a conscientious objector. ... 21 Questions and Answers read and considered by the Board. ... He stated he was an atheist because he did not believe in the Jewish God or the Christian God. Believes that killing is against civilization and that things should be handled by non-violence. . . . Board finds this registrant to be less than sincere hnd statements were found to be somewhat inconsistent i. e. re: belief in Supreme Being. Registrant does not qualify for 1-0 Classification under the existing regulations.”
Appellant asked the Board to reconsider its decision and to reopen his classification, complaining that he had not been afforded sufficient time to prepare for the interview. After a lengthy exchange of correspondence, he was granted a personal appearance on September 13, 1966, but his claim was again rejected and he was retained in a I-A classification. The Board’s summary stated the following relevant observations:
“Reg. states he is of the Jewish Religion but does not attend any synagogue or Temple. . . . about a year ago he joined the Fellowship of Reconciliation. . . . Attended a Quakers meeting once and only listened. Reg. states that he would not now call himself an atheist. He be-' lieves in a Supreme being that does not organize religions but humanists. Basis of objection to war is that it is wrong to kill. . . . The 21 questions and answers read & considered by the Board. Reg. states his answers are the same today. Minutes of meeting dtd June 15, 1966 were considered & same questions & answers received. Conscientious objector for religious reasons. . Board finds that registrant to be less than sincere [sic] and statements made now are inconsistent with statements made at prior hearing held on June 15, 1966. . . . Does not warrant reopening 4-0.”
Nagler appealed the Local Board’s determination to the Appeal Board which, pursuant to procedures then applicable, 50 U.S.C. App. § 456(j) (1948) and 32 C.F.R. § 626.25(a) (1948), sought an advisory recommendation from the Department of Justice after it had reviewed the file and “tentatively” determined that appellant was not eligible for a 1-0 classification. A Hearing Officer from the Justice Department interviewed appellant on May 31, 1967, concluded that he was sincere in his religious beliefs and conscientious objection, and recommended that his conscientious objector claim be sustained. In the formal reply to the Appeal Board, however, T. Oscar Smith, Chief of the Justice Department’s Conscientious Objector Section, relayed the recommendation of the Department of Justice that the conscientious objection claim not be sustained because (1) it was filed after appellant had been classified I-A and ordered for his physical examination, (2) asserting the claim at that late date was “not persuasive” of “deep and abiding beliefs held for a long period of time,” and (3) the inconsistencies cited by the Local Board could be considered in its determination of appellant’s sincerity.
In accordance with Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L. Ed. 467 (1955), appellant was given an opportunity to and did respond to the Justice Department’s recommendation. In a 10-page letter to the Appeal Board dated August 27, 1967, Nagler protested that he had informed his Local Board at the earliest point when he had been fully convinced that he was a conscientious objector and that even if he had not been called for a pre-induction physical examination he would still have sent for the SSS Form 150 when he did. He disputed the Local Board’s summary descriptions of what he had said at his two appearances before them and their conclusion that he had been inconsistent in his views regarding his belief in a Supreme Being.
Despite appellant’s explanations, the Appeal Board unanimously sustained the Local Board’s I-A classification on October 9, 1967, without any statement of reasons. Appellant was subsequently ordered to report for induction on November 13, 1967, and he failed to do so. He was indicted on May 13, 1969 and this conviction followed.
Judge Travia rejected appellant’s argument that the Local Board’s classification of him as I-A was without a “basis in fact,” Estep v. United States, 327 U. S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and that the Appeal Board’s determination was invalid because that Board did not state its reasons for affirming the Local Board’s classification. The court accepted as a valid “basis in fact” the Local Board’s conclusion that appellant was “insincere” because of inconsistent statements as to his religious views. Judge Travia also interpreted the Appeal Board’s determination as resting solely on the ground of insincerity, since the Appeal Board tentatively rejected appellant’s claim before it sought the Justice Department recommendation and the judge construed the Department’s advice as relating solely to the question of appellant’s sincerity. On this interpretation Judge Travia concluded that the failure of the Appeal Board to state the reasons for its determination did not affect the validity of the induction order.
The legal parameters governing this appeal have been indicated by recent rulings of the Supreme Court, Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed. 473 (1972), and Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1973), which have been interpreted by this and other circuits considering the issue as mandating reversal of a conviction upon a record of the type here presented. It is now clear that when a registrant states a prima facie claim for a conscientious objector classification, as concededly appellant did here, his Local Board’s failure to give reasons for denying his claim precludes meaningful administrative review by the Appeal Board and therefore invalidates a I-A classification following such denial. Accordingly a conviction based on failure to respond to an induction order grounded on that classification must be reversed. United States v. Stewart, 478 F.2d 106, 112 (2d Cir. 1973); United States v. Holby, 477 F.2d 649, 656-657 (2d Cir. 1973). Furthermore, since an Appeal Board need not restate the reasons for denying the claim when it affirms the Local Board’s determination, United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973), it “becomes all the more important that the local board specify the facts forming the basis of its decision,” United States v. Stewart, supra at 112-113. We noted specifically in the Stewart case that the requirement that reasons be furnished for rejecting the conscientious objector claim “is not satisfied by a board’s mere conclusory statements of insincerity. The facts or factors relied upon by the board must be stated. United States ex rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v. Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971).” Id.
Application of these principles here dictates reversal of Nagler’s conviction. After his first appearance before the Local Board on June 15, 1966, his claim was rejected because he was found to be “less than sincere” and his “statements were found to be somewhat inconsistent, i. e. re: belief in Supreme Being.” The conclusion of insincerity, standing alone, would not suffice to support the Board’s determination, United States v. Stewart, supra, 112. To the extent that it is supplemented by a reference to Nagler’s inconsistent statements regarding his religious views, the Government has conceded that “in his reply to the Smith letter Nagler appears to have fully answered and explained the alleged inconsistencies, at least to the extent that even without crediting his version of what transpired at his meetings with the Board, no reasonable person could conclude that there was any necessary inconsistency in his religious views.” (Emphasis supplied) Since the misunderstanding as to the nature of appellant’s belief in a Supreme Being was not based upon objective fact but rather upon either an erroneous record of what he had said or upon a misconception by the Board members of what he had described as his beliefs, the alleged inconsistencies do not constitute a relevant “fact which casts doubt on the veracity of the registrant,” Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955). Without a rational basis for finding appellant’s statements concerning his belief in a Supreme Being inconsistent, the Local Board cannot either base its classification on the inconsistencies or base its conclusion of insincerity on inference drawn from the supposed inconsistencies. United States v. Anderson, supra, 447 F.2d at 1066-1067. Cf. United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert, denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960); United States v. O’Rourke, 341 F.Supp. 622, 626 (S.D.N.Y.1972).
Nor do the minutes of appellant’s second appearance before the Local Board, an appearance as of right, provide a sufficient basis in fact to support the Board’s denial of his conscientious objector claim, as the Government now urges. The Board concluded again that appellant was “less than sincere”, and this time that “statements made now are inconsistent with statements made at prior hearing held on June 15, 1966.” Obviously, if the inconsistencies refer to statements concerning appellant’s religious views, they gain no more basis through repetition a second time. Adopting this view, the Government, erroneously assuming that if it could show that there was a “basis in fact” for the decisions of the Local and Appeal Boards no statement of the reasons actually relied upon by those Boards was required, initially took the position upon this appeal that the “inconsistencies,” which it correctly interpreted as referring solely to “the registrant’s use of or the Board’s understanding of the term 'atheist,’ ” were not sufficiently substantial to uphold the Board’s decision, stating:
“The government concedes that, without more, these alleged inconsistencies would appear insufficient upon which to predicate a finding of insincerity. Very simply there is not enough in this record on this point.
“At the same time, however, the Government would suggest that, on this record it seems quite unlikely that these alleged inconsistencies played any substantial role, if any at all, in influencing the Appeals Board and that there was other evidence, much more strongly emphasized in the Smith letter. . . . ”
Notwithstanding the Supreme Court’s decisions in Lenhard and Joseph and our intervening decisions in Holby and Stewart, with which the Government was first confronted after briefing the appeal, it nevertheless continues to urge other “inconsistencies” which it has culled from the record in an effort to support the Local Board’s finding of insincerity. However, in view of our agreement with the Government’s initial interpretation of the Local Board’s use of the term as referring solely to the registrant’s religious views we must reject any reasons that were not articulated by the Local Board. Accordingly, we are left with that Board’s mere conclusion that a registrant is “less than sincere,” which is insufficient. United States v. Stewart, supra.
Nor can the Government gain any comfort from the Appeal Board’s decision, which sustained the Local Board’s I-A classification on appeal without giving any reason, conclusory or otherwise. If the Local Board has supported its decision with a valid statement of reasons, a further statement by the Appeal Board would be unnecessary. United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973). But where, as here, the Local Board has failed to furnish such a statement, that deficiency can not be cured by the Appeal Board, since the Local Board, not having articulated any reasons which rest on a “basis in fact,” may have acted upon invalid grounds. The Appeal Board, like ourselves has been left to speculate as to what legitimate reasons, if any, the Local Board might have found conclusive. The registrant, because of the Local Board’s silence, is deprived of a basic due process step, i. e., meaningful administrative review, which is an essential element of the system and should be accorded to all registrants.
In any event, the Appeal Board’s decision is fatally deficient for the reason that it failed to state any reason at all for its rejection of appellant’s claim, thus leaving us to speculate as to its grounds, just as we must speculate as to the basis of the Local Board’s decision. This deficiency cannot be remedied by reference to the reasons suggested to the Appeal Board by the Chief of the Justice Department’s Conscientious Objector Section, to which the Appeal Board looked for guidance. Some of these suggested reasons were plainly insufficient. Although late crystallization and assertion of conscientious objection may be viewed by a Board with suspicion, this factor is not conclusive. The claim may nevertheless be found to have been asserted in good faith. It cannot, therefore, automatically be rejected on such grounds. Ehlert v. United States, 402 U.S. 99, 103-104, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) ; United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966); United States v. Gearey II, 379 F.2d 915 (2d Cir.), cert, denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967) ; Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). And in any event the Appeal Board may have made its determination in reliance on the unsupported ground of inconsistent statements by Nagler as to his religious views, since this appears to have been the basis of the Local Board’s decision and the Justice Department, in turn, stated that it could properly be considered. Since the Appeal Board’s decision may well have been based upon invalid grounds, its decision could not in any event be upheld. Clay v. United States, 403 U.S. 698, 704, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).
The judgment of the district court is reversed with directions that the indictment be dismissed.
. Although Nagler submitted to the Armed Forces Physical Examination, he refused to complete its Security Questionnaire (DD Form 98) on the ground that it represented an “unwarranted invasion of [his] right to freedom of association and belief.”
. Appellee’s Brief 5. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) ; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) ; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970).
. Mr. Smith’s letter did set forth, among other things, the Hearing Officer’s recommendation and the fact that the Hearing-Officer had reported “that the registrant’s early religious training was Jewish but that his beliefs are of a personal nature based on his own present understanding of the teachings of Jesus and upon his individual inquiry into various philosophies of religion” and that “he believes in a Supreme Being.”
. Nagler’s letter stated in pertinent part:
“In neither of my two appearances before the Local Board did I state that I am an atheist. At my first encounter I did say that I did not believe in either the Jewish or the Christian God, but I was as clear as I could be on my conception of God. I said then unequivo-cably [sic] that I believe in God, and I pointed out that the answers to the questions in series II of my SSS Form 150 are quite clear on this. .
“God, to me, is not something which can be dearly defined by words, as can be the Judeo-Christian God, God is experienced emotionally much more than rationally. It is the Universe, It is everything that is Good, It is the Ideal, It is Love, It is Life. ... At my second appearance before the Local Board, ... I remember clearly the events which led up to their writing ‘Reg. does not now call himself an atheist.’ One of the members was looking at a paper (which I assume to have been the minutes of my first appearance) and told me that I call myself an atheist. I said that I don’t. He said that at my first appearance I had claimed atheism. I replied that I had not said such a thing. He then dictated . words to the effect that I now retract my former statement of atheism. I then said that I do not retract any statement, that I never made such a statement to the Local Board. He then dictated . . . words to the effect that I do not remember making any statement that I was an atheist, and that I do not now call myself one. I then began to repeat what I had said at the first meeting concerning my belief in God, but was interrupted. .
“The minutes of the second appearance state that I believe in a ‘Supreme Being that does not organize religions but humanists.’ I do not remember making this statement. I do not know what it means. . . . ”
. After the rejection of his conscientious objector claim by the Appeal Board, appellant requested an occupational deferment from his Local Board on October 23, 1967. His request was supported by a letter from his employer, an Associate Commissioner for Research and Evaluation in the State Education Department of the University of the State of New York. The Local Board convened on October 24, reviewed appellant’s file, and determined that the new information did not warrant reopening his classification.
Appellant urges that the Local Board’s refusal to reopen his classification was error invalidating his subsequent induction order because he had stated a prima facie claim for an occupational deferment under 32 C.F.R. §§ 1622.22(a), 1622.23 (1967). The Government takes issue as to the latter claim. Because of our disposition of this case on the conscientious objector claim, we need not resolve this controversy.
. United States v. Lenhard, 461 F.2d 1268 (2d Cir. 1972) (on remand) ; United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972) ; United States v. Hanson, 460 F.2d 337, 342-343 (8th Cir. 1972).
. Appellee’s Brief 18.
. Upon their initial briefing of this appeal, neither side referred to the Supreme Court’s decisions in Lenhard and Joseph, supra, and of course our decisions in JIol-hy and Stewart had not yet issued.
. Appellee’s Brief 17.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
BROWN v. UNITED STATES.
No. 5637.
Court of Appeals of the District of Columbia.
Argued Dee. 5, 1932.
Decided Jan. 9, 1933.
James A. O’Shea, John H. Burnett, and Alfred Goldstein, all of Washington, D. C., for appellant.
W. M. Shea and L. A. Rover, both of Washington, D. C., for the United States.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
YAN ORSDEL, Associate Justice.
Appellant, defendant below, Benjamin Brown, was convicted of murder in the first degree and sentenced to death. From this judgment defendant appeals.
The single assignment relates to an alleged error in the selection of the jury. A list of the jurors composing the regular panel for the trial of criminal cases, consisting of twenty-six persons, was served upon defendant as required by law. Section 1033, R. S. (title 18, § 562, USCA). When it came to impaneling the jury, twenty-five persons whose names were on the list were called and examined, some of whom qualified and others did not. The twenty-sixth juror, when called, did not answer. It developed upon inquiry of the United States attorney that this jnror had been excused by the court on account of a death in his family. Over the exception of the defendant, other jurors were called, qualified, and sworn to try the ease. It is contended that, because the United States attorney had been advised and knew of the discharge of the juror, and that fact had not been disclosed to the defendant, he is entitled to have the judgment vacated and a new trial ordered.
It is unquestionably mandatory upon the district attorney to furnish the lists of witnesses and jurors to the accused, as provided by statute (Logan v. United States, 144 U. S. 263, 304, 12 S. Ct. 617, 36 L. Ed. 429), but we think the requirement was fully discharged in the present case. It is conceded that the full list of persons composing the panel in the criminal court in which defendant was to be tried was served on him, and the mere fact that one member of the panel was excused from service by the trial justiee was not prejudicial to the rights of the defendant, or can it he held to have resulted to his disadvantage in securing a fair trial.
It is insisted that defendant was put in an unfair position by reason of the alleged faet that the district attorney was advised of the discharge of the juror in advance of the trial, but this contention we think is not supported by the record. When the matter arose in court, the statement of the district attorney was in the nature of an inquiry of the court in respect of the juror’s discharge. The excusing of a juror from service by the trial justice, on good cause shown, before or at the lime of the trial, and before the jury has been impaneled and sworn, is not an error that will justify the reversal of the judgment.
In the case of Eagles v. United States, 58 App. D. C. 122, 124, 25 F.(2d) 546, 548, where the trial court had excused two jurors of the criminal panel, and it later became necessary to complete the jury from other branches of the court, this court in its opinion said: “It appears that two members of the criminal panel were excused by the court, and the panel was exhausted before a jury was selected. Jurors were then called from the civil court, and the jury was completed. We think that the statutory requirement for service of a copy of the jurors upon the accused at least two days before the trial was satisfied by serving the list of jurors assigned for the trial of criminal eases. It is not charged that any member of the selected jury was disqualified, or was individually objected', to, nor that any one of the appellants exhausted his peremptory challenges in the selection; of the jury.”
There is nothing in the record in. this ease that differs from the situation found to exist in the Eagles Case. No disqualification of a juror subsequently drawn appeal's, nor does it appear that any juror was individually objected to, or that defendant exhausted his peremptory challenges in the selection of the-jury. The analogy is complete.
The judgment 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_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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CORRAL SPORTSWEAR COMPANY, Respondent.
No. 9185.
United States Court of Appeals Tenth Circuit.
Oct. 4, 1967.
Rehearing Denied Nov. 15, 1967.
Thomas R. Beech, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., N. L. R. B., were with him on the brief), for petitioner.
Karl H. Mueller, Fort Worth, Tex., (Harold E. Mueller, of Mueller & Mueller, Fort Worth, Tex., was with him on the brief), for respondent.
Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.
LEWIS, Circuit Judge.
The National Labor Relations Board seeks enforcement of its order requiring the respondent Company to bargain with the Union earlier certified by the Board as the collective bargaining agent of the Company. The Company’s refusal to bargain after certification is admitted and constitutes a violation of section 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158, unless, as the Company here contends, the Board’s certification was premised upon an invalid election.
The Corral Sportswear Company is engaged in the manufacture of coats and jackets with a plant located at Ardmore, Oklahoma. In August of 1964, the Union filed a petition for an election among the Company’s employees. Thereafter, the Union and Company entered into a stipulation for Certification Upon Consent Election, which was approved. At the time of the election in question, the Company had 96 employees, of whom 76 were allowed to vote. In October of 1964, the Board conducted an election at which 71 unchallenged ballots were cast, 36 for the Union, and 35 against. During the voting, the Company challenged the ballot of a set-up department employee, and the Union challenged the ballots of two line-girls, a finishing department employee, and the patternmaker. Since the 5 challenged ballots were sufficient in number to affect the result of the election, an investigation was conducted pursuant to section 102.69 of the Board’s Rules and Regulations.
Upon recommendation of the Regional Director, the Board ordered a hearing to resolve the challenges. The Hearing Examiner, after hearing the evidence, sustained all 5 challenges. The Company’s challenge, and 3 of the 4 union challenges were sustained on the grounds that the employees in question were “supervisors” within the meaning of the Act. Under the Act, supervisors are not within the shelter of the organizational provisions to bargain collectively. NLRB v. Edward G. Budd Mfg. Co., 6 Cir., 169 F.2d 571, cert. denied, Foreman’s Ass’n of America v. Edward G. Budd Mfg. Co., 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949). The remaining employee challenged by the Union was the wife of the plant superintendent who did all her work at home rather than at the plant and was found by the Hearing Examiner to lack sufficient community of interest with the other employees in the plant to warrant her inclusion in the bargaining unit.
Based on the one vote majority, the Board certified the Union and denied the Company’s petition for reconsideration.
The Company first resists enforcement of the Board order through claim of error in the determination that the Union’s challenges were valid as leveled against supervisory employees. Although judicial review of this supporting finding by the Board is proper, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we must recognize “* * * that of necessity a large measure of informed discretion is involved in the exercise by the Board of its primary function to determine those who as a practical matter fall within the statutory definition of a ‘supervisor.’ ” NLRB v. Swift & Co., 1 Cir., 292 F.2d 561, 563. So viewed we find ample support in the record sustaining the Board’s action in refusing to count the votes of those employees challenged by the Union as supervisors.
It is well settled that section 2(11), cited in full in footnote #3, supra, is to be read in the disjunctive and the existence of any one of the indicia listed is sufficient to support a finding that the one possessing it is a supervisor. E.g., Warner Company v. NLRB, 3 Cir., 365 F.2d 435; NLRB v. Edward G. Budd Mfg. Co., supra; NLRB v. Elliott-Williams Co., 7 Cir., 345 F.2d 460. The record shows that the employees in question performed one or more of the tasks which qualify them for supervisor status. They did on occasion exercise authority which was more than of a merely routine or clerical nature and required the use of independent judgment. The functions of the challenged employees in question were almost identical to those of certain “floorladies” in the recent case of Brewton Fashions, Inc. v. NLRB, 361 F.2d 8, cert. denied, 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75 (1966), where the Board’s determination that said floorladies were supervisors was upheld by the Fifth Circuit. We hold the Board’s findings that the challenged votes were those of supervisory employees are supported by substantial evidence.
The Company also contends that the election was invalid because, after two of the Union’s challenges were allowed, four other unchallenged votes became invalid as a matter of law and consequently the result of the election does not necessarily reflect the will of the employees eligible to vote. This question has some aspects of first impression and requires more particularized consideration.
Prior to the election the Company prepared and submitted a list of its employees which, after the parties had stipulated as to the ineligibility of certain employees to vote because of their supervisory duties, contained a total of 76 voters — 1 janitor, 1 patternmaker, 11 cutters, 3 set-up department employees, 3 finishing department employees, 2 shipping department employees, 6 linegirls, and 49 employees performing other work. All voted, as earlier indicated, with 5 challenges made. The Company challenged Pat Wilson, a set-up department employee, as a supervisor; the Union challenged Velma Trent, a finishing department employee, as a supervisor; the Union challenged Myrtha Heartsill and Gladys Roberts, linegirls, as supervisors; and the Union challenged Ruth Wills, the patternmaker.
At a pre-election conference the Union and the Company apparently made an effort to set the ground rules for the determination of eligibility of voters. Our present record abstracts testimony of an occurrence at the conference through the-examination by Union counsel of Mr. Simpler, the Company plant manager:
Q. Could it be, Mr. Simpler, that the reason you challenged Pat Wilson or had her challenged at the polls was because you knew she was a strong union sympathizer ? A. I definitely— no, sir, that is not true, positively not true, because I did not know that she was a strong sympathizer at that time-
Q. Did you hear any of this testimony here today? A. Yes, sir.
Q. That was the only one that you objected to on the list at the pre-election conference? A. Yes, sir.
Q. Do you recall my taking the position that if she was a supervisor that, others were supervisors and that I was either willing to let them all vote or none of them vote? A. I remember that Mr. Brazel, but you did not know the circumstances at our plant at that, time.
Q. What was your position on it? A. My position was that that was the only supervisor that we had in the plant.
Q. Did you refuse to let all of these people vote or let none of them vote; what was your action to my suggestion ? A. I think that my action was-that the supervisors should not vote and those that are not supervisors are eligible to vote.
Springing from this procedural background the Company now contends that if, as the Board found, the two linegirls Heartsill and Roberts were supervisors then the other four unchallenged linegirls. were also supervisors and ineligible to vote. Under these circumstances, so says the Company that once the “ * * * Board agent permitted and accepted the challenges as to two members of the class, he was under a positive duty to protect the integrity of the election by challenging or impounding the ballots of the other members of the class until the eligibility of all had been determined.”
Although the Company’s contention certainly has initial appeal because of the probability that ineligible votes were cast in the subject election we do not find ultimate legal merit to its argument. We learn from NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 that even the fact of the ineligible votes determinative of results in an election does not invalidate an election and that the Board need not entertain post-election challenges as a requirement to further the purposes of the Act. This rule is contained in Board Regulation, section 102.69(a). An exception to the general rule of Tower exists when the fact of ineligibility is known to the Board’s agent or the parties benefiting from such knowledge and the facts are suppressed. The exception is noted by the high court in view of the Board’s earlier rulings in the Matter of Beggs & Cobb, Inc., 62 N.L.R.B. 193 and Matter of Hale, 62 N.L.R.B. 1393. In these instances the Board’s agent and the Union knew the critical facts but the ■employer did not. Such is not this case for there is no claim of suppression and no claim that the employer was unapprised of the critical facts.
It is of course true that the Board’s agent was aware of an existent dispute between the Company and the Union as to which employees were supervisors and which were not. This dispute was not limited to the list furnished by the Company under the classification of Iinegirls and no clear answer to the dispute was dictated by the presentation of the parties. The procedural method to be invoked by the Board to settle a dispute involving supervisory status is a matter falling within the field of administrative expertise and will not be disturbed by this court absent a clear abuse of discretion. In the case at bar all parties had equal knowledge of the issues and it was neither improper nor unusual for the Board to resort to the challenge procedures as a method of resolution. Cf. Angle v. Martin Sacks, Regional Director, 10 Cir., 382 F.2d 655, decided August 28, 1967. The general duty of the Board to supervise the integrity of elections does not extend to the duty to police the strategy of challenge to the point of perfection in this aspect of the democratic process. The practicalities of administration and the desirability of finality in election results, as indicated in Tower, negative an absolute duty of the Board to entertain post-election challenges even though the possibility exists that ineligible ballots were counted.
The order will be enforced.
. Local 670, International Union of Operating Engineers, AFL-CIO.
. 29 C.F.R. Sec. 102.69(c) provides that “ * * * if the challenged ballots are sufficient in number to affect the results of the election, the regional director shall investigate such objections or challenges, or both. * * * ”
. Supervisory personnel are distinguished from employees in 29 U.S.C. § 152(11) which provides: “The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
. The Company makes no argument against the validity of the challenge of the patternmaker.
. Note also from Labor Law Report # 86 for July 21, 1967 * * * “Floor-ladies who were responsible for teaching and assigning work to 18 other employees were supervisors.” Sagamore Shirt Co., dba Spruce Pine Mfg. Co., 1967 CCH NLRB ¶ 21,653.
. Roberts was made a temporary lead linegirl shortly before the election, and, although former lead linegirls had been stipulated to be supervisors, this incident is not considered to be of determinative significance.
. However we cannot accept the Company’s conclusion that the testimony of Simpler projects unequivocal knowledge to the Board that an “all or none” eligibility issue existed among groups of the employees. The testimony of the post-election conferences cited, if anything, tends to negative that the Company advanced any such contention at that time.
. The Company contends that consistency prevented it from challenging those Iinegirls not challenged by the Union. We find no merit to this argument. Civil procedure recognizes the advancement of inconsistent positions as alternatives dependent upon a fact finding and the Company would in no way be prejudiced by contending the Iinegirls were not supervisors and at the same time lodging challenges as an alternative means of protecting against what it now deems to be an unlawful result.
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_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.
GENERAL FINANCE CORPORATION OF FLORIDA SOUTH, Appellant, v. UNITED STATES of America, Appellee.
No. 20841.
United States Court of Appeals Fifth Circuit.
June 1, 1964.
Rehearing Denied Aug. 7, 1964.
A. John Alberti, Miami, Fla., for appellant.
Donald E. Stone, Asst. U. S. Atty., Edward A. Kaufman, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.
Before MAGRUDER, JONES and GEWIN, Circuit Judges.
Senior Circuit Judge of the First Circuit, sitting by designation pursuant to Section 294(d), Title 28 U.S.Code.
MAGRUDER, Circuit Judge:
This proceeding began as a libel, filed in the court below, asking for forfeiture of a certain Cadillac car alleged to have been used to transport contraband articles, namely, marihuana, in violation of 49 U.S.C. § 781. General Finance Cor* poration of Florida South, the holder of a security interest in the car, intervened, and filed a petition for remission or mitigation of the forfeiture which was denied. Pursuant to a jury verdict, the district court entered its “final judgment” condemning the aforesaid car and declaring that it was forfeited to the United States. The intervenor appealed from this final judgment.
We think it clear that a “contraband article," as used in 49 U.S.C. § 781, includes the drug known as marihuana in view of the definition in subsection (d) of § 787 to the effect that the term “narcotic drug,” when used in Chapter 49, “means any narcotic drug * * * or marihuana.” Therefore, it is important to find that marihuana was transported in the car. We are entirely convinced that there was sufficient evidence to sustain the jury’s affirmative answer to interrogatories submitted by the court that Sebastian, just prior to the arrival of the police to the car, threw out a package which was later identified by the police chemist as containing marihuana.
The main contention made by the appellant is that no forfeiture is presented where the defendant possessed the car criminally by violation of the law of Florida. The bill of sale, or retail installment contract, which was assigned to the General Finance Corporation of Florida South, was signed “William Sebastian.” Assuming that the Florida law applies to this situation, it seems to us obvious that there was no “false personation” — William Sebastian Bermudas was also known as William Sebastian. It is no matter that General Finance Corporation originally was ignorant of the fact that William Sebastian was the same person as William Sebastian Bermudas. We hold that no fraud was committed, under § 319.33 and § 817.02 of the Florida statutes, F.S.A.
Nor does it matter that the intervenor was innocent. United States v. One 1957 Oldsmobile Automobile, Motor No. A227445, and General Motors Acceptance Corp., Intervenor, 256 F.2d 931 (C.A.5th, 1958).
Also it is well established that only an owner is entitled to set up a lack of forfeiture and to claim a remission or mitigation of the penalty. A mere security-holder, like the present one, must apply for remission of the penalty to the Secretary of the Treasury. United States v. One 1952 Model Ford Sedan Automobile, 213 F.2d 252 (C.A.5th, 1954), cert. denied sub nom. Greenville Avenue State Bank v. United States, 348 U.S. 862, 75 S.Ct. 87, 99 L.Ed. 680 (1954).
A judgment will be entered affirming the judgment of the District Court.
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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songer_circuit
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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.
UNITED STATES v. ARDITTO.
No. 7081.
Circuit Court of Appeals, Sixth Circuit.
Dec. 15, 1936.
F. Marbury, of Baltimore, Md., and Francis X. Norris, of Detroit, Mich. (Gregory H. Frederick, Francis X. Norris, and Trent McMath, all of Detroit, Mich., and Will G. Beardslee, Wilbur C. Pickett, and Randolph C. Shaw, all of Washington, D. C., on the brief), for the United States.
Rowland W. Fixel, of Detroit, Mich. (Fred H. Sims, of River Rouge, Mich., and Felix Silver, of Detroit, Mich., on the brief), for appellee.
Before HICKS and ALLEN, Circuit Judges, and RAYMOND, District Judge.
RAYMOND, District Judge.
This is an appeal from a summary judgment for appellee rendered November 27, 1934, in the sum of $11,557.50, upon a war risk insurance policy issued to Anthony Abboni. The trial court had previously denied appellant’s motion to dismiss based upon the following grounds:
“1. That no disagreement exists as provided for by section 19 of the World War Veterans’ Act, as amended (section 445, title 38 U.S.C.A.), and that failing in said disagreement this Court has no jurisdiction of the above-styled cause.
“2. That the above-styled cause has been barred by the running of the statute of limitations as provided by section 19 of the World War Veterans’ Act (section 445, Title 38 U.S.C.A.) and this Court has no jurisdiction of this action.”
Upon appeal the same claims are relied on for reversal. In support of the first, appellant urges that claimant, having presented a meritless claim of one character and obtained denial thereof, has prosecuted this litigation upon a claim of wholly different character which was never presented to the Veterans’ Bureau for consideration. The contention is made upon the authority of United States v. Knott, 69 F.(2d) 907 (C.C.A.6), and Berntsen v. United States, 41 F.(2d) 663 (C.C.A.9).
A brief history is as follows: In 1892 Anthony Abboni was taken from a home for abandoned children in Italy. He was brought to America in 1907. On November 18, 1917, at the age of twenty-five years, he entered the military service of the United States. He had been a member of the claimant’s household for a number of years, but without legal relationship or adoption. A war risk insurance policy in the sum of $10,000 was issued to him, his estate being named as beneficiary. On February 5, 1918, while the policy was in force, he was drowned as the result of the sinking of the transport Tuscania. On February 26, 1919, the Wayne county probate court appointed Samuel Arditto (the claimant) administrator of the estate, and on June 5, 1919, through his attorney, he made claim, as administrator and “adopted father,” for the proceeds of the policy. He had previously made claim as “adopted cousin.” On January 2, 1920, the director of the Veterans’ Bureau denied the claim, apparently for lack of proof of adoption or of dependency. Over twelve years later, on February 23, 1932, suit was commenced by claimant, individually and as administrator, the declaration alleging that he “stood in the position of loco parentis to the veteran” and praying for recovery in that capacity, and, in the alternative, for recovery as administrator of the estate. No proofs were presented to sustain recovery on the theory of the declaration, but on March 9, 1933, the probate court of Wayne county entered an order allowing an alleged nuncupative will of the deceased veteran by which his estate and insurance were left to claimant and the declaration was later amended to allege claimant’s rights as beneficiary in the will.
The affidavit in support of motion for summary judgment set forth appellee’s claim solely as beneficiary of the insurance policy by virtue of the provisions of the will. The affidavit further set forth: “That said Anthony Abboni was an illegitimate abandoned child abandoned in 1892, and that no known relatives are in existence.” The judgment first entered decreed recovery to plaintiff individually. This was amended the following day to decree recovery as beneficiary under the will.
A stipulation entered into several weeks after the entry of judgment establishes facts which might warrant consideration of appellee’s right of recovery upon other theories, but we are here concerned only with the judgment appealed from.
Whether a claimant under a war risk insurance policy may file a claim with the Veterans’ Bureau as adopted father and as administrator of the soldier’s estate, and then recover upon the theory of being the beneficiary of a nuncupative will allowed nearly fourteen years later, is at least doubtful. However, in view of the other controlling question involved, we need not determine this issue. Assuming disagreement on June 2, 1920, as to the claim asserted in the suit filed February 3, 1932, we are of the opinion that suit was barred under section 445 of title 38 U.S.C.A., which provides: “No suit on yearly renewable term insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made or within one.year after July 3, 1930, whichever is the later date: * * * Provided, That for the purposes of this section it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded: Provided further, That this limitation is suspended for the period elapsing between the filing in the Veterans’ Administration of the claim sued upon and the denial of said claim by the Administrator of Veterans’ Affairs.”
Appellee claims that his failure to institute suit before July 3, 1931, is excused by the fact that the claim was pending with the Bureau subsequent to filing and before disallowance from June 5, 1919, to June 2, 1920, a period of eleven months and twenty-seven days; that the statute of limitations was suspended for this period; and that suit instituted February 23, 1932, was not within the bar of the statute. It is familiar law that statutes of limitation in favor of the sovereign must be strictly construed in its favor. See United States v. Valndza, 81 F.(2d) 615 (C.C.A.6); Board v. Commissioner of Internal Revenue, 51 F.(2d) 73 (C.C.A.6).
Nothing in the history of the legislation on behalf of veterans, in the act itself, or in its practical administration warrants the conclusion that the suspension of limitation was intended to operate as to claims filed and denied by the Veterans’ Bureau prior to the enactment of July 3, 1930. The purpose of the statute was to preserve the rights of veterans whose claims were thén pending or which might thereafter be filed. Only one adjudicated case has been found in which the question under consideration was discussed. In Miller v. United States (D.C.) 57 F.(2d) 889, it was recognized in like circumstances that no portion of the one-year extension was consumed by delay in acting upon the claim. The general purpose of extending the period of limitations upon claims of this character has been to aid those unaware or uncertain of their rights because of confusion which arose concerning the definition of the words “total and permanent disability.” In the present case, the right accrued, by death of the soldier in February, 1918.
In the case of McLaughlin v. United States, 74 F.(2d) 507 (C.C.A.10), relied on by appellee, the action was dismissed on other grounds. This question was not discussed. In the case of Kemp v. United States, 77 F.(2d) 213 (C.C.A.7), Judge Sparks held that the statute of limitations was not suspended by the Act of July 3, 1930 (38 U.S.C.A. § 445), as to a claim for insurance not then pending. Several cases have recognized that the general purposes of the act are prospective. See United States v. Earwood, 71 F.(2d) 507 (C.C.A. 5); Westling v. United States, 64 F.(2d) 464 (C.C.A.9).
We think the motion to dismiss should have been sustained. The judgment is reversed, and the case remanded for further proceedings in conformity with this opinion.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_direct1
|
C
|
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 assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration 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.
Duane GOODFACE; Winona Long; Charles Langdeau; Patrick Spears and William Ziegler, Appellees, v. Garfield GRASSROPE, Kay Gourneau; Debra Isburg; Orville C. Langdeau and Michael Jandreau; Darrell Middletent, Appellants. Donald Dodge, in his official capacity as Acting Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office and William C. Gipp, in his official capacity as acting superintendent of the Bureau of Indian Affairs for Lower Brule Agency. Duane GOODFACE; Winona Long; Charles Langdeau; Patrick Spears and William Ziegler, Appellees, v. Garfield GRASSROPE; Mike Jandreau; Kay Gourneau; Debra Isburg; Orville C. Langdeau; Darrell Middletent, Donald Dodge, Individually and in his official capacity as Acting Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office; William Gipp, Individually and in his official capacity as Acting Superintendent of the Bureau of Indian Affairs for Lower Brule Agency; Edwin Miller, in his official capacity as Superintendent of the Bureau of Indian Affairs for Lower Brule Agency; Jerry Jaeger, in his official capacity as Area Director for the Bureau of Indian Affairs for the Aberdeen Area Office; and the United States of America, Appellants.
Nos. 83-1542, 83-1641.
United States Court of Appeals, Eighth Circuit.
Submitted May 18, 1983.
Decided May 31, 1983.
Mario Gonzalez, Pine Ridge, Sidney C. Flores, Flores, Estremera & Barrios, San Jose, Cal., for appellees.
Martin W. Matzen, Blake A. Watson, At-tys., Dept, of Justice, Washington, D.C., for federal appellants.
R. Dennis Ickes, and Tristan C. Cannon of R. Dennis Ickes, P.C., Salt Lake City, Utah, and William J. Srstka, Jr., of Dunan, Olinger, Srstka, Lovald & Robbennolt, Pierre, S. D., for appellants.
Before BRIGHT, McMILLIAN and FAGG, Circuit Judges.
BRIGHT, Circuit Judge.
The controversy underlying these appeals concerns a dispute over a tribal election held by the Lower Brule Sioux Tribe on November 17, 1982. The district court, in a judgment filed April 22, 1983, directed that the defendant officials of the Bureau of Indian Affairs (hereinafter collectively referred to as the BIA) recognize the newly elected council as the governing body of the tribe over the rights of the 1980 council, which claimed that its successors had not been duly elected because the November election was invalid. This court temporarily stayed the district court’s judgment pending appeal. After considering the questions of jurisdiction and of the propriety of the stay, we hereby vacate our stay order dated April 25, 1983 and remand this case to the district court for entry of a modified judgment, requiring the BIA to recognize the council newly elected in the 1982 election until the election dispute is resolved in a tribal court. We conclude the district court lacked jurisdiction to enter a judgment based on a final resolution of the underlying election dispute, but determine that the district court possessed limited jurisdiction to review the BIA’s final decision which, in effect, declined to recognize either faction. The district court shall enter an appropriate modified judgment in conformity with this opinion.
I. Background.
The Lower Brule Sioux Tribe (the Tribe) is a federally-recognized tribe under the Indian Reorganization Act, 25 U.S.C. § 461 et seq. In 1960, the Tribe adopted a tribal constitution vesting the powers of governing the Tribe in a seven-member tribal council, to be elected every two years. In the fall of 1982, the 1980 tribal council appointed an election board to conduct the biennial election. The election took place on November 17, 1982, and resulted in the reelection of three incumbents and the election of four newcomers. Following the election, the election board received and considered several complaints of improprieties in the election process, and then certified the election results to the tribal council. The 1980 tribal council rejected the election board’s certification of the election, deciding that a new election should be held in April of 1983.
Considering themselves the duly-elected and certified tribal council, the 1982 council requested the BIA to recognize them as the legally-elected tribal council, arguing that under the tribal constitution and bylaws, the tribal council may not invalidate election results certified by an election board. The BIA Local Superintendent and Area Director, however, rejected the 1982 council’s request and decided to continue dealing with the 1980 council.
Before exhausting the BIA appeals process, members of the 1982 council filed suit in federal court on January 14, 1983, seeking an order to require the BIA to recognize them. The district court took jurisdiction, and on February 28, 1983, temporarily enjoined the 1980 council from holding a new election. Thereafter, the district court began hearing the case on the merits. In the meantime, the BIA reached a final decision, declaring on March 23, 1983, that the election dispute was an intratribal matter which must be resolved by the Tribe. On April 11, 1983, the BIA clarified that decision by explaining that it took no position on the merits and would not officially recognize either council. Instead, the BIA declared, until the Tribe resolved the dispute, it would deal with both councils on a de facto basis as necessary to maintain basic services to the Tribe.
On April 20,1983, the district court issued its judgment from the bench. After examining the tribal constitution and bylaws, the district court concluded that the 1982 council was entitled to recognition, and entered injunctive orders to achieve that result. The district court decided that under the tribal constitution and bylaws, election results which have been certified by an election board are final and not reviewable by the tribal council. Upon application by the 1980 council members, this court granted a stay of the district court’s orders. Both the 1980 council and the BIA representatives have filed notices of appeal.
All parties have agreed that this court may consider whether to continue or dissolve its stay on the basis of the parties’ briefs and oral arguments and the files and records of the district court, without waiting for preparation of the transcript of the testimony at trial. The parties have also agreed that this court may address the merits of the appeals on the same basis, to the extent that the merits are to be resolved on jurisdictional grounds.
II. Issues.
A. Appellate Jurisdiction.
The first question we must address is whether the 1980 council’s stay request and appeal are properly before this court. The 1982 council argues that the members of the 1980 council have no right to challenge the district court’s judgment, because they are not aggrieved parties under that judgment. Of the two claims brought by the 1982 council, one was against the federal defendants alone, based on 28 U.S.C. § 1331 (federal question) and 5 U.S.C. §§ 701 et seq. (the Administrative Procedure Act or APA). The other claim, based on 42 U.S.C. § 1985(3), included both the federal defendants and the 1980 council members, but the district court dismissed it for failure to state a constitutional deprivation. The 1982 council contends that because the 1980 council members prevailed on the only claim against them, they are not aggrieved by the district court’s judgment and may not appeal.
Examination of the district court’s judgment reveals that the 1980 council members are aggrieved parties despite the dismissal of the section 1985 claim. In its initial oral findings of fact and conclusions of law entered April 28, 1983, the district court specifically “ordered that no member of the 1980 council or any of their employees or agents shall do any act whatsoever to frustrate or to harrass [sic] or to interfere with the orderly assumption to office of the 1982 Tribal Council * * *.” Although the district court’s subsequent memorandum opinion did not order relief against the 1980 council, the order requiring the BIA to recognize the 1982 council had a direct and adverse impact on the 1980 council. Accordingly, we conclude that we have jurisdiction over both the appeals and the stay request.
B. District Court Jurisdiction.
We must next consider whether jurisdiction exists in the district court to resolve the election controversy — a matter the 1980 council characterizes as an intratribal dispute. If the only parties to this action were the 1980 and 1982 councils and the only question presented was one of interpreting the tribal constitution and bylaws, we doubt whether a federal court would have jurisdiction. However, the 1982 council named various BIA officials as defendants in addition to the 1980 council members. We hold that the district court did have jurisdiction under 28 U.S.C. § 1331 to review, pursuant to the APA, the action taken by the BIA in refusing to recognize either tribal council. Although the APA may not be used as an independent grant of subject matter jurisdiction to review agency actions, the Supreme Court stated in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977), that 28 U.S.C. § 1331 confers general jurisdiction on federal courts to review federal agency actions “subject only to preclusion-of-review statutes.” We know of no statute precluding judicial review of BIA actions, and therefore we determine that the district court could review the agency action under the arbitrary or capricious standard enunciated in 5 U.S.C. § 706(2)(A).
C. Review of BIA Action.
The final BIA action subject to judicial review is its decision to recognize both tribal councils only on a de facto basis. Such a recognition of both councils amounts to a recognition of neither. Thus, the district court correctly found that the BIA acted arbitrarily and capriciously by effectively creating a hiatus in tribal government which jeopardized the continuation of necessary day-to-day services on the reservation. The BIA, in its responsibility for carrying on government relations with the Tribe, is obligated to recognize and deal with some tribal governing body in the interim before resolution of the election dispute. We commend the BIA for its reluctance to intervene in the election dispute, but it was an abuse of discretion for the BIA to refuse to recognize one council or the other until such time as Indian contestants could resolve the dispute themselves. We conclude that, for the time being, the BIA should be required to deal with the 1982 council as the certified and sworn winners of the tribal election.
Although we agree with the district court that the BIA should recognize the 1982 council, at least on an interim basis, the district court should not have addressed the merits of the election dispute in reaching that decision. We recognize that the district court faced a practical problem. The BIA’s action effectively recognized a two-headed administration with no real power to govern. Although it was necessary to remedy the situation by ordering the BIA to recognize one governing body, the district court overstepped the boundaries of its jurisdiction in interpreting the tribal constitution and bylaws and addressing the merits of the election dispute.
The district court relied heavily on an as yet unpublished opinion, Milam v. United States Department of Interior, No. 82-3099 (D.D.C. Dec. 23, 1982), in deciding that it would address the merits of the election dispute, notwithstanding that unexhausted tribal remedies remained available. Milam is distinguishable from the case at bar, because in Milam no tribal remedies existed. Here, the Tribe has a functioning tribal court, which the parties recognize as a court of competent jurisdiction to resolve tribal election disputes. The tribal court has handled election disputes in the past, and is available to handle this dispute as well. It is essential that the parties seek a tribal remedy, for as previously noted, substantial doubt exists that federal courts can intervene under any circumstances to determine the rights of the contestants in a tribal election dispute.
III. Conclusion.
We conclude that the district court possessed jurisdiction only to order the BIA to recognize, conditionally, either the new or old council so as to permit the BIA to deal with a single tribal government. That recognition should continue only so long as the dispute remains unresolved by a tribal court. Moreover, the district court in deciding which council to recognize as a preliminary matter could, by applying equitable principles, determine that the newly elected council, whose successful election received certification from the tribal election board, should govern in the interim period until the dispute reaches initial resolution by a tribal court.
Accordingly, we vacate our stay (and clarification thereof filed May 9, 1983) to take effect forty-eight hours after the filing of this order. As of that date, in accordance with the district court order as affirmed in part herein, the BIA shall recognize the members of the tribal council who were elected in 1982 as the governing officials of the tribe.
On the merits, we affirm in part and reverse in part on jurisdictional grounds and remand this case to the district court with directions to modify its order to conform with this opinion. Once the modified order is on file, the district court should enter no further orders addressing the merits of the election dispute, except to modify its judgment to direct the BIA officials, if necessary to do so, to recognize as tribal officials those persons who are recognized as the tribal council entitled to govern the Tribe pursuant to a judgment entered by a tribal court.
Let our mandate issue forthwith.
. Two of the incumbents reelected in the 1982 election, Jandreau and Gourneau, have taken the side of the 1980 council members in this action.
. The appeal by the 1980 council members Gourneau, Grassrope, Jandreau, Langdeau, Is-burg and Middletent carries number 83-1542. The appeal by the federal (BIA) defendants carries number 83-1641. At oral argument, the court ordered consolidation of the appeals.
. We clearly have jurisdiction over the BIA’s appeal, because the district court’s judgments run directly against the federal defendants.
. Although in the past this court has found federal jurisdiction over such disputes based on the Indian Civil Rights Act, 25 U.S.C. §§ 1301 et seq., see e.g., Rosebud Sioux Tribe of South Dakota v. Driving Hawk, 534 F.2d 98 (8th Cir. 1976), Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976), the Supreme Court has held that the only federal relief available under the Indian Civil Rights Act is a writ of habeas corpus. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Thus, actions seeking other sorts of relief for tribal deprivations of rights must be resolved through tribal forums. See also Shortbull v. Looking Elk, 677 F.2d 645, 650 (8th Cir.), cert. denied,-U.S.-, 103 S.Ct. 211, 74 L.Ed.2d 168 (1982).
. The issuance of the mandate is without prejudice to the rights of the parties under Fed.R. App.P. 35(b) and 40.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_adminrev
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
DISTRICT 1199P, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Morton Development Corporation, Intervenor.
No. 88-3141.
United States Court of Appeals, Third Circuit.
Argued Sept. 15, 1988.
Decided Jan. 4, 1989.
David M. Silberman (argued), Laurence Gold, Washington, D.C., Miriam L. Gafni, Freedman and Lorry, P.C., Philadelphia, Pa., for petitioner.
Peter Winkler (argued), Michael D. Fox, Aileen A. Armstrong, Rosemary M. Col-lyer, John E. Higgins, Jr., Robert E. Allen, N.L.R.B., Washington, D.C., for respondent.
Lawrence B. Fine (argued), Julia W. Manning, Morgan, Lewis & Bockius, Philadelphia, Pa., for intervenor.
Before BECKER, HUTCHINSON and SCIRICA, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge:
I. INTRODUCTION
As briefed and argued, this petition by District 1199P, National Union of Hospital and Health Care Employees (“Union”), for review of a final order of the National Labor Relations Board presents the important question whether an employer has a duty to bargain with a union when, after a bona fide closing of a facility for economic reasons, the employer reopens the facility as a different operation but employs former workers to perform jobs similar to those they performed while members of the bargaining unit. However, in addressing the petition, this opinion will ultimately focus upon the issue of what deference is due by a reviewing court when the agency has failed to supply a reasoned explanation of its actions.
For several years, Morton Development Corporation (“Morton”) operated an intermediate care facility for mentally retarded adults at which the Union was the exclusive bargaining agent for service and maintenance employees. In 1983 or 1984, due to adverse business conditions, Morton decided to close the facility with a view to converting it to a nursing home or selling it. The plant was closed in June 1985. However, an agreement to sell the plant to a third party fell through, and in November 1985, Morton reopened the plant as a nursing home and reemployed many members of the original bargaining unit. The Union demanded recognition. When Morton refused, the Union filed an unfair labor practice complaint.
Notwithstanding that the employer who opened the nursing home was the same employer who operated the predecessor facility for the mentally retarded at the same plant, and that the reemployed workers were performing similar jobs, the administrative law judge declined to apply the normal presumption of continuation of the bargaining relationship when a business changes character but not ownership. He essentially analyzed the case under the suc-cessorship doctrine, which is ordinarily applied only when there has been a change of ownership. He ruled that, in view of the change in operations and the uncontradict-ed evidence that Morton had acted in good faith in severing the bargaining relationship, it had no obligation to bargain with the Union. However, the AU did not confront the overriding question relevant to successorship cases — whether the business had so changed that it would have affected the employees’ “legitimate expectations in continued representation.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 2236, 96 L.Ed.2d 22 (1987). Nor did the ALJ make clear why, in the absence of a change of ownership, successorship jurisprudence should apply, or, assuming that it may apply, how great the change in the business operation must be in order for an employer to free itself from its obligation to bargain with the union.
In a cursory opinion, containing a cryptic footnote, a divided panel of the NLRB adopted the AU’s recommended order based on the “specific and unique facts of this case.” Morton, slip op. at 1 n. 1. The NLRB failed to explain, however, what was “specific and unique” about this case, and did not articulate the rationale of its af-firmance.
While a court must defer to the NLRB’s interpretation of the Act as long as that interpretation is rational and consistent with the Act, the overarching principle of agency review is that the agency must provide a reasoned explanation of its actions. See Local 825, International Union of Operating Engineers v. NLRB, 829 F.2d 458, 460 (3d Cir.1987). Only then is it clear that the agency applied its expertise to the issue and only then can a reviewing court assess the rationality of the agency’s interpretation.
In view of the failure of the NLRB to state what rule of law it applied in this case, or why, we will grant the petition for review and remand the case so that the NLRB may give it fuller consideration and provide an adequate explanation of its decision.
II. THE FACTS
From November 1979 to June 27, 1985, Morton operated an intermediate care facility for mentally retarded adults in Easton, Pennsylvania. The Commonwealth of Pennsylvania provided all of the facility’s revenue. On June 7,1983, the NLRB certified the Union as the exclusive bargaining agent for about fifty-five of Morton’s employees, including living-unit aides, therapeutic recreation aides, transportation aides, occupational therapy aides, diet aides, cooks, maintenance assistants, and housekeeping aides. Members of the bargaining unit performed a variety of services for the facility’s mentally retarded residents. For example, living-unit aides, the largest group of employees, helped the residents to master such life skills as bedmak-ing, dressing, and bathing. Diet aides and cooks helped prepare and serve family-style meals. While the positions had a vocational component, all were service-oriented and low-paying.
In March 1984, Morton, doing business as Praxis, entered into a one-year collective bargaining agreement with the Union that Morton and the Union later agreed to extend to June 30,1985. In late 1983 or early 1984, however, Morton decided to cease operations as a facility for the mentally retarded because of economic problems. Morton considered both converting the Ea-ston facility to a nursing home and selling it. In October 1984, Morton began to seek necessary governmental approvals for conversion of the facility to a nursing home.
On April 15, 1985, for business reasons that the Union does not. contest, Morton entered into an agreement to sell the plant to the Upper Bucks Nursing and Convalescent Center (“Upper Bucks”), a division of Quakertown Hospital. Morton negotiated a termination agreement with the Union that included a severance pay provision and closed the facility on June 27, 1985. Morton rehired a few persons on a short-term contract basis to shut down the plant. On July 2, 1985, Morton notified the Pennsylvania Department of Health of the change in ownership. All parties agree that as of June 1985 neither Morton nor the Union expected Morton to resume any operations at the plant.
On August 30, 1985, however, Morton’s deal with Upper Bucks collapsed. Unable to find another buyer, Morton reopened the plant on November 6,1985, under the name “Praxis Nursing Home” as a skilled, privately-funded, nursing home, primarily for elderly patients. In converting the plant from an intermediate care facility for the mentally retarded to a nursing home primarily for the elderly, Morton spent $130,-000 on modifications to address the needs of its new patients, such as removing recreational equipment used by the mentally retarded and installing nursing stations and handrails for the elderly.
When the nursing home opened on November 6, 1985, its first eleven service and maintenance employees all had been service and maintenance employees of Morton when it had operated the facility for the mentally retarded. Each of the employees, however, had undergone a two-day training period upon being rehired to acquaint them with the difference between working in a facility for the mentally retarded and a nursing home. The two-day training period was followed by ninety days of on-the-job training prior to permanent employment. Morton subsequently rehired additional former employees to work at the nursing home as dietary aides, housekeeping aides, laundry aides, activities aides, nurse’s aides, maintenance employees, and cooks, although many eventually left to work elsewhere. Morton rehired many former living-unit aides, the largest employee group at the facility for the mentally retarded, to work as nurse’s aides, the largest employee group at the nursing home.
On November 15, 1985, the Union demanded that Morton recognize the Union as the bargaining agent for the service and maintenance employees at the nursing home. Morton refused. On November 21, 1985, the Union filed a complaint with the NLRB alleging that Morton’s failure to recognize and bargain with the Union constituted an unfair labor practice in contravention of section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5) (1982) (duty to bargain).
III. THE ADMINISTRATIVE LAW JUDGE’S DECISION
On May 27, 1987, the AU held that Morton had not committed an unfair labor practice despite its refusal to bargain. The AU decided the case by relying upon the successorship and alter ego doctrines. As he put it:
[A]llusion to the Board’s successorship and alter ego analysis is justified in order to evaluate whether the business has changed so significantly as to have necessarily altered the relationship between the owner/operator and the former employees, and transformed it to one of new employer and new employee. If a new relationship has arisen from a context of a new employment environment in a substantially different business, then there is no warrant to imply the Union’s continuing majority bargaining agent status.
Opinion of AU, typescript at 13 (citation omitted).
Noting that under successorship principles a new owner need not bargain with the old union if there has been a substantial change in the employment relationship, the AU focused on employees’ attitudes at the time the plant was shut down, on the differences in the employees’ jobs after the facility was reopened as a nursing home, and on the fact that the change in operations had been made for legitimate business reasons. He concluded that “Praxis Nursing is a different business that provides a different service to a different kind of client drawn from a different market, and who employed former Praxis employees under a new employment relationship which precluded any continued obligation to recognize the Union as the assumed majority bargaining agent.” Id. at 15. However, the AU did not explain why successorship analysis was appropriate in a case in which there had been no change of ownership. Nor did he explain why the employees’ attitude at the time of the plant closure (as opposed to the time of reopening) was relevant, nor why the changes in the nature of the jobs would have affected the employees’ attitude toward union representation.
IV. THE NLRB’S DECISION
On December 16, 1987, in an extremely brief opinion, a divided panel of the NLRB affirmed the recommended order of the AU. The text of the opinion merely stated that the Board had decided to “affirm the [AU’s] rulings, findings, and conclusions and to adopt the recommended Order.” Morton, slip op. at 1 (footnote omitted). However, in a footnote to the word “affirm,” the majority briefly summarized the facts of the case, noting in particular Morton’s good faith in dealing with the Union and Morton’s change in operations. The Board concluded in the footnote that “[u]nder the specific and unique facts of this case, we agree with the [AU’s] conclusion.” Id. at 2 n. I.
One member of the Board dissented. She believed that the changes in operation had not substantially affected the employer-employee relationship or the employees’ expectations of continued union representation. Regarding the change in operations, the dissenting member opined that the skills and qualifications required of the service and maintenance employees had changed little, despite the metamorphosis from a facility for the mentally retarded to a nursing home. Regarding the employees’ continued expectations of union representation, the dissenting member referred to the Supreme Court’s recent decision in Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987). See Morton, slip op. at 3-5 (Cracraft, Member, dissenting). Fall River Dyeing held that a key focus in the successorship context was the “legitimate expectations” of the employees in continued union representation. 107 S.Ct. at 2236. The dissenting member did not, however, indicate whether the successorship doctrine provided the rule in this case, see Morton, slip op. at 5 & n. 4, or whether an “allusion” to the successorship was, as the AU claimed, justified.
V. SCOPE OF REVIEW, AND THE IMPORTANCE OF THE NLRB’S REASONED EXPLANATION AND CLEAR ARTICULATION OF ITS DECISION
Our authority to review an order of the NLRB is limited. “If the Board adopts a rule that is rational and consistent with the Act, then the rule is entitled to deference from the courts. Moreover, if the Board’s application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board’s order.” Fall River Dyeing, 107 S.Ct. at 2235 (citations omitted). On the other hand, “the deference owed to an agency construction of a statute depends substantially on the persuasiveness of the agency view. A position without reasoning has little power to persuade.” Local 825, International Union of Operating Engineers v. NLRB, 829 F.2d 458, 460 (3d Cir.1987) (citation omitted). “[T]he Board bears the burden of stating reasons for its action and making sufficient factual findings to support them. Only when the Board does so can it clearly show that it has legitimately exercised its discretion.” Local 467, Upholsterers’ International Union v. NLRB, 419 F.2d 179, 182 (3d Cir.1969).
The Union contends that the NLRB’s order does not provide a reasoned explanation for the NLRB’s conclusion. It claims that the NLRB’s opinion is subject to two interpretations — either the NLRB adopted the AU’s opinion in its entirety as stated in the text of the order, or, as the language of the footnote indicates, the Board adopted only the order and not the AU’s opinion. We have stated that we will not refuse to enforce an order of the NLRB “merely because the [NLRB] adopted the ALJ’s findings and conclusions with respect to such order instead of filing independent findings.” NLRB v. Daybreak Lodge Nursing & Convalescent Home, Inc., 585 F.2d 79, 81 (3d Cir.1978). But the Union does not request that we require the NLRB to file independent findings in this case. Instead, it points out that in this case it is impossible to determine what findings and conclusions the NLRB either adopted or made independently.
We turn to an analysis of the union’s contentions in light of the applicable law.
VI. DISCUSSION
A. The Status of the Union as the Employees’ Representative
A union chosen by an appropriate bargaining unit is presumed to have the continued support of the majority of its members. See Fall River Dyeing, 107 S.Ct. at 2233; NLRB v. Burns International Security Service, Inc., 406 U.S. 272, 279 n. 3, 92 S.Ct. 1571, 1578 n. 3, 32 L.Ed. 2d 61 (1972). The purpose behind this presumption is to promote stability in the collective-bargaining relationship and hence industrial peace. See Fall River Dyeing, 107 S.Ct. at 2233. “Where an employer remains the same, a Board certification carries with it an almost conclusive presumption that the majority representative status of the union continues for a reasonable time, usually a year. After this period, there is a rebuttable presumption of majority representation.” Burns, 406 U.S. at 279 n. 3, 92 S.Ct. at 1578 n. 3 (citations omitted). After the initial year, the question whether the presumption of continued majority support has been rebutted is recast in terms of whether the employer “has reasonable, good faith grounds for believing that the union has lost its majority status” after a collective bargaining agreement has expired. International Association of Bridge, Structural & Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770, 772 (3d Cir.), cert. denied, — U.S. -, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988).
In order to show good faith doubt, the employer must produce evidence probative of a change in employee sentiment. This is a difficult burden to meet. For example, the fact that an employee has crossed a picket line is not evidence that the employee has abandoned his union. NLRB v. Frick, Co., 423 F.2d 1327, 1333-34 (3d Cir.1970). Similarly, we have declined to accept testimony proffered by an employer’s representative based on his subjective conclusions about change in sentiment. Toltec Metals, Inc. v. NLRB, 490 F.2d 1122, 1125 (3d Cir.1974). Even a petition circulated by employees may not lend credence to an employer’s good faith doubt. Garrett R.R. Car & Equipment, Inc. v. NLRB, 683 F.2d 731, 737 (3d Cir.1982). In sum, for an employer “[t]o meet this burden ‘requires more than an employer’s mere mention of [its good faith doubt] and more than proof of the employer’s subjective frame of mind.’ What is required is a ‘rational basis in fact.’ ” Toltec, 490 F.2d at 1125 (bracketed statement in original) (quoting NLRB v. Rish Equipment Co., 407 F.2d 1098, 1101 (4th Cir.1969)); see also Frick, 423 F.2d at 1331.
The NLRB does not purport to apply the presumption of majority support in this case. In the absence of any explanation from the NLRB beyond its cryptic comment that the facts are “specific and unique,” we cannot tell why in this case the NLRB ignored the Bums presumption of majority rule at Morton’s plant. Morton, after all, was the employer both at the facility for the mentally retarded and the nursing home. Although some of the facts enumerated in the first footnote of the NLRB’s opinion — such as the amount of time which the plant was closed and the change in operations — could bear on the question of whether the Union was entitled to the presumption of continued majority support, the Board does not explain why these facts are relevant to the employees’ attitudes toward the Union in this case. And other facts contained in the Board’s footnote — such as Morton’s good faith in closing and reopening the facility — appear to have nothing to do with the presumption.
If the NLRB is holding that a single employer is not bound by the presumption of majority support when it significantly changes it operations, or when it closes its plant without expectation of reopening and then reopens a significantly changed operation, or for some other reason, it must state the rule explicitly. And it must provide its reason for adopting that interpretation of the law. A reviewing court cannot properly judge the NLRB’s action without knowing what the NLRB did and why.
B. The Successorship Doctrine
We are also troubled that the NLRB did not make clear whether it was applying successorship doctrine to this case and, if so, how it was to be applied, and what the justification was for applying it in a case in which there was no change of ownership. Under successorship doctrine, a new employer who takes over an ongoing business can be free of obligations to bargain with the union that represented its predecessor’s employees if there has not been “substantial continuity between the enterprises.” Fall River Dyeing, 107 S.Ct. at 2236.
The AU, in his opinion, drew upon suc-cessorship principles in determining whether Morton was obligated to continue to bargain with the Union. The NLRB, in the text of its opinion, purported to affirm the ALJ’s opinion in full. Slip op. at 1. However, the footnote to its opinion which refers to the “specific and unique” facts of the case, seems to indicate a less than wholehearted adoption of the AU’s approach. Furthermore, in its brief to this court, the Board asserted that successor-ship doctrine was “inapposite” to the case at bar, but it failed to articulate what general principle had been applied. Given this incoherence, it is impossible for us to say with any certainty what it is the Board did, and thus it is impossible for us to assess the validity of the Board’s approach.
Moreover, if the NLRB is applying successorship principles to the case at bar, it has not given a reason for this approach. The expansion of the doctrine of successor-ship to allow a single employer who changes its operations to be free of bargaining obligations could have a significant effect on the relationship between employers and unions. It could undermine the goal of stability and industrial peace which the continuing obligation to bargain fosters. See Fall River Dyeing, 107 S.Ct. at 2233. The Supreme Court noted that this doctrine of successorship safeguards the “rightful prerogative” of new owners to independently arrange their businesses without being unduly bound by the actions of their predecessors. Id. at 2234. This principle does not appear to apply, however, when there has been no change of ownership. Where the NLRB applies a doctrine in a radically new way, it is its responsibility to justify its conclusion.
Finally, we note that to the extent that the AU was applying successorship principles, he applied them incorrectly. In the first place, the AU relied on the fact that Morton’s employees had no expectation of being rehired by Morton when Morton closed the facility for the mentally retarded. In Fall River Dyeing, the Supreme Court addressed the issue of when employees’ expectations of continued representation are relevant to successorship analysis, as follows:
If the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union is subject to the vagaries of an enterprise’s transformation.
Fall River Dyeing, 107 S.Ct. at 2234. We interpret this statement as indicating that employees’ expectations of continued representation should be judged at the time they are rehired, rather than at the time that the old enterprise was terminated.
Second, it is not enough for the AU or the NLRB merely to describe changes in the business and then declare that the bargaining obligation has been terminated. Instead, the Board must assess whether there was an “essential change in the business that would have affected employee attitudes towards representation.” Premium Foods, Inc. v. NLRB, 709 F.2d 623, 627 (9th Cir.1983); accord Spencer Foods, 768 F.2d at 1470 (requiring the NLRB to state why the changes it identified would affect employee attitudes toward representation). As the Supreme Court has noted, the key question in applying successorship doctrine is whether from the employees’ perspective their new jobs were so similar that the employees would have “legitimate expectations in continued representation by their union.” Fall River Dyeing, 107 S.Ct. at 2236.
In this case, the AU did not state how the changes he noted would have affected the employees’ expectations of continued representation. In its brief, the Union points out that a number of the employees were doing essentially the same jobs under the new operation as under the old and that the largest number of employees — the nurses’ aides — were spending their time feeding and dressing people instead of teaching them how to feed and dress themselves, a distinction, it submits, of no material difference. The AU has not explained why such differences in jobs would make a difference to employees with respect to their expectation of union representation. Thus, even if we were to construe the Board’s action as applying successorship principles to this case, we would still be unable to affirm the Board, because the doctrine, if applied, was applied incorrectly.
VII. CONCLUSION
In sum, we agree with the Union that the NLRB has not clearly articulated the principle upon which it decided this case nor given a reason why it adopted that principle. Calling the facts of this case “specific and unique” is no substitute for the NLRB’s burden of reasoned explanation. This ipse dixit assertion frustrates judicial review by undermining our ability to determine whether the NLRB properly exercised its considerable discretion in the field of labor law. We are simply unable to ascertain what rule the NLRB applied to these “specific and unique” facts, let alone why. In particular, the NLRB failed to explain how Morton overcame the presumption of continued majority support which has traditionally governed the relationship of a continuing employer with a union or why that presumption should not apply. Moreover, it has not made clear whether it was applying successorship principles, and if so, what justified that application. Consequently, we must agree with the Union’s contention that the NLRB has rendered a decision “good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting). Without knowing what rule of law the NLRB has applied, and its reasons for applying it, we cannot effectively review its decision. We therefore will grant the petition for review and remand this case to the NLRB for further proceedings consistent with this decision.
. The NLRB’s order is reported at Morton Dev. Corp., 287 N.L.R.B. No. 41 (Dec. 16, 1987). We have jurisdiction pursuant to section 10(f) of the National Labor Relations Act ("Act”), 29 U.S.C. § 160(f) (1982).
. Under the doctrine of successorship, new employers who substantially continue the operations of a previous employer, and whose workforce is comprised of a majority of workers from the former enterprise, must continue to bargain with the pre-existing union. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 2234-35, 96 L.Ed.2d 22 (1987). Under alter ego doctrine, a new employer who is substantially identical to the previous employer is required to continue bargaining with the union and is bound by the substantive terms of its predecessor’s agreements with the union. See NLRB v. Scott Printing Corp., 612 F.2d 783, 785-86 (3d Cir.1979).
. Footnote 1 states in its entirety:
Prior to 27 June 1985 the Respondent, operating under the name Praxis, provided care for mentally retarded adults at its facility in Easton, Pennsylvania. On 7 June 1983 the Charging Party Union was certified as the collective-bargaining representative of the Respondent’s service and maintenance employees. Due to monetary losses, the Respondent entered into a sales agreement to sell its facility, and it closed its business on 27 June 1985. It lawfully terminated its employees. The Respondent and the Union engaged in “effects” bargaining and severance pay was paid to those employees for whom alternative employment was not secured.
Through no fault of the Respondent’s, the sales agreement "fell through” in August 1985. Thereafter, the Respondent solicited offers from other prospective buyers but was unsuccessful. Subsequently, rather than absorbing the cost of an idle facility, the Respondent decided to reopen as Praxis Nursing, a geriatric nursing facility. The reopening occurred on 6 November 1985. The Respondent hired some of its former employees. On 15 November 1985 the Union requested recognition as bargaining agent for Praxis Nursing’s service and maintenance employees. The Respondent refused to recognize the Union.
The judge noted that there is no suggestion in this case that the Respondent acted in bad faith. Ultimately, the judge concluded that the Respondent, operating as Praxis Nursing, had changed so significantly from its prior operation as to justify its refusal to recognize the Union. Under the specific and unique facts of this case, we agree with the judge’s conclusion.
Morton, slip op. at 1 n. 1.
. Prior NLRB cases that involve changes by a single employer do not create a clear legal rule that could be applied to this case. The Board has held that an employer cannot unilaterally refuse to bargain with a particular group of employees based on changes in the business, unless the changes demonstrate that the group is no longer an appropriate bargaining unit. See Bay Shipbuilding Corp., 263 N.L.R.B. 1133, 1139 (1982), enforced 721 F.2d 187 (7th Cir.1983); Rice Food Markets, Inc. 255 N.L.R.B. 889 (1981). However, it is not clear that the same analysis should apply when the whole nature of the business has changed.
On the other hand, the NLRB has held that a union is not entitled to an extension of the first bargaining-year’s conclusive presumption of majority support, when, for uncontested business reasons, an employer closes a plant, and re-opens it with different employees. See Molded Fiber Glass Body Co., 182 N.L.R.B. 400, 403-04 (1970). However, it is not clear how this decision should affect the case at bar, in which the employees are the same, and the Union is not seeking an extension of the conclusive (as opposed to the rebuttable) presumption of majority status.
We note that after the instant case was decided, the NLRB did decide a case on similar facts. Sterling Processing Corp., 291 N.L.R.B. No. 30 (Sept. 30, 1988), involved a situation in which a company closed its poultry dressing plant, and reopened the plant more than a year later as an integrated poultry producer and processor. There the Board held that the changes in operation, and the hiatus, did not abrogate the employers duty to bargain, as the employing entity was "the same after the hiatus as it was before.” Slip op. at 8. We leave it to the NLRB to consider on remand whether the case sub judice is distinguishable from Sterling Processing.
. Two circuits have considered the question whether successorship analysis applies when there has been a sale of all of a corporation’s stock to a new entity, but the corporate entity itself remains in existence. The Court of Appeals for the D.C. Circuit applied successorship principles, while the Court of Appeals for the Fourth Circuit treated the stock purchaser as a continuing employer. Compare United Food & Commercial Workers Int'l Union v. NLRB, 768 F.2d 1463, 1469-74 (D.C.Cir.1985) [Spencer Foods] with EPE, Inc. v. NLRB, 845 F.2d 483, 487-90 (4th Cir.1988). The EPE court narrowly distinguished Spencer Foods; in Spencer Foods, there had been a substantial change in operations not present in EPE. We find it unnecessary to adopt either of these approaches at this time in light of the facts of this case where apparently there is no evidence of any change in entity or ownership.
. Nor is it enough for the AU merely to point to the hiatus in operations. A hiatus is "only one factor in the ‘substantial continuity’ calculus and thus is relevant only when there are other indicia of discontinuity.” Fall River Dyeing, 107 S.Ct. at 2237.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_appfiduc
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Thomas E. HUDSON and Kathlyn Hudson, Trustees for Sanitary Systems, Inc., Midland Engineering Company and Thomas E. Hudson and Kathlyn Hudson, Appellants, v. AMERICAN SURETY COMPANY OF NEW YORK, Appellee.
No. 18640.
United States Court of Appeals Eighth Circuit.
May 24, 1967.
Donald G. Stubbs, Kansas City, Mo., for American Surety Co. of New York; Thomas D. Kelley, Kansas City, Mo., on the brief.
Henry H. Fox, Jr., Kansas City, Mo., for Thomas E. Hudson et al.
Roger W. Penner, Kansas City, Mo., for City of Grandview, Mo.; James C. Morris, Kansas City, Mo., on the brief.
Before MATTHES, MEHAFFY and LAY, Circuit Judges.
MATTHES, Circuit Judge.
This appeal from the judgment of the district court in favor of American Surety Company of New York, now Transamerica Insurance Company, emanates from another phase of the lawsuit originally instituted by American against the City of Grandview, Missouri, appellants herein and others in connection with the construction of a sewer system in the City of Grandview, Missouri. See our opinions in Sanitary Systems, Inc. v. American Surety Co. of New York, 331 F.2d 438 (8th Cir. 1964) (No. 17,479), and City of Grandview, Missouri v. Hudson and American Surety Company of New York v. City of Grandview, Missouri, 377 F.2d 694 (8th Cir. 1967), decided contemporaneously herewith, for a history of the litigation and the issues involved in the disposition thereof.
As part of the consideration for the execution of the performance and payment bond by American as surety for Sanitary Systems, Inc., appellants by written contract obligated themselves to indemnify and save American harmless against any and all claims, costs or expenses sustained or incurred by American by reason of having executed the bond.
Subsequent to our decision in Sanitary Systems, Inc. v. American Surety Co. of New York, supra, American completed the construction of the sewer project in the City of Grandview. It then prosecuted a claim under Count V of its complaint against appellants for the amounts expended by it in completing the project. The court’s determination of the issues presented culminated in the judgment from which this appeal is taken.
Appellants do not challenge the court’s finding that the provisions of the indemnity agreement are sufficiently broad to impose liability upon them to indemnify American for the cost of the cornpletion of the sewer project. Nor do appellants question the amount of the costs incurred by American. The sole contention advanced by appellants is that the City of Grandview made it impossible for the contractor [Sanitary Systems, Inc.] to complete the sewer project under the contract, and therefore American was not obligated to the City under its indemnity bond and had no right to complete the project.
We have no difficulty in reaching the conclusion that appellants are precluded by the familiar doctrine of res judicata from once again raising and seeking an adjudication of the question they have presented. It is fundamental that a final judgment by a court of competent jurisdiction is res judicata as to the parties thereto, not only as to all matters litigated and determined by such judgment, but also as to all relevant issues which could have been presented. Angel v. Bullington, 330 U.S. 183, 192-193, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 282-283, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Rhodes v. Jones, 351 F.2d 884, 886 (8th Cir. 1965), cert. denied, 383 U.S. 919, 86 S.Ct. 914, 15 L.Ed.2d 673 (1965); Engelhardt v. Bell & Howell Co., 327 F.2d 30, 32 (8th Cir. 1964).
The evidence produced in the first trial, the district court’s findings therein and our opinion in that case conclusively demonstrate that the question whether the City’s conduct made performance by the contractor impossible has been fully litigated and resolved with finality. That issue has been laid to rest and cannot be resurrected and retried in this proceeding.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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".
Norman DODD and Aaron M. Sargent, Trustees under Joint Venture Agreement of Pioche Mines Consolidated, Inc., Appellants, v. PIOCHE MINES CONSOLIDATED, INC., Helen Dolman, Shareholders of said Corporation, and Fidelity-Philadelphia Trust Company, Appellees.
No. 17519.
United States Court of Appeals Ninth Circuit.
Sept. 24, 1962.
Ernest S. Brown and Jack I. Mc-Auliffe, Reno, Nev., for appellant.
T. David Horton, Francis T. Cornish, Berkeley, Cal., Roscoe H. Wilkes, Pioche, Nev., and Harold M. Morse, Las Vegas, Nev., for appellee Pioche Mines Consolidated, Inc.
Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., and Alvin N. Wart-man, Las Vegas, Nev., for appellee Helen Dolman.
William J. Forman, Reno, Nev., George H. Johnston and Willard P. Norberg, San Francisco, Cal., Woodbum, Forman, Wedge, Blakey & Folsom, Reno, Nev., Morgan, Lewis & Bockius, Philadelphia, Pa., and Ackerman, Johnston, Johnston & Mathews, San Francisco, Cal., for ap-pellee Fidelity-Philadelphia Trust Co.
Before HAMLEY and DUNIWAY, Circuit Judges, and TAYLOR, District Judge.
PER CURIAM.
Appellants Norman Dodd and Aaron M. Sargent, two of three trustees named in a joint venture agreement with Ap-pellee Pioche Mines Consolidated, Inc., have appealed to this Court from an Order of the trial court denying their motion to be substituted as counter-claimants in this litigation.
In reaching our decision here we are assuming, without deciding, that the order denying the motion for substitution is appealable.
The substitution or joinder of Appellants as counterclaimants rested in the discretion of the district court and was not mandatory. Rule 25(c), Federal Rules of Civil Procedure, 28 U.S.C.A.; Virginia Land Co. v. Miami Shipbuilding Corp., 201 F.2d 506 (5th Cir.1953); Sun-Maid Raisin Growers of California v. California Packing Corporation, 273 F.2d 282 (9th Cir.1959).
On an examination of the record we are satisfied that the district court did not abuse its discretion in denying the motion of Appellants.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Jesse Eugene TECUMSEH, Defendant-Appellant.
No. 80-1278.
United States Court of Appeals, Tenth Circuit.
Submitted June 16, 1980.
Decided Aug. 29, 1980.
Certiorari Denied Nov. 3, 1980.
See 101 S.Ct. 376.
Hubert H. Bryant, U.S. Atty., and Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.
Larry A. Gullekson and Stanley D. Monroe of Frasier, Frasier & Gullekson, Tulsa, Okl., for defendant-appellant.
Before SETH, Chief Judge, PICKETT and HOLLOWAY, Circuit Judges.
PICKETT, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
Appellant Tecumseh was convicted of first degree murder for the killing of his wife and sentenced to life imprisonment. The principal contentions on appeal are that the court erred in admitting in evidence an alleged in-custody confession made to police officers shortly after appellant’s arrest, and in its instruction to the jury relating to an inference of malice to be drawn from the use of a dangerous weapon.
The facts are not in dispute. For a number of years the married life of Jesse Tecumseh and his wife Wilma was very difficult, due primarily to the excessive drinking of Jesse. On or about July 15, 1979, Jesse and his wife, together with his daughter, son-in-law and two grandchildren, were in their home near Claremore, Oklahoma. Jesse had been drinking and a rather violent quarrel occurred. During this episode Jesse stated, “I’m a murdering son-of-a-bitch and I can go get a gun and come back and kill all of you and get away with it because Tommy Frasier [an attorney] will get me off.” Immediately after this occurrence Wilma left their home and moved into an apartment in Claremore. She instituted divorce proceedings and summons was served on Jesse July 18, 1979. During the morning of July 27,1979, Jesse was in a Claremore bar and drank some beer. He told a barmaid that he was having trouble with his wife. Before he left he telephoned Wilma. He then went to a hardware store, purchased a boning knife, and proceeded directly to Claremore Indian Hospital, where Wilma was employed as a nurse. He made inquiry as to her whereabouts in the hospital and was directed to the room in which she was engaged in the performance of her duties. After Jesse’s entry into the room muffled screams were heard and he was seen leaving the room with blood on his right hand. Wilma was found in a dying condition resulting from stab wounds caused by a knife.
Claremore police were notified. Jesse was arrested and taken to police headquarters, where he was interviewed by the chief of police and a police detective. Jesse was carefully informed as to his rights prior to the interview. He signed the conventional waiver of rights, after which he admitted that he had stabbed his wife at the hospital. The adequacy of the warnings given by the police to Jesse and his waiver of rights is not questioned, but it is argued that during the questioning Jesse indicated he desired to talk to an attorney, and that some questioning continued thereafter without the presence of an attorney. A review of the record does not support this contention.
At the trial objection was made to the introduction of the incriminating statements and the court granted a request for a hearing, as suggested in Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964), to determine if any constitutional rights of the accused had been violated. At the hearing only the chief of police and the police detective testified. The chief of police stated that near the end of the interview Jesse suggested he would like to talk to attorney Van Zandt. The chief was unable to locate Van Zandt. No incriminating statements were made during the interview which followed. As to what point in the interview Jesse requested an opportunity to talk to Van Zandt, the chief testified:
Q. All right. Where was the statement about Van Zandt, where was that in relationship to the statement he made about-he made ultimately at some point, he made a statement about killing his wife, did he not?
A. Yes.
Q. When was that statement made relative to the time that you tried to reach Bob Van Zandt?
A. This was well after the interview had started, after he made the statement of stabbing his wife, this was at the close of the interview.
Q. Close to what?
A. At the closing of the interview.
Q. Which was?
A. When he mentioned about calling Van Zandt.
Q. All right. So, you mean before he actually called Van Zandt, he had already made the statement-
A. Yes.
Q. -about killing his wife?
A. Yes.
The court found that the confession was given voluntarily and that no constitutional rights of the accused had been violated. While admitting that the original warnings given to Jesse and his waiver of constitutional rights were adequate, counsel argues that continued questioning of the prisoner after his request to consult an attorney destroyed the admissibility of the confession as evidence. The law is settled that when an individual in the custody of officers is being questioned as to a crime, and
indicates in any manner, at any time pri- or to or during questioning that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. .
Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). This rule was observed, as no incriminating statements were made after the suggestion that Tecumseh desired to consult an attorney.
Furthermore, the record discloses no evidence that Tecumseh desired to consult an attorney before further questioning. The evidence is to the contrary. Approximately two hours after the police interrogation Tecumseh was interviewed by agents of the Federal Bureau of Investigation. Before answering any of the agents’ questions he voluntarily executed another waiver substantially the same as the one obtained by the police. He was fully advised of his right to consult an attorney. No request was made for such service. Considering all the facts, there was no error in admitting into evidence the statements of Tecumseh. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. Palmer, 604 F.2d 64 (10th Cir. 1979); United States v. Carra, 604 F.2d 1271 (10th Cir. 1979), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979).
It is next urged that the court erred in admitting in evidence Tecumseh’s statement that he was “a murdering son-of-a-bitch and I can go get a gun and come back and kill all of you and get away with it because Tommy Frasier will get me off.” The record is not clear as to the basis for the objection, but it is argued that the statement was a needless accumulation of evidence to the prejudice of the accused prohibited by Rule 403 of the Federal Rules of Evidence, or was proof of a crime other than the one charged and therefore in conflict with Rule 404(b) of the Federal Rules of Evidence. There is no merit to this argument. In overruling the objection, the court stated:
It appears to the Court that since one of the essential elements of the crime is premeditation and malice aforethought that it is an element that goes to the state of mind that this defendant may very well have had and that it is probative and it is relevant and, therefore, the Court will overrule the objection.
The evidence was not proof of an offense other than that for which the accused was being tried. It had probative value and was admissible within the discretion of the trial court. There was no abuse of that discretion. In United States v. Nolan, 551 F.2d 266, 270 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977), this court said:
We have repeatedly held that evidence of uncharged crimes, wrongs or alleged prejudicial acts may be received for purposes proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975); United States v. Parker, 469 F.2d 884 (10th Cir. 1972); United States v. Pickens, 465 F.2d 884 (10th Cir. 1972); United States v. Pauldino, 443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S. 882, 92 S.Ct. 212, 30 L.Ed.2d 163 (1971); United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). . . .
Section 1111, Title 18 of the United States Code, the murder statute under which Tecumseh was indicted, states that “[mjurder is the unlawful- killing of a human being with malice aforethought.” In its instructions to the jury, the court gave a comprehensive instruction upon the necessity of proof of malice beyond a reasonable doubt to sustain a conviction of murder. The court pointed out that malice is a state of mind and can be established only from inferences drawn from surrounding facts and circumstances in the killing of a human being. It was stated that the murder charge could be sustained only if the jury were convinced beyond a reasonable doubt from the evidence that the murder had been committed by the accused. The court concluded its reference to the proof of malice with this statement:
Now, if it is shown by the proof and you find it is a fact that the defendant used a deadly weapon in the commission of a homicide, then you may find, from the use of such weapon, in the absence of explanatory or mitigating circumstances, the existence of the malice which is an essential element of the offense. You are not obligated so to find, however. You may not find the defendant guilty unless you are satisfied that the government has established every essential element of the offense as explained in these instructions beyond a reasonable doubt.
It is urged that this instruction permitted an inference or assumption of an essential element of the crime charged and unconstitutionally shifted to the defendant a burden of refuting the inference of malice. It should be noted that the instruction used the word, “may,” and stated specifically to the jury that “you are not obligated to so find” that malice existed.
The legality of inferences and assumption of facts has long been considered by the courts in criminal cases. For example, the United States Supreme Court and this court have approved instructions in criminal cases in which the jury was told that possession of recently stolen property could create an inference that the person in possession knew it was stolen. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Brown, 541 F.2d 858 (10th Cir.), cert. denied, 429 U.S. 1026, 97 S.Ct. 650, 50 L.Ed.2d 630 (1976); United States v. Matthews, 427 F.2d 889 (10th Cir. 1970).
The Supreme Court of the United States has written extensively on the subject. Although there is a contrariety of views among the Justices as to its application in various factual situations, there appears to be a consensus that if the inference instruction is not mandatory and permissive only, there is no violation of due process rights. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Decisions relating to the question have been reviewed by the Supreme Court in more recent cases. In Ulster County Court v. Allen, 442 U.S. 140, 156-157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979), it was held that a court’s instruction on a statutory presumption met constitutional standards. The Court stated:
Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime-that is, an “ultimate” or “elemental” fact-from the existence of one or more “evidentiary” or “basic” facts. E. g., Barnes v. United States, 412 U.S. 837, 843-844 [93 S.Ct. 2357, 2361-2362, 37 L.Ed.2d 380]; Tot v. United States, 319 U.S. 463, 467 [63 S.Ct. 1241, 1244, 87 L.Ed. 1519]; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 42 [31 S.Ct. 136, 137, 55 L.Ed. 78], The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 [90 S.Ct. 1068, 1072, 25 L. Ed.2d 368]; Mullaney v. Wilbur, 421 U.S. [684], at 702-703, n. 31 [95 S.Ct. 1881, 1891-1892 n. 31, 44 L.Ed.2d 508].
The most common evidentiary device is the entirely permissive inference or presumption, which allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. See, e. g., Barnes v. United States, supra, [412 U.S.] at 840 n. 3 [93 S.Ct. at 2360 n. 3]. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e. g., Turner v. United States, 396 U.S. 398, 402 n. 2 [90 S.Ct. 642, 645 n. 2, 24 L.Ed.2d 610], When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. E. g., Barnes v. United States, supra, [412 U.S.] at 845 [93 S.Ct. at 2362]; Turner v. United States, supra, [396 U.S.] at 419—424 [90 S.Ct. at 653-656]. See also United States v. Gainey, 380 U.S. 63, 67-68, 69-70 [85 S.Ct. 754, 757-758, 758-759, 13 L.Ed.2d 658]. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the “beyond a reasonable doubt” standard only if, under the facts of the ease, there is no rational way the trier could make the connection, permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), a unanimous court held that an instruction in a homicide case, which stated that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” could be construed by a jury as requiring the accused to rebut the presumption, and was therefore a violation of the due process clause of the Constitution, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). From the decisions it is clear that the burden of proving all the essential elements of a crime is upon the prosecution and that the burden cannot be shifted to the accused by inference. We are satisfied that the entire instruction given in this case makes plain that the burden of proving every essential element of the crime charged, including malice beyond a reasonable doubt, was upon the prosecution, and in no way shifted to the defense. The jury was left free to assess the evidence and to determine the ultimate fact of guilt beyond a reasonable doubt independent of the inference.
Finally it is contended that the court erred in admitting into evidence a boning knife, articles of clothing worn by Tecumseh on the day his wife was killed, and some photographs of Teeumseh taken after his arrest showing blood stains. This contention needs no discussion. The record shows that the exhibits were relevant and had a rational connection with the issues presented. United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974).
AFFIRMED.
. Tecumseh did not testify at the hearing or at the trial. The defense attempted to develop on cross-examination of various witnesses that Tecumseh was drunk at the time of the stabbing of his wife.
. The questioned portion of the malice instruction was taken from Devitt & Blackmar, Federal Jury Practice and Instructions, § 41.18 (Third Edition 1977). The instruction was approved by the Fifth Circuit in United States v. McRae, 593 F.2d 700 (1979), cert. denied 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979). See also McInerney v. Berman, 621 F.2d 20 (1st Cir. 1980); cf. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).
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_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Charles E. MORRISON, Appellant, v. UNITED STATES of America, Appellee.
No. 21998.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 18, 1969.
Decided July 15, 1970.
Petition for Rehearing Granted Oct. 8, 1970.
Order Oct. 30,1970.
Mr. H. Alan Young, Washington, D. C. (appointed by this court) for appellant.
Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee.
Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., entered appearances for appellee.
Before BURGER, McGOWAN and TAMM, Circuit Judges.
Circuit Judge (now Chief Justice) Burger did not participate in the disposition of this case.
McGOWAN, Circuit Judge:
Charged with a violation of two federal narcotics statutes, 21 U.S.C. § 174 and 26 U.S.C. § 4704(a), appellant was convicted after a jury trial. On this appeal he seeks reversal on three grounds. One is that the verdict was not supported by adequate evidence that appellant was in possession of the narcotics introduced against him. A second contention is that the registration and other administrative provisions of the Harrison Act, of which § 4704(a) is a part, violate appellant’s Fifth Amendment privilege against self-incrimination — an issue not raised in the trial court. It is, lastly, claimed that appellant lacked effective assistance of counsel in that, had appellant had available to him a public defender as trial counsel, such a lawyer would have raised the self-incrimination issue. We find none of these persuasive of the necessity of reversal.
I
The Government’s case against appellant consisted of evidence that he was found to have 28 heroin capsules in his possession. A police officer testified that the head of a private realty company, which managed an apartment building, complained to him that unauthorized persons were making use of a vacant apartment in the building. In response to this complaint, four officers of the Narcotics Squad went to the apartment in question to investigate. The door was locked, but there were sounds indicating that someone was inside. The officers knocked on the door and announced their identity. When no response was forthcoming, they forced the door and entered.
Appellant was standing in the front room, near the hallway leading to the door. When asked by the police what he was doing there, he said he was waiting for a friend. He was thereupon arrested for unlawful entry. A vial, bearing no tax stamps but containing the 28 capsules, was found lying on the floor about three feet from him. He was then informed that he was also arrested for a narcotics violation. Paraphernalia for the preparation and injection of narcotics were also found in the same room, and were seized.
Appellant testified in his own defense. His story was that he had come to the building to visit a friend whose mother lived in an apartment on a lower floor. When a family quarrel broke out, appellant, wishing not to become involved, went upstairs to wait for his friend in the vacant apartment, the door of which was open. He denied that the narcotics or the paraphernalia were his, or in his possession. His friend testified in confirmation of appellant’s story, saying that he had told appellant to wait in the vacant apartment, which he knew to be open.
There was neither claim nor evidence that appellant was an addict, except that the arresting officer testified that the syringe with needle found on the front room floor contained a blood-like liquid, and a red spot was found on appellant’s arm which appeared to be blood. This testimony was adduced by the Government to support its claim of possession. Appellant denied that there was any spot of blood on his arm.
II
Appellant argues that the jury’s verdict is not supported by adequate evidence connecting him with the narcotics found at the time of his arrest. The Government points to the circumstances that (1) the narcotics themselves were found only some three feet from where appellant was standing when he was arrested, (2) the kit for the utilization of heroin was also found close at hand, (3) the syringe and needle were found in a condition indicating that they were being used for an injection, and (4) the red spot on appellant’s arm suggested he was interrupted while using the syringe for that purpose. Appellant was alone in the apartment and, in any event, says the Government, there was at least constructive possession since appellant was in a position to exert dominion and control over the seized narcotics. See Miller v. United States, 121 U.S.App.D.C. 13, 347 F.2d 797 (1965).
We agree that the case was properly one for the jury. It could, had it believed the defense testimony, have found for appellant. It did not do so, and, under the provisions of the statutes in question, there was evidence of inadequately explained possession from which it could have inferred commission by appellant of the statutorily proscribed acts.
Appellant’s second contention, namely, that the statutory presumptions permitting the inference of guilt from proof of possession violated his Fifth Amendment right against self-incrimination, is conclusively disposed of by the subsequent decision of the Supreme Court in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). And see Minor v. United States, decided together with Buie v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969).
Lastly, Turner concludes the argument made by appellant that, if he had been represented by a public defender, the self-incrimination issue would have been raised successfully in his defense. This defense would, as Turner shows, have been without foundation in law. Counsel appointed for appellant in the court below diligently pursued the defense which appellant claimed to be the fact, that is to say, the narcotics were unrelated to his presence in the vacant apartment and should not have been attributed to him. The failure of this defense was due in no way to deficiencies in the quality of appellant’s representation in the trial court.
Affirmed.
Before McGOWAN and TAMM, Circuit Judge, in Chambers.
PER CURIAM.
ORDER
On consideration of appellant’s petition for rehearing, it is
Ordered by the Court that appellant’s aforesaid petition for rehearing is granted and, it is
Further ordered by the Court that the judgment of the United States District Court for the District of Columbia appealed from herein is hereby reaffirmed and, it is
Further ordered by the Court, per order 10-30-70, that counsel for appellee shall show cause, if any there be, in light of the newly available sentencing transcript, why the sentence should not be vacated and the case remanded for re-sentencing in the light of this Court’s decision in Watson v. United States, Number 21,186 decided July 15, 1970.
ORDER
On consideration of appellee’s response to the order to show cause and it appearing therefrom that appellee does not oppose a remand for reconsideration of the sentence, it is
Ordered by the Court that the sentence imposed in Criminal 18-68 in the District Court is vacated and this case is hereby remanded to the United States District Court for the District of Columbia for resentencing in the light of this Court’s decision in Watson v. United States, No. 21,186 decided July 15, 1970.
The Clerk is directed to transmit the opinion, a certified copy of this Court’s judgment and a certified copy of this order to the District Court forthwith.
. Appellant sought tlie privilege to testify in his own defense free of impeachment by prior convictions. See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). This was accorded him by the trial judge, compare Smith v. United States, 123 U.S.App.D.C. 259, 261, 359 F.2d 243, 245 (1966), although appellant in his testimony volunteered a statement which indicated that he had just completed serving a sentence for receiving stolen property. The other witness for appellant was impeached with two prior larceny convictions.
. This case was, by order of the court, held for decision pending action by the court en ianc in No. 21,186, Watson v. United States, decided this day. Apart from the self-incrimination issue, none of the questions involved in Watson were raised by appellant, either in the trial court or here.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. NATIONAL TANK & EXPORT CO.
No. 5726.
Circuit Court of Appeals, Fifth Circuit.
Dec. 10, 1930.
Charles L. Redding, U. S. Atty., of Savannah, Ga., and F. F. Toomey, Atty., Bureau of Internal Revenue, of Washington, D. C. (George Noble Jones, Asst. U. S. Atty., of Savannah, Ga., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, Wright Matthews, Sp. Atty., Bureau of Internal Revenue, Wm. B. Waldo, Sp. Atty., Bureau of Internal Revenue, all of Washington, D. C., of counsel), for the United States.
Gordon C. Carson, Alexander A. Lawrence, and Edmund H. Abrahams, all of Savannah, Ga., for appellee.
Before BRYAN and FOSTER, Circuit Judges, and SIBLEY, District Judge.
FOSTER, Circuit Judge.
In this case the material facts are substantially these: On March 14, 1919, appellee filed with the collector of internal revenue at Atlanta a tentative return on form 1031-T for tho year ending December 31, 19.18, showing an estimated tax due of $14,000, accompanied it with a cheek for $3,500 to cover one-fourth of the estimated tax, and requested an extension of time of forty-five days for filing a completed return. On May 1, 1919, a consolidated return was filed with the Commissioner of Internal Revenue for the American Naval Stores Company and the National Tank & Export Company, appellee herein. The consolidated return did not state separately the income and invested capital of each corporation. This return was made on the annual basis for the year 1918. The National Tank & Export Company kept its books on the fiseal year basis, the year ending April 30th. The consolidated return covered only eight months of the year ending April 30, 1919. The return showed no tax due by appellee. The Commissioner declined to allow the consolidated return, and a separate return was filed for appellee on September 28, 1922, covering its fiscal year from May 1,1918, to April 30, 1919, inclusive. In January, 1925, an additional tax of $11,096.70 was assessed against appellee. On April 1, 1925, a credit of $3,386.66, an overpayment for the taxable year 1917, was applied against the deficiency. Appellee paid the balance under protest and brought suit in the District Court to recover eight-twelfths of tho tax assessed, conceding that recovery of the balance was barred. The court found that petitioner was not entitled to file a consolidated return with the American Naval Stores Company, but we are not called upon to review that phase of the court’s finding. However, the court held the assessment was barred by the limitation of five years imposed by section 250 (d) of the Revenue Act of 1918 (40 Stat. 1083) and subsequent acts, holding that it began to run with the filing of the consolidated return, and referred to the tentative return as aiding in reaching this conclusion. Judgment was entered for appellee.
It is settled that the filing of the tentative return did not start the running of the statute of limitations. Florsheim Bros. Drygoods Co. v. U. S., 280 U. S. 453, 50 S. Ct. 215, 74 L. Ed. 542.
In Willingham Loan & Trust Co. v. Commissioner of Internal Revenue (C. C. A.) 36 F.(2d) 49, we had oeeasion to consider the effect of the filing of separate returns covering parts of the taxable year, and held that the statute began to run whenever the taxpayer filed returns with the Commissioner that would show facts upon which an assessment for the taxable period could be made. Necessarily, the converse is true. In this case the consolidated return did not show the separate capital and income of each corporation, and was not a complete return for appellee, as it covered only eight months of its taxable year. The Commissioner therefore had not sufficient faets before him upon which to base an assessment. The assessment was in time. Paso Robles Merc. Co. v. Commissioner of Int. Rev. (C. C. A.) 33 F.(2d) 653.
It follows that the judgment of the district court must be reversed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_casedisposition
|
E
|
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.
Monicah Okoba OPATI, in Her Own Right, and as Executrix of the Estate of Caroline Setla Opati, Deceased, et al., Petitioners
v.
REPUBLIC OF SUDAN, et al.
No. 17-1268
Supreme Court of the United States.
Argued February 24, 2020
Decided May 18, 2020
Steven R. Perles, Edward B. MacAllister, Perles Law Firm, PC, Washington, DC, Steven W. Pelak, Brett C. Ruff, Holland & Hart LLP, Washington, DC, Michael J. Miller, David J. Dickens, The Miller Firm, LLC, Orange, VA, Gavriel Mairone, MM-Law LLC, Chicago IL, John Arthur Eaves, Jr., Eaves Law Firm, LLC, Jackson, MS, William Wheeler, Jamie Franks, Wheeler & Franks Law Firm PC, Tupelo, MS, for Petitioners.
Christopher M. Curran, Nicole Erb, Claire A. DeLelle, Celia A. McLaughlin, Nicolle Kownacki, White & Case LLP, Washington, DC, for Respondents.
Justice GORSUCH delivered the opinion of the Court.
In 1998, al Qaeda operatives simultaneously detonated truck bombs outside the United States Embassies in Kenya and Tanzania. Hundreds died, thousands were injured. In time, victims and their family members sued the Republic of Sudan in federal court, alleging that it had assisted al Qaeda in perpetrating the attacks. After more than a decade of motions practice, intervening legislative amendments, and a trial, the plaintiffs proved Sudan's role in the attacks and established their entitlement to compensatory and punitive damages. On appeal, however, Sudan argued, and the court agreed, that the Foreign Sovereign Immunities Act barred the punitive damages award. It is that decision we now review and, ultimately, vacate.
*
The starting point for nearly any dispute touching on foreign sovereign immunity lies in Schooner Exchange v. McFaddon , 7 Cranch 116, 3 L.Ed. 287 (1812). There, Chief Justice Marshall explained that foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself." Id., at 136. Still, Chief Justice Marshall continued, many countries had declined to exercise jurisdiction over foreign sovereigns in cases involving foreign ministers and militaries. Id., at 137-140. And, accepting a suggestion from the Executive Branch, the Court agreed as a matter of comity to extend that same immunity to a foreign sovereign in the case at hand. Id., at 134, 145-147.
For much of our history, claims of foreign sovereign immunity were handled on a piecework basis that roughly paralleled the process in Schooner Exchange . Typically, after a plaintiff sought to sue a foreign sovereign in an American court, the Executive Branch, acting through the State Department, filed a "suggestion of immunity"-case-specific guidance about the foreign sovereign's entitlement to immunity. See Verlinden B.V. v. Central Bank of Nigeria , 461 U.S. 480, 487, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Because foreign sovereign immunity is a matter of "grace and comity," Republic of Austria v. Altmann , 541 U.S. 677, 689, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), and so often implicates judgments the Constitution reserves to the political branches, courts "consistently ... deferred" to these suggestions. Verlinden , 461 U.S. at 486, 103 S.Ct. 1962.
Eventually, though, this arrangement began to break down. In the mid-20th century, the State Department started to take a more restrictive and nuanced approach to foreign sovereign immunity. See id., at 486-487, 103 S.Ct. 1962. Sometimes, too, foreign sovereigns neglected to ask the State Department to weigh in, leaving courts to make immunity decisions on their own. See id., at 487-488, 103 S.Ct. 1962. "Not surprisingly" given these developments, "the governing standards" for foreign sovereign immunity determinations over time became "neither clear nor uniformly applied." Id ., at 488, 103 S.Ct. 1962.
In 1976, Congress sought to remedy the problem and address foreign sovereign immunity on a more comprehensive basis. The result was the Foreign Sovereign Immunities Act (FSIA). As a baseline rule, the FSIA holds foreign states and their instrumentalities immune from the jurisdiction of federal and state courts. See 28 U.S.C. §§ 1603(a), 1604. But the law also includes a number of exceptions. See, e.g., §§ 1605, 1607. Of particular relevance today is the terrorism exception Congress added to the law in 1996. That exception permits certain plaintiffs to bring suits against countries who have committed or supported specified acts of terrorism and who are designated by the State Department as state sponsors of terror. Still, as originally enacted, the exception shielded even these countries from the possibility of punitive damages. See Antiterrorism and Effective Death Penalty Act of 1996 (codifying state-sponsored terrorism exception at 28 U.S.C. § 1605(a)(7) ); § 1606 (generally barring punitive damages in suits proceeding under any of § 1605's sovereign immunity exceptions).
Two years after Congress amended the FSIA, al Qaeda attacked the U.S. Embassies in Kenya and Tanzania. In response, a group of victims and affected family members led by James Owens sued Sudan in federal district court, invoking the newly adopted terrorism exception and alleging that Sudan had provided shelter and other material support to al Qaeda. As the suit progressed, however, a question emerged. In its recent amendments, had Congress merely withdrawn immunity for state-sponsored terrorism, allowing plaintiffs to proceed using whatever pre-existing causes of action might be available to them? Or had Congress gone further and created a new federal cause of action to address terrorism? Eventually, the D.C. Circuit held that Congress had only withdrawn immunity without creating a new cause of action. See Cicippio-Puleo v. Islamic Republic of Iran , 353 F.3d 1024, 1033 (2004).
In response to that and similar decisions, Congress amended the FSIA again in the National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 338. Four changes, all found in a single section, bear mention here. First, in § 1083(a) of the NDAA, Congress moved the state-sponsored terrorism exception from its original home in § 1605(a)(7) to a new section of the U.S. Code, 28 U.S.C. § 1605A. This had the effect of freeing claims brought under the terrorism exception from the FSIA's usual bar on punitive damages. See § 1606 (denying punitive damages in suits proceeding under a sovereign immunity exception found in § 1605 but not § 1605A ). Second, also in § 1083(a), Congress created an express federal cause of action for acts of terror. This new cause of action, codified at 28 U.S.C. § 1605A(c), is open to plaintiffs who are U.S. nationals, members of the Armed Forces, U.S. government employees or contractors, and their legal representatives, and it expressly authorizes punitive damages. Third, in § 1083(c)(2) of the NDAA, a provision titled "Prior Actions," Congress addressed existing lawsuits that had been "adversely affected on the groun[d] that" prior law "fail[ed] to create a cause of action against the state." Actions like these, Congress instructed, were to be given effect "as if " they had been originally filed under § 1605A(c)'s new federal cause of action. Finally, in § 1083(c)(3) of the NDAA, a provision titled "Related Actions," Congress provided a time-limited opportunity for plaintiffs to file new actions "arising out of the same act or incident" as an earlier action and claim the benefits of 28 U.S.C. § 1605A.
Following these amendments, the Owens plaintiffs amended their complaint to include the new federal cause of action, and hundreds of additional victims and family members filed new claims against Sudan similar to those in Owens . Some of these new plaintiffs were U.S. nationals or federal government employees or contractors who sought relief under the new § 1605A(c) federal cause of action. But others were the foreign-national family members of U.S. government employees or contractors killed or injured in the attacks. Ineligible to invoke § 1605A(c)'s new federal cause of action, these plaintiffs relied on § 1605A(a)'s state-sponsored terrorism exception to overcome Sudan's sovereign immunity and then advance claims sounding in state law.
After a consolidated bench trial in which Sudan declined to participate, the district court entered judgment in favor of the plaintiffs. District Judge John Bates offered detailed factual findings explaining that Sudan had knowingly served as a safe haven near the two United States Embassies and allowed al Qaeda to plan and train for the attacks. The court also found that Sudan had provided hundreds of Sudanese passports to al Qaeda, allowed al Qaeda operatives to travel over the Sudan-Kenya border without restriction, and permitted the passage of weapons and money to supply al Qaeda's cell in Kenya. See Owens v. Republic of Sudan , 826 F.Supp.2d 128, 139-146 (DC 2011).
The question then turned to damages. Given the extensive and varied nature of the plaintiffs' injuries, the court appointed seven Special Masters to aid its factfinding. Over more than two years, the Special Masters conducted individual damages assessments and submitted written reports. Based on these reports, and after adding a substantial amount of prejudgment interest to account for the many years of delay, the district court awarded a total of approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages to plaintiffs who had brought suit in the wake of the 2008 amendments.
At that point, Sudan decided to appear and appeal. Among other things, Sudan sought to undo the district court's punitive damages award. Generally, Sudan argued, Congress may create new forms of liability for past conduct only by clearly stating its intention to do so. And, Sudan continued, when Congress passed the NDAA in 2008, it nowhere clearly authorized punitive damages for anything countries like Sudan might have done in the 1990s.
The court of appeals agreed. It started by addressing the plaintiffs who had proceeded under the new federal cause of action in § 1605A(c). The court noted that, in passing the NDAA, Congress clearly authorized individuals to use the Prior Actions and Related Actions provisions to bring new federal claims attacking past conduct. Likewise, the law clearly allowed these plaintiffs to collect compensatory damages for their claims. But, the court held, Congress included no statement clearly authorizing punitive damages for preenactment conduct. See Owens v. Republic of Sudan , 864 F.3d 751, 814-817 (CADC 2017). Separately but for essentially the same reasons, the court held that the foreign-national family member plaintiffs who had proceeded under state-law causes of action were also barred from seeking and obtaining punitive damages. Id., at 817.
The petitioners responded by asking this Court to review the first of these rulings and decide whether the 2008 NDAA amendments permit plaintiffs proceeding under the federal cause of action in § 1605A(c) to seek and win punitive damages for past conduct. We agreed to resolve that question. 588 U.S. ----, 139 S.Ct. 2771, 204 L.Ed.2d 1155 (2019).
*
The principle that legislation usually applies only prospectively "is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Landgraf v. USI Film Products , 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). This principle protects vital due process interests, ensuring that "individuals ... have an opportunity to know what the law is" before they act, and may rest assured after they act that their lawful conduct cannot be second-guessed later. Ibid. The principle serves vital equal protection interests as well: If legislative majorities could too easily make new laws with retroactive application, disfavored groups could become easy targets for discrimination, with their past actions visible and unalterable. See id., at 266-267, 114 S.Ct. 1483. No doubt, reasons like these are exactly why the Constitution discourages retroactive lawmaking in so many ways, from its provisions prohibiting ex post facto laws, bills of attainder, and laws impairing the obligations of contracts, to its demand that any taking of property be accompanied by just compensation. See id., at 266, 114 S.Ct. 1483.
Still, Sudan doesn't challenge the constitutionality of the 2008 NDAA amendments on these or any other grounds-the arguments we confront today are limited to the field of statutory interpretation. But, as both sides acknowledge, the principle of legislative prospectivity plays an important role here too. In fact, the parties devote much of their briefing to debating exactly how that principle should inform our interpretation of the NDAA.
For its part, Sudan points to Landgraf . There, the Court observed that, "in decisions spanning two centuries," we have approached debates about statutory meaning with an assumption that Congress means its legislation to respect the principle of prospectivity and apply only to future conduct-and that, if and when Congress wishes to test its power to legislate retrospectively, it must say so "clear[ly]." Id., at 272, 114 S.Ct. 1483. All this is important, Sudan tells us, because when we look to the NDAA we will find no clear statement allowing courts to award punitive damages for past conduct.
But if Sudan focuses on the rule, the petitioners highlight an exception suggested by Altmann . Because foreign sovereign immunity is a gesture of grace and comity, Altmann reasoned, it is also something that may be withdrawn retroactively without the same risk to due process and equal protection principles that other forms of backward-looking legislation can pose. Foreign sovereign immunity's "principal purpose," after all, "has never been to permit foreign states ... to shape their conduct in reliance on the promise of future immunity from suit in United States courts." 541 U.S. at 696, 124 S.Ct. 2240. Thus, Altmann held, "[i]n th[e] sui generis context [of foreign sovereign immunity], ... it [is] more appropriate, absent contraindications, to defer to the most recent decision [of the political branches] than to presume that decision inapplicable merely because it postdates the conduct in question." Ibid. And, the petitioners stress, once the presumption of prospectivity is swept away, the NDAA is easily read to authorize punitive damages for completed conduct.
Really, this summary only begins to scratch the surface of the parties' debate. Sudan replies that it may be one thing to retract immunity retroactively consistent with Altmann , because all that does is open a forum to hear an otherwise available legal claim. But it is another thing entirely to create new rules regulating primary conduct and impose them retroactively. When Congress wishes to do that , Sudan says, it must speak just as clearly as Landgraf commanded. And, Sudan adds, the NDAA didn't simply open a new forum to hear a pre-existing claim; it also created a new cause of action governing completed conduct that the petitioners now seek to exploit. Cf. Altmann , 541 U.S. at 702-704, 124 S.Ct. 2240 (Scalia, J., concurring). In turn, the petitioners retort that Altmann itself might have concerned whether a new forum could hear an otherwise available and pre-existing claim, but its reasoning went further. According to the petitioners, the decision also strongly suggested that the presumption of prospectivity does not apply at all when it comes to suits against foreign sovereigns, full stop. These points and more the parties develop through much of their briefing before us.
As we see it, however, there is no need to resolve the parties' debate over interpretive presumptions. Even if we assume (without granting) that Sudan may claim the benefit of Landgraf 's presumption of prospectivity, Congress was as clear as it could have been when it authorized plaintiffs to seek and win punitive damages for past conduct using § 1065A(c)'s new federal cause of action. After all, in § 1083(a), Congress created a federal cause of action that expressly allows suits for damages that "may include economic damages, solatium, pain and suffering, and punitive damages ." (Emphasis added.) This new cause of action was housed in a new provision of the U.S. Code, 28 U.S.C. § 1605A, to which the FSIA's usual prohibition on punitive damages does not apply. See § 1606. Then, in §§ 1083(c)(2) and (c)(3) of the very same statute, Congress allowed certain plaintiffs in "Prior Actions" and "Related Actions" to invoke the new federal cause of action in § 1605A. Both provisions specifically authorized new claims for preenactment conduct. Put another way, Congress proceeded in two equally evident steps: (1) It expressly authorized punitive damages under a new cause of action; and (2) it explicitly made that new cause of action available to remedy certain past acts of terrorism. Neither step presents any ambiguity, nor is the NDAA fairly susceptible to any competing interpretation.
Sudan's primary rejoinder only serves to underscore the conclusion. Like the court of appeals before it, Sudan stresses that § 1083(c) itself contains no express authorization of punitive damages. But it's hard to see what difference that makes. Sudan admits that § 1083(c) authorizes plaintiffs to bring claims under § 1605A(c) for acts committed before the 2008 amendments. Sudan concedes, too, that § 1605A(c) authorizes plaintiffs to seek and win "economic damages, solatium, [and] pain and suffering," for preenactment conduct. In fact, except for the two words "punitive damages," Sudan accepts that every other jot and tittle of § 1605A(c) applies to actions properly brought under § 1083(c) for past conduct. And we can see no plausible account on which § 1083(c) could be clear enough to authorize the retroactive application of all other features of § 1605A(c), just not these two words.
Sudan next contends that § 1605A(c) fails to authorize retroactive punitive damages with sufficient clarity because it sounds equivocal-the provision says only that awards "may" include punitive damages. But this language simply vests district courts with discretion to determine whether punitive damages are appropriate in view of the facts of a particular case. As we have repeatedly observed when discussing remedial provisions using similar language, "the 'word "may" clearly connotes discretion.' " Halo Electronics, Inc. v. Pulse Electronics, Inc. , 579 U.S. ----, ----, 136 S.Ct. 1923, 1931, 195 L.Ed.2d 278 (2016) (quoting Martin v. Franklin Capital Corp. , 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005), in turn quoting Fogerty v. Fantasy, Inc. , 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) ; emphasis added). What's more, all of the categories of special damages mentioned in § 1605A(c) are provided on equal terms: "[D]amages may include economic damages, solatium, pain and suffering, and punitive damages." (Emphasis added.) Sudan admits that the statute vests the district court with discretion to award the first three kinds of damages for preenactment conduct-and the same can be no less true when it comes to the fourth.
That takes us to Sudan's final argument. Maybe Congress did act clearly when it authorized a new cause of action and other forms of damages for past conduct. But because retroactive damages of the punitive variety raise special constitutional concerns, Sudan says, we should create and apply a new rule requiring Congress to provide a super-clear statement when it wishes to authorize their use.
We decline this invitation. It's true that punitive damages aren't merely a form a compensation but a form of punishment, and we don't doubt that applying new punishments to completed conduct can raise serious constitutional questions. See Landgraf , 511 U.S., at 281, 114 S.Ct. 1483. But if Congress clearly authorizes retroactive punitive damages in a manner a litigant thinks unconstitutional, the better course is for the litigant to challenge the law's constitutionality, not ask a court to ignore the law's manifest direction. Besides, when we fashion interpretive rules, we usually try to ensure that they are reasonably administrable, comport with linguistic usage and expectations, and supply a stable backdrop against which Congress, lower courts, and litigants may plan and act. See id ., at 272-273, 114 S.Ct. 1483. And Sudan's proposal promises more nearly the opposite: How much clearer-than-clear should we require Congress to be when authorizing the retroactive use of punitive damages? Sudan doesn't even try to say, except to assure us it knows a super-clear statement when it sees it, and can't seem to find one here. That sounds much less like an administrable rule of law than an appeal to the eye of the beholder.
*
With the question presented now resolved, both sides ask us to tackle other matters in this long-running litigation. Perhaps most significantly, the petitioners include a postscript asking us to decide whether Congress also clearly authorized retroactive punitive damages in claims brought by foreign-national family members under state law using § 1605A(a)'s exception to sovereign immunity. Sudan insists that, if we take up that question, we must account for the fact that § 1605A(a), unlike § 1605A(c), does not expressly discuss punitive damages. And in fairness, Sudan contends, we should also resolve whether litigants may invoke state law at all, in light of the possibility that § 1605A(c) now supplies the exclusive cause of action for claims involving state-sponsored acts of terror.
We decline to resolve these or other matters outside the question presented. The petitioners chose to limit their petition to the propriety of punitive damages under the federal cause of action in § 1605A(c). See Pet. for Cert. i. The Solicitor General observed this limitation in the question presented at the petition stage. See Brief for United States as Amicus Curiae 19, n. 8. The parties' briefing and argument on matters outside the question presented has been limited, too, and we think it best not to stray into new terrain on the basis of such a meager invitation and with such little assistance.
Still, we acknowledge one implication that necessarily follows from our holding today. The court of appeals refused to allow punitive damages awards for foreign-national family members proceeding under state law for "the same reason" it refused punitive damages for the plaintiffs proceeding under § 1605A(c)'s federal cause of action. 864 F.3d at 818. The court stressed that it would be "puzzling" if punitive damages were permissible for state claims but not federal ones. Id., at 817. Having now decided that punitive damages are permissible for federal claims, and that the reasons the court of appeals offered for its contrary decision were mistaken, it follows that the court of appeals must also reconsider its decision concerning the availability of punitive damages for claims proceeding under state law.
The judgment of the court of appeals with respect to punitive damages is vacated. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice KAVANAUGH took no part in the consideration or decision of this case.
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_issue_6
|
D
|
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.
IN RE DISBARMENT OF ISSERMAN.
No. 5,
Misc.,
October Term, 1952.
Decided October 14, 1954.
Leonard, B. Boudin for Isserman, respondent.
Per Curiam.
April 6, 1953, an order was entered disbarring Isserman from the practice of law in this Court pursuant to Rule 2, par. 5, of this Court’s Rules then in effect. See In re Isserman, 345 U. S. 286. The order of disbarment is now before us on a petition for rehearing. Rule 8 of our present Rules provides that “no order of disbarment will be entered except with the concurrence of a majority of the justices participating.” The petition for rehearing is granted. A majority of the Justices participating do not find ground for disbarment of Isserman. Accordingly, the former order of disbarment is set aside and the rule against Isserman to show cause is discharged.
Mr. Justice Burton, with whom Mr. Justice Reed and Mr. Justice Minton join, dissents for the reasons stated in the opinion announced by Mr. Chief Justice Vinson, April 6, 1953, in In re Isserman, 345 U. S. 286.
Mr. Justice Reed also calls attention to his dissent in Sacher v. Association of the Bar, 347 U. S. 388, 390.
The Chief Justice and Mr. Justice Clark did not participate in the consideration or decision of this matter.
Question: What is the issue of the decision?
A. attorneys' and governmental employees' or officials' fees or compensation or licenses
B. commercial speech, attorneys (cf. commercial speech)
C. admission to a state or federal bar, disbarment, and attorney discipline (cf. loyalty oath: bar applicants)
D. admission to, or disbarment from, Bar of the U.S. Supreme Court
Answer:
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songer_circuit
|
L
|
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.
WATERWAY COMMUNICATIONS SYSTEMS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Riverphone, Inc., Intervenor.
No. 87-1488.
United States Court of Appeals, District of Columbia Circuit.
Argued May 2, 1988.
Decided July 5, 1988.
As Amended Sept. 21, 1988.
Martin W. Bercovici, with whom Susan J. Pisner, Washington, D.C., was on the brief, for petitioner.
Gregory M. Christopher, Counsel, F.C.C., for respondents. Diane S. Killory, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingel, Robert L. Cook, Counsel, F.C.C., Robert B. Nicholson and Laura Heiser, Attys., Dept, of Justice, were on the brief, for respondents.
Anne P. Jones and Robert J. Miller, Washington, D.C., entered appearances for intervenor Riverphone, Inc.
Before STARR and WILLIAMS, Circuit Judges, and WEIGEL, Senior District Judge.
Of the U.S. District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Circuit Judge WILLIAMS.
WILLIAMS, Circuit Judge:
Waterway Communications System, Inc. (“Watercom”), a provider of ship-to-shore telecommunications, appeals the Federal Communications Commission’s order rejecting its petitions to deny certain license applications of a competitor, Radio Television of Louisiana, Inc. (“RTL”). We dismiss for want of jurisdiction. The Commission’s rejection of Watercom’s petitions to deny the RTL license applications was not an appeal-able order; its ultimate grant of the RTL applications was appealable, but Watercom did not file its petition for review in this court within the 30-day statutory window following the grant.
I.
In the late 1970s Watercom developed technology for an “Automated Maritime Telecommunications System” or “AMTS.” AMTS represents a leap ahead of prior systems, which did not allow customer dialing and which required a caller from shore to know the location of the ship he wished to call and the nearest public coastal station. Watercom’s development and implementation of the AMTS technology threatened the interests of firms holding licenses for stations operating manual systems. An affiliated group of these licensees, of which RTL is a member, unsuccessfully contested Watercom’s applications for frequencies on which to run an AMTS network. Watercom counterattacked on two fronts. First, it asked the Commission to investigate the conduct of RTL and its affiliates (especially Riverphone, Inc.), with an eye to imposition of sanctions. Second, it petitioned to deny several of RTL’s pending public coast license applications on the theory that character flaws exhibited by members of its corporate family in their various challenges to Watercom should disqualify it from receipt of any FCC licenses.
On January 15, 1987 the Commission issued an order rejecting both aspects of Watercom’s counterattack. Its disposition of the generalized request for sanctions, however, is not before us; Watercom has limited its appeal to the Commission’s treatment of its petitions to deny RTL’s license applications. Reply Brief at 2-10; cf. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Viewing the RTL group’s actions in the context of the entire record, a “record ... replete with rancorous and ad hominem pleadings,” Complaint of Waterway Communications System, Inc. against Riverphone, Inc., 2 FCC Red 241 (Joint Appendix (J.A.) 485), the Commission judged it innocent of material wrongdoing. Finding a hearing unnecessary, it rejected the petitions to deny and directed its staff to “process [the RTL] filings in the regular course of business.” Id. On August 17, 1987, the Commission denied Watercom’s petition for reconsideration of this decision. Complaint of Waterway Communications System, Inc. against Riverphone, Inc., 2 FCC Red 5012, J.A. 574.
On September 14, 1987, Watercom filed for review in this court pursuant to § 402 of the Federal Communications Act, 47 U.S.C. § 402 (1982). More than two weeks later, on October 2, the Commission’s staff, acting on delegated authority, granted the RTL license applications.
II.
There appear to be two ways of viewing Watercom’s appeal to this court. The appeal may be from the Commission’s denial of Watercom’s petition to deny the RTL licenses, i.e., its decision that Watercom’s challenges to the RTL applications did not warrant a hearing. That petition reached the end of the road when the Commission denied Watercom’s petition for reconsideration on August 17, 1987. But, for the reasons discussed below and despite some suggestions to the contrary in our cases, the Commission’s decision lacks finality and is not appealable.
On the other hand, this case may instead be characterized as a challenge to the grant of the RTL licenses on October 2, 1987. Commission orders granting radio licenses plainly are appealable under 47 U.S.C. § 402(b). But Watercom’s September 14, 1987 filing in this court did not fall within the 30-day jurisdictional window allowed by 47 U.S.C. § 402(c).
A. Rejection of Watercom’s Petitions to Deny
Jurisdiction for review of FCC licensing-related decisions is governed by § 402(b). § 402(b)(l)-(4) provide jurisdiction for appeals by parties affirmatively seeking Commission authorization, mostly described as “applicant[s]” for one thing or another; subsection (1) allows appeal by “any applicant for a ... station license, whose application is denied by the Commission.” § 402(b)(6) turns to the other side and authorizes appeal for persons situated as is Watercom — “any ... person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (l)-(4).” (Emphasis added.) On its face, therefore, it appears that relief for Watercom under § 402(b) requires as a trigger the grant or denial of a license application.
Although the Commission order rejecting Watercom’s Petitions to Deny removed an impediment to the Commission’s eventual grant of the RTL licenses, the order was not itself a final license grant. Nor did it irrevocably commit the Commission to granting the RTL licenses. In the denial the Commission directed its staff to “process” the RTL filings “in the regular course of business.” This left the staff to assess RTL’s technical submissions and make the statutorily required public interest finding. To treat the rejection of Wa-tercom’s petitions to deny as de facto a final decision to grant the RTL applications, as Watereom urges, would entangle the courts in disputes that have at least some chance of completely disappearing.
Resolution of petitions to deny a license application characteristically revolve around the Commission’s duty to hold a hearing when the petition raises a sufficient question about the license application. See 47 U.S.C. § 309(e). As Watereom asserts that its petitions to deny raised such an issue, it suggests that the order rejecting the petitions must be appealable. But the Commission’s violation of § 309, if its January and August 1987 decisions be such, can create a reviewable issue without constituting an appealable order. Water-corn’s impression to the contrary may well have derived from its reading some of our prior cases that loosely, and somewhat misleadingly, characterize appeals of the Commission’s licensing decisions as appeals of the Commission’s concurrent rejection of the appellants’ petitions to deny. See, e.g., Metropolitan Television Co. v. United States, 221 F.2d 879, 880-81 (D.C.Cir.1955); Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 393 (D.C.Cir.1985). The cases are properly characterized as appeals of Commission licensing decisions in which the primary issue on appeal was whether the Commission had violated the standards established by § 309(e). Cf. Stone v. FCC, 466 F.2d 316, 321 (D.C.Cir.1972); Columbus Broadcasting Coalition v. FCC, 505 F.2d 320, 322 (D.C.Cir.1974). None of these cases even considered whether the Commission’s § 309 decisions could be independently appealable.
In a post-argument filing Watereom asserts that Fidelity Television, Inc. v. FCC, 502 F.2d 443 (D.C.Cir.1974), and Committee for Open Media v. FCC, 543 F.2d 861 (D.C.Cir.1976), are binding precedent for its view that a Commission order rejecting a § 309(d) petition to deny without a hearing is independently appealable. We disagree. In Fidelity Television the court held final and appealable under § 402(b) a Commission decision renewing RKO General’s Los Angeles TV station but reserving its authority to upset that renewal if the results of an inquiry then pending in Boston (and relating to allegations of anticompetitive behavior by RKO) so dictated. The Commission’s decision stated that “the application of RKO General, Inc.... IS DEEMED TO BE GRANTED, and ... the application of Fidelity Television, Inc.... IS DEEMED TO BE DENIED, subject to whatever action may be deemed appropriate following resolution of the matters” raised in the Boston proceeding. Id. 502 F.2d at 448. So far as appears, the qualification of the decision’s finality was no more than what is inevitable under 47 U.S.C. § 312(a)(2), which authorizes the Commission to revoke licenses “because of conditions coming to the attention of the Commission which would warant it in refusing to grant a license or permit on an original application.”
Commission for Open Media v. FCC is closer but not on the mark. It arose from an objection by the Commission for Open Media (“COM”) to the FCC’s decision to renew Chronicle Broadcasting’s TV license. On November 1, 1971 COM petitioned to deny Chronicle’s application for renewal. The FCC rejected the substance of this petition in its May 9, 1973 decision to grant renewal. But that decision did not specifically mention the petition to deny, and the Commission formally rejected that petition only on May 30, 1973. In other words, what we would normally think of as the final decision — license renewal — preceded formal disposition of what we might think of as an interlocutory motion.
COM on June 23,1973 filed a petition for reconsideration with the Commission. Under 47 U.S.C. § 405, this was timely as to the May 30 order, untimely as to that of May 9. On October 15, 1973, while this petition was pending, COM appealed to this court. Besides challenging the FCC’s rejection of its initial petition, it sought relief against the Commission’s allegedly unreasonable delay in failing to act on its petition for reconsideration. (Although filing a petition for reconsideration was not a prerequisite of seeking judicial review, pendency of the petition rendered the Commission’s decision non-final.) Finally, on January 4, 1974, the FCC denied COM’s petition.
The court found that the FCC denial of reconsideration mooted COM’s delay complaint. Turning to the merits claim, the court said that COM’s motion for reconsideration tolled the statute of limitations for appeal from the May 9 order, and that that order was appealable. 543 F.2d at 864-65 n. 20. But as more than 30 days had elapsed from the May 9 order to COM’s petition for reconsideration, that did not solve the limitations problem. The court proceeded to say that the May 30 order “was ancillary to the Commission’s licensing authority, and was likewise appeal-able.” Id. Whatever the purpose of the remark, it cannot mean that any decision ancillary to a final decision is on that account final; such a view would extinguish the requirement of finality. (The cases cited by the court, Metropolitan Television Co. v. United States, 221 F.2d 879 (D.C.Cir. 1955), and Radio Station WOW, Inc. v. FCC, 184 F.2d 257 (D.C.Cir.1950), do not support that view.)
Thus, read consistently with ordinary notions of finality, COM appears to be mainly a response to the FCC’s cart-before-the-horse move — granting the license renewal before rejecting the petition to deny. In essence it says that when the Commission disposes of a matter once, and then issues a mopping-up order explicitly rejecting a petitioner’s claim, the petitioner may treat the latter as the final, final order. Such a proposition does no good for Waterway.
Finally, petitioner notes that Commission rules prevent the entertainment of motions to reconsider interlocutory appeals. See 47 C.F.R. § 1.106(a) (1987). As the Commission clearly did entertain its motion to reconsider, it would evidently have us infer that the Commission must have regarded its denial of the petition to deny as final. See May 5, 1988 letter submitted under Rule 28(j) of the Federal Rules of Appellate Procedure. Presumably so; but the Commission’s characterization of its decision as final for its purposes does not make it so for ours. See Spanish Int’l Broadcasting Co. v. FCC, 385 F.2d 615, 625-26 (D.C.Cir. 1967).
B. Approval of the RTL License Applications
In view of the confusion engendered by the Commission’s consolidated treatment of Watercom’s requests for enforcement against Riverphone and for denial of the RTL license applications, one can perceive an equitable claim in favor of treating Watercom’s September 14,1987 petition for review here as an appeal of the Commission staff’s October 2, 1987 approval of those applications. Even if we thought the equitable claim strong, compare Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), however, our previous decisions preclude this course. The time limit imposed by 47 U.S.C. § 402(c) is jurisdictional, i.e., if the appeal is not filed in accordance with the statutory terms, “it must be dismissed.” National Black Media Coalition v. FCC, 760 F.2d 1297, 1298 (D.C.Cir. 1985) (emphasis added).
Here the appeal was filed 18 days before public notice of the RTL license grant. 47 U.S.C. § 402(c) requires that notice of appeals taken pursuant to § 402(b) be “file[d] ... with the court within thirty days from the date upon which public notice is given of the decision or order complained of.” We have already construed an identically phrased time limit as creating only a “window,” i.e., a period for filing restricted on both ends.
In Western Union Telegraph Co. v. FCC, 773 F.2d 375 (D.C.Cir.1985), we considered the requirement of 28 U.S.C. § 2344 (1982) that appeals under 28 U.S.C. § 2342 be filed “within 60 days after ... entry” of the order appealed. The petition for review in question had been filed one week after release to the public, but six days before publication of the contested order in the Federal Register. The panel acknowledged that the statutory time limit could be viewed as either establishing a “deadline” or a “window.” Id. at 377. It concluded that both the language of the statute and the interest in establishing clear and certain jurisdictional boundaries weighed heavily in favor of the latter approach. Id. at 377-78.
The statutory language at issue here (“within thirty days,” 47 U.S.C. § 402(c)) mirrors that construed in Western Union; no other factors distinguish the issue here from that faced by the Western Union panel. We conclude that we have no power to entertain Watercom’s appeal.
We note that some of the rigor behind our rejection of premature appeals has derived from the fact that 28 U.S.C. § 2112(a) (1982) created a race to the courthouse where timely appeals were filed in different courts of appeal with respect to the same agency order. If time limits were construed as deadlines only, parties would file progressively earlier, necessitating judicial invention of some threshold. See Western Union, 773 F.2d at 378. The race has since been replaced by a lottery, Act of Jan. 8, 1988, Pub.L. No. 100-236, 101 Stat. 1732, a change that argues for some relaxation of existing barriers. Compare Sacks v. Rothberg, 845 F.2d 1098 at 1099 (D.C. Cir.1988) (“[A]n appeal taken prematurely effectively ripens and secures appellate jurisdiction when the district court’s judgment becomes final prior to disposition of the appeal”). But Western Union itself did not actually involve a race, so the court clearly did not regard the absence of a race as justifying mitigation of the rule. Nor was it explicitly founded upon the existence of the race problem as a general matter. Accordingly, Western Union remains the law of this circuit.
We dismiss the petition.
. Watercom has also petitioned to deny the application of Riverphone Inc., an RTL affiliate recently created to exploit the new AMTS technology, for a band of AMTS frequencies (File No. 854213 (Dec. 31, 1986)). J.A. 542. The Commission has not yet spoken to this petition to deny, and it is not before us.
. The Licensing order also was a staff order and thus was not subject to judicial review in the absence of an application for review by the Commission. See 47 U.S.C. § 155(c)(7).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Eric DAHLBERG, Plaintiff-Appellant, v. Carl F. BECKER; Govern, McDowell & Becker; Ellen M. Dahlberg; and Harvey E. Stoddard, Jr., Defendants, Carl F. Becker; Govern, McDowell & Becker; and Ellen M. Dahlberg, Defendants-Appellees.
No. 1374, Docket 84-7219.
United States Court of Appeals, Second Circuit.
Argued June 20, 1984.
Decided Nov. 9, 1984.
Herbert Jordan, Roxbury, N.Y. (Randlett Walster, Rural Legal Rights Foundation, Inc., Roxbury, N.Y., of counsel), for plaintiff-appellant.
John E. Hunt, Utica, N.Y., (Andrea Lynch, Kernan and Kernan, P.C., Utica, N.Y., of counsel), for defendants-appellees Carl F. Becker and Govern, McDowell and Becker.
Before MESKILL, CARDAMONE and ROSENN, Circuit Judges.
Honorable Max Rosenn, United States Circuit Judge for the Third Circuit, sitting by designation.
CARDAMONE, Circuit Judge:
This appeal from an order, dismissing plaintiff’s complaint for failure to state a claim, made by the United States District Court for the Northern District of New York (Miner, J.), 581 F.Supp. 855, presents a question of first impression that involves the well-known litany of Title 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Despite our familiarity with the refrain, the scope and meaning of the words have not proved easy to define. This case provides yet another opportunity to explore the contours of § 1983. In venturing into the unplumbed depths of “state action,” a sense of the strong yet uncertain cross-currents in this area of the law leads us to hug the known legal shore as closely as possible.
I
The facts in this case stem from a dispute between plaintiff, Eric Dahlberg, and defendant, Ellen Dahlberg, his former wife. A matrimonial proceeding between them ended in a default divorce and a stipulation of settlement which was executed by the parties and later incorporated in a June 1982 decree. When the plaintiff failed to make the payments required by the stipulation, his wife’s attorneys — co-defendants in the present litigation — prepared an order to show cause why he should not be held in contempt. The order stated that plaintiff owed defendant $1,785 for maintenance and $800 in costs and fees to her attorneys and that he had neglected to execute certain documents, including a promissory note for $8,000 and security instruments covering certain machinery.
The show cause order, presented ex parte on November 23, 1982 to an Acting New York State Supreme Court Justice for Delaware County, was made returnable in December at Special Term. When neither plaintiff nor his attorney appeared on the return date, the Special Term Justice found Dahlberg guilty of contempt and signed an order which provided that he could purge himself of contempt by paying the maintenance arrearage and signing the requisite promissory notes and financing statements. The order also stated that further noncompliance on Dahlberg’s part would cause an order of commitment to issue. When Dahl-berg again failed to respond, Special Term signed a commitment order that resulted in Dahlberg’s arrest on June 7, 1982 by the Sheriff of Schoharie County. After plaintiff was transported to the county jail, he was advised that to obtain his release he would have to pay $300 in maintenance, $2500 in attorneys’ fees, plus the sheriff’s fees. Upon reading the order of commitment, the Schoharie County Court Judge who conducted the arraignment told Dahl-berg that he had no alternative but to hold him without bail. Later that same afternoon Dahlberg’s friends provided him with the necessary funds, promissory notes and financing statements. Despite plaintiff’s willingness to meet these obligations, the County Court Judge refused to order plaintiff’s release absent authorization from either a State Supreme Court Justice or Ellen Dahlberg’s attorneys. Plaintiff was therefore confined overnight in the Scho-harie County jail. The next morning, June 8, defendant’s attorneys telephoned the County Court Judge and authorized plaintiff’s release, contingent on his signing the requisite documents and paying the maintenance and attorneys’ fees. Shortly before noon Dahlberg was again before the county court where he signed the documents, paid the fees and obtained an order releasing him from jail.
Based on these events, plaintiff commenced the present action in district court pursuant to 42 U.S.C. § 1983. In his complaint he alleges that Ellen Dahlberg and her attorneys acted under color of state law to cause his unlawful arrest and imprisonment violating his Fourteenth Amendment rights. Specifically, Dahlberg asserts that defendants, intentionally and/or negligently: (a) prepared a false affidavit and submitted it to the New York State Supreme Court in support of the show cause order as a basis for obtaining a promissory note and financing statements to which, he alleges, defendants were not entitled; (b) omitted from the order to show cause the notice and warning required by section 756 of the New York Judiciary Law; (c) violated section 761 of the New York Judiciary Law by serving an order to show cause for contempt upon an attorney whose authority had expired; and (d) failed to include with the commitment order either the actual promissory note and financing statements or a satisfactory description of those documents so that the County Court Judge could assess plaintiffs compliance and thereby avoid his needless incarceration. As a result, Dahlberg claims to have suffered damages from lost work, work improperly performed by unsupervised employees, injury to business reputation, as well as extreme shock, outrage, degradation and humiliation.
Ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), Judge Miner concluded that Dahlberg’s complaint failed to state a claim upon which relief can be granted. He found it clear that neither Ellen Dahlberg nor her attorneys acted under color of state law. Plaintiff has not appealed the dismissal of his suit against Ellen Dahlberg. In his appeal of the dismissal of his suit against defendant attorneys, plaintiff renews his contention that through their joint participation with a state official as well as their independent exercise of power allegedly ceded to them by a state official they acted under color of state law. Although we affirm the result reached by the district court jduge, we do so for somewhat different reasons.
II
Since the judgment below was premised on Fed.R.Civ.P. 12(b)(6), we note at the outset that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, in passing on a motion to dismiss, the allegations of the complaint must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). Even accepting Dahlberg’s allegations as true, his complaint does not state a cause of action under 42 U.S.C. § 1983.
We start with the words of the Fourteenth Amendment that no State shall deprive any person of life, liberty or property without due process of law. By enacting 42 U.S.C. § 1983 Congress provided a remedy for a claimed violation of this constitutional guarantee. The statute permits suit upon deprivation under color of any state statute, ordinance, regulation, custom or usage of one’s life, liberty or property without due process of law. • Section 1983 protects an individual’s rights against governmental action, as distinct from private action, whether the government is state or municipal. As a corollary, individuals are also protected against acts of private parties who act in concert with government officials.
In order to allege a good cause of action, plaintiff must charge first that the conduct complained of has deprived him of a constitutionally-protected right; and second, that the conduct allegedly causing the deprivation was fairly attributable to the State. The Supreme Court has set forth a two-part analytical approach to this question of “fair attribution.” Plaintiff must show that the allegedly wrongful action occurred as a result of the exercise of a state-created right or privilege, or by a state-imposed rule of conduct. Plaintiff must also show that the party charged with the deprivation is a person who is a state official or someone whose conduct is otherwise chargeable to the State. In other words, to establish deprivation of a federally-protected right there must be both “state action” and a “state actor.”
Since both parties to this appeal rely on Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 78 L.Ed.2d 482 (1982), to support their opposing conclusions, we undertake to analyze it in some depth. The facts are relatively simple. A truckstop operator in Virginia indebted to his supplier was sued in state court on the debt. Simultaneously, the supplier sought prejudgment attachment of the debtor’s property pursuant to Virginia law. Acting upon the supplier’s ex parte petition, a state court clerk issued a writ of attachment that was executed by the county sheriff. As a result, the debtor’s property was sequestered for 34 days, at which time the attachment was dismissed due to the supplier’s failure to establish a statutory basis for the issuance of the writ. The debtor thereupon sued under § 1983 alleging that the supplier, a private party, had acted jointly with the State to deprive him of his property without due process of law. Id. at 924-25, 102 S.Ct. at 2747-48.
Lugar proceeded to outline a standard for determining the presence of state action. The Court held that the conduct causing the deprivation of a federal right must be fairly attributable to the State and, accordingly, proposed a two-pronged approach to determining “fair attribution.”
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.
Id. at 937, 102 S.Ct. at 2754. Lugar then examined the two counts of plaintiff’s complaint in light of its test. Count one asserted that Virginia’s prejudgment attachment statute was constitutionally defective. Count two simply alleged plaintiff’s deprivation came about by defendant’s unlawful acts. The Court considered count two first and held that it failed to satisfy the first prong because it did not charge conduct that could fairly be attributed to any state governmental decision or rule. Rather, the Court specifically asserted that defendants invoked the state statute in abuse of and in direct contravention to relevant state policy. Id. at 940,102 S.Ct. at 2755. Thus, the Court held that count two failed to assert a valid § 1983 claim because it did not satisfy the state action or first prong of the fair attribution test.
The Court then examined count one and found that it met the first prong of the fair attribution standard. As the Court noted: “While private misuse of a state statute [i.e., count two] does not describe conduct that can be attributed to the State, the procedural scheme created by the statute [i.e., count one] obviously is the product of state action.” Id. at 941, 102 S.Ct. at 2756. It next applied the second prong of the test to the allegations in count one. It observed that a private party’s “joint participation” with state officials in the seizure of disputed property will suffice to characterize that party as a state actor. Id. at 941, 102 S.Ct. at 2756. Lugar held that defendants were such joint participants and, therefore, state actors because they “in-vok[ed] the aid of state officials to take advantage of state-created attachment procedures.” Id. at 942, 102 S.Ct. at 2756.
Ill
Eric Dahlberg likens his case to Lugar and urges that the Court’s holding there supports his § 1983 claim. The deprivation of Dahlberg’s federally-protected right to liberty by his overnight imprisonment is not questioned. Accordingly, we turn to the two part “fair attribution” test to determine whether his rights were deprived under color of state law. As the ensuing analysis demonstrates, neither prong of the “fair attribution” test has been satisfied.
As previously stated, the state is responsible for violation of plaintiff’s constitutional rights whenever that deprivation is caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. 457 U.S. at 937, 102 S.Ct. at 2754. The Supreme Court read count one of Lugar’s complaint to allege that Virginia’s prejudgment attachment statute was procedurally defective under the Fourteenth Amendment. Id. at 941, 102 S.Ct. at 2756. The deprivation of Dahlberg’s federally-protected rights is not “caused” by the exercise of some right created by the State in the same sense as was Lugar’s. A private party’s misuse of New York’s Judiciary Law that causes plaintiff to be imprisoned overnight is not fairly attributable to New York State. In Lugar the state statute was itself constitutionally defective. Since a State is charged with the responsibility of assuring that its laws are constitutional, a constitutionally defective statute is plainly a product of state action. As such, it was deemed in Lugar to have “caused” or “permitted” defendant to seize plaintiff’s property.
Plaintiff has not here alleged that New York’s procedure for notice and adjudication of contempt is constitutionally defective. Thus, the present case does not fall within the Lugar rationale for state action. In fact, the instant case is more closely related to count two of Lugar’s complaint that asserted that the deprivation of property resulted from private party defendants’ “ ‘malicious, wanton, willful, opres-sive [sic], [and] unlawful acts.’ ” Id. at 940, 102 S.Ct. at 2756. This allegation did not ascribe conduct to any state governmental decision or action. Instead, it implicitly legitimized the state statute and complained only that the private party defendants had run afoul of the statute. In the words of the Court: “That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or a state decision . . . . [P]rivate misuse of a state statute does not describe conduct that can be attributed to the State . . . .” Id. at 940-41, 102 S.Ct. at 2756. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (abuse of authority doctrine).
Private misuse of a state statute is precisely what plaintiff has alleged here. Dahlberg’s complaint accuses his ex-wife’s lawyers of intentionally or negligently violating the notice provisions of New York Judiciary Law § 756 and thereby causing his subsequent arrest and imprisonment. It is one thing to hold a State accountable for the unconstitutional acts of its legislature, but quite another to charge that State with responsibility where private parties abuse an otherwise valid state law. In the latter case, the State does not sanction such abuse, nor can it prevent it any more than it can stop a private party from committing a crime or tort. Thus, the deprivation of Dahlberg’s rights was not caused by the exercise of some right or privilege created by the State.
Nor can the conduct complained of subject defendants to Section 1983 liability for their actions based upon a rule of conduct imposed by New York. See Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) (custom alone is insufficient to turn private conduct into state action). As the Supreme Court held in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the decision to discriminate must be ascribed to a governmental decision, so a private club’s racially restrictive policies do not constitute state action subjecting the club to constitutional restraint. Thus, since defendants’ actions were not encouraged by any rule of New York — regardless of whether they were intentional or malicious — they may not be viewed as caused by a rule of conduct imposed by the State or a person for whom the State is responsible. Therefore, they are not attributable to the State.
Plaintiff challenges this conclusion by asserting that there are other ways of establishing state responsibility. Specifically citing numerous cases including Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), and Howerton v. Gabica, 708 F.2d 380 (9th Cir.1983), he attempts to characterize his situation as indistinguishable from them. We agree that state responsibility, the first prong of the fair attribution test, does not inevitably turn on the presence or absence of an unconstitutional state law. Lugar makes this clear. Nonetheless, we reject Dahlberg’s contention that this case satisfies the state responsibility requirement in some other form.
Dennis v. Sparks is quite different from the case at bar. There the “action under color of state law” requirement of § 1983 was met where plaintiff’s complaint alleged a conspiracy between the private party defendants and a state official. 449 U.S. at 28, 101 S.Ct. at 186. Dennis never discussed Fourteenth Amendment state action or fair attribution of state responsibility. In fact, it was decided nearly two years prior to Lugar, which Dahlberg concedes controls. Even assuming that the Court in Dennis implicitly found state action and state responsibility, such a finding does not mandate a similar result here. The Lugar test for state responsibility is satisfied where the deprivation of plaintiff’s rights is caused “by a rule of conduct imposed by the State or by a person for whom the State is responsible.” 457 U.S. at 937, 102 S.Ct. at 2754. In Dennis, the judge who allegedly accepted a bribe and conspired with private parties was obviously a “person for whom the State is responsible.” This is also true with respect to the state judges involved in the Dahlberg contempt proceedings. The difference is the presence in Dennis and the absence here of an alleged bribe and conspiracy, before such intentional misconduct can be considered a “rule of conduct.” Where a state judge’s single, isolated error in signing a defective order was due to oversight or negligence, such nonfeasance may hardly be characterized as a rule. A series or pattern of similar negligent acts might arguably establish a rule of conduct for which the State would be responsible. But Dahlberg has not alleged a pattern of behavior, and we do not assume that a state court judge in this or any other case makes a practice of signing defective orders. Moreover, plaintiffs in § 1983 cases need not allege a pattern of behavior in cases like Dennis where the state official acts intentionally rather than negligently. The reason is plain. Given an actor’s presumed control over his intended actions, one intentional act can signify the presence of a “rule of conduct,” even though in its infancy. Thus, there is good reason for an actor to be held responsible for his intentional behavior, as opposed to his mere inadvertence. And, responsibility is of course a touchstone of fair attribution.
A more difficult problem is presented by the Ninth Circuit’s decision in Howerton v. Gabica, supra, 708 F.2d 380. There, defendant landlords undertook to evict plaintiff tenants from a rented trailerhouse. In the process defendants prepared a three-day eviction notice that was allegedly defective under state law. They subsequently sought the aid of local police who, together with defendants, evicted the plaintiffs, despite plaintiffs’ assertion to the police that the eviction notice unlawfully failed to state the amount of rent due and permit payment of that amount as an alternative to vacating. Plaintiffs also contended that the eviction did not comply with the state’s unlawful detainer statute that requires a court order prior to eviction.
The Ninth Circuit ruled that plaintiffs ■ had stated a cause of action against the landlords under § 1983. In particular, it held that the action taken by the landlords was “under color of state law” since it involved significant state involvement. 708 F.2d at 382. Taking note of Lugar, the Howerton court determined that where “police involvement becomes increasingly important, repossession by private individuals assumes the character of state action.” Id. at 383. Consequently where private individuals invoke the authority of state officials, such as the police, to put the weight of the State behind their decision to evict, they fall within the “abuse of authority” doctrine. Id. at 384 n.9 (citing Lugar v. Edmondson Oil Co., 457 U.S. at 940, 102 S.Ct. at 2756). See Monroe v. Pape, supra.
While the circumstances in Howerton and the instant case are similar, we observe that although the Howertons called the police officer’s attention to the defects in the notice, the police proceeded to enforce the eviction anyway, even to the extent of one officer visiting the Howertons’ residence to tell them the defendant’s eviction procedures were proper and that they should quit the premises. Id. at 381. That is quite unlike the conduct of a judge who unknowingly signs a defective order that has been prepared and submitted to him by an attorney. Hence, regardless of their similarities, we perceive factual distinctions in the circumstances of the two cases. Again, the question of state involvement is always a factual inquiry and, “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
ÍV
Despite the conclusion that here there is no state action, we think it necessary in light of the alluded to uncertain cross-currents that envelope state action to discuss our reasons for also concluding that defendants are not state actors. Bearing in mind that it requires both state action and a state actor for.plaintiff to state a viable cause of action under § 1983, a failure sufficient to allege either defeats plaintiff’s cause. While Ellen Dahlberg’s lawyers are not state officials, the question nonetheless remains whether under any one of several theories they may still be considered state actors. Aside from the field of prejudgment attachment, several theories have evolved that when properly- alleged suffice to tie a private person so closely to governmental actions that a court will hold the private actor’s conduct subject to suit for violating another’s constitutional rights. Thus, a private party may be held a state actor when the complained of conduct results from a state agent’s encouragement or command, the state and private actor jointly participate in depriving plaintiff of his rights, the granting of benefits to a private actor by the state inseparably links them together, or the private actor undertakes to perform activities ordinarily exclusively engaged in by government. As the ensuing discussion demonstrates none are applicable to the claims before us.
First, nothing before us suggests that the state judicial officers commanded or encouraged defendants in their decision to invoke state process against plaintiff. Second, the joint participation theory — adopted as the rationale in Lugar — does not fit this case when it is compared to those cases finding state action on that theory. For example, the government agent and the thugs laying in wait for the victims in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1965), carried out a deliberate, previously agreed upon plan. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the state agent’s joint participation with Kress employees was found to constitute a conspiracy or meeting of the minds.
The complaint in this case simply alleges that Ellen Dahlberg and her attorneys acted “in concert with state and county officials” to imprison plaintiff. No claim is made — and on the facts in the record none could be — that the different state judges actually entered into a conspiracy or had a meeting of the minds with the attorney defendants as in Price and Adickes to deprive plaintiff of his liberty. See Dennis v. Sparks, supra, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185. Further, the mere invocation by defendants of New York's legal procedures does not constitute joint participation so as to satisfy the statutory requirement under § 1983 that there be a state actor. Lugar at 939 n.21, 102 S.Ct. at 2755 n.21. While entanglement by the private actor with the State may lead to a conclusion that there is a conspiracy or meeting of the minds between private parties and state officials to engage in conduct to deprive a plaintiff of constitutional rights, the action of the state court judges and the sheriff in this case do not establish any meeting of the minds or intent to conspire with defendants to imprison plaintiff.
Third, there is no basis for finding an inseparable linking or symbiotic relationship arising from any benefits granted by the state to these defendants as in Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Finally, the exclusivity doctrine has no application here. That doctrine applies where the private party undertakes to perform a function exclusively performed by government, for example, elections, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), or running a company-owned town, see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). More traditional business activities, like the operation of a public utility, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), are not so exclusive. Thus, in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), the use of state law patterned on the Uniform Commercial Code as a method of dispute resolution between a debtor and creditor was private activity. In Flagg Brothers the defendant warehouseman who had a lien on plaintiff’s goods in his possession arising from unpaid storage charges sold plaintiff’s property. The Supreme Court held it unnecessary to examine whether the law itself or the actions of the warehouseman violated due process because defendant’s actions were entirely private. Similarly, the parties’ matrimonial dispute in New York involving unpaid alimony and attorneys’ fees are not matters exclusively relegated to the State. On the contrary, this kind of dispute is ordinarily resolved by institution of an action between private parties. Therefore, the exclusivity theory does not transform defendants into state actors. Since none of these theories provides a ground for holding defendants to be state actors, we conclude that they are not.
V
In concluding that plaintiff failed to state a cause of action under 42 U.S.C. § 1983 because there was no demonstration either of state action or a state actor, we do not mean to suggest that plaintiff is without a remedy. The incidents alleged may well support a tort action in state court. We simply conclude that the events recounted here do not provide a basis for a federal claim.
. Section 756 states, in pertinent part:
An application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. ... The application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight point bold type:
WARNING:
YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT
N.Y.Jud. Law § 756 (McKinney Supp.1983).
. “An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge." N.Y.Jud. Law § 761 (McKinney Supp. 1983).
. We recognize that the concept encompassed by "state action” and "state actor” overlap. They collapse into each other when the claim of a constitutional deprivation is directed against a public official. The two requirements diverge only when the claim is directed against a private party.
. The use of the word "responsibility” does not imply that actions taken pursuant to state authority will impose legal liability upon the State, but the term means, as Webster’s first definition states, only that the deprivation of plaintiffs federally-protected rights is "caused” by the exercise of some right or privilege created by the State.
. Sheriff Stoddard is no longer a party to this action since the cause of action against him, pursuant to Fed.R.Civ.P. 41(a), was dismissed by stipulation and order filed February 2, 1984.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appel1_5_2
|
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 first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Alan F. McDONELL, M. Lee Curran, and Sally Phipps, individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER, Jean Sebek, Russell Behrends, and Harold Farrier, Appellants.
No. 84-1346.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 8, 1984.
Decided Nov. 2, 1984.
Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
Mark W. Bennett, Des Moines, Iowa, for appellees.
Before ARNOLD, FAGG and BOWMAN, Circuit Judges.
ARNOLD, Circuit Judge.
This case involves policies of the Iowa Department of Corrections which permit strip searches, urinalyses, and blood tests of correctional officers and searches of the officers’ cars. The District Court granted a preliminary injunction preventing the Department from conducting these searches except under specified conditions. We hold that the District Court did not abuse its discretion in granting this preliminary relief and therefore affirm its order.
I.
Plaintiff McDonell began work as a correctional officer at the Iowa Men’s Reformatory in 1979. Upon starting his employment at this facility, McDonell signed a consent-to-search form. On January 17, 1984, prison officials informed McDonell that they had received information that he was seen the previous weekend with persons suspected of trafficking in illegal drugs. They asked him to take a urinalysis test. McDonell eventually refused to take the test and was fired on January 19. After this lawsuit was initiated, McDonell was reinstated but transferred to a different institution and lost ten days’ pay.
The plaintiffs Sally Phipps and M. Lee Curran are correctional officers at Iowa Correctional Institution for Women. On August 2, 1983, they were told by prison officials that the Department planned to conduct strip searches, blood tests, and urinalyses on Department employees and were asked to sign a form consenting to such searches. Both women refused to sign the consent form, and they were told that they would be subject to compelled urinalyses, blood tests, strip searches, and searches of their vehicles, despite their refusal to sign the form.
The plaintiffs filed this lawsuit on Janu-, ary 31, 1984. After a hearing at which all ; parties participated, the District Court is-: sued a temporary restraining order and j then a preliminary injunction prohibiting the Department from conducting strip 1 searches, blood tests, and urinalyses unless the searching officials have a reasonable suspicion, based on specific objective facts and reasonable inferences, that the employee is smuggling contraband or under the influence of alcohol or a controlled substance. The court also enjoined the warrantless search of employees’ automobiles parked outside the confines of a prison facility.
II.
On appeal, the defendants urge that the District Court erred in several respects: (1) in requiring a “reasonable suspicion” rather than a “mere suspicion” as the basis for conducting the strip searches and tests in question; (2) in holding that the consent form was not a valid waiver of Fourth Amendment rights; (3) in requiring a valid warrant or consent for searches of automobiles parked outside of the prison walls; and (4) in concluding that plaintiffs were under a threat of irreparable harm.
On review of the grant or denial of a preliminary injunction, our inquiry is limited to determining whether the District Court abused its discretion. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 n. 8 (8th Cir.1981) (en banc). In making this determination, we must specifically consider four factors: (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest.
After considering these four factors, we are not convinced that the District Court abused its discretion in granting the preliminary relief described above. The violation of privacy in being subjected to the searches and tests in question is an irreparable harm that could reasonably be found to outweigh whatever increase in security the enforcement of the Department’s policies might produce. The District Court’s assessment of the parties’ likelihood of success on the merits, when viewed against the background of the other Dataphase factors, is not so unreasonable as to deserve condemnation as an abuse of discretion. See Hunter v. Auger, 672 F.2d 668, 674-75 (8th Cir.1982).
Although we uphold the preliminary injunction which the District Court issued, this holding does not reach the merits of this dispute, since it is based upon an abuse-of-discretion standard of review. Hence, our holding does not in any way affect the defendants’ right to litigate the constitutionality of the disputed policies at the trial on the merits or before this Court on a subsequent appeal from the District Court’s final judgment.
Affirmed.
. The Hon. Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. At oral argument we were informed that some new evidence, not now in the record, will be offered at the trial on the merits.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
sc_lcdisagreement
|
A
|
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.
BROWN et al. v. PRO FOOTBALL, INC., dba WASHINGTON REDSKINS, et al.
No. 95-388.
Argued March 27, 1996
Decided June 20, 1996
Breyek, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 252.
Kenneth W. Starr argued the cause for petitioners. With him on the briefs were Paul T Cappuccio, Steven G. Bradbury, Joseph A. Yablonski, and Daniel B. Edelman.
Deputy Solicitor General Wallace argued the cause for the United States et al. as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Bingaman, Deputy Assistant Attorney General Klein, Paul R. Q. Wolfson, Robert J. Nicholson, Robert J. Wiggers, and David C. Shonka.
Gregg H. Levy argued the cause for respondents. With him on the brief were Herbert Dym, Sonya D. Winner, and Robert A. Long, Jr.
Briefs of amici curiae urging reversal were filed for the National Hockey League Players Association et al. by Simon P. Gourdine, Laurence Gold, Virginia A. Seitz, James W. Quinn, and Jeffrey L. Kessler; and for the Screen Actors Guild, Inc., et al. by David Alter.
Briefs of amici curiae urging affirmance were filed for the Alliance of Motion Picture and Television Producers by Richard M. Cooper; for the American Trucking Associations by Mark I. Levy and Daniel R. Barney; for the Associated General Contractors of America, Inc., by Charles E. Murphy, John G. Roberts, Jr., and Michael E. Kennedy; for the Bituminous Coal Operators’ Association, Ine., by Charles P. O’Connor, Peter Bus-cemi, and Stanley F. Lechner; for the Carriers Container Council, Ine., et al. by C. Peter Lambos, Robert J. Attaway, Donato Caruso, and Robert S. Zuckerman; for the Chamber of Commerce of the United States et al. by Zachary D. Fasman, Neal D. Mollen, Jenny C. Wu, Stephen A. Bokar, Robin S. Conrad, Jan S. Amundson, and Quentin Riegel; for the League of Voluntary Hospitals and Homes of New York et al. by Howard L. Ganz and Steven C. Krane; for the National Basketball Association by Jeffrey A. Michkin and Richard W. Buchanan; for the National Electrical Contractors Association, Inc., by Gary L. Lieber; for the National Hockey League by Frank Rothman; for the National Railway Labor Conference by Rickard T. Conway, Ralph J. Moore, Jr., David P. Lee, and Joanna Moorhead; and for the Office of the Commissioner of Baseball et al. by Randy L. Levine and Thomas J. Ostertag.
Justice Breyer
delivered the opinion of the Court.
The question in this ease arises at the intersection of the Nation’s labor and antitrust laws. A group of professional football players brought this antitrust suit against football club owners. The club owners had bargained with the players’ union over a wage issue until they reached impasse. The owners then had agreed among themselves (but not with the union) to implement the terms of their own last best bargaining offer. The question before us is whether federal labor laws shield such an agreement from antitrust attack. We believe that they do. This Court has previously found in the labor laws an implicit antitrust exemption that applies where needed to make the collective-bargaining process work. Like the Court of Appeals, we conclude that this need makes the exemption applicable in this case.
I
We can state the relevant facts briefly. In 1987, a collective-bargaining agreement between the National Football League (NFL or League), a group of football clubs, and the NFL Players Association, a labor union, expired. The NFL and the Players Association began to negotiate a new contract. In March 1989, during the negotiations, the NFL adopted Resolution G-2, a plan that would permit each club to establish a “developmental squad” of up to six rookie or “first-year” players who, as free agents, had failed to secure a position on a regular player roster. See App. 42. Squad members would play in practice games and sometimes in regular games as substitutes for injured players. Resolution G-2 provided that the club owners would pay all squad members the same weekly salary.
The next month, April, the NFL presented the developmental squad plan to the Players Association. The NFL proposed a squad player salary of $1,000 per week. The Players Association disagreed. It insisted that the club owners give developmental squad players benefits and protections similar to those provided regular players, and that they leave individual squad members free to negotiate their own salaries.
Two months later, in June, negotiations on the issue of developmental squad salaries reached an impasse. The NFL then unilaterally implemented the developmental squad program by distributing to the clubs a uniform contract that embodied the terms of Resolution G-2 and the $1,000 proposed weekly salary. The League advised club owners that paying developmental squad players more or less than $1,000 per week would result in disciplinary action, including the loss of draft choices.
In May 1990, 235 developmental squad players brought this antitrust suit against the League and its member clubs. The players claimed that their employers’ agreement to pay them a $1,000 weekly salary violated the Sherman Act. See 15 U. S. C. § 1 (forbidding agreements in restraint of trade). The Federal District Court denied the employers’ claim of exemption from the antitrust laws; it permitted the case to reach the jury; and it subsequently entered judgment on a jury treble-damages award that exceeded $30 million. The NFL and its member clubs appealed.
The Court of Appeals (by a split 2-to-l vote) reversed. The majority interpreted the labor laws as “waiving] antitrust liability for restraints on competition imposed through the collective-bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargaining.” 50 F. 3d 1041, 1056 (CADC 1995). The court held, consequently, that the club owners were immune from antitrust liability. We granted certiorari to review that determination. Although we do not interpret the exemption as broadly as did the Appeals Court, we nonetheless find the exemption applicable, and we affirm that court’s immunity conclusion.
II
The immunity before us rests upon what this Court has called the “nonstatutory” labor exemption from the antitrust laws. Connell Constr. Co. v. Plumbers, 421 U. S. 616, 622 (1975); see also Meat Cutters v. Jewel Tea Co., 381 U. S. 676 (1965); Mine Workers v. Pennington, 381 U. S. 657 (1965). The Court has implied this exemption from federal labor statutes, which set forth a national labor policy favoring free and private collective bargaining, see 29 U. S. C. § 151; Teamsters v. Oliver, 358 U. S. 283, 295 (1959); which require good-faith bargaining over wages, hours, and working conditions, see 29 U. S. C. §§ 158(a)(5), 158(d); NLRB v. Wooster Div. of Borg-Warner Corp., 356 U. S. 342, 348-349 (1958); and which delegate related rulemaking and interpretive authority to the National Labor Relations Board (Board), see 29 U. S. C. § 153; San Diego Building Trades Council v. Garmon, 359 U. S. 236, 242-245 (1959).
This implicit exemption reflects both history and logic. As a matter of history, Congress intended the labor statutes (from which the Court has implied the exemption) in part to adopt the views of dissenting Justices in Duplex Printing Press Co. v. Deering, 254 U. S. 443 (1921), which Justices had urged the Court to interpret broadly a different explicit “statutory” labor exemption that Congress earlier (in 1914) had written directly into the antitrust laws. Id., at 483-488 (Brandeis, J., joined by Holmes and Clarke, JJ., dissenting) (interpreting § 20 of the Clayton Act, 38 Stat. 738, 29 U. S. C. § 52); see also United States v. Hutcheson, 312 U. S. 219, 230-236 (1941) (discussing congressional reaction to Duplex). In the 1930’s, when it subsequently enacted the labor statutes, Congress, as in 1914, hoped to prevent judicial use of antitrust law to resolve labor disputes — a kind of dispute normally inappropriate for antitrust law resolution. See Jewel Tea, supra, at 700-709 (opinion of Goldberg, J.); Marine Cooks v. Panama S. S. Co., 362 U. S. 365, 370, n. 7 (1960); A. Cox, Law and the National Labor Policy 3-8 (1960); cf. Duplex, supra, at 485 (Brandeis, J., dissenting) (explicit “statutory” labor exemption reflected view that “Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands”). The implicit (“nonstatutory”) exemption interprets the labor statutes in accordance with this intent, namely, as limiting an antitrust court’s authority to determine, in the area of industrial conflict, what is or is not a “reasonable” practice. It thereby substitutes legislative and administrative labor-related determinations for judicial antitrust-related determinations as to the appropriate legál limits of industrial conflict. See Jewel Tea, supra, at 709-710.
As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition-restricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on' competition imposed through the bargaining process must be shielded from antitrust sanctions. See Connell, supra, at 622 (federal labor law’s “goals” could “never” be achieved if ordinary anti-competitive effects of collective bargaining were held to violate the antitrust laws); Jewel Tea, supra, at 711 (national labor law scheme would be “virtually destroyed” by the routine imposition of antitrust penalties upon parties engaged in collective bargaining); Pennington, supra, at 665 (implicit exemption necessary to harmonize Sherman Act with “national policy ... of promoting ‘the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation’ ”) (quoting Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 211 (1964)).
The petitioners and their supporters concede, as they must, the legal existence of the exemption we have described. They also concede that, where its application is necessary to make the statutorily authorized collective-bargaining process work as Congress intended, the exemption must apply both to employers and to employees. Accord, Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm’n, 390 U. S. 261, 287, n. 5 (1968) (Harlan, J., concurring); Jewel Tea, supra, at 729-782, 735 (opinion of Goldberg, J.); Brief for AFL-CIO as Amicus Curiae in Associated Gen. Contractors of Cal., Inc. v. Carpenters, O. T. 1981, No. 81-334, pp. 16-17; see also P. Areeda & H. Hovenkamp, Antitrust Law ¶ 229’d (1995 Supp.) (collecting recent Court of Appeals cases); cf. H. A. Artists & Associates, Inc. v. Actors’ Equity Assn., 451 U. S. 704, 717, n. 20 (1981) (explicit “statutory” exemption applies only to “bona fide labor organization^]”). Nor does the dissent take issue with these basic principles. See post, at 253-254. Consequently, the question before us is one of determining the exemption’s scope: Does it apply to an agreement among several employers bargaining together to implement after impasse the terms of their last best good-faith wage offer? We assume that such conduct, as practiced in this case, is unobjectionable as a matter of labor law and policy. On that assumption, we conclude that the exemption applies.
Labor law itself regulates directly, and considerably, the kind of behavior here at issue — the postimpasse imposition of a proposed employment term concerning a mandatory subject of bargaining. Both the Board and the courts have held that, after impasse, labor law permits employers unilaterally to implement changes in pre-existing conditions, but only insofar as the new terms meet carefully circumscribed conditions. For example, the new terms must be “reasonably comprehended” within the employer’s preimpasse proposals (typically the last rejected proposals), lest by imposing more or less favorable terms, the employer unfairly undermined the union’s status. Storer Communications, Inc., 294 N. L. R. B. 1056, 1090 (1989); Taft Broadcasting Co., 163 N. L. R. B. 475, 478 (1967), enf’d, 395 F. 2d 622 (CADC 1968); see also NLRB v. Katz, 369 U. S. 736, 745, and n. 12 (1962). The collective-bargaining proceeding itself must be free of any unfair labor practice, such as an employer’s failure to have bargained in good faith. See Akron Novelty Mfg. Co., 224 N. L. R. B. 998, 1002 (1976) (where employer has not bargained in good faith, it may not implement a term of employment); 1 R Hardin, The Developing Labor Law 697 (3d ed. 1992) (same). These regulations reflect the fact that impasse and an accompanying implementation of proposals constitute an integral part of the bargaining process. See Bonanno Linen Serv., Inc., 243 N. L. R. B. 1093, 1094 (1979) (describing use of impasse as a bargaining tactic), enf’d, 630 F. 2d 25 (CA1 1980), aff’d, 454 U. S. 404 (1982); Colorado-Ute Elec. Assn., 295 N. L. R. B. 607, 609 (1989), enf. denied on other grounds, 939 F. 2d 1392 (CA10 1991), cert. denied, 504 U. S. 955 (1992).
Although the case law we have cited focuses upon bargaining by a single employer, no one here has argued that labor law does, or should, treat multiemployer bargaining differently in this respect. Indeed, Board and court decisions suggest that the joint implementation of proposed terms after impasse is a familiar practice in the context of multiem-ployer bargaining. See, e. g., El Cerrito Mill & Lumber Co., 316 N. L. R. B. 1005 (1995); Paramount Liquor Co., 307 N. L. R. B. 676, 686 (1992); NKS Distributors, Inc., 304 N. L. R. B. 338, 340-341 (1991), rev’d, 50 F. 3d 18 (CA9 1995); Sage Development Co., 301 N. L. R. B. 1173, 1175 (1991); Walker Constr. Co., 297 N. L. R. B. 746, 748 (1990), enf’d, 928 F. 2d 695 (CA5 1991); Food Employers Council, Inc., 293 N. L. R. B. 333, 334, 345-346 (1989); Tile, Terazzo & Marble Contractors Assn., 287 N. L. R. B. 769, 772 (1987), enf’d, 935 F. 2d 1249 (CA11 1991), cert. denied, 502 U. S. 1031 (1992); Salinas Valley Ford Sales, Inc., 279 N. L. R. B. 679, 686, 690 (1986); Carlsen Porsche Audi, Inc., 266 N. L. R. B. 141, 152-153 (1983); Typographic Service Co., 238 N. L. R. B. 1565 (1978); United Fire Proof Warehouse Co. v. NLRB, 356 F. 2d 494, 498-499 (CA7 1966); Cuyamaca Meats, Inc. v. Butchers’ and Food Employers’ Pension Trust Fund, 638 F. Supp. 885, 887 (SD Cal. 1986), aff'd, 827 F. 2d 491 (CA9 1987), cert. denied, 485 U. S. 1008 (1988). We proceed on that assumption.
Multiemployer bargaining itself is a well-established, important, pervasive method of collective bargaining, offering advantages to both management and labor. See Appendix, infra, p; 251 (multiemployer bargaining accounts for more than 40% of major collective-bargaining agreements, and is used in such industries as construction, transportation, retail trade, clothing manufacture, and real estate, as well as professional sports); NLRB v. Truck Drivers, 353 U. S. 87, 95 (1957) (Buffalo Linen) (Congress saw multiemployer bargaining as “a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining”); Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U. S. 404, 409, n. 3 (1982) (Bonanno Linen) (multiemployer bargaining benefits both management and labor, by saving bargaining resources, by encouraging development of industry-wide worker benefits programs that smaller employers could not otherwise afford, and by inhibiting employer competition at the workers’ expense); Brief for Respondent NLRB in Bonanno Linen, O. T. 1981, No. 80-931, p. 10, n. 7 (same); General Subcommittee on Labor, House Committee on Education and Labor, Multiemployer Association Bargaining and its Impact on the Collective Bargaining Process, 88th Cong., 2d Sess., 10-19, 32-33 (Comm. Print 1964) (same); see also C. Bonnett, Employers’ Associations in the United States: A Study of Typical Associations (1922) (history). The upshot is that the practice at issue here plays a significant role in a collective-bargaining process that itself constitutes.an important part of the Nation’s industrial relations system.
In these circumstances, to subject the practice to antitrust law is to require antitrust courts to answer a host of important practical questions about how collective bargaining over wages, hours, and working conditions is to proceed — the very result that the implicit labor exemption seeks to avoid. And it is to place in jeopardy some of the potentially beneficial labor-related effects that multiemployer bargaining can achieve. That is because unlike labor law, which sometimes welcomes anticompetitive agreements conducive to industrial harmony, antitrust law forbids all agreements among competitors (such as competing employers) that unreasonably lessen competition among or between them in virtually any respect whatsoever. See, e. g., Paramount Famous Lasky Corp. v. United States, 282 U. S. 30 (1930) (agreement to insert arbitration provisions in motion picture licensing contracts). Antitrust law also sometimes permits judges or juries to premise antitrust liability upon little more than uniform behavior among competitors, preceded by conversations implying that later uniformity might prove desirable, see, e. g., United States v. General Motors Corp., 384 U. S. 127, 142-143 (1966); United States v. Foley, 598 F. 2d 1323, 1331-1332 (CA4 1979), cert. denied, 444 U. S. 1043 (1980), or accompanied by other conduct that in context suggests that each competitor failed to make an independent decision, see, e. g., American Tobacco Co. v. United States, 328 U. S. 781, 809-810 (1946); United States v. Masonite Corp., 316 U. S. 265, 275 (1942); Interstate Circuit, Inc. v. United States, 306 U. S. 208, 226-227 (1939). See generally 6 P. Areeda, Antitrust Law ¶¶ 1416-1427 (1986); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962).
If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective-bargaining agreement eliminate a potentially plausible antitrust claim charging that they had “conspired’' or tacitly “agreed” to do so, particularly if maintaining the status quo were not in the immediate economic self-interest of some. Cf. Interstate Circuit, supra, at 222-223; 6 Areeda, supra, ¶ 1425. All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collective-bargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective-bargaining process invites or requires.
We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them “reasonable” (hence lawful) where justified by collective-bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective-bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective-bargaining policy. See supra, at 236-237; see also Jewel Tea, 381 U. S., at 716-719 (opinion of Goldberg, J.).
III
Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory.
A
Petitioners claim that the implicit exemption applies only to labor-management agreements — a limitation that they deduce from case law language, see, e. g., Connell, 421 U. S., at 622 (exemption for “some union-employer agreements”) (emphasis added), and from a proposed principle — that the exemption must rest upon labor-management consent. The language, however, reflects only the fact that the cases previously before the Court involved collective-bargaining agreements, see id., at 619—620; Pennington, 381 U. S., at 660; Jewel Tea, supra, at 679-680; the language does not reflect the exemption’s rationale, see 50 F. 3d, at 1050.
Nor do we see how an exemption limited by petitioners’ principle of labor-management consent could work. One cannot mean the principle literally — that the exemption applies only to understandings embodied in a collective-bargaining agreement — for the collective-bargaining process may take place before the making of any agreement or after an agreement has expired. Yet a multiemployer bargaining process itself necessarily involves many procedural and substantive understandings among participating employers as well as with the union. Petitioners cannot rescue their principle by claiming that the exemption applies only insofar as both labor and management consent to those understandings. Often labor will not (and should not) consent to certain common bargaining positions that employers intend to maintain. Cf. Areeda & Hovenkamp, Antitrust Law ¶ 229’d, at 277 (“[J]oint employer preparation and bargaining in the context of a formal multi-employer bargaining unit is clearly exempt”). Similarly, labor need not consent to certain tactics that this Court has approved as part of the multiemployer bargaining process, such as unit-wide lockouts and the use of temporary replacements. See NLRB v. Brown, 380 U. S. 278, 284 (1965); Buffalo Linen, 353 U. S., at 97.
Petitioners cannot save their consent principle by weakening it, as by requiring union consent only to the multi-employer bargaining process itself. This general consent is automatically present whenever multiemployer bargaining takes place. See Hi-Way Billboards, Inc., 206 N. L. R. B. 22 (1973) (multiemployer unit “based on consent” and “established by an unequivocal agreement by the parties”), enf. denied on other grounds, 500 F. 2d 181 (CA5 1974); Weyerhaeuser Co., 166 N. L. R. B. 299, 299-300 (1967). As so weakened, the principle cannot help decide which related practices are, or are not, subject to antitrust immunity.
B
The Government argues that the exemption should terminate at the point of impasse. After impasse, it says, “employers no longer have a duty under the labor laws to maintain the status quo,” and “are free as a matter of labor law to negotiate individual arrangements on an interim basis with the union.” Brief for United States et al. as Amici Curiae 17.
Employers, however, are not completely free at impasse to act independently. The multiemployer bargaining unit ordinarily remains intact; individual employers cannot withdraw. Bonanno Linen, 454 U. S., at 410-413. The duty to bargain survives; employers must stand ready to resume collective bargaining. See, e.g., Worldwide Detective Bureau, 296 N. L. R. B. 148, 155 (1989); Hi-Way Billboards, Inc., supra, at 23. And individual employers can negotiate individual interim agreements with the union only insofar as those agreements are consistent with “the duty to abide by the results of group bargaining.” Bonanno Linen, supra, at 416. Regardless, the absence of a legal “duty” to act jointly is not determinative. This Court has implied antitrust immunities that extend beyond statutorily required joint action to joint action that a statute “expressly or impliedly allows or assumes must also be immune.” 1 P. Areeda & D. Turner, Antitrust Law ¶ 224, p. 145 (1978); see, e. g., Gordon v. New York Stock Exchange, Inc., 422 U. S. 659, 682-691 (1975) (immunizing application of joint rule that securities law permitted, but did not require); United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694, 720-730 (1975) (same).
More importantly, the simple “impasse” line would not solve the basic problem we have described above. Supra, at 241-242. Labor law permits employers, after impasse, to engage in considerable joint behavior, including joint lockouts and replacement hiring. See, e. g., Brown, supra, at 289 (hiring of temporary replacement workers after lockout was “reasonably adapted to the achievement of a legitimate end — preserving the integrity of the multiemployer bargaining unit”). Indeed, as a general matter, labor law often limits employers to four options at impasse: (1) maintain the status quo, (2) implement their last offer, (3) lock out their workers (and either shut down or hire temporary replacements), or (4) negotiate separate interim agreements with the union. See generally 1 Hardin, The Developing Labor Law, at 516-520, 696-699. What is to happen if the parties cannot reach an interim agreement? The other alternatives are limited. Uniform employer conduct is likely. Uniformity — at least when accompanied by discussion of the matter— invites antitrust attack. And such attack would ask antitrust courts to decide the lawfulness of activities intimately related to the bargaining process.
The problem is aggravated by the fact that “impasse” is often temporary, see Bonanno Linen, supra, at 412 (approving Board’s view of impasse as “a recurring feature in the bargaining process, ... a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force”) (internal quotation marks omitted); W. Simkin & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, “precipitate an impasse”); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations.
The United States responds with suggestions for softening an “impasse” rule by extending the exemption after impasse “for such time as would be reasonable in the circumstances” for employers to consult with counsel, confirm that impasse has occurred, and adjust their business operations, Brief for United States et al. as Amici Curiae 24; by reestablishing the exemption once there is a “resumption of good-faith bargaining,” id., at 18, n. 5; and by looking to antitrust law’s “rule of reason” to shield — “in some circumstances”— such joint actions as the unit-wide lockout or the concerted maintenance of previously established joint benefit or retirement plans, ibid. But even as so modified, the impasse-related rule creates an exemption that can evaporate in the middle of the bargaining process, leaving later antitrust courts free to second-guess the parties’ bargaining decisions and consequently forcing them to choose their collective-bargaining responses in light of what they predict or fear that antitrust courts, not labor law administrators, will eventually decide. Cf. Dallas General Drivers, Warehousemen and Helpers, Local Union No. 74 v. NLRB, 355 F. 2d 842, 844-845 (CADC 1966) (“The problem of deciding when further bargaining ... is futile is often difficult for the bargainers and is necessarily so for the Board. But in the whole complex of industrial relations few issues are less suited to appellate judicial appraisal... or better suited to the expert experience of a board which deals constantly with such problems”).
C
Petitioners and their supporters argue in the alternative for a rule that would exempt postimpasse agreement about bargaining “tactics,” but not postimpasse agreement about substantive “terms,” from the reach of antitrust. See 50 F. 3d, at 1066-1069 (Wald, J., dissenting). They recognize, however, that both the Board and the courts have said that employers can, and often do, employ the imposition of “terms” as a bargaining “tactic.” See, e. g., American Ship Building Co. v. NLRB, 380 U. S. 300, 316 (1965); Colorado-Ute Elec. Assn., Inc. v. NLRB, 939 F. 2d 1392, 1404 (CA10 1991), cert. denied, 504 U. S. 955 (1992); Circuit-Wise, Inc., 309 N. L. R. B. 905, 921 (1992); Hi-Way Billboards, 206 N. L. R. B., at 23; Bonanno Linen, 243 N. L. R. B., at 1094. This concession as to joint “tactical” implementation would turn the presence of an antitrust exemption upon a determination of the employers’ primary purpose or motive. See, e. g., 50 F. 3d, at 1069 (Wald, J., dissenting). But to ask antitrust courts, insulated from the bargaining process, to investigate an employer group’s subjective motive is to ask them to conduct an inquiry often more amorphous than those we have previously discussed. And, in our view, a labor/
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_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, Plaintiff-Appellee, v. John Waldo BIRGES, Sr., Terry Lee Hall, Defendants-Appellants.
Nos. 82-1744, 82-1761.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 14, 1983.
Decided Jan. 10, 1984.
Certiorari Denied April 16, 1984.
See 104 S.Ct. 1926.
Edward R.J. Kane, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Cal J. Potter, III, Joseph M. Kadans, Las Vegas, Nev., for defendants-appellants.
Before DUNIWAY, ALARCON, and BOOCHEVER, Circuit Judges.
ALARCON, Circuit Judge:
John Birges and Terry Hall appeal from their convictions arising out of the bombing of Harvey’s Casino [South Lake Tahoe].
Birges was convicted of attempt to interfere with commerce by threats of violence, interstate travel in aid of racketeering, conspiracy, and transportation of explosives in interstate commerce. He asserts three claims of error: (1) that the failure of his attorney to represent him adequately denied him his sixth amendment right to the effective assistance of counsel; (2) that two communications between the judge and the jury, after the jury had retired, constituted supplemental jury instructions, requiring counsel to be informed and defendant to be present; (3) that comments made in closing argument were “harsh and vindictive”, thereby constituting prosecutorial misconduct.
Hall appeals his convictions for conspiracy and transportation of explosives in interstate commerce. Hall submits three points for review: (1) that the evidence presented at trial was not sufficient to support the finding of criminal intent; (2) that the inconsistency of the verdicts rendered by the jury required his motion for acquittal to be granted; (3) that a reference to him as a co-conspirator was improper and constituted prejudicial error.
Finally, both defendants contend that the trial court erred in denying their motions to change venue.
We find that Birges and Hall have failed to show grounds for a reversal of their convictions. The judgment of the trial court is affirmed.
FACTS
It was the government’s theory at trial that Birges, who owed extensive gambling debts to Harvey’s Casino and Harvey’s Inn, planned to extort money from Harvey’s Casino. To carry out his plans, Birges built a highly sophisticated bomb. He obtained approximately 18 cases of dynamite by breaking into a Pacific Gas & Electric building. The bomb was housed within two steel boxes: a small box, 15 inches by 12 inches which contained the dynamite and a larger box, 2V2 feet by 3V2, which was nearly three feet tall. The boxes were constructed of Vi inch thick steel plate, and were covered by a gray fabric marked with the letters IBM and fictitious part numbers. The boxes thus were made to look like a business machine, five to six feet long and three feet wide.
Birges included numerous safeguards against possible disarming. The bomb package contained a float switch, so that the bomb would detonate if flooded with water. The screws on the package were connected to electrical currents to avoid tampering. Aluminum was placed inside the plastic used to line the box; if the box were drilled, the drill would complete the connection. Switches were installed to trigger the bomb if the lid were removed. The bomb also contained a movement device: a tilt mechanism consisting of an eight inch tall metal cylinder, two to three inches in diameter, with a pendulum inside. If the box were moved, the motion would cause the pendulum to hit the sides of the cylinder and detonate the bomb.
Birges invited Hall and Willis Brown to assist him in delivering the bomb. The three men arrived in the Lake Tahoe area near daylight, and drove to the casino. Birges showed Hall and Brown which door to use to deliver the bomb. They then checked into a motel. Hall registered under the name “Joey Avetto” and set forth a false address. When they left the motel in the middle of the night, the men wiped all traces of fingerprints from the room.
The three men took the bomb to the casino and parked across the street from Harvey’s. A license plate was stolen from the rear of another van parked nearby. Birges and Hall attached it with rubber bands over their van’s existing plate.
The men then placed the bomb on a specially constructed cart, tied the cart to the back bumper of the truck and pulled into Harvey’s lot.
Birges left the other two men, and entered the casino. Hall and Brown took the cart to the casino entrance. The package was removed from the cart and pushed through the lobby to the elevator.
The device was placed in the elevator and taken up to the offices of the casino. The bomb was left in the hallway after the gray cover was removed.
The ransom note left with the bomb requested the delivery of three million dollars to a specified place in the desert. The note contained a warning that the bomb should not be touched because it might explode accidentally. The bomb exploded the following day during an attempt to deactivate it.
The case received extensive coverage in newspapers, radio and television. Most of the publicity occurred within the first two months after the bombing.
At trial, Birges admitted constructing the bomb, but testified that he did so under duress. He told the jury that people in the “mob” forced him to commit the act in order to collect the destruction insurance. According to Birges, a “mob” figure named Charlie caused two men to assault Birges in order to force him to carry out the extortion plan.
In his defense Hall testified that he was a “dupe” in the scheme. He was told they were delivering a package to the office of the casino owner as a joke and did not know that the package contained a bomb.
I.
Effectiveness of Counsel
Birges argues that he was denied his Sixth Amendment right to effective assistance of counsel because his counsel failed to subpoena witnesses and present his desired defense.
Where ineffectiveness of counsel is alleged, the defendant must point to errors or omissions in the record on appeal which establish that he did not receive adequate representation. Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). He has the further burden of demonstrating from the record that there is a reasonable likelihood that counsel’s errors or omissions prejudiced his right to a fair trial. United States v. Tucker, 716 F.2d 576, 587-92 (9th Cir.1983); Cooper v. Fitzharris, 586 F.2d at 1331. See also Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972) (unless “reasonable possibility” that improperly admitted evidence contributed to conviction, reversal is not required); United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir.1977) (where constitutional error occurs, defendant must show reasonable possibility of prejudice).
The customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255. United States v. Kazni, 576 F.2d 238, 242 (9th Cir.1978). This is so because usually such a claim cannot be advanced without the development of facts outside the original record. Id.
In People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979), the California Supreme Court cogently urged reviewing courts to exercise caution in tackling insufficiency of counsel claims on direct appeal where the record is incomplete.
Otherwise, the appellate courts would become engaged in the perilous process of second-guessing. (Citation omitted) Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.
People v. Pope, 23 Cal.3d 412 at 426, 152 Cal.Rptr. 732, 590 P.2d 859.
In the present case, the record is not sufficient for us to analyze the effectiveness of Birges’ counsel. We cannot ascertain from the record what evidence the requested witnesses would have provided, nor can we gauge the impact their testimony might have had on Birges’ defense.
II.
Communication with the Jury
Birges contends that his motion for a new trial was improperly denied. Specifically, he challenges the propriety of two communications between the judge and jury which occurred during jury deliberations.
A. Communication Concerning Dictionary
Birges contends that the trial judge, in response to a request, erroneously supplied a dictionary to the jury. He complains that the dictionary is a supplemental instruction, requiring counsel to be informed and defendant to be present, pursuant to Fed.R.Crim.P. 43. Rule 43 guarantees to a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict...” A violation of the rule does not compel reversal unless a reasonable possibility of prejudice is shown. United States v. Alessandrello, 637 F.2d 131, 139 (3d Cir.1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981).
This issue was presented to the court in United States v. Gunter, 546 F.2d 861 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). In Gunter, the court stated:
The jury, while deliberating, sent a note to the judge asking for a definition of the word “tacitly.” Without consulting with counsel, the trial judge simply sent a Webster’s dictionary into the jury room. Such may well have been error, but if it be deemed error, it was most certainly harmless error. No prejudice has been shown.
Gunter, 546 F.2d at 869.
Unlike the court in Gunter, we have no doubt that the sending of a dictionary into the jury room, without consulting counsel, is error. Questions or disputes as to the meaning of terms which arise during jury deliberations should be settled by the court after consultation with counsel, in supplemental instructions. Such guidance will avoid the danger that jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law. The meager record presented to us on this issue, however, does not demonstrate that any prejudice occurred as a result of the alleged introduction of a dictionary into the jury’s deliberations.
B. Communication Concerning the Reading of Testimony
During deliberations, the jurors sent a note to the court which read: “Is it possible for us to obtain testimony without returning to the courtroom?” The judge replied: “No! You must rely on your memory”
The decision to honor a request that the court reporter read his notes of certain testimony for the jury’s benefit after deliberation has begun is left to the discretion of the trial judge. United States v. Rohrer, 708 F.2d 429, 435 (9th Cir.1983). Such a ruling will not be disturbed on appeal, absent a showing of abuse of discretion. United States v. Baxter, 492 F.2d 150, 175 (9th Cir.1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).
It is error, however, under Rule 43 for the court to deny the jury’s request without consulting counsel for their views before exercising such discretion. Had the court conferred with counsel, the trial court’s reply to the communication might have been more responsive to the jury’s question. The jury did not ask the court if it was required to rely on its memory in resolving any uncertainties as to the exact testimony of a witness. Apparently the jury wanted to know if it was possible to receive the recorded testimony of witnesses in the jury room.
Birges, however, has failed to demonstrate that the court’s error was prejudicial to his defense. See Powell v. Kroger Co., 644 F.2d 1245, 1247 (8th Cir.1981) (ex parte communication with jurors does not compel reversal where prejudice is not shown). In United States v. Medansky, 486 F.2d 807 (7th Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1587, 39 L.Ed.2d 886 (1974), the jury sent a communication to the judge requesting transcripts of the trial proceedings. The judge entered the jury room and told the jurors that transcripts would not be provided; that they had to rely upon their own recollections. The reviewing court concluded that this was not prejudicial error. Id. at 816.
Birges has not demonstrated that the errors committed by the trial judge responding to the jury’s communications affected the outcome of the trial. The motion for a new trial was properly denied.
III.
Prosecutorial Misconduct
In Birges’ pro per brief, he argues that the prosecutor made use of “unnecessary, vindictive, and harsh language” in his final argument. Specifically, Birges claims that the prosecutor’s comments to the jury that Birges’ testimony contained numerous lies and that his duress defense was replete with fabrication and imagination, constitute misconduct.
“In closing arguments, both defense attorneys and prosecution attorneys are allowed reasonably wide latitude. They may strike ‘hard blows’ based upon the testimony and its inferences ...” United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir.1972). Improprieties in counsel’s arguments to the jury do not constitute reversible error “unless they are so gross as probably to prejudice the defendant, and the prejudice has not been neutralized by the trial judge.” United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). See also United States v. Foster, 711 F.2d 871, 883 (9th Cir.1983).
Birges failed to object to these remarks when made, and thus deprived the trial court of the opportunity to take remedial action. Because they were not brought to the attention of the court, the statements must be viewed under the “plain error” standard of review, pursuant to Fed.R. Crim.P. 52(b). United States v. Parker, 549 F.2d at 1222.
The comments made by the prosecutor did not constitute misconduct. It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand. The prosecutor’s interpretation of Birges’ duress claim as a “fabrication” is also well within the bounds of acceptable comment. The prosecutor’s remarks were neither grossly nor prejudicially improper.
IV.
Sufficiency of the Evidence
Hall maintains that his motion for a judgment of acquittal should have been granted. Hall acknowledges that he participated in the delivery of the explosive device to the casino, but he argues that the evidence was insufficient to show that he had the specific intent to commit the crime.
The standard of review for a motion for a judgment of acquittal is whether the evidence, considered favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt. United States v. Hazeem, 679 F.2d 770, 772 (9th Cir.1982), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982).
Intent may be inferred from objective facts and the actions of the defendant. Gallion v. United States, 386 F.2d 255, 257 (9th Cir.1967). The following evidence was sufficient to justify a rational conclusion beyond a reasonable doubt that Hall had the requisite intent:
1. The physical appearance of the bomb device as packaged would have aroused the suspicion of a reasonable person.
2. The delivery involved peculiar circumstances. The package was to be delivered to the casino before 6:00 in the morning. The van was parked to one side of the parking lot in a construction area, instead of at the casino entrance.
3. The delivery van’s license plate was disguised during the delivery. The device was transferred to a cart before it was taken across the parking lot.
4. Hall registered in a Lake Tahoe Motel under a fictitious name and address.
5. Hall wiped away all fingerprints in his motel room.
Evidence of the accused’s conduct shortly before the offense which is inconsistent with innocence is relevant to prove specific intent. Cf. Kirschbaum v. United States, 407 F.2d 562, 566 (8th Cir.1969). Concealment of identity is also a commonly recognized indicator of guilty knowledge. See United States v. Greiser, 502 F.2d 1295, 1299 (9th Cir.1974); Marcoux v. United States, 405 F.2d 719, 721 (9th Cir.1968). This concept has been specifically applied to false hotel registration. United States v. Sutton, 446 F.2d 916, 922 (9th Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972).
The denial of Hall’s motion for a judgment of acquittal was not erroneous.
V.
Inconsistency of the Verdicts
Hall claims that there is insufficient evidence to support his conviction on Count III because of inconsistent verdicts. Hall argues that Count I of his indictment, of which he was found “not guilty,” embodies a finding of conspiracy, and thus, contradicts his conviction for conspiracy on Count III.
The four-count indictment charged Hall with- the following offenses: attempt to interfere with commerce by threats of violence, a violation of 18 U.S.C. § 1951 (Count I); interstate travel in aid of racketeering and aiding and abetting, a violation of 18 U.S.C. §§ 1952(a)(3) and 2(a) (Count II); conspiracy, a violation of 18 U.S.C. § 371 (Count III); transportation of explosives in interstate commerce and aiding and abetting, a violation of 18 U.S.C. §§ 844(d) and 2(a) (Count IV).
Hall was found guilty of Counts III and IV and was acquitted of Counts I and II.
Inconsistent verdicts may stand, even when a conviction is rationally incompatible with an acquittal, provided there is sufficient evidence to support the guilty verdict. United States v. Brandon, 633 F.2d 773, 779 (9th Cir.1980); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932).
We are satisfied that the evidence was sufficient to permit a rational trier of fact to conclude that Hall was guilty of the charge in Count III.
VI.
Reference to Hall as a Co-conspirator
Hall claims that the government, with the permission of the court, wrongfully referred to him as a co-conspirator during the trial. The reference occurred during the examination of one of the other defendants in the case:
Objection: [By Hall’s attorney] Your Honor, I would like the court to admonish the jurors that any statements made by another person out of this court that don’t pertain to Mr. Birges or the person making that statement are hearsay as to Mr. Hall.
Prosecutor: The statements made by a coconspirator in the course of a conspiracy are admissible against all conspirators.
Court: Yes, objection overruled, you may proceed.
A statement made by a co-conspirator during the course of and in furtherance of the conspiracy is admissible against a party under Fed.R.Evid. 801(d)(2)(D). Hall’s claim of error is not directed to the admission of such evidence. Instead he objected to the prosecutor’s use of the word “conspirator,” in the presence of the jury in responding to defense counsel’s comments.
The jury was properly instructed as to all of the essential elements of the offense of conspiracy. The jury was further instructed that it must find beyond a reasonable doubt (1) that a conspiracy existed and (2) that Hall was one of the members thereof before it could consider the statements of a co-conspirator.
The record does not demonstrate that the judge’s ruling on the objection led the jury to believe that the court had conclusively determined that Hall was a conspirator. Any error which may have occurred in permitting the discussion concerning the admissibility of a co-conspirator’s statement to occur in the presence of the jury was harmless in light of the court’s conspiracy instruction. United States v. Gonzalez, 715 F.2d 1411, 1412-13 (9th Cir. 1983).
VII.
Change of Venue
Birges and Hall each challenge the trial court’s denial of their motions for a change of venue. They urge that the extensive media coverage of the casino bombing so prejudiced potential jurors as to render the selection of an impartial jury impossible. They further contend that Nevada citizens are so protective of their gambling industry that the opportunity for a fair trial was unavailable in any city in Nevada, regardless of pretrial publicity.
The motions for change of venue were filed prior to voir dire, and were opposed by the government. An evidentiary hearing was held before a Magistrate. The motions were denied “without prejudice to the right to renew the motions at the close of voir dire.” Thereafter, the case was transferred from Reno to Las Vegas.
Birges and Hall claim that, in spite of the failure of their counsel to challenge the fairness of the jury upon completion of voir dire, this court should rule that there is sufficient evidence of inherent prejudice to constitute plain error.
A trial judge is granted broad discretion in ruling on a change of venue motion, and will only be reversed for an abuse of discretion. United States v. Flores-Elias, 650 F.2d 1149, 1150 (9th Cir.1981), cert. denied, 454 U.S. 904, 102 S.Ct. 412, 70 L.Ed.2d 223 (1982).
In the landmark case of Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court examined the voir dire examination of the jurors for evidence of “actual prejudice” in reviewing petitioner’s claim that the trial court erred in denying his renewed motion for a change of venue following jury selection. The Court concluded that the voir dire indicated “no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” 421 U.S. at 800, 95 S.Ct. at 2036.
We discussed the ramifications of pretrial publicity in United States v. Bailleaux, 685 F.2d 1105 (9th Cir.1982). There this court stated: “It is not all publicity that causes prejudice to a defendant, but only that publicity that operates to deprive the defendant of a fair trial.” 685 F.2d at 1108. In Bailleaux, we concluded that the trial court’s careful voir dire examination demonstrated that it was possible to obtain a fair and impartial jury notwithstanding prejudicial pretrial publicity. Under such circumstances, it is not prejudicial error to deny a change of venue. Id. at 1109.
In the instant matter, eight witnesses were examined and 21 exhibits were presented at the hearing on the motion for a change of venue. The magistrate’s written order contained a complete examination of the exhibits and testimony, as well as a full discussion of the applicable law.
Later, during voir dire examination, the jurors were questioned at length by the trial judge concerning any bias against the defendants. The judge also solicited questions from defense counsel to be put to the prospective jurors. The court also inquired of each juror separately as to the existence of any animosity towards Birges and Hall because of the juror’s feelings about the casino industry. None of the jurors indicated that he was prejudiced because of his attitude concerning gambling.
The voir dire examination by the trial judge established that the jurors selected to try this case were untainted by prejudice.
As noted in Murphy, during voir dire the trial court can determine whether it is possible to select a fair and impartial jury from persons subjected to persuasive publicity. During voir dire the court is no longer dealing with the likelihood that potential jurors may be biased. The trial judge is able to scrutinize the answers of actual jurors to see if they are prejudiced in order to determine whether a subsequent motion for change of venue has merit.
Here, in contrast to the procedure followed by defense counsel in Murphy, the change of venue motion was not renewed following the voir dire examination of the jury. We are satisfied that the voir dire examination produced a fair and impartial jury. The denial of the pretrial motion for change of venue was not prejudicial in light of the circumstances existing at the time of the jury selection.
AFFIRMED.
. Birges points to two statements made by the prosecutor:
1. “As far as lies on the witness stand, I think it would be a fair statement under the evidence that if the lies told by Mr. Birges on the stand were weighed against the truths told by Mr. Birges on the stand, the scales of justice would have tipped him from his chair long before he concluded his testimony. We do not want them and we do not rely on them.”
2. “I submit to you that the reason he did that (made no attempt to contact the alleged mob figure Charlie or to tell anyone that he existed prior to Birges’ attempted duress defense at trial) is fairly obvious; Charlie and the tall man and the short man do not exist. They are figments of Mr. Birges’ imagination fabricated by him to escape the responsibility of his criminal actions in what I fervantly hope will be an unsuccessful attempt to escape that responsibility.”
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_r_state
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William M. WALTER, et al., Plaintiffs-Appellants, v. Oscar FIORENZO, et al., Defendants-Appellees. Appeal of ESLER, STEPHENS & BUCKLEY, an Oregon partnership, Esler & Schneider, an Oregon partnership, Jacobs, Burns, Sugarman & Orlove, an Illinois partnership.
No. 87-1386.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 21, 1987.
Decided Feb. 8, 1988.
As Amended Feb. 17, 1988.
Kim T. Buckley, Esler, Stephens & Buckley, Portland, Or., for plaintiffs-appellants.
Andrew T. Staes, Jeffrey Neal Cole, Ltd., Chicago, III, for defendants-appellees.
Before CUDAHY, POSNER and KANNE, Circuit Judges.
KANNE, Circuit Judge.
Nearly four years after instituting this action plaintiffs-appellants’ counsel, Esler, Stephens & Buckley, Esler & Schneider, and Jacobs, Burns, Sugarman & Orlove (collectively “plaintiffs’ counsel” or “counsel”) were unable to articulate a factual basis for plaintiffs’ claim against defendant-appellee, Oscar Fiorenzo (“Fiorenzo”). During that four-year period, three other defendants, in virtually the same position as Fiorenzo, obtained summary judgments in their favor. The last defendant had requested, but was denied sanctions. Ultimately, Fiorenzo followed suit and sought summary judgment alleging he was not involved with the sale of the securities in question. Plaintiffs’ counsel — after a delay for additional discovery — did not file any affidavits opposing Fiorenzo’s summary judgment motion. The district court granted Fiorenzo’s motion for summary judgment and awarded attorneys’ fees to Fiorenzo for the cost of the entire case, chargeable to plaintiffs’ counsel. Counsel then sought reconsideration of both the motion for summary judgment and the award of fees. In support of the motion to reconsider, plaintiffs’ counsel introduced an affidavit purporting to tie Fiorenzo to the fraudulent security sales. Although not obligated to do so, the district court vacated summary judgment and reconsidered plaintiffs' complaint in light of the newly filed affidavit. The court did not, however, vacate its previous order imposing attorneys’ fees. Upon reconsideration, the court ruled that the facts in the affidavit did not support plaintiffs’ claims that Fior-enzo participated or was a substantial factor in the sale of the securities. However, rather than reinstating its order granting summary judgment in favor of Fiorenzo, the court dismissed the complaint without prejudice for failure to plead securities fraud with particularity. With respect to its previous award of fees, the court indicated that the disruption caused by the belated affidavit would, in any event, result in assessments against plaintiffs’ counsel. However, the court gave counsel the opportunity to avoid all other sanctions previously imposed by either alleging sufficient facts to sustain a claim against Fiorenzo under the theories contained in the complaint or by explaining under what other theory Fiorenzo might have been held liable given the facts in the complaint. Plaintiffs’ counsel neither refiled against Fiorenzo nor proffered any theory under which Fiorenzo could have been sued in the first place. Accordingly, the court’s order, imposing sanctions against plaintiffs’ counsel for the costs of the entire suit, remained in effect. This appeal followed.
We affirm the imposition of sanctions against counsel under 28 U.S.C. § 1927 not only for needlessly multiplying these proceedings but for counsels’ repeated inability to articulate a viable claim against Fior-enzo after nearly four years of discovery and after the dismissal of three other similarly situated defendants.
I.
On October 19,1982, William Walter and thirty-nine other plaintiffs filed a five-count complaint against Black Diamond, Inc., Midas Truck Body, Inc., Midas International Corporation, and several other corporate and individual defendants, including Oscar Fiorenzo. Plaintiffs claimed that the defendants violated federal and Oregon state securities regulations and that all defendants, including Fiorenzo, participated in the sale of “trailer investment contracts” using “the means and the instrumentalities of interstate commerce in connection with the offer and the sale of these unregistered securities to the plaintiffs_” The unregistered investment contracts were allegedly sold by REL Leasing, Inc. (“REL”) and Richard Leader (“Leader”), but the individual defendants purportedly participated in the sale of the trailer investments by disseminating false or misleading information. The complaint did not specify how or what information each individual defendant disseminated in connection with the sale of the “investment contracts”. Importantly, the allegedly fraudulent sales of trailer investment contracts began in or before 1981.
On September 7, 1983, two defendants, Leonard Smith and Lennard Carlson, filed motions for summary judgment and supporting affidavits, arguing that they could not possibly have participated in the pre-1982 sale of REL investment contracts since they did not become directors of REL Leasing, Inc., until early 1982.
In response to a court order directing them to conduct the necessary discovery to answer Smith’s and Carlson’s motions for summary judgment, plaintiffs filed a number of document production requests and took the depositions of both Smith and Carlson. Two days before their responses to defendants’ motions were due, plaintiffs filed a request for an extension of time. The district court granted the request and gave plaintiffs until March 15, 1984 to respond. When no response was filed on that date, defendants Carlson and Smith renewed their motions for summary judgment. On June 6, 1984, the court granted their unopposed motions after plaintiffs admitted they had insufficient facts upon which to base claims against Smith and Carlson.
On February 27, 1985, another defendant, Joseph A. Roberto, also filed a motion for summary judgment and requested that sanctions be imposed against plaintiffs for naming him in the complaint. Like Carlson and Smith, Roberto filed an affidavit explaining that he became an employee of REL in March, 1982, but was never associated with REL as a director, shareholder, or controlling person and therefore could not have participated in the sale of trailer investment contracts beginning in or before 1981. Roberto claimed he made these facts known to plaintiffs’ counsel as early as March, 1983, but that counsel nevertheless refused to dismiss him from this action. Roberto further alleged that because counsel knew, before instituting plaintiffs’ suit (or at a minimum, shortly thereafter), that Roberto could not have been involved in the sale of unregistered securities, counsels’ failure to dismiss him was vexatious and violated Fed.R.Civ.P. 11. On February 27, 1985, the district court granted Roberto’s uncontested motion for summary judgment but did not impose sanctions.
Less than one month later, on March 6, 1985, Fiorenzo filed his motion for summary judgment and request for attorneys’ fees. Like the other individual defendants, Fiorenzo filed an affidavit stating he was not a director of REL Leasing. The affidavit also stated that Fiorenzo neither participated in the business of REL Leasing nor in the sale of trailer investment contracts. Fiorenzo's only connection with REL arose in January, 1982, when he became a 3 percent shareholder of REL. Like the others, Fiorenzo argued he could not have participated in the sale of investment securities by REL beginning in or before 1981. Fiorenzo also requested that plaintiffs be sanctioned as a “pre-filing inquiry into the facts or any post-filing discovery would have revealed that Mr. Fiorenzo should not have been sued.”
Plaintiffs were given until March 20, 1985, to respond to Fiorenzo’s motion. On that day, one of the attorneys for plaintiff, Kim T. Buckley, filed an affidavit stating that further discovery would be necessary to file an adequate response to Fiorenzo’s motion.
On July 19, 1985, more than three months after Fiorenzo’s motion was filed and almost three years after the complaint was filed, plaintiffs filed their response to Fiorenzo’s motion. Plaintiffs alleged first, that summary judgment was inappropriate because certain documentary evidence suggested that Fiorenzo actually became a 3 percent shareholder in REL in late 1981 and not early 1982 and second, that the imposition of sanctions was inappropriate because amended Rule 11 did not apply to pre-1983 pleadings and “plaintiffs’ attorneys believed to the best of their knowledge and information, that there was a good ground to support the complaint.”
In their memorandum opposing Fioren-zo’s motions, plaintiffs conceded that the key issue in proving Fiorenzo’s liability under the various securities laws, was “whether he was a ‘substantial factor’ in causing the securities sales to occur.” Yet, despite the fact that Fiorenzo’s affidavit stated that he did not participate in the operation of REL Leasing and therefore could not have been a “substantial factor” in the allegedly fraudulent investment contract sales, plaintiffs presented no contravening evidence. Rather, plaintiffs’ counsel argued that Fiorenzo’s credibility had been called into question and that his entire affidavit should therefore be discredited. More specifically, counsel pointed to a discrepancy between Fiorenzo’s assertion that he became a 3 percent shareholder of REL in early 1982 and a stock certificate, produced to plaintiffs by Fiorenzo, which showed that Fiorenzo acquired his 3 percent ownership in REL in late 1981. Counsel claimed this discrepancy was sufficient to raise a genuine issue of fact and accordingly, because Fiorenzo appeared to have lied about his acquisition of REL stock, his other assertion that he did not participate in the sale of REL investment contracts was also subject to question. Again, no evidence that Fiorenzo actually participated in either the operation of REL or in the sale of trailer investment contracts was presented. Plaintiffs devoted the rest of their response to the issue of sanctions.
Replying to counsels’ accusation that he had lied when he said he became a REL stock owner in 1982, Fiorenzo submitted an affidavit from the attorney who handled the issuance of REL stock certificates. This new affidavit stated that any stock certificates issued to Fiorenzo in December, 1981, were erroneously issued and that valid stock certificates were not issued until January, 1982. Fiorenzo argued he had not lied in his affidavit when he stated he acquired a 3 percent interest in REL after the allegedly fraudulent investment sales already had occurred and that even if he did become a stockholder in REL in 1981 and not 1982, that fact, by itself, was insufficient to sustain plaintiffs’ claims that Fiorenzo was secondarily liable to them. According to Fiorenzo, “a mere isolated stock purchase is not actionable under the securities laws.”
On December 20, 1985, Judge Grady, after a lengthy analysis, granted Fiorenzo’s motion for summary judgment and attorneys’ fees. In his opinion, Judge Grady initially noted that two other individual defendants had already been granted summary judgment under circumstances similar to those presented by Fiorenzo’s motion. The court expressed particular concern about the fact that plaintiffs had failed to reevaluate their case against Fiorenzo in light of the court’s earlier rulings and in light of the overall lack of evidence against the individual defendants.
The district court then found that Fioren-zo’s motion for summary judgment was appropriate as no evidence, controverting Fior-enzo’s statements that he did not participate in the operations of REL or the sale of REL investment contracts, had been presented by plaintiffs. As Judge Grady succinctly stated in his order granting summary judgment:
Whether [Fiorenzo] received his stock in December, 1981 or January, 1982 is ultimately irrelevant. The real issue is whether the investors have any evidence that Fiorenzo participated in the sale of unregistered trailer investment contracts. If Fiorenzo did buy 3 percent of REL’s stock at the end of 1981 instead of the beginning of 1982, that still does not support the investor’s allegation that he was in any way involved in the fraudulent sale of the contracts. (Emphasis added.)
The district court then addressed the issue of attorneys’ fees. He initially noted that even if amended Rule 11 was not in effect when plaintiffs filed their complaint against Fiorenzo, sanctions for filing a baseless claim could be imposed under 28 U.S.C. § 1927. Based on the history of plaintiffs’ case, the court found that plaintiffs’ counsel should have been aware that plaintiffs did not have a sufficient factual basis to file a claim against Fiorenzo. Plaintiffs’ broad allegations against Fioren-zo were unsubstantiated and, in any event, counsel should have reevaluated plaintiffs’ claims against Fiorenzo after discovery failed to produce any evidence against him and after claims against two other individual defendants were summarily disposed under similar circumstances. The court then assessed costs of the entire case against plaintiffs' counsel. Fiorenzo was ordered to submit a fee petition.
In a belated effort to salvage their claims against Fiorenzo, plaintiffs’ counsel then filed a motion to reconsider the court’s ruling both on summary judgment and on attorneys fees. In support, Attorney Buckley filed his affidavit and the affidavit of Richard Leander, a CPA who had allegedly (along with his clients) invested in REL contracts. These affidavits, for the first time revealed that plaintiffs’ counsel had conferred with Leander before filing suit Fiorenzo. Both Buckley’s and Leander’s affidavits stated that Leander’s investigation of REL revealed that Fioren-zo’s involvement with REL began before 1982 and was more extensive than that of a 3 percent shareholder. According to Buckley, Leander’s investigation revealed that Fiorenzo invested in REL in 1980. Leander’s affidavit stated he visited REL Leasing four times in 1982 to investigate the 1980 and 1981 investment programs. On each occasion, Leander met with Leader and Fiorenzo, who both assured him repeatedly that the 1980 and 1981 programs’ remained viable. According to Leander, Fiorenzo also participated in the dissemination of misleading information to 1980 program investors, assuring them of the program’s continued viability. Leander also stated Leader told him Fiorenzo had become an investor in REL in 1981. against
The district court ordered both parties to brief the issue of whether it was appropriate for the court to consider the newly submitted evidence after an order granting summary judgment had already been issued — when that evidence could just as easily have been submitted prior to the court’s ruling.
Fiorenzo opposed the motion to reconsider both because the newly submitted evidence, purporting to establish his participation in the sale of investment contracts, had been readily available to plaintiffs’ counsel before the court issued its order. He also opposed the motion because, even if accepted as true, that evidence still did not support any of the alleged securities fraud claims. Following the submission of briefs, in which Fiorenzo requested additional attorneys fees, the court determined it would reconsider its previous rulings and vacated the grant of summary judgment. The court did not vacate its previous order imposing attorneys’ fees.
On June 11, 1986, the district court issued an even more extensive opinion, analyzing Leander’s affidavit and its relation to each count of plaintiffs’ complaint in which Fiorenzo was named. The court indicated it had only undertaken this analysis because it did not want to penalize plaintiffs for their attorneys’ mistakes. The district court concluded that even if the admissible evidence contained in the Leander affidavit was true, Fiorenzo, at best, could have been accused of retroactively attempting to conceal a securities fraud and that such concealment was, under the present state of the law of secondary liability, probably not actionable. However, the court found it could not conclusively state that plaintiffs had failed to state a claim for secondary liability against Fiorenzo because plaintiffs’ pleadings were factually vague. Giving the plaintiffs the benefit of the doubt with respect to the state of the law, the court held the plaintiffs’ complaint was deficient pursuant to Fed.R.Civ.P. 9(b) since the complaint contained no factual allegations concerning how Fiorenzo or any of the other defendants had purportedly participated in the sale of investment contracts.
The district court then dismissed the complaint in its entirety, without prejudice, and granted plaintiffs’ leave to refile against all defendants (not previously dismissed) including Fiorenzo. However, the court permitted refiling on the condition that the amended complaint against Fioren-zo contain sufficient facts to withstand a renewed request for summary judgment and on the condition that plaintiffs “articulate the theory ... under which they [sought] to impose liability on Fiorenzo.”
With respect to its previous order imposing fees, the court ruled that if plaintiffs could bring particularized and supportable claims against Fiorenzo in their amended complaint, counsel would not be held responsible for attorneys’ fees generated by the whole case. Counsel would only be liable for costs incurred by Fiorenzo in responding to the motion for summary judgment, in responding to the motion to reconsider, and in attending a second deposition of Leader. All of these would have been unnecessary if counsel had submitted the affidavits in opposition to Fiorenzo’s motion for summary judgment before a ruling had been issued.
If plaintiffs chose not to name Fiorenzo in their amended complaint, the district court ruled that counsel would be held responsible for the costs associated with filing claims against Fiorenzo unless counsel could show that the initial claims against Fiorenzo might have been reasonable under some other theory of secondary liability.
Counsel filed plaintiffs’ amended complaint on July 3, 1986, but did not name Fiorenzo as a defendant. Nor, contrary to the court’s order, did counsel explain why Fiorenzo had originally been named as a defendant. Ignoring the court’s directive, counsel simply stated that Fiorenzo had not been named in the amended complaint because the district court threatened to impose sanctions. Additionally, counsel again argued that the original claims against Fiorenzo should not have been dismissed because of (1) the discrepancy in Fiorenzo’s affidavit, concerning the issuance of REL stock certificates, and (2) CPA Leander’s affidavit implicating Fiorenzo in the after-the-sale securities fraud cover-up.
Not surprisingly, the court imposed sanctions against plaintiffs’ counsel for all of Fiorenzo’s reasonable expenses, including expenses incurred in requesting fees. Recognizing that amended Rule 11 was not in effect at the time counsel filed plaintiffs’ complaint against Fiorenzo, the court sanctioned counsel for filing a meritless claim pursuant to 28 U.S.C. § 1927 and pursuant to its inherent authority. The district court also sanctioned counsel for needlessly multiplying the proceedings by filing, in effect, a non-response to Fiorenzo’s motion for summary judgment and then filing a motion to reconsider. These sanctions were imposed under § 1927, Rule 11, and the court’s inherent authority. Finally, the district court imposed sanctions against counsel for repeatedly raising arguments previously found to be meritless. These sanctions too, were imposed under § 1927, Rule 11, and the court’s inherent authority.
After reviewing an itemized fee petition, the court awarded Fiorenzo $6,918.48 of the $8,506.98 in fees requested. This appeal followed.
II.
Our analysis of the sanctions imposed in this case necessarily must be divided into two parts since the district court imposed sanctions for two distinct reasons. First, the court imposed sanctions for counsels’ failure to properly respond to Fiorenzo’s motion for summary judgment. Second, the court imposed sanctions for including Fiorenzo as a defendant in this case. Although the attorneys fees and costs awarded Fiorenzo for each of these reasons were lumped together in one sum by the district court, we must review each award separately.
As indicated above, sanctions for filing a meritless claim were imposed under § 1927 and the court’s inherent authority while sanctions for needlessly multiplying the proceedings were imposed under § 1927, Rule 11, and the court’s inherent authority. Although the court imposed sanctions for two separate violations, the use of § 1927 is the common thread in the court’s order. Therefore, we will not dwell on the application of Rule 11 and the court’s inherent authority in our review. It should be noted in passing, however, that Rule 11 applies with equal force to sanctions imposed for needlessly multiplying the summary judgment proceedings.
An award of fees under § 1927 is given solely to the discretion of the district court and thus, our review of an order imposing sanctions pursuant to § 1927 is a deferential one, subject to the abuse of discretion standard. In Re TCI, Ltd., 769 F.2d 441, 448 (7th Cir.1985); Optyl Eyewear Fashion International Corp. v. Style Cos., 760 F.2d 1045 (9th Cir.1985); Lipsig v. National Student Marketing Corp., 663 F.2d 178 (D.C.Cir.1980). “Under the abuse of discretion standard of review, the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court.” Chicago Newspaper Publisher’s Assoc. v. Chicago Web Printing Pressmen’s Union No. 7, 821 F.2d 390, 397 (7th Cir.1987).
A court may impose sanctions under 28 U.S.C. § 1927, against an attorney where that attorney has acted in an objectively unreasonable manner by engaging in a “serious and studied disregard for the orderly process of justice”, Overnite Transportation Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 795 (7th Cir.1983) quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir.1968) cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969) or where a “claim [is] without a plausible legal or factual basis and lacking in justification.” Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227 (7th Cir.1984); Overnite Transportation Co., 697 F.2d at 794-95 (emphasis added). In determining whether an attorney’s actions were objectively unreasonable “a court may infer intent from a total lack of factual or legal basis for a suit.” Id.
If a lawyer pursues a path that a reasonably careful attorney would have known, after appropriate inquiry, to be unsound, the conduct is objectively unreasonable and vexatious.
In Re TCI Ltd., 769 F.2d at 445. Moreover, “assessment of fees under § 1927 may [also] be appropriate in other situations, [involving] improper procedural conduct.” Knorr Brake Corp., 738 F.2d at 226 n. 1.
On appeal, we must also “consider whether the sanction the district court chose to impose was appropriate” but again “we will reverse a district court’s choice of an amount or type of sanction only if we find an abuse of discretion.” Brown v. Federation of State Medical Boards of the U.S., 830 F.2d 1429 (7th Cir.1987). Having briefly outlined the applicable standards of review, we now turn to the award of sanctions in this case.
III.
A. Sanctions for Needlessly Multiplying the Proceedings
As previously described, Fiorenzo moved for summary judgment and filed an affidavit stating that he was never involved with REL Leasing either as a director, manager or in any other capacity until 1982. These facts were not controverted by plaintiffs. Fiorenzo’s affidavit also stated that he had become a 3 percent REL shareholder in 1982, well after the allegedly fraudulent sale of securities had occurred. When plaintiffs responded by asserting that this last statement was untrue, Fiorenzo submitted another affidavit stating that the 1981 stock certificates had been issued by mistake. Plaintiffs’ counsel seized on the “factual dispute” and repeatedly insisted, in the face of the court’s rejection of that argument, that this one discrepancy in Fiorenzo’s affidavit called all the facts in Fiorenzo’s affidavit into question.
A motion for summary judgment cannot be defeated merely by an opposing party’s incantation of lack of credibility over a movant’s supporting affidavit. Nor can a party defeat summary judgment by raising one immaterial issue of fact and ignoring the relevant but uncontroverted facts. There must be a genuine issue of material fact which is the basis of at least one of the essential elements of the underlying claim. “Summary judgment is proper only when the moving party has established that there is no genuine issue of material fact and he is entitled to judgment as a matter of law.” Roman v. U.S. Postal Service, 821 F.2d 382, 385 (7th Cir.1987); Fed.R.Civ.P. 56(c) (emphasis added). Even the “existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (Court’s emphasis). Whether a fact is material depends on the substantive law underlying a particular claim and “only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.” Id. (emphasis added). Whether there is a genuine issue for trial depends on whether there is “sufficient evidence for a jury to return a verdict for that party." Anderson, 106 S.Ct. at 2511 (emphasis added).
Plaintiffs’ counsel argue that Fiorenzo’s sworn denial of any involvement with REL was not sufficient to mandate summary judgment in his favor even where plaintiffs did not offer contravening evidence. The Supreme Court has recently ruled that a movant’s denial, in the form of a motion for summary judgment, is sufficient where the non-movant fails to come forward with facts to support an essential element of the non-movant’s claim.
... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue of material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
In this instance, plaintiffs failed to submit facts (in response to Fiorenzo’s motion for summary judgment) tending to show that Fiorenzo was a “substantial factor in causing investment sales” (one of the essential element of plaintiffs’ claim). Fior-enzo properly moved for summary judgment on the basis that he was not involved with the sale of investment contracts. Moreover, Fiorenzo could have done so with or without affidavits since he did not have the burden of proving that he was not a substantial factor in the investment contract sales.
... [Wjhere the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits ... requires the nonmoving party to go beyond the pleadings and ... designate ‘specific facts showing there is a genuine issue for trial.’
Id. 106 S.Ct. at 2553. As the Supreme Court clearly stated, “[W]e find no express or implied requirement in Rule 56 that the moving party support its motions with affidavits or other similar materials negating the opponent’s claim.” Id.
Plaintiffs’ counsel did not offer affidavits, raising an issue as to Fiorenzo’s involvement in REL, until after summary judgment had already been entered. As a result, the order granting summary judgment was ultimately vacated. The time spent by the court, in ruling on Fiorenzo’s motion for summary judgment, was completely wasted. Counsel offered no plausible explanation for their failure to submit their affidavits sooner. We therefore affirm the district court’s order awarding sanctions under 28 U.S.C. § 1927 for needlessly multiplying summary judgment proceedings.
B. Sanctions for Filing Meritless Claims Against Fiorenzo
Under § 1927, sanctions for filing a baseless claim properly may be imposed where those claims are not supported by the facts. “An attorney must ascertain the facts and review the law to determine whether the facts sit within a recognized entitlement to relief.” In Re TCI, Ltd., 769 F.2d at 447. The district court imposed sanctions for filing a baseless claim at the same time it granted Fiorenzo’s motion for summary judgment. These sanctions were imposed not merely because plaintiffs lost the motion for summary judgment, but because they lost after nearly four years of discovery and after three other similarly situated defendants had been dismissed from the case by the court.
The dismissal of three other individual defendants on the grounds that plaintiffs’ counsel had insufficient facts to tie them to REL Leasing should have alerted counsel that it was necessary to fortify the claims against the remaining individual defendants, including Fiorenzo. Counsel could have anticipated that Fiorenzo too, might seek dismissal on the grounds that he was not involved with REL. Counsel should therefore, have shored up plaintiffs’ claims against Fiorenzo with sufficient facts or voluntarily dismissed him. In short, it should have been obvious to counsel that if plaintiffs’ claims against three individual defendants had already failed because no relationship existed between those defendants and REL, claims against a fourth defendant would likely also fail. Moreover, prior to Fiorenzo’s motion and even thereafter, counsel was given ample opportunity to engage in discovery to obtain facts necessary to connect Fiorenzo to REL.
Fiorenzo’s motion for summary judgment only served to highlight the steadfast refusal of plaintiffs’ counsel to acknowledge the deficiencies in plaintiffs’ complaint, deficiencies which previously had been flagged by the court on a number of occasions. The court did not resort to sanctions the first three times but did so the fourth time. Thus, when the district court granted summary judgment (since no factual dispute existed about Fiorenzo’s involvement in REL) it justifiably imposed sanctions against counsel for the costs of the entire case. We find that the sanctions imposed at the time of summary judgment, for filing meritless claims against Fiorenzo, were properly imposed under § 1927.
Yet in so holding, we wish to make clear that sanctions are not automatically warranted where a party loses a dispositive motion. However, where lengthy discovery and a series of dispositive motions reveal a factual or legal deficiency in a complaint against a defendant, the deficiency should either be remedied or the defendant dismissed.
We have said many times that under the American rule, each party bears its own costs in litigation. However, where appropriate, sanctions may shift those costs. Where a party files a baseless claim, which cannot be supported after four years of discovery and which previously has been identified as baseless as against three other defendants, sanctions are indeed appropriate.
IV.
Next, we consider whether the district court abused its discretion by awarding fees and costs in an amount of $6,918.48. In Brown, supra, decided after the district court issued its order awarding fees and costs to Fiorenzo, we said:
... in cases involving substantial awards a district judge [must] state with some specificity the reasons for the imposition of a sanction, and the manner in which the sanction was computed. What is a “substantial award” is an inquiry that will have to be made on a case-by-case basis, but will generally involve cases in which the award involves a large sum of money or is large in relation to the offending conduct.
830 F.2d at 1438.
The district court did provide a written analysis of its award of fees but merged the fees imposed for multiplying summary judgment proceedings with those imposed for filing a meritless claim. Thus, the sanctions awarded in this case ultimately covered the costs of the entire case. Although we do not believe, under the circumstances of this case, that the court’s failure to do so constituted an abuse of discretion, a district court should
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_respondent
|
061
|
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.
KLEPPE, SECRETARY OF THE INTERIOR v. DELTA MINING, INC., et al.
No. 74-521.
Argued October 6, 1975
Decided January 26, 1976
Burger, C. J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in .the consideration or decision of the case.
Deputy Solicitor General Randolph argued the cause for petitioner. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Jaffe, Harriet S. Shapiro, Leonard Schaitman, and Michael Kimmel.
Fred Blackwell argued the cause and filed a brief for respondents. John L. Kilcullen filed a reply brief for respondent Mears et al.
Jospeh A. Yablonski, Daniel B. Edelman, and Paul R. Hoeber filed a brief for the United Mine Workers of America as amicus curiae urging reversal.
Guy Farmer and William A. Gershuny filed a brief for the Bituminous Coal Operators’ Assn., Inc., as amicus curiae urging affirmance.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari in this case and consolidated it for argument with No. 73-2066, National Independent Coal Operators’ Assn. v. Kleppe, ante, p. 388, decided today, to resolve an apparent conflict between the two Circuits.
In 1971 and January 1972 inspectors from the Bureau of Mines entered and inspected the coal mines owned respectively by Delta Mining, Inc., G. M. W. Coal Co., Inc., and a partnership of Edward Mears and others known as the M. Y. Coal Co. The inspectors detected a number of violations of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742, 30 U. S. C. § 801 et seg., or regulations and served each mine operator with notices of the infractions. Each notice stated that the violations were to be abated by a specified date. The inspectors returned on that date and furnished the mine operators with a notice that the violations had been abated. The local office of the Bureau of Mines sent copies of the notice of violation and abatement to the Bureau’s central office. There an assessment officer reviewed the notices and sent proposed penalty assessment orders to the mine operators. The orders contained a list of the violations, the dates of their occurrence, the regulations violated, and the amounts of the proposed penalties.
The proposed order of assessment to Delta was issued on April 11, 1972. It referred to six violations with civil penalties for each ranging from $30 to $90 for a total of $375. In December 1971, and January and May 1972, G. M. W. was issued proposed assessment orders for violations occurring from May to December 1971. Ten of the violations were assessed civil penalties from $25 to $100, totaling $525. G. M. W. also received an imminent-danger withdrawal order on November 24, 1971, identified as a fire hazard from loose coal in excess of three feet deep and was assessed a fine of $5,000. For violations occurring in 1971 and 1972 Mears received assessments with fines for 16 violations ranging from $25 to $100 and a 17th at $200 for a total of $1,000. It also received a withdrawal order for failure to abate a violation of the respirable-dust-concentration standard with a fine of $1,000.
Each of the operators protested the proposed assessments. Delta argued, among other things, that it was a newly opened, small mine and the fines would affect its ability to stay in business. G. M. W. protested that the loose coal was wet and therefore not a fire hazard. Without explanation as to how, if at all, the information in the protest letters was considered, the assessment officer reissued the proposed orders. One of G. M. W.’s penalties was reduced from $100 to $50. The operators were again informed that they had 15 working days from the receipt of the reissued proposed order “to accept the amended or reissued order, whereupon it shall become the final assessment order of the Secretary, or to request formal adjudication with opportunity for hearing.” None of the operators requested formal adjudication.
The mine operators did not pay the assessments. The Secretary filed complaints against each of them in October and November 1972, seeking enforcement of the assessments. Attached to the complaints were the proposed orders of assessment and preprinted forms reciting that the assessment officer found in fact that the violations had occurred. These forms were dated several months after the proposed assessment orders. The mine operators each answered, denying liability.
While the cases were awaiting trial, the United States District Court for the District of Columbia enjoined the Secretary from utilizing or enforcing the assessment procedures of 30 CFR pt. 100 (1972), concluding that § 109 (a)(3) of the Federal Coal Mine Health and Safety Act, 30 U. S. C. § 819 (a) (3), requires the Secretary to prepare a decision incorporating findings of fact in all penalty assessment determinations, whether or not a hearing is requested. National Independent Coal Operators’ Assn. v. Morton, 357 F. Supp. 509 (1973).
On the basis of that decision G. M. W. moved for summary judgment, contending that the Secretary’s assessment orders were unenforceable since there had been no “decision incorporating . . . findings of fact.” The District Court for the Western District of Pennsylvania, relying on the National Independent decision, decided that the penalty assessments sought to be enforced by the Secretary did not meet the requirements of § 109 (a) (3) of the Act because they were not supported by adequate findings of fact. The court entered judgment in favor of the respondent mine operators in all three cases.
While the cases were pending on appeal, the Court of Appeals for the District of Columbia Circuit reversed the decisions on which the trial court here relied. National Independent Coal Operators’ Assn. v. Morton, 161 U. S. App. D. C. 68, 494 F. 2d 987 (1974). The Court of Appeals for the Third Circuit, however, declined to follow the District of Columbia Circuit decision, and held that § 109 (a) (3) compels the Secretary to support each assessment order with express findings of fact concerning the violation and the amount of the penalty, without regard to whether or not the operator requests a hearing. 495 F. 2d 38 (1974). We have today affirmed National Independent, which holding governs this case. Two remaining issues raised by the Third Circuit holding require discussion.
The Court of Appeals first distinguished the District of Columbia Circuit holding on the ground that the “operators’ failure to request a hearing in no way suggests that the appropriateness of the penalty amount went undisputed. In each instance, the operators lodged protests. . . .” 495 F. 2d, at 44. This overlooks the fact that while a protest does not necessarily trigger administrative review, a request for a hearing does. Here the party against whom a penalty is assessed has deliberately forgone the opportunity for a full, public, administrative hearing from which findings of fact can be made. Here, too, the amount of the penalty is subject to de novo review in the district court whether or not a hearing was held.
The Court of Appeals next distinguished the holding of the District of Columbia Circuit on the ground that the proposed assessment orders at issue “contained no 'information’ other than pro forma recitations that the six criteria [of § 109 (a)(1) of the Act] had been considered.” (Emphasis in original.) Ibid. The court was concerned that the proposed assessment orders were on “preprinted forms which recited, in some instances, that the six factors set out in the statute had been considered” and that the final orders of the Secretary did not mention the six criteria but “merely set forth the Secretary’s finding that a violation 'did, in fact, occur.’ ” Id., at 40. The court then held that “each final decision of the Secretary must be accompanied by findings of fact, concerning both the fact of violation and the magnitude of the penalty.” Id., at 44.
The court noted the general proposition that judicial “review of a final administrative determination ... is rendered practically impossible, or at least vastly more difficult, where the agency's decision is not accompanied by express findings.” Id., at 42. We agree with the general proposition when judicial review is based on a substantial-evidence test. Here, however, if an operator wishes to contest the amount of the penalty without a hearing, that can be done by refusing to pay the penalty, thus invoking the right to a de novo trial in the district court, with a jury if desired. When a violation is noticed the operator- is informed as to the details of the nature and location of that violation; the administrative procedures of § 105 of the Act, 30 U. S. C. § 815, with provision for a public hearing on request, come into play and appellate review is available.
In light of our holding in National Independent Coal Operators’ Assn. v. Kleppe, ante, p. 388, the judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent herewith.
Reversed and remanded.
Mr. Justice Stevens took no part in the consideration or decision of this case.
The operators protest that these notices are not part of the record below. Since the issue before this Court is the validity of the regulations, not whether the regulations were properly complied with, for purposes of. this ease we will assume the notices were properly served. We note, however, that the mine operators do not contend that they were not given ample notice of the violations charged by the mine inspectors.
The Third Circuit found support for its concern in a Comptroller General’s report which stated that the Comptroller was “ ‘unable to' determine the adequacy of the consideration given to the six factors [of §109 (a)(1)] and the basis for the penalties assessed in [400] sample cases.’ ” 495 F. 2d, at 43. However, the Secretary’s method of assessing penalties has been changed in a way that largely meets this objection. The regulations now in force contain formulas to be used by the assessment officers in considering the six § 109 (a) (1) criteria. 30 CFR § 100.3 (1975). The Secretary represented to the Court of Appeals for the District of Columbia Circuit that the assessment formula is to be retained. National Coal Operators’ Assn. v. Morton, 161 U. S. App. D. C. 68, 70 n. 12, 494 F. 2d 987, 989 n. 12 (1974). These regulations were not in effect when the penalties at issue here were levied. Use of the current regulations is preferable to the apparent ad hoc consideration given the criteria in this case. But a trial de novo is available to the mine operators on the amount of the penalty, so the Secretary’s failure to promulgate the best regulations in the first instance does not render all penalties assessed under the prior regulations unenforceable. Although explication by the assessment officer and an examiner might be of some aid to the district judge who is called upon to consider the penalty, the provision for a de novo trial on the amount of the penalty places squarely on the court the task of evaluating the penalty. The six criteria of §109 (a)(1) can be argued to the district court. The Third Circuit is undoubtedly correct that the more information a mine operator has, the better the operator will be able to determine whether to challenge the penalty. The issue, however, was whether the new procedures were mandated by the statute.
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:
|
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.
FREEMAN v. PEW.
No. 5519.
Court of Appeals of the District of Columbia.
Argued .Tune 1, 1932.
Decided June 13, 1932.
Robert Hardison, of Washington, D. C., for appellant.
James A. O’Shea and John H. Burnett, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and IIITZ and GRONER, Associate Justices.
GRONER, Associate Justice.
This is an appeal from a judgment of the Supreme Court of the District in favor of the plain!iff bolow in an action for malicious prosecution. The only error assigned presents for our decision the question whether the action was barred by the statute of limitations. Ooneededly the cause of action accrued on January 29, 1927. The declaration was filed January 20, 1928.
Title 24, § 341, D. C. Codo 1929, provides: “No action shall be brought * * * for * * * malicious prosecution * * * after ono year from the time when the right to maintain any such action shall have accrued.”
Appellant, defendant below, contends that the day on which the right of action accrued, namely, the 20th of January, 1927, should be included in computing the one-year period, and that therefore the declaration was filed one day after the statute had run.
Conflict and confusion may be found among the decisions regarding computation of time. In the multiplicity of statutes and rules of court respecting timo within which rights may exist or be exercised or enforced, a certain and uniform rule of computation, whether arbitrary or not, is much to be desired, and so we shall not view the statute here with a critical eye in an effort to find ground for a nice distinction, nor do we think it would bo helpful to endeavor to reconcile the decisions. Here, rights do not depend upon the order of events occurring on the same day, and so there is no good reason for splitting the day. In such, circumstances, it has long been the settled doctrine that the law, disregarding fractions, takes the entire day as the unit of time. In a number of the states, it is held that where the computation of time is from an act done, or a right accrued, the day on which the act is done or on which the right accrued is to be included. The theory of this is that after the act is done or the right accrued suit may be instituted, and therefore the statute commences to run immediately. Many such courts also hold that if the statute requires suit to be commenced within a certain period after the “day” a contrary rule applies.
But we think to follow this line of reasoning would be to add to the confusion which now exists, and therefore we prefer to adhere to the rule long ago announced by ns in Ambrose v. Brown, 42 App. D. C. 25, 33, which is also the rule in many of the states. In that case the statute provided that no ae lion upon a note should be brought “after three years from the time when the light to maintain any such action shall have accrued.” Wo held that the day the right of action accrued should not be counted.
The effect of this is to avoid the distinction between a limitation running from a day and one from an event, and this, it seems to us, is in accord with the views of the Supreme Court on the subject. In Burnet v. Willingham L. & T. Co., 282 U. S. 437, 439, 51 S. Ct. 185, 186, 75 L. Ed. 448, Mr. Justice Holmes, who delivered the opinion of the court in that ease, quoted with approval the language of Chief Justice Bronson in Cornell v. Moulton, 8 Denio (N. Y.) 12, 16, as follows: “When the period allowed for doing an act is to be reckoned from the making of a contract, or the happening of any other event, the day on which the-event happened may be'regarded, as an entirety, or a point' of time; and so. may be excluded from the computation.”
This rule seems to us consonant with the general sense and common usage of the language of the- statute, in harmony with the modern view in the interpretation of contracts and statutes, and, we hope, will settle the question, so far at least as the jurisdiction of this court extends;
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_district
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellant, v. John P. ROONEY, Jr., Defendant-Appellee.
No. 240, Docket 92-1229.
United States Court of Appeals, Second Circuit.
Argued Oct. 9, 1992.
Decided Feb. 18, 1993.
Paul D. Silver, Asst. U.S. Atty. (Gary L. Sharpe, U.S. Atty., of counsel, for the N.D. of N.Y., Albany, NY), for appellant.
Edward M. Shaw, New York City (Still-man, Friedman & Shaw, P.C.) for defendant-appellee.
Before: VAN GRAAFEILAND, PRATT, WALKER, Circuit Judges.
WALKER, Circuit Judge:
In a three-count indictment filed May 8, 1991, John P. Rooney, Jr. was charged in Counts I and II with violations of 18 U.S.C. § 1001 (false statements to the government) and in Count III with violating 18 U.S.C. § 666 (solicitation of a bribe). In an order dated March 20, 1992, the United States District Court for the Northern District of New York (Cholakis, J.) dismissed Count III on the ground that the jurisdictional element of 18 U.S.C. § 666, which requires an organization to receive $10,000 in Federal “benefits” within a twelvemonth period had not been satisfied. Count III alleged as a jurisdictional predicate the receipt from the federal government of loans in excess of $10,000. But, the district court held that “benefits” within the meaning of § 666 do not include government loans. Since we hold that government loans may constitute “benefits” under § 666, we reverse the order of the district court and reinstate Count III of the indictment.
BACKGROUND
There is no dispute as to these basic facts. Rooney is the general partner of Dawnwood Properties (“Dawnwood”). In 1978, Dawnwood applied to the Farmers Home Administration (“FmHA”) for a loan to construct a rural senior citizens’ housing project. In 1985, the FmHA advanced loan proceeds to Dawnwood which began construction on the project. As of 1990, Dawnwood had not yet finished the project and it owed the general contractor, Debrino Associates, a substantial sum of money for work already completed. Rooney agreed to apply to the FmHA for an additional $300,000 loan beyond the $1.5 million borrowed to that date, but only if Debrino Associates promised to build a pond on the property adjacent to the project land without extra cost. Rooney’s proposal to Debrino Associates is the subject of Count III which charged that the proposal was a bribe solicitation in violation of 18 U.S.C. § 666.
Before the trial, Rooney moved pursuant to Fed.R.Crim.P. 7 and 12 to dismiss Count III on jurisdictional grounds. Count III alleged as its jurisdictional predicate that Dawnwood was “an organization that received Federal assistance in the form of loans in excess of $10,000 during the one year period commencing on February 6, 1989 and ending on February 5, 1990.” However, Rooney argued, inter alia, that government loans could not be “benefits” within the meaning of 18 U.S.C. § 666 and therefore the jurisdictional requirement of § 666 was not met.
On March 20, 1992, the district court agreed with Rooney and dismissed Count III. The court held that Dawnwood, the recipient of Federal loans totalling $1.5 million, had not received a “benefit” as required by § 666.
DISCUSSION
Title 18, U.S.C. § 666 provides in pertinent part:
(a) Whoever, if the circumstances described in subsection (b) of this section exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) ...
(B) corruptly solicits or demands for the benefit of any person ... anything of value from the person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization ... involving anything of value of $5,000 or more ...
******
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
18 U.S.C. § 666.
The sole question presented by this appeal is whether a loan can be a “benefit” within the meaning of § 666(b) so as to bring this case within the Federal court’s jurisdiction. If so, Dawnwood received such benefits and the jurisdictional requirement of § 666(b) is satisfied. The district court, in answering this question in the negative, relied on United States v. Stewart, 727 F.Supp. 1068, 1070 (N.D.Tex.1989) and United States v. Webb, 691 F.Supp. 1164, 1169 (N.D.Ill.1988), which concluded that § 666(b) does not apply when the government receives something in return for its money—a situation of quid pro quo. The district court accepted Rooney’s contention that the loan repayment plus interest constitutes such a quid pro quo, and therefore, a loan may not be considered a benefit for purposes of § 666(b). We disagree.
In evaluating the scope of a Federal criminal statute, we must look closely at its language, legislative history, and purpose. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985); United States v. Hong-Liang Lin, 962 F.2d 251, 253 (2d Cir.1992). The Supreme Court directs, us to use restraint in interpreting Federal criminal statutes based “ ‘on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ ” Dowling, 473 U.S. at 214, 105 S.Ct. at 3131 (quoting United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820)).
1. Statutory Language
The statutory language does not support Rooney’s interpretation. To fall within § 666(b), an organization must “reeeive[], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b). The district court stated that the statute does not expressly equate a “benefit” with a loan, and “merely provides that the Federal program from which the ‘benefit’ is received may involve a loan.” (emphasis in the original).
Common sense suggests that the “benefit” from a program which involves a loan would be the loan itself. Webster defines the word “benefit,” inter alia, as “advantage.” Webster’s Ninth New Collegiate Dictionary, 144 (1990). Rooney’s receipt of the loan afforded him an “advantage” since it allowed him to build a senior citizens’ housing project and hopefully make a profit.
The statute expressly equates “benefits” with “Federal assistance.” Federal statutes commonly include loans within the rubric of “Federal assistance.” For example, the Civil Rights Act, which prohibits discrimination under any Federally assisted programs, 42 U.S.C. § 2000d, specifically includes loans within its definition of financial assistance. See 42 U.S.C. § 2000d-l. In the statute we are examining, Federal programs “involving a grant, contract, subsidy, loan, guarantee, insurance” are a subset of “form[s] of Federal assistance,” which therefore demonstrates that Congress considered a loan a benefit, even if Rooney does not.
Rooney contends that loan proceeds are not “benefits,” since the borrower must agree to repay them, and argues that a loan can be a “benefit” only if it affords the recipient a direct economic advantage such as a reduced interest rate. This interpretation of the statute would create an anomaly: Federal jurisdiction would depend on the daily interest rate. A loan granted at a lower interest rate than the market commanded would be a benefit. But the loan would cease to be a benefit if the market rate dropped below the interest rate of the loan. The jurisdictional reach of § 666 would thus hinge upon national economic conditions and would be turned on and off by interest rate fluctuations.
2. Legislative History
Apart from its lack of support in the language of § 666, Rooney’s interpretation is inconsistent with the provision’s legislative history. Congress enacted § 666 as part of the Comprehensive Crime Bill of 1984, and stated that the provision was “designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.” S.Rep. No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (hereinafter S.Rep.). The principal policy objective behind § 666 is to “protect the integrity of the vast sums of money distributed through Federal programs.” Id. at 3511. To this end, the Senate Judiciary Committee Report accompanying the statute states that the “[cjommittee intends that the term ‘Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance’ be construed broadly.” Id.
The Senate Report states, however, that “not every Federal contract or disbursement of funds would be covered”, and exempts from § 666 instances in which, for example, “a government agency lawfully purchases more than $10,000 in equipment from a supplier.” Id. The district courts in United States v. Stewart, supra, and United States v. Webb, supra, seized upon this language in the Senate Committee Report to preclude § 666 from applying to all situations in which the government receives a tangible material return from its funds. Stewart, 727 F.Supp. at 1070; Webb, 691 F.Supp. at 1169. However, in light of the statute’s purpose, we think that Congress only intended to exclude money spent by the government as a commercial entity, such as payments for supplies or equipment. Stewart is consistent with this reading since that case involved a defense contractor that supplied custom-made goods to the government, which in essence is a purchase of equipment from a supplier. 727 F.Supp. at 1070.
The Webb court held that funds paid by the Department of Housing and Urban Development (“HUD”) to a private accounting firm to manage and administer a Federal program were not § 666(b) benefits. Rather, the Webb court held, the funds were “monies paid in consideration for its services.” 691 F.Supp. at 1169. While we express no opinion as to what the result in Webb should have been, we believe that the Webb court’s construction of the limitation on “benefit” was broader than the facts of that case required, broader than Congress intended, and contrary to the stated purpose of § 666. As we have noted, § 666 was designed to protect the integrity of funds distributed through Federal programs. S.Rep. at 3510. The Senate Report targeted the application of the statute to monies distributed through “Federal programs” for which there is “a specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives.” Id. at 3511. The Report enumerated three cases to illustrate situations § 666 is intended to include: United States v. Hinton, 683 F.2d 195 (7th Cir.1982), aff’d sub nom. Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984) (involving bribery by an employee of non-profit corporation with contract to administer HUD funds); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving bribery by a State administrator of funds from CETA program); and United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (involving bribery of city employees administering funds from HUD program). S.Rep. at 3511. In each of these cases, the organization or city agency provided the Federal government with a service by administering a government program. Thus, the holding in Webb is in conflict with the legislative history.
We find that the district court’s focus on whether the Federal government receives something of value for its funds is misplaced. The inquiry is not whether there is a quid pro quo, but, rather, whether the funds disbursed can be considered Federal assistance within a specific statutory scheme intended to promote public policy objectives and not payments by the government as a commercial entity.
As discussed above, loans are a common vehicle for distributing Federal assistance. Rooney received the loans from the FmHA pursuant to Section 515 of the Housing Act of 1949, codified at 42 U.S.C. § 1485. Section 1485(a) authorizes loans to provide housing for “elderly or handicapped persons or families of low or moderate income or other persons and families of low income in rural areas____” The FmHA granted Dawnwood the loan to construct rural low-income housing. Therefore, the funds Rooney received from the Federal government were authorized according to a statutory scheme in order to promote Congress’s public policy objective of providing low-cost rural housing, and are exactly the type of monies Congress intended to protect when it enacted § 666. We hold that Dawnwood received a benefit from the FmHA loans under § 666(b). Accordingly, the statute’s jurisdictional requirement is satisfied as to Rooney.
CONCLUSION
We reverse the order of the district court and reinstate Count III of the indictment.
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_appfed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John B. MATHES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 89-3050.
United States Court of Appeals, Eleventh Circuit.
May 22, 1990.
Gary N. Strohauer, Alan K. Smith, Stro-hauer & Brown, P.A., Clearwater, Fla., for plaintiff-appellant.
William R. Sawyer, Gary R. Allen, Chief, Appellate Section, Stuart E. Horwich, Shirley D. Peterson, Charles E. Brookhart and Kevin Brown, U.S. Dept, of Justice, Tax Div., Washington, D.C., for defendant-ap-pellee.
Before KRAVITCH and CLARK, Circuit Judges, and ATKINS , Senior District Judge.
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
ATKINS, Senior District Judge:
This is an appeal from the district court’s dismissal of the taxpayer’s Complaint to enjoin the collection of federal income taxes. We affirm the district court’s dismissal and denial of injunctive relief based on lack of jurisdiction. The district court was precluded from exercising equitable jurisdiction because the taxpayer failed to avail himself of his adequate legal remedy; the taxpayer could have timely applied to the Tax Court for a redetermination of the alleged tax deficiencies. In reaching this result, we set aside the finding in Conclusion of Law No. 17 of the district court’s memorandum opinion dated December 21, 1988. The district court should not have reached the issue of whether the tax assessment was valid and enforceable. Therefore, this case is affirmed as modified in this opinion.
I. PROCEDURAL HISTORY AND FACTS
A. Procedural History
On November 27, 1985, John B. Mathes, taxpayer herein, filed a Complaint against the United States in the United States District Court for the Middle District of Florida. Taxpayer sought a preliminary and permanent injunction to restrain the assessment and collection of federal income taxes for the year 1977 and to invalidate a tax lien against him. The taxpayer alleged in the complaint that the secret grand jury testimony was obtained by the Internal Revenue Service without the requisite state court disclosure order and in violation of grand jury secrecy requirements.
On March 17, 1986, the United States filed a Motion to Dismiss, which was denied on May 21, 1986. The United States followed by filing its Answer which set forth as an affirmative defense an absence of subject matter jurisdiction. On February 5, 1987, the United States filed a second Motion to Dismiss, which was denied on April 13, 1987. After a one day trial on October 3, 1988, the district court on December 21, 1988, entered a memorandum opinion which denied the taxpayer’s request for injunctive relief and dismissed the complaint. Taxpayer filed a timely notice of appeal on January 19, 1989.
B. Facts
Sometime prior to July 20, 1978, the taxpayer was subpoenaed to testify before the Florida Grand Jury. Although the taxpayer was granted immunity, he refused to testify in front of the grand jury. Thereafter, the taxpayer was incarcerated for civil contempt for his failure to testify. On July 20, 1978, outside the presence of the grand jury, the taxpayer gave a sworn question and answer statement to an Assistant State Attorney, who was designated as the legal advisor to the grand jury. This sworn statement was later transcribed and an agent for the Internal Revenue Service testified at the trial that he received a copy of the sworn statement and was aware that the statement was taken outside the presence of the grand jury. The taxpayer admitted in the statement that he received $230,000 in 1977 from the sale of large quantities of marijuana. The taxpayer did not file a tax return for the year 1977.
On October 2, 1981, the Commissioner of Internal Revenue issued a notice of deficiency to the taxpayer asserting that the taxpayer owed federal income taxes plus additions to the tax for fraud for the year 1977. In calculating the taxpayer’s deficiencies the Internal Revenue included in the taxpayer’s income the $230,000 derived from the drug sale income. Apparently, the Internal Revenue had no independent basis for asserting that the taxpayer received the $230,000 worth of income. On January 6, 1982, over 90 days from the issuance of the notice of deficiency, the taxpayer filed a petition with the Tax Court for a redetermination of his alleged deficiencies for the 1977 tax year. The Tax Court dismissed the petition for redetermi-nation on March 8, 1982 due to untimely filing.
The taxpayer brought this injunction suit on November 27, 1985. On October 3, 1988 the district court had a one-day trial on this matter. On December 21, 1988, the district court entered an Order dismissing the complaint and denying the taxpayer’s request for injunctive relief. This appeal followed.
II. DISCUSSION
The question of jurisdiction to enjoin tax assessments and collections is expressly covered by 26 U.S.C. § 7421(a), the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of- any tax shall be maintained in any court by any person ...” Section 7421(a) expressly allows the following exceptions: petitions to the Tax Court for a redetermination of a deficiency pursuant to 26 U.S.C. §§ 6212(a) and (c), 6213(a) and civil actions in the district court pursuant to 26 U.S.C. § 7426(a) and (b)(1).
Courts have recognized that, aside from the express statutory exceptions of this statute, federal courts may enjoin the collection of taxes if it can be shown that (1) under no circumstances could the government ultimately prevail on its tax claim and (2) equity jurisdiction otherwise exists; either ground being conclusive. Enochs v. Williams Packing Company, 370 U.S. 1, 6-7, 82 S.Ct. 1125, 1128-1129, 8 L.Ed.2d 292 (1962); Bowen v. United States, 331 F.2d 149, 150 (5th Cir.1964) (per curiam); see also Intercontinental Jet, Inc. and Jerry Lee Harvey v. United States of America, 690 F.Supp. 1012 (S.D.Fla.1988). Therefore, the general rule is that, except in very rare and compelling circumstances, federal courts will not entertain actions to enjoin the collection of taxes.
This case does not present one of those rare and compelling circumstances barring application of the Anti-Injunction Act. Our conclusion is based solely on the taxpayer’s failure to meet the traditional equity test of having no adequate remedy of law. Accordingly, it has been held that a suit for injunction could not be maintained when the taxpayer fails to file a timely petition with the Tax Court for preassessment relief. Laino v. United States of America, 633 F.2d 626, 630 (2d Cir.1980) (citing Bowen v. United States, 331 F.2d 149, 150 (5th Cir.1964) (per curiam)).
Equitable jurisdiction is not present because the taxpayer had an adequate remedy of law available to him in that under 26 U.S.C. § 6213 a taxpayer can petition the Tax Court for a redetermination of the deficiency. The taxpayer in this case did file for a redetermination of his tax deficiency, however, his petition for redetermi-nation was untimely and denied by the Tax Court for that reason. Therefore the prerequisite equitable jurisdiction necessary to overcome the barrier of the Anti-Injunction Act is not present. Bowen v. United States, 331 F.2d at 150; Laino v. United States of America, 633 F.2d 626 (2d Cir.1980).
We do not reach the issue of whether the tax assessment for the year 1977, pertaining to the taxpayer’s income received from an illegal source, is valid and enforceable. The district court should not have reached that issue and we therefore set aside the finding in Conclusion of Law No. 17 of the district court’s memorandum opinion. We also modify the district court’s opinion to the effect that the taxpayer will not be prejudiced from presenting the issue of suppression of the alleged “tainted evidence” as a defense in future litigation with the government. We reach our result solely on jurisdictional grounds and we do not address any of the underlying merits of the claim.
III. CONCLUSION
Based on the foregoing, we find that the district court’s denial of injunctive relief should be affirmed solely on the basis of lack of jurisdiction. The taxpayer failed to avail himself of his adequate legal remedies and the district court was precluded from exercising equitable jurisdiction. We AFFIRM the district court’s denial of in-junctive relief, and dismissal of this action with prejudice. We REMAND for vacating the finding in Conclusion of Law No. 17.
. Both Motions to Dismiss alleged that the district court lacked jurisdiction to hear the matter.
. The taxpayer has not asserted that any of these express statutory exceptions apply.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_2-3-2
|
F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination".
Bobby E. WILLIAMS, Plaintiff-Appellee, v. HEVI-DUTY ELECTRIC COMPANY, Defendant-Appellant.
No. 86-5408.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 2, 1986.
Decided May 20, 1987.
Rehearing and Rehearing En Banc Denied July 7, 1987.
Lawrence T. Lynch, argued, Foley and Lardner, Milwaukee, Wis., for defendant-appellant.
William Bush, argued, Rural Legal Services of Tennessee, Cookeville, Tenn., Richard M. Brooks, Carthage, Tenn., for plaintiff-appellee.
Before ENGEL, KRUPANSKY and NELSON, Circuit Judges.
DAVID A. NELSON, Circuit Judge.
Plaintiff Bobby Williams, a disappointed job-seeker, brought a discrimination action against defendant Hevi-Duty Electric Company under Title VII of the Civil Rights Act of 1964. In the judgment appealed from here, the trial court found that Hevi-Duty failed to hire Mr. Williams because of his race or color (a violation of 42 U.S.C. § 2000e-2(a)) and because he had filed a Title VII charge against Hevi-Duty earlier. (Discrimination against a job applicant for the latter reason would be a violation of 42 U.S.C. § 2000e-3(a).) We have found in the record no evidence that Hevi-Duty’s failure to hire Mr. Williams violated the law in either respect. The trial court’s conclusions were clearly erroneous, in our opinion, and we shall therefore reverse the judgment.
I
Hevi-Duty, a producer of transformers, operates a manufacturing plant in Clay County, Tennessee. In 1980, according to the census of that year, Clay County had a working-age population of 4,422 people. Blacks comprised 1.4% of that number. The number of working-age black males resident in the county was 24. The plaintiff, Mr. Williams, was one of those 24 men.
In February of 1981 Mr. Williams filed a written employment application form with Hevi-Duty. It has been stipulated as “undisputed” that this was the only such form Mr. Williams ever filed directly with Hevi-Duty.
One hundred ninety-eight other applications for employment were filed with Hevi-Duty between January 1, 1980, and May 19, 1982; five were from black people and 192 from white people. The company did not offer Mr. Williams a job, but it did hire a white applicant on August 31, 1981. Business declined, and no one else was hired for more than two years. In March of 1982 Mr. Williams filed a job discrimination charge with the Federal Equal Employment Opportunity Commission. Hevi-Duty settled the charge in October of 1982, paying Mr. Williams $1,800.
The settlement agreement provided that Mr. Williams would “not be penalized in any future considerations [sic] for employment ... because of proceedings arising under the instant charge.” The agreement also provided that the settlement “does not constitute an admission by [Hevi-Duty] of any violation of Title VII_” The agreement did not provide that Mr. Williams would be given preferential treatment of any kind.
Other charges of racial discrimination filed against Hevi-Duty in 1982 were dismissed by the EEOC with findings of “no reasonable cause to believe [the allegations of racial discrimination] true.”
The Hevi-Duty plant was a popular place to work, and the “Job Services” office operated by the State of Tennessee in the small town of Celina, where the plant was located, maintained a separate file for people who had told Job Services they wanted to work at Hevi-Duty and nowhere else. In January of 1984 there were 100 to 150 names in Job Services’ Hevi-Duty file. Most of the individuals in question were white, and most did not have active job applications on file at Hevi-Duty, no such applications having been accepted by Hevi-Duty since May of 1982.
As a result of Mr. Williams’ 1982 discrimination charge, it came to the attention of Mr. Don Keith, a Hevi-Duty industrial relations manager based in Goldsboro, North Carolina, that none of the three Hevi-Duty plants for which he was responsible had any policy as to the length of time employment applications would be kept on file. Some of the applications on file at the Celina plant went back to 1974, when the plant was opened. In October of 1982, after Mr. Williams’ claim had been settled, Mr. Keith telephoned the managers of the out-of-town plants, including the Celina plant, and told them that employment applications should be retained for a period of one year and then discarded. Mr. Keith never thought of reducing the policy to writing, he testified, because he did not think the matter weighty enough; he frequently gave plant managers instructions by telephone.
In relaying the new retention policy to the Celina plant manager, whose name is Gerald Block, Mr. Keith mentioned the job application form filed by Mr. Williams in February of 1981 and told Mr. Block to keep that particular application on file for another full year, even though it was already more than a year old. No such consideration was extended to any other applicant who had not worked for Hevi-Duty previously.
Mr. Block repeated the instructions he had received to the office personnel at his plant, telling them that job applications were to be kept on file for one year from the date of the application but that Mr. Williams’ application was to be considered active until October of 1983. Like Mr. Keith, Mr. Block saw no need to put the policy in writing; when the policy was adopted, he testified, he was not anticipating a lawsuit.
Like many others who wanted to work at Hevi-Duty’s Celina plant, Mr. Williams made it a practice to visit the plant from time to time to check on his application and update it with new information. He made such a visit in August of 1983, talking at that time with Judy Rich, a Hevi-Duty office worker with whom he had gone to high school. As she had done on one or two earlier occasions, Ms. Rich handed Mr. Williams his application, let him update it with whatever he wanted to add, signed and dated it herself, and returned the application to the file.
Early in January of 1984, having heard that Hevi-Duty was going to call five former employees back to work, Mr. Williams went to the plant again and again asked to update his application. The woman to whom he talked on this occasion, Rene Davis, looked through the 25 to 30 job application folders then in her file and could not find one for Mr. Williams. She asked him if it “had been one year,” she testified, and either she or Plant Manager Block then told Mr. Williams that they only kept applications for a year. The following conversation ensued, according to Mr. Williams’ testimony:
“I told [Plant Manager Block] I was just in six months ago to update [the application.]. He said that didn’t matter. I asked him was he taking applications then. They said no. So I just left.”
Mr. Williams testified that he did not ask either Mr. Block or Ms. Davis when Hevi-Duty would start accepting applications again.
For several years Hevi-Duty had maintained a written log showing the name of every person from whom a job application had been accepted and the date on which the application was placed on file. The log indicates that no applications were accepted between May 19, 1982, and February 8, 1984. Mr. Williams was correctly informed, however, about the plant’s calling back five former employees in January of 1984; business was picking up at this time, and five former employees — whose old job applications were apparently among the 25 or 30 retained by Rene Davis — were rehired, in order of senority, in January. These men (all of whom were white) had no contractual right to be called back, because they had been in lay-off status for more than one year; Mr. Block had told them he would call them back when he could, however, and he testified that he felt a moral obligation to keep his word. Personnel Manager Keith testified that because of their prior job experience, the former employees could be productive from the outset. Training new people could take as long as four to six months for some jobs, Mr. Block testified.
Because of the improvement in business and a large contract Hevi-Duty was about to obtain, Mr. Block knew, in January of 1984, that his work force would have to be increased. At some point he received a “job prospectus” showing that he would need from 10 to 15 people, but he testified that he did not know how soon the additional people would be needed. When Mr. Block talked to Mr. Williams early in January, he testified, he thought that the five former employees “were going to take care of us.”
Working through the local Tennessee Job Services office, plaintiff Williams was able to secure a job at another company, Osh Kosh by name; he started work there on January 23, 1984. He still wanted to work at Hevi-Duty, however, and on January 24 Mr. Williams signed a second equal employment opportunity charge against Hevi-Duty. (Neither Plant Manager Block nor Personnel Manager Keith knew of this charge until February 13, 1984.)
After he had worked at Osh Kosh about two weeks, Mr. Williams heard from his lawyer that Hevi-Duty was hiring through the Job Services office. Mr. Williams went to that office on February 6, 1984, and spoke with a Mr. Bobby Westmoreland. Mr. Westmoreland, who had known Mr. Williams all his life, had been helpful to him in the past; he helped Mr. Williams get a job as a park worker with the Corps of Engineers in 1983, got him certified in January of 1984 under the tax credit program, and referred him to Osh Kosh for the job he had just started. Notwithstanding his new job at Osh Kosh, Mr. Williams told Mr. Westmoreland he wanted to work for Hevi-Duty because he could earn more money there. Mr. Westmoreland advised him that “they’re not hiring any right now, but there’s a possibility they might.” Mr. Williams asked if he could put in an “application” for employment at Hevi-Duty, and Mr. Westmoreland, responding in the affirmative, gave him a Job Service employment form (not a Hevi-Duty form) which Mr. Williams completed and returned to Job Services on February 7, 1984.
The next day, February 8, Plant Manager Block called Mr. Westmoreland at Job Services to say that Hevi-Duty was accepting applications. Mr. Westmoreland understood this to mean that Hevi-Duty would now take job applications from people who came to the plant and filled out Hevi-Duty job application forms. Mr. Block told Mr. Westmoreland that Hevi-Duty would be taking job applications only for the rest of the week — i.e., through February 10, 1984. No one mentioned Mr. Williams, as far as the record shows.
In telling Job Services there was only a three-day window for job applications, Mr. Block was acting on advice from Personnel Manager Keith. Mr. Block testified that he thought only two or three job openings were coming up then (an impression Mr. Keith said he shared), and Keith recommended letting Job Services know the company would be taking applications only from February 8 through February 10. Keith and Block thought they would get plenty of applications within a three day period, and that judgment proved correct.
Hevi-Duty never suggested that plaintiff Williams or anyone else not be told that applications were being accepted, but Mr. Westmoreland made no special effort to contact either Mr. Williams or any of the other 100 to 150 people who, as Mr. West-moreland knew, wanted jobs at Hevi-Duty. His thinking as to Mr. Williams was that Williams was already working at Osh Kosh, and it was “not part of my job description” to try to get better paying jobs for people who were already working. (Evelyn Bartlett, his superior, testified that in fact it was the policy of the State of Tennessee to aid people who were already employed in getting better-paying jobs. A file memorandum prepared by Ms. Bartlett indicates that it was her “understanding”— obtained, she testified, from “my interviewer in the office” (Mr. Westmoreland?)— that Mr. Williams “has always had a chip on his shoulder”; whether that had anything to do with Mr. Westmoreland’s failure to call Mr. Williams would be pure conjecture.)
Instead of attempting to call Mr. Williams or others known to be interested in jobs at Hevi-Duty, Mr. Westmoreland simply told anyone who happened to come into the Job Services office between February 8 and February 10 to apply at the Hevi-Duty plant if he wanted to work there. Mr. Westmoreland testified that he told between five and twenty visitors to his office that Hevi-Duty was “taking applications through the door.”
Mr. Block testified that “[i]t’s a small town and word of mouth gets around”; no fewer than 34 job applications were received at the plant between February 8 and February 10, 1984. Somewhat to Mr. Block's surprise, as he testified, Mr. Williams’ application was not among them.
Most of the 34 applicants were white males, but one (Richard Bums) was a black, and three were females. On the recommendation of Personnel Manager Keith, one of the women, Barbara Breed-love, and the black, Mr. Burris, were hired first. Keith made this recommendation, he testified,
“For Affirmative Action reasons. We have identified in our Affirmative Action Plan that we were underutilizing females and that we could also use additional representation of minorities.”
Even after Ms. Breedlove was hired, Mr. Keith thought that females were still under-represented in the hourly work force. Neither of the remaining female applicants was considered qualified, so he told Mr. Block to ask Job Services to refer more females. Mr. Block did so. Mr. Westmore-land denied having complied with this request, which he considered improperly discriminatory, but a second woman, who Mr. Block said was referred by Job Services, applied on February 24 and was hired three days later. She was the only person hired in 1984 who had neither worked for the company previously nor applied between February 8 and February 10.
The need for additional employees continued, for a time, and between February and August of 1984 Hevi-Duty hired a total of 21 people. After Mr. Burris was hired there were two black employees in the hourly wage group, which then consisted of 72 people. No one was hired after August 20, 1984, and some layoffs occurred, but Hevi-Duty still had two black employees— representing over 2.5% of the hourly work force — at the time of the trial in November of 1985.
As a subsidiary of General Signal Company, a large industrial enterprise, Hevi-Duty had affirmative action programs in effect throughout the relevant period. Plant Manager Block testified that he read the various affirmative action plans as they came in, and believed that they said, in essence, “we’ll not discriminate against race, creed or color.” Mr. Block testified that plaintiff Williams would have been considered for employment had he submitted an application when the company was accepting applications in February of 1984, and the fact that he had filed a discrimination charge would not have affected Mr. Williams’ chances of being hired. Block testified that he considered Mr. Williams as qualified as anyone for employment at Hevi-Duty, and he never told anyone to discriminate against Mr. Williams in any way. Office personnel Rene Davis and Judy Rich, Job Services Interviewer West-moreland, and Personnel Manager Keith all confirmed that there had been no discussion of discriminating or retaliating against Mr. Williams. There is no reason to suppose that if Mr. Williams had tendered a job application between February 8 and February 10, his application — unlike those of the 34 applicants who did so — would not have been accepted.
II
On November 15, 1984, the EEOC advised Mr. Williams that the Commission was terminating any further processing of the charge against Hevi-Duty and that Mr. Williams could sue in his own right if he wanted to. A timely complaint was then filed against Hevi-Duty, the State of Tennessee, the State’s Department of Employment Security, Mr. Block, and Mr. West-moreland. The case went to trial before the Honorable L. Clure Morton, sitting without a jury, on November 6, 1985. Many of the facts were stipulated, and the plaintiff rested after offering testimony from himself, Plant Manager Block, office personnel Davis and Rich, and Job Services Interviewer Westmoreland. Hevi-Duty moved for the entry of judgment in its favor at the conclusion of the plaintiff’s case, and the motion was overruled without comment.
The court then heard the testimony of Personnel Manager Keith and Job Services Manager Bartlett, and after very brief rebuttal testimony the court heard argument from counsel and took the case under advisement. In a memorandum opinion filed on March 28, 1986, the court held that the individual defendants and the State and its Department of Employment Security were entitled to be dismissed, but that Mr. Williams was entitled to judgment against Hevi-Duty. The court entered an order awarding Mr. Williams backpay and attorney fees and requiring that he be placed on the Hevi-Duty payroll and be offered the first available position as an hourly employee at the Celina plant. Hevi-Duty has appealed, arguing that the plaintiffs proofs failed to establish a prima facie case of race discrimination and that the trial court’s factual findings are not supported by substantial evidence in the record and are clearly erroneous.
Ill
As the trial court recognized, the basic question it was called upon to decide was whether the plaintiff had sustained the burden of establishing a prima facie case of disparate treatment. The trial court searched the record diligently for any scrap of evidence that Hevi-Duty had discriminated against Mr. Williams, and this was entirely appropriate; the repeated filing of EEOC charges by Mr. Williams gave the company an obvious motive to discriminate against Mr. Williams, and the quantum of proof necessary to show that Mr. Williams had in fact been discriminated against was not great. His filing of EEOC charges did not entitle Mr. Williams to preferential treatment, however, and the trial court may have had some difficulty in setting aside the idea that Mr. Williams was entitled to preferential treatment. Questions from the bench frequently have a certain Delphic quality, but the following question, which the trial court posed to counsel for Hevi-Duty during final argument, seems worth quoting:
“If I’d been that company, I’d have called Mr. Williams up on the phone and I’d [have] said look, you haven’t applied and you better get up here. We’re gonna hire somebody. We know you want a job and you sued us. And we don’t want you suing us again. Come on up and apply. That’s what they should have done, isn’t it?” (Emphasis supplied.)
That might well have been a prudent thing for the company to do, but Title VII, by its terms, merely prohibited the company from discriminating against Mr. Williams; it did not require that he be treated more favorably than others similarly situated. As the trial court recognized, moreover, nothing in the 1982 settlement agreement gave Mr. Williams a contractual right to preferential treatment.
The trial court found as a fact that in 1982 Hevi-Duty decided to initiate a one year retention policy for employment applications, and the court recognized that “[t]here is no evidence to indicate that the policy itself had an adverse impact on minority applicants different from its effect on white applicants." The court stated, however, that "a number of factors cast grave doubts upon [the one year retention policy's] continued existence and validity."
The first of these factors was said to be that "[o]ffice personnel were instructed not to inform applicants of the new policy...." We could find no evidence in the record, however, that any such instruction was given; office personnel simply were not instructed to inform applicants of the new policy, the evidence showed, and that, of course, is a very different thing. Mr. Block testified that he never told the office personnel not to tell Mr. Williams that his application would be inactive after October of 1983, and applicants who checked with the company after more than one year had expired were routinely told, as Mr. Williams was told, that their applications were no longer on file. "If they come in to check," Ms. Davis testified, "we tell them."
The court went on to say that:
"Pursuant to the policy, applicants who undoubtedly assumed they were in contention for jobs whenever positions became available were to be systematically excluded without notice after one year. Title VII prohibits the selective use of an otherwise valid application process to discriminate against black applicants."
The premise of the first sentence was unproven, and the thought expressed there is unrelated to the fact stated in the second sentence. The record contains no indication that any applicant assumed his application would remain active in perpetuity, and the fact that a number of applicants kept returning to the plant to check on their applications-some more frequently than Mr. Williams-strongly suggests that they entertained no such assumption. Whatever the applicants may have assumed, moreover, the policy systematically excluded from consideration all whose applications were more than a year old, white as well as black. Whether or not the policy ran counter to the assumptions of the applicants, its systematic application hardly constituted selective use to discriminate against blacks.
The court's opinion suggests next that "[t]he policy, if operational at all, was followed haphazardly." It is true, to be sure, that the office personnel who were supposed to destroy inactive applications failed to destroy some, including Mr. Williams', as soon as they should have done; that was simply haphazard housekeeping, however, not haphazard application of the policy. The office workers "testified convincingly as to their instructions when establishing the retention policy," the court said, and the instructions clearly reflected a policy to restrict the pool of potential new-hires to people whose applications were no more than a year old.
The court noted that "[t]he presence of 25 to 30 applications [some or all of which may have been the original applications of former employees] as late as January 1984 [more than one year after Hevi-Duty had stopped accepting new applications] reinforces the court's finding that the retention policy was ... a weapon with which to discriminate." The "weapon," however, was not used; none of the four people hired in February of 1984, and none of the 17 people hired in the months that followed, was hired on the basis of an application more than one year old.
There may have been a departure from the 1982 policy in the case of the five former employees hired in January of 1984, but the trial court acknowledged that because those employees would need no on-the-job training, the company had a legitimate economic reason to limit the application of the one year policy to applicants who had never worked at Hevi-Duty.
The only other arguable departure from the policy occurred when Hevi-Duty asked Job Services for female applicants after February 10 and hired a woman (Alma Sutton) who was permitted to apply late. Miss Sutton was given preferential treatment not because of her race, but because of her sex; and the trial court does not suggest that this kind of selective use of the application policy would violate Title VII.
Finally, the trial court attached some significance to the fact that the policy adopted in 1982 was never reduced to writing. It may be true, as the court suggested, that an unwritten policy would make it easier for company officials "arbitrarily and selectively [to] enforce an everchang-ing and unascertainable set of rules," but that is not what they did in the case of Mr. Williams except insofar as they elected to keep his application active longer than the application of anyone else who had not previously worked at the company.
The most significant of the trial court's factual findings is that when Mr. Williams was permitted to update his application in August of 1983, "it became a new application as of that date." The court went on to say this:
"While the plaintiff was allowed to `update' the original application, he was never told that Hevi-Duty planned to inactivate his application in November of 1983. Naturally, he was led to believe that his application was pending and in line for consideration should openings arise.
* * * * * *
When the plaintiff supplemented his application in August of 1983, Hevi-Duty was bound to consider the plaintiff for employment through July of 1984. At the time Hevi-Duty hired new workers in February of 1984, the plaintiff's application was `active.'"
The conclusion that the updating of the application in August of 1983 constituted the filing of "a new application as of that date" seems somewhat difficult to reconcile with the parties' stipulation that "the only written employment application form ever filed by Plaintiff Williams" was filed in February of 1981. Be that as it may, Mr. Williams was not told, in August of 1983, that the company would permit his application to remain active for another full year or for any other length of time. There is no evidence that he was misled in August of 1983. Mr. Williams could not possibly have been under any misapprehension of fact after the beginning of January, 1984, moreover, because the company told him he was no longer in the applicant pool then, and told him-truthfully-that applications were not being taken at that time. The alleged discrimination did not occur until February, when the company started accepting new applications and hired Miss Breedlove, Mr. Burns, Miss Sutton, and a white male named Edwin Denton.
It was the trial court's impression that 21 people were hired in February of 1984, but the court was in error on this point; only the four people named above were hired in February. Four more new employees were hired in March, two in April, three in May, seven in June, and one in August. Except for Alma Sutton, all 21 had filed applications with Hevi-Duty between February 8 and February 10, 1984.
With the exception of Ms. Sutton, none of the 21 new-hires was given any unfair advantage over Plaintiff Williams in the competition for a job at Hevi-Duty. On February 6, indeed, Mr. Williams may have been better informed than the others, because he had been told by Mr. Westmore-land that although Hevi-Duty was not hiring "right now," there was "a possibility that they might [start hiring]." It was not Hevi-Duty's fault that Job Services failed to notify Mr. Williams when Hevi-Duty started accepting applications on February 8, and the only evidence in the record of any possible animosity against Mr. Williams consists of the memorandum indicating that someone at Job Services thought "he has always had a chip on his shoulder." Job Services was an instrumentality of the State of Tennessee, not an agent of Hevi-Duty.
There is no evidence that Hevi-Duty clandestinely informed a few favored individuals that applications would be accepted for a brief period. Hevi-Duty sought referrals from the State of Tennessee's employment service, and had no reason to suppose that the state would discriminate against Mr. Williams, other blacks, females, or anyone else. The decision not to try to notify everyone who had expressed an interest in working at Hevi-Duty was the state's, not Hevi-Duty's.
The trial court charged Plant Manager Block with "a general lack of credibility" because of "his general evasiveness" and a supposed inconsistency between his testimony on a predicted need for 10 to 15 additional employees and his testimony (confirmed by Mr. Keith) that only two or three openings were available when Hevi-Duty accepted applications in February. There are some inconsistencies in Mr. Block's testimony, but this is not one of them. Mr. Block testified that although he knew there was a projected need for 10 to 15 employees, he did not know how many would be needed when. The fact that four people were hired in February instead of the "two or three" Mr. Block initially thought would be needed in that month has little or no significance. Rejection of Mr. Block's testimony, moreover, cannot by itself constitute the affirmative evidence of discrimination necessary to establish a pri-ma facie case.
Although none of the 21 people hired between February and August of 1984 was hired without a written job application, and although the company's policy clearly contemplated that new-hires would be drawn exclusively from the pool of people who had filed timely written applications, the trial court concluded that even if the 1983 updating of Mr. Williams' 1981 application did not extend the life of that application to 1984, Mr. Williams' obvious desire to be hired must be considered an "application." We agree that Mr. Williams' desire to be hired was obvious, but neither that fact, nor the fact that Mr. Williams had filed discrimination charges against Hevi-Duty, obligated the company to waive its policy on written job applications for the benefit of Mr. Williams. The number of people eager to work at Hevi-Duty greatly exceeded the number of openings, and the company's job application poi-icy constituted a rational, racially neutral mechanism for limiting the number of prospective employees who would have to be considered. The policy was fairly and consistently applied, except when preference was given to trained former employees and women, and although the company may not have been sorry to learn that application of the policy happened to exclude Mr. Williams from consideration, the company had no way of foreseeing that this would happen; we can see no basis for concluding that the policy was a subterfuge for discriminating against Mr. Williams on account of his race or his litigiousness.
Iv
Because it is clear from the record that Mr. Williams never submitted an application to Hevi-Duty during the time when applications were being accepted, it is equally clear that Mr. Williams did not establish a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.s. 792, 93 S.Ct. 1817, 38 L.Ed.2d 668 (1973). Under the rule of McDonnell Douglas, a plaintiff in a Title VII employment discrimination case may be found to have made a prima fade case if he shows:
"(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."
Id. at 802, 93 S.Ct. at 1824. Mr. Williams has shown that he is qualified for the job he wanted and that he is a member of a racial minority and a potential victim of retaliation, but he has not otherwise brought himself within McDonnell Douglas. The situation presented here is one in which there was a large pool of potential applicants for a small number of jobs. The employer elected to limit the applications it would accept to those submitted during a relatively short period of time, but there was no showing that this was a device to discriminate on racial grounds; Mr. Williams' application was not rejected, it simply was not timely filed.
The district court suggested that Mr. Williams' "generalized expression of interest may be considered an `application.'" Over 100 people in Clay County were interested in working for Hevi-Duty, however, and it cannot fairly be said that everyone who ever expressed interest in working for Hevi-Duty had “applied” to work there. Hevi-Duty was not required to accept applications before it needed new employees, and when it decided to start accepting applications it was not required to seek out all who could be said to have given a “generalized expression of interest” in the past (including people who, like Mr. Williams, had subsequently found work elsewhere) and invite them to apply for work at Hevi-Duty.
In the situation considered in Ferguson v. E.I. DuPont de Nemours and Co., 560 F.Supp. 1172,1193 (D.Del.1983), it was “impossible” to submit a specific application. Here it was not “impossible” to submit an application; a prospective applicant simply had to find out from the company or the state employment office when applications were being taken, and submit an application during that time period.
The judgment of the trial court is REVERSED, and the case is REMANDED with instructions to dismiss the action.
. Although Ms. Davis assumed that the application had been discarded, as it ought to have been after October of 1983, the evidence established that Mr. Block found Mr. Williams’ application later in the day. Mr. Block considered the application inactive, he testified, and he did not mention to anyone that he had found it.
. On July 2, 1964, Senator Hubert Humphrey inserted in the Congressional Record a "concise explanation of the Civil Rights Act of 1964" in hopes that it might "provide Americans with a short and understandable explanation of the civil rights bill_" 110 Cong.Rec. 15, 865 (1964). Title VII, according to Senator Humphrey,
"does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems be established to maintain racial balance in employment. In fact, the title prohibits preferential treatment for any particular group." 110 Cong.Rec. 15, 866 (1964).
Senator Humphrey's view that Title VII "prohibits preferential treatment for any particular group” has been rejected by the Supreme Court, Johnson v. Transportation Agency, Santa Clara County, California, - U.S. -, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and the state employment agency may have been wrong in thinking that it would be improper to let women alone apply after February 10, 1984. That hardly helps Mr. Williams, however; notwithstanding the tension between the language of Title VII and the holding of Johnson, it is evident that neither the statutory law nor the decisional law required that Mr. Williams be singled out for favorable treatment.
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
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songer_appel1_3_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FORT VANCOUVER PLYWOOD COMPANY, Respondent. FORT VANCOUVER PLYWOOD COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 78-2214, 78-2288.
United States Court of Appeals, Ninth Circuit.
Aug. 2, 1979.
Rehearing Denied Sept. 20, 1979.
George J. Tichy, II, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for Fort Vancouver Plywood Co.
Christine Peterson, N. L. R. B., Washington, D. C., for N. L. R. B; Elliott Moore, N. L. R. B., Washington, D. C., on brief.
Before HUFSTEDLER and GOODWIN, Circuit Judges and JAMESON , District Judge.
The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.
GOODWIN, Circuit Judge:
The National Labor Relations Board (NLRB) petitions for enforcement of its order entered upon a finding that Fort Vancouver Plywood Company committed unfair labor practices. The Board ordered the company to cease certain practices, to bargain with the union, and to reinstate and compensate for lost earnings 72 former employees. Fort Vancouver Plywood cross-petitions to set the order aside.
I. FACTS
Fort Vancouver Plywood Company is a worker-owned Washington corporation. Not all workers are shareholders, however. The company has often employed nonshare-holders as fill-ins during periods of peak production or as replacements for vacationing shareholder-workers. The number of nonshareholders in the work force has varied from time to time. The Board contends that the number has ranged from 30 to 70, but concedes that it also has fallen to 2 or 3. The company claims that the figure has occasionally dropped to zero.
For reasons not material here, the employment of nonshareholders has always been a matter of contention within the company’s management. Three of the seven directors (also worker-shareholders) consistently advocated ending the employment of nonshareholders altogether. They could not convince any of the other directors to join with them until June 14,1976. On that day, all 72 nonshareholders then employed were fired.
The dismissals came as Local Union No. 3-3 of the International Woodworkers of America was taking steps to organize the nonshareholder contingent. On June 9, the union had held an organizational meeting, at which it distributed authorization cards. By June 16, the union had acquired signed cards from a majority of nonshareholder employees, and then demanded recognition from the company. All 72 nonshareholders had been discharged two days earlier, however, and the company refused to recognize the union. The union then filed charges with the Board, which issued a complaint.
Following a lengthy hearing, the administrative law judge found that the company had violated three subsections of the National Labor Relations Act: section 8(a)(1), by illegally coercing and interrogating employees; section 8(a)(3), by the firings; and section 8(a)(5), by refusing to bargain with the union. 29 U.S.C. § 158(a)(1), (3), (5). He ordered the company, inter alia, to bargain with the union and to reinstate the discharged employees with back pay. The Board affirmed the administrative law judge’s findings, conclusions, and remedies.
II. VIOLATIONS
We agree with the Board’s conclusions that Fort Vancouver Plywood violated section 8 of the Act in several respects.
A. Section 8(a)(1).
Section 8(a)(1) makes it unlawful for an employer “to interfere with, restrain, or coerce employees” in the exercise of their right to organize. On petition for enforcement, the Board’s ruling that the company violated section 8(a)(1) will stand as long as there is substantial evidence to support it. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Lozano Enterprises v. NLRB, 357 F.2d 500, 502 (9th Cir. 1966). There is more than sufficient evidence here to support the Board’s finding that the company violated section 8(a)(1) by making coercive statements to its employees.
B. Section 8(a)(8).
Under section 8(a)(3) of the Act, an employer may not discharge employees because of their union activities or sympathies. NLRB v. Magnusen, 523 F.2d 643, 645 (9th Cir. 1975). See also NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 97 (9th Cir. 1970). Violation vel non of the subsection depends on the employer’s motive for terminating employment; the task of determining that motive is “ ‘particularly within the purview of the Board.’ ” NLRB v. Vangas, Inc., 517 F.2d 747, 748 (9th Cir. 1975), quoting NLRB v. Winkel Motors, Inc., 443 F.2d 38, 40 (9th Cir. 1971). In determining motive, the Board may consider circumstantial and direct evidence, and its inferences will prevail if reasonable and supported by substantial evidence on the record ás a whole. NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369 (9th Cir. 1969). See also Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 729-30 (9th Cir. 1969) (citing cases).
After hearing testimony for and against the proposition that all 72 nonshareholders were fired for valid business reasons, the judge concluded that the mass discharge was motivated by management’s anti-union sentiment. There was ample evidence that the company’s directors were aware of the attempted unionization and that the threat precipitated the decision to fire all nonshareholders. The judge’s conclusion that a desire to stop unionization outweighed other business purposes was reasonable and well-supported.
The company also argues that, even if illegally motivated, the firings were permissible under Textile Workers Union v. Dar-lington Manufacturing Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). In Dar-lington, the Supreme Court held it is not a statutory violation for an employer to fire all its employees and close down its business even though its motive may be to thwart unionization. Fort Vancouver Plywood contends that it fired all its employees. According to the company, since the only workers it retained were shareholders, it retained no employees. The company therefore claims that the Darlington exception to section 8(a)(3) applies.
We need not pass on cross-petitioner’s attempt to draw a line between shareholder “workers” and nonshareholder “employees”. It is clear that the Supreme Court meant its exception in Darlington to apply only to the complete liquidation of a business. See Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255 (9th Cir. 1978). Anti-union firings that fall short of terminating business operations completely, such as the discharges here, violate section 8(a)(3). See Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. at 274-75, 85 S.Ct. 994.
C. Section 8(a)(5).
On June 16, 1976, having obtained authorization cards from a majority of nonshare-holders, the union demanded recognition. The company refused to bargain with the union. It alleges that the union’s majority was obtained only after the nonsharehold-ers were fired, and that several cards were backdated to show union support before the firings. Two signers admitted backdating their cards, and the company urges that others did, too.
Assuming arguendo that there was extensive backdating, the fact remains that a majority had signed cards for the union on or before June 16, the date that Fort Vancouver Plywood claims the backdated cards really were signed. Backdating does not negate the expression of desire for union representation. Ultra-Sonic De-Burring, Inc., 233 NLRB No. 165 (1977), enforced, 593 F.2d 123 (9th Cir. 1979). When cards have been backdated, the proper course is to determine when they were signed and to count them as expressing union support as of that date. See, e. g., Essex Wire Corp., 188 NLRB 397 (1971).
The administrative law judge here concluded that the union had majority support on June 16, two days after the firings. Even if there was considerable backdating, this would not affect the finding of majority support shortly after the illegal discharges.
That finding is sufficient to make out a violation of section 8(a)(5) even though some members of the pro-union majority may have been fired two days before it signed the cards. An employer may not thwart a pro-union movement by improperly discharging employees before they formally express their wishes.
For the same reason, the failure to reopen the hearings to receive newly discovered evidence relating to the backdating was not error. The administrative law judge has considerable discretion in the grant or denial of a motion to reopen. NLRB v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971); NLRB v. Seafarers Union, 496 F.2d 1363, 1365 (5th Cir. 1974). It was hardly an abuse of discretion not to reopen here. As the Board noted in affirming the denial of the motion to reopen, “even if such evidence were to show that additional cards had been backdated, this fact alone would not vitiate the finding that the Union possessed valid authorization cards from a majority of unit employees on June 16 * *
III. REMEDIES
A. Bargaining order.
Fort Vancouver Plywood maintains that even if it violated the Act, two of the Board’s remedies were improper. It objects, first of all, to the bargaining order. The company contends that it is entitled to an election.
Our standard of review gives a broad presumption in favor of the remedy selected by the NLRB. NLRB v. Longshoremen’s and Warehousemen’s Union, 549 F.2d 1346, 1355 (9th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 397, 54 L.Ed.2d 279 (1977). Where the employer has been guilty of multiple unfair practices, a bargaining order is proper if such an order would be the only way to effectuate employees’ union preferences. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). See NLRB v. Prineville Stud Co., 578 F.2d 1292, 1296 (9th Cir. 1978). A determination that a bargaining order is needed to rectify the effect of past practices will not be upset if substantial evidence supports the Board’s conclusion. NLRB v. Ultra-Sonic De-Burring, Inc., 593 F.2d at 124 (citing cases).
As required by NLRB v. Pacific Southwest Airlines, 550 F.2d 1148, 1152 (9th Cir. 1977), the judge set out his reasons for ordering the company to bargain with the union and stated why the alternative of an election was unsatisfactory to protect employees’ section 8 rights. Particularly in view of the repeated and drastic nature of the coercive behavior and discharges, the judge reasonably concluded that only a bargaining order would effectuate employees’ expressed preference for the union.
B. Reinstatement order and back-pay award.
Finally, the company argues that the reinstatement order was improper. The Board ordered the company to restore all 72 nonshareholders to their jobs, or to “substantially equivalent jobs” if the old jobs no longer existed, and to make up employees’ lost earnings. Fort Vancouver Plywood contends that eventually it would have “drastically reduced or eliminated” the nonshareholder work force, regardless of unionization. Therefore, the company concludes, the Board’s order improperly gave the discharged employees more than they would have gotten without company violations of the Act. We agree that the reinstatement portion of the Board’s order is unenforceable.
Under section 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c), the Board’s remedial powers include wide discretion to fashion and issue reinstatement and back-pay orders. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 176, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). These orders are frequently enforced by this court to remedy discriminatory discharges (e. g., NLRB v. Vangas, Inc., 517 F.2d at 748), especially when the employer has been guilty of a mass firing of all workers in a bargaining unit (e. g., K. B. & J. Young’s Super Markets, Inc. v. NLRB, 377 F.2d 463, 465 (9th Cir. 1967)).
In exercising its discretion, however, the Board’s task is to find a remedy that will “restore the economic status quo that would have obtained but for [the] wrongful discharge * * Golden State Bottling Co. v. NLRB, 414 U.S. at 188-89, 94 S.Ct. at 427. See Southern Tours, Inc. v. NLRB, 401 F.2d 629, 633 (5th Cir. 1968). Remedies that award employees more than they would have obtained but for the violations are punitive, not compensatory, and thus improper. Packing House & Industrial Services, Inc. v. NLRB, 590 F.2d 688, 697 (8th Cir. 1978) (en banc). Where the jobs affected by the illegal discharge would have been phased out anyway, regardless of the unfair labor practices, the Board must tailor its remedy to reflect the situation but for the violations. Florsheim Shoe Store Co. v. NLRB, 565 F.2d 1240, 1247 (2d Cir. 1977).
Florsheim is especially relevant here. The Board had determined that anti-union animus, and not valid business reasons, caused the company to discharge its part-time employees. The court of appeals upheld the finding of discriminatory discharge, but it refused to enforce the Board’s reinstatement order. Although legitimate business purposes may not have actuated the firings, there was much evidence that the company would have gradually terminated its part-time staff anyway.
“ * * * Florsheim was entitled to have the Board shape its order in a form that did not impose a duty to recreate for an indeterminate period jobs that would have been ‘phased out’ of existence over time whether or not there had been a dispute over unionization. * * * On the issues of remedy, * * * the existence and the validity of the economic policy and the effect its implementation would have have [sic] on the duration of part-time jobs and the number of jobs that would exist over time was important.” 565 F.2d at 1247.
Because the Board had not considered how long the jobs would have lasted but for the unfair practices, the case was remanded for appropriate findings.
In the instant case, the Board admits that Fort Vancouver Plywood’s usual contingent of nonshareholders was only a fraction of the number employed in June 1976. It concedes that three of the company’s seven directors had long urged the company to do away with all nonshareholder employment. The NLRB agrees as well that many shareholder-workers not on the board of directors of the company also favored ending the use of outside workers altogether.
Under these circumstances, the Board had a duty to consider how many employees, if any, the company would have continued to employ but for the unfair labor practices, and for how long. The record indicates that neither the judge nor the Board in review gave any consideration to whether some or all of the temporary employees eventually would have lost their jobs for acceptable business reasons. Failure to inquire how many employees would have stayed on but for the section 8 violations makes the remedy punitive, and so unenforceable. NLRB v. J. S. Alberici Construction Co., 591 F.2d 463, 470 n.8 (8th Cir. 1979).
The Board contends that the exact terms of the reinstatement order are properly left for subsequent determination, and do not affect the order’s enforceability. It argues that this court should enforce the order and reserve for compliance proceedings consideration of how many employees would have remained on the job. But the Board’s premise is incorrect. All 72 nonsharehold-ers eventually might have lost their jobs, making a reinstatement order improper altogether. The Board also overlooks the fact that its order requires the reinstatement, not of some nonshareholders, but of exactly 72 discharged workers. The precision in the administrative law judge’s opinion and in the Board’s order makes it clear that no further proceedings were contemplated regarding the number of employees to be reinstated. Compare NLRB v. J. S. Alberici Construction Co., 591 F.2d at 470.
Enforcement of an order so specific would deny the company an opportunity to show that fewer than 72 jobs would have been available regardless of its unfair practices. The reinstatement order therefore cannot stand. M. S. P. Industries, Inc. v. NLRB, 568 F.2d 166, 180 (10th Cir. 1977). On the other hand, the order for back pay is indefinite, properly leaving for compliance proceedings the exact determination of amounts owing. Great Chinese American Sewing Co. v. NLRB, 578 F.2d at 255-56 (citing cases). Back pay awards to wrongfully discharged employees are within the Board’s discretion under 29 U.S.C. § 160(c), supra, and we enforce this portion of the Board’s order.
IV. CONCLUSION
We remand to the Board for reconsideration of the reinstatement part of its order in light of this opinion. Back pay will have to be computed after reinstatement numbers are determined. All other portions of the order are enforced.
The Board will prepare and submit an appropriate form of judgment.
. Company officials questioned employees about their involvement with the union, threatened to close the plant if it went union, and told employees they were being laid off because of their pro-union sentiment. Interrogation of employees about union activities is inherently suspect; absent express assurances against reprisal, it is coercive under section 8(a)(1). NLRB v. Super Toys, Inc., 458 F.2d 180, 182-83 (9th Cir. 1972). The company points to no such assurances here. Threats of plant closure are also coercive unless, unlike the case here, they are phrased as economic predictions based on objective facts beyond the employer’s control. Hertzka & Knowles v. NLRB, 503 F.2d 625, 627-28 (9th Cir. 1974), cert. denied, 423 U.S. 875, 96 S.Ct. 144, 46 L.Ed.2d 106 (1975). See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Informing employees that they are being discharged because of their support for a union is also a violation of section 8(a)(1). NLRB v. L. B. Foster Co., 418 F.2d 1, 2-3 (9th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).
The company contends that the offending statements were all capable of noncoercive interpretations. It is not for us, however, to weigh differing interpretations. The factfinder need- only be reasonable in his inference that the company interfered with or coerced employees in the exercise of their rights. See Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080-82 (9th Cir. 1977). There was nothing unreasonable about the inferences drawn by the administrative law judge and sustained by the Board.
Fort Vancouver Plywood also argues that some of the testimony against it (in several cases uncontroverted) was not credible. The administrative judge is in a better position than we are to determine who is believable. NLRB v. Bell Manufacturing Division, 483 F.2d 150, 151-52 (9th Cir. 1973). “The decision of the Board to resolve the conflicting testimony by crediting that of [one witness rather than another] is binding on this Court.” NLRB v. Deutsch Co., 445 F.2d 902, 905 (9th Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 454 (1972).
. “We hold here only that when an employer closes his entire business, even if the liquidation is motivated by vindictiveness toward the union, such action is not an unfair labor practice.” Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 273-74, 85 S.Ct. 994, 1001, 13 L.Ed.2d 827 (1965) (footnote omitted).
. 29 U.S.C. § 160(c) states in relevant part:
“ * * * If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter * *
Question: This question concerns the first listed appellant. 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_respond1_4_2
|
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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Shirley GAINES et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF DOUGH-ERTY COUNTY, GEORGIA, et al., Defendants-Appellees.
No. 71-2579.
United States Court of Appeals, Fifth Circuit.
Aug. 25, 1971.
C. B. King, Albany, Ga., Jack Green-berg, New York City, for plaintiffs-appellants.
Jesse W. Walters, Albany, G;a., for defendants-appellees.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
The within matter is remanded to the district court with direction that the district court at once issue a rule nisi to defendants as to why the student assignment plan now on file prepared by the Department of Health, Education and Welfare should not be made the student assignment plan for the school system for the 1971-72 school term. (The HEW plan referred to is described in the brief of plaintiffs filed with this court in Gaines v. Dougherty County Board of Education et al., 442 F.2d 1344, on August 31, 1970).
The district court shall conduct an immediate hearing on the rule nisi and shall make findings of fact and conclusions of law and enter final judgment with respect to the issue or issues presented after the parties shall have had an opportunity to present evidence.
In the event either party appeals from said judgment, the record is to be transmitted to the court within 10 days from the date of judgment.
Remanded with directions.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America v. Joseph BONNER, Appellant. UNITED STATES of America v. James TURNER, Appellant.
Nos. 88-3042, 88-3043.
United States Court of Appeals, District of Columbia Circuit.
Argued March 9, 1989.
Decided May 12, 1989.
Frederick S. Young, Washington, D.C. (student counsel), with whom Steven Gold-blatt and Dori K. Bernstein were on the brief, for Joseph Bonner.
Lawrence M. Baskir (appointed by the Court), for James Turner.
Andrew Levchuk, Attorney, Dept, of Justice, with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Washington, D.C., Asst. U.S. Atty., were on the brief, for U.S.
Before WALD, Chief Judge, and STARR and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
Dissenting opinion filed by Chief Judge WALD.
STARR, Circuit Judge:
This case requires us to determine whether Metropolitan Police Department officers, in executing a search warrant, complied with the federal “knock and announce” statute, 18 U.S.C. § 3109 (1982). That statute provides in pertinent part:
The officer may break open any outer or inner door or window of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....
Id.
I
The search at issue was supported by a warrant, the validity of which appellants do not contest. In securing the warrant, a District of Columbia police officer related that a reliable informant had reported that “cocaine [was] being sold from within the [apartment]” in question and described the results of a controlled purchase of cocaine (with additional amounts observed) at that location. A warrant was thereupon issued for “cocaine and related paraphernalia, books ... and other papers relating to the distribution and trafficking in narcotics” inside the apartment.
To execute the warrant, six or more MPD officers presented themselves at the front door of the apartment just before 8:00 p.m. Suppression Hearing Transcript (“Tr.»>) 63_64. Lieutenant Gales led the search. Investigator Neill stood across from Lt. Gales, also near the door. Lt. Gales knocked three times and announced to those he knew to be within, “Police officers, open up, we have a search warrant.” Id. at 55. He paused and repeated the procedure. Officer Neill testified that he then heard what sounded like footsteps running from the door. Id. at 42-43, 51. Lt. Gales testified that “[i]t seems as though I could hear some faint thumping or bumping inside the premises, and I ordered that the door be forced.” Id. at 56; see also id. at 71, 75.
Using a battering ram, the officers succeeded immediately in opening the door. As the officers entered the apartment, they spotted appellant Bonner moving toward the bathroom and appellant Turner emerging from that room. The toilet was flushing. The officers thereupon arrested appellants and discovered, among other items, scores of vials of crack cocaine and small parcels of powdered cocaine; two sawed-off shotguns and various pieces of ammunition; and more than $6,000 in cash.
Prior to trial, appellants moved to suppress the evidence discovered in the search. They argued that the officers’ entrance into the apartment failed to comply with the knock-and-announce statute. Appellants did not challenge the validity of the underlying warrant, nor did they gainsay that the officers gave notice of their “authority and purpose.” Rather, their sole argument was (and is) that the officers had not waited long enough between the first notice and subsequent entrance to be, in effect, “refused admittance.”
During an extensive suppression hearing, the District Court conducted a reenactment of the events outside the apartment door. That reenactment indicated that eight to nine seconds passed between Lt. Gales’ first knock and the end of the second announcement, a result in accord with other testimony. Tr. 56, 93. After that period and before entrance, a few additional seconds passed, during which the officers heard noise from within; Lt. Gales ordered the door knocked down; and the officers rammed the door open and entered. Based on the evidence of record, the District Court concluded that the knock-and-announce statute did not condemn the officers’ action. See infra note 12. Convicted of possessing cocaine, see 21 U.S.C. § 844 (1982 & Supp. IV 1986), and other offenses, appellants now challenge the trial court’s conclusion with respect to the officers’ entrance. We agree with Judge Sporkin’s conclusion that the officers did not run afoul of section 3109 and therefore affirm the convictions.
II
We believe that the officers’ entrance conformed to the standards of section 3109. Even were that not so, we are further satisfied that exigent circumstances obtained so as to justify any deviation from complete compliance with the terms of the statute.
A
As we indicated in the factual narrative, the officers in this case knocked on the apartment door, identified themselves, and stated their specific purpose. It is therefore undisputed that the officers (through Lt. Gales) gave “notice of [their] authority and purpose.” 18 U.S.C. § 3109. Appellants’ entire challenge rests on the narrow argument that the officers were not “refused admittance,” id., before they knocked open the door. They maintain that the officers should have tarried longer at the door before employing the battering ram to secure access to the apartment.
It is well established that “the phrase ‘refused admittance’ is not restricted to an affirmative refusal,” Masiello v. United States, 317 F.2d 121, 122 (D.C.Cir.1963) (“Masiello II”), but encompasses circumstances that constitute constructive or reasonably inferred refusal. See, e.g., id.; see also United States v. James, 528 F.2d 999, 1017 (5th Cir.) (“Failure to respond within a reasonable time was tantamount to a refusal. A reasonable time is ordinarily very brief.”), cert. denied, 429 U.S. 959, 97 S.Ct. 383, 50 L.Ed.2d 326 (1976). In making such judgments, courts employ a highly contextual analysis, examining all the circumstances of the case, to determine whether the record establishes the existence of a constructive refusal. See, e.g., United States v. Phelps, 490 F.2d 644, 647 (9th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974).
Several facets of this case strongly support the conclusion that the officers had, in effect, been refused admittance. First, the officers were searching for drugs and other incidents of drug trafficking. They knew that persons were inside the apartment and gauged their search accordingly. As cases have repeatedly recognized, this type of evidence is peculiarly susceptible to ready destruction. See, e.g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Socey, 846 F.2d 1439, 1445 (D.C.Cir.), cert. denied, — U.S. -, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988).
Second, the officers could reasonably have expected that they were entering into a den of drug traffickers. Those within might reasonably be thought to be unusually attuned to a law-enforcement knock at the door, and ready to respond promptly in one form or another. As common sense, and bitter experience, would suggest, the law has “uniformly ... recognized that substantial dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia.” United States v. Payne, 805 F.2d 1062, 1065 (D.C.Cir.1986) (and cases surveyed, see id. at 1065-66.) Once police officers seeking to enter a drug traffickers’ enclave have announced their identity and authority, they stand before the door blind and vulnerable. In such a danger-fraught situation, the officers may quite reasonably infer refusal more readily than under other circumstances. See Tr. 34-35, 59-60, 66 (fear of harm, entrance with guns and uniform); cf. United States v. Harris, 435 F.2d 74, 81 (D.C.Cir.1970) (“The officers prudently came prepared to meet violent resistance.... When the officers knocked on the door, they did not know whether they would be greeted in a normal manner or answered by a hail of bullets.”), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971). A fusillade of gunfire from within need not mark refusal.
Third, the warrant process has tested and certified this information. Courts have applied section 3109 to warrantless searches. See, e.g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). However, a warrant ensures that officers have had to support, articulate, and swear to their assumptions. And no danger exists that tales of drugs and narcotics trafficking are anything but officers’ conclusions formed prior to the search.
Fourth, the officers in this instance twice gave clear notice of their authority and purpose. In view of the officers’ knowledge that persons were within the small apartment and the timing of the warrant’s execution (early evening hours), this notice renders the ensuing lack of response (during the approximately 10 seconds following the first announcement of purpose) particularly probative of refusal. Under these circumstances, the possibility that those within did not hear or would not respond promptly (if desiring to respond) is slight indeed. See Jackson v. United States, 354 F.2d 980, 982 (1st Cir.1965) (“[T]en seconds of silence in this case could mean that the occupant had not even started [toward the door], and hence was not going to.”).
Fifth, following their renewed knocking and announcement, officers heard sounds consistent with both refused admittance and destruction of the object of the search. When conducting a search for evidence that is readily destroyed, officers may resolve the ambiguity of a noise from within the place to be searched in a manner consistent with executing the warrant safely and successfully. See United States v. Allende, 486 F.2d 1351, 1353 (9th Cir.1973) (given “scampering sounds” heard in drug context, court “unable to say ... that the officers were unreasonable in expecting some positive response to their demand within ten seconds”), cert. denied, 416 U.S. 958, 94 S.Ct. 1973, 40 L.Ed.2d 308 (1974). “Where, as here, after giving the required notice the officers hear sounds which indicate to them that the evidence sought by the warrant may be in process of destruction, execution of the warrant need not be deferred long enough to allow completion of the process.” Masiello II, 317 F.2d at 122 (in gambling context, permissible to enter after an officer heard “a rustling or other commotion inside the room”).
Finally, the officers waited outside the apartment door for approximately 11 to 12 seconds from the start of their first announcement. All parties agree with this calculation of the period of delay. During that period, the officers received no indication that they would be admitted. In the absence of the foregoing factors, a few additional seconds’ delay clearly would have supported the conclusion that the officers had been refused admittance. See, e.g., United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983) (upholding 20 second delay) (and cases surveyed). When viewed in light of the foregoing factors, the officers’ delay before entering supports a reasonable conclusion that the officers had been refused admittance. Cf., e.g., United States v. Ruminer, 786 F.2d 381 (10th Cir.1986) (entrance after 5-10 second delay); United States v. Davis, 617 F.2d 677, 695 (D.C.Cir.1979) (15-30 seconds), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980); United States v. Wysong, 528 F.2d 345 (9th Cir.1976) (5-10 seconds); McClure v. United States, 332 F.2d 19 (9th Cir.1964) (4-5 seconds), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965); Masiello II, 317 F.2d at 121 (10-20 seconds following announcement).
For the foregoing reasons, we are satisfied that the officers’ conduct complied with section 3109. See also infra 827-29.
B
Even were the officers not constructively refused admittance, the circumstances of this case lead us to conclude that exigent circumstances existed to justify their entrance.
A broad range of exigent circumstances has been found to justify less than full compliance with the various requirements of section 3109. See, e.g., Harris, 435 F.2d at 74; Masiello II, 317 F.2d at 121. The possibility of destruction of evidence and danger to the entering officers constitute two of the most common and compelling bases that establish exigency. For reasons already stated, those two bases figure most prominently in this case. See supra pp. 824-25.
Whether the exigency is sufficient to justify the officers’ challenged behavior turns upon the extent and nature of the departure that must be justified. The exigency required to justify a warrantless search differs from that required to excuse noncompliance with section 3109’s announcement provision. That degree of exigency is, in turn, greater than that needed to excuse noncompliance with only the refusal portion of section 3109. Accord United States v. Bustamante-Gamez, 488 F.2d 4, 11-12 (9th Cir.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974).
In this case, the nature of (and evidence of) the exigency was compelling, and the (assumed) departure from formal legal standards was trivially minor. Great exigency confronted the officers. As we have seen, the possibility of destruction of evidence was clear, and the danger of harm to the officers manifest. The possibility of destruction increased once the officers announced their identity and purpose, and grew as the officers heard nonresponsive sounds within. Cf. Smith II, 524 F.2d at 1287 (sounds of “a stirring and sort of shuffling” before entrance to search for drugs, Smith I, 520 F.2d at 75, created exigency); cf. also United States v. Jackson, 585 F.2d 653 (4th Cir.1978) (simultaneous announcement and entry justified by fear of destruction of gambling evidence). And, as we have already indicated, entrance into a situs of drug trafficking activity carries all too real dangers to law enforcement officers. That danger increased once the officers identified themselves and waited before the door, forced to interpret the import of the sounds within. See Harris, 435 F.2d at 81 (“At such a moment we do not think that § 3109 requires police officers to execute a carefully schooled quadrille and await precise proper responses before moving.”); cf. United States v. Leon, 487 F.2d 389, 394-95 (9th Cir.1973), cert. denied, 417 U.S. 933, 94 S.Ct. 2645, 41 L.Ed.2d 236 (1974).
Second, any departure from section 3109’s requirements was exceedingly slight. As we recounted before, Lt. Gales twice knocked and gave “notice of his authority and purpose.” He thereby satisfied the principal values embodied in section 3109. See Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968). The officers stood outside the door for a period that amply allowed those within the small apartment to open the door or to indicate verbally an intention to do so promptly. Any deficiency in that delay amounted to only a few seconds. This is trivial. Had Lt. Gales paused a few additional heartbeats before ordering the door rammed, no colorable section 3109 claim would exist. In addition, the officers had secured a warrant, eliminating that element of the exigency requirement designed to ensure that the Fourth Amendment’s Warrant Clause is not eroded by an exigency too quickly perceived by those called upon to serve on the firing line. See United States v. Spinelli, 848 F.2d 26, 30 (2d Cir.1988) (Oakes, J., concurring). The exigency more than justifies this (again, assumed) minor departure from the requirements of section 3109.
C
Our conclusion marks no departure from the reasoning or result of this circuit’s cases. To the contrary, both constructive refusal and exigent circumstances in our case are essentially equivalent to those in Masiello II, the (non-narcotics) case which most directly guides us. 317 F.2d at 121. In Masiello II, officers sought to execute a search warrant at a suspected gambling site. The officers knocked (crucially, without announcement), 10-30 seconds later knocked and announced, and, after one officer heard “a rustling or other commotion inside the room,” entered 10-20 seconds after the announcement. Id. at 122. The Masiello II court appears to hold that the officers were both refused admittance and confronted with sufficient exigent circumstances to enter. In discussing constructive refusal, the court concluded that when officers hear noise consistent with destruction, “execution of the warrant need not be deferred long enough to allow completion of the process [of destruction].” Id. The evidence of gambling, confirmed by the warrant process, and the non-responsive noise also created exigency justifying the entrance. Id. at 122-23.
Davis presented a harder question than that before us. 617 F.2d at 677 (D.C.Cir.). In executing a search warrant in pursuit of drugs, the officers waited 15-30 seconds before entering. Id. at 695. While that period is greater (by as little as three seconds) than that at issue here, the surrounding circumstances justified an inference of refused admittance much less than do those in this case. In Davis, officers entered at 2:20 a.m., rather than (as here) in the early evening; they knocked upon the door of a house, not a small apartment; and they heard no noise within, but only observed lights inside. Id. at 680, 695. This court upheld the entrance. Id. at 695. Additionally, Smith readily supports our conclusion that exigent circumstances justified the entrance. See Smith I, 520 F.2d at 75 (D.C.Cir.) (after announcement, officers heard “ ‘hurried movement’ ... a stirring and sort of shuffling”), later proceedings, Smith II, 524 F.2d at 1287 (that noise created exigency justifying entrance); cf. United States v. James, 764 F.2d 885 (D.C.Cir.1985) (officers need not comply with section 3109’s notice provisions if purpose known to those within); United States v. Wylie, 462 F.2d 1178 (D.C.Cir.1972) (same).
Other circuits have reached similar conclusions. See, e.g., Ruminer, 786 F.2d at 381 (10th Cir.); United States v. Garcia, 741 F.2d 363 (11th Cir.1984); DeLutis, 722 F.2d at 902 (1st Cir.); United States v. Jefferson, 714 F.2d 689 (7th Cir.1983); United States v. Tolliver, 665 F.2d 1005 (11th Cir.), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982); Jackson, 585 F.2d at 653 (4th Cir.); Wysong, 528 F.2d at 345 (9th Cir.); Allende, 486 F.2d at 1351 (9th Cir.); McClure, 332 F.2d at 19 (9th Cir). Our judgment today, upholding Judge Sporkin’s disposition, stands in solid company indeed.
Ill
Finally, this case is ripe for final disposition. We see no reason to remand the case to the District Court, as the dissent would have us do, either for further development of the record or for additional findings.
' The record readily suffices to support our affirmance of the trial court’s ruling. As we have discussed, the record fully establishes the predicates of our (and the trial judge’s) determination. See supra pp. 823-26. We are not called upon to resolve significant conflicts in the testimony or to speculate about the significance of evidence not presented before the District Court. Masiello I did, as the dissent reminds us, order a remand, but only because the evidence that might support the trial judge’s determination emerged after the conclusion of the suppression hearing and conflicted directly with testimony adduced at the pretrial hearing. See 304 F.2d 399, 400-02 (D.C.Cir.1962).
Nor need we search beyond the facts that this record clearly establishes. The evidence readily satisfies the objective test we must employ, see Wylie, 462 F.2d at 1188 & n. 76, which calls for a judicial examination of the record for evidence of the circumstances confronting the officers, and then a judicial evaluation whether those circumstances support a legal conclusion of refusal, exigent circumstances, “useless gesture,” or other section 3109 issue. See, e.g., James, 764 F.2d at 885; Davis, 617 F.2d at 677; Wylie, 462 F.2d at 1178; Harris, 435 F.2d at 74; United States v. Curtis, 427 F.2d 630 (D.C.Cir.1970) (en banc); Masiello II, 317 F.2d at 121; see also Socey, 846 F.2d at 1445-47 (exigency in warrantless search context). This approach is, of course, common to many areas of the law. The applicable test is frequently stated in terms of how a reasonable and experienced officer would respond to the facts, or it may emerge directly as the court’s conclusion. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Socey, 846 F.2d at 1445-47; Bustamante-Gamez, 488 F.2d at 11; Harris, 435 F.2d at 81. Courts have presumed that the officers respond to the events as the legal standard compels. See, e.g., Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify the action.”); id. at 135-39, 98 S.Ct. at 1722-24.
Any other course, requiring evidence of the officers’ conclusion of refusal, exigency, and the like, would represent an unwarranted extension of judicial oversight. First, courts are not particularly competent to test or evaluate the officers’ mental processes, at least compared to their ability to evaluate objective circumstances. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). This evidence is all the more needless because it is of dubious relevance; an officer’s subjective judgment can never overcome the lack of an objective basis for the legal conclusion. In addition, in the search context generally, the lack of an appropriate subjective belief does not defeat an officer’s objectively reasonable action. See Scott, 436 U.S. at 138, 98 S.Ct. at 1723. Finally, such a test would extend judicial micromanagement, oversight, and second-guessing of officers’ behavior to far-reaching dimensions, quite beyond that required to ensure compliance with the law (and into the very danger-laden areas where officers must confront the most delicate and dangerous decisions).
There is also no need here for additional findings and conclusions. While the District Court made only skeletal findings and conclusions, the court reached its determination after making findings with respect to the factors that inform our conclusion. More elaborate discussion of the record, and especially greater precision in elaborating the legal standard, would no doubt be preferable in assisting the appellate process, but the record and the District Court’s discussion fully permit appellate review. Cf. United States v. Lindsay, 506 F.2d 166, 170 (D.C.Cir.1974) (in exigency context, trial court’s suppression decision unaccompanied by findings upheld “if there is any reasonable view of the evidence to support it”). Indeed, following an earlier remand, the court in Masiello II drew upon conclusions equivalent to those before us. See 317 F.2d at 122; see also Smith II, 524 F.2d at 1287 (entrance approved after remand upon trial court’s addition of bare legal conclusion); Wylie, 462 F.2d at 1183-84, 1190 (appellate disposition of section 3109 issue despite “underdeveloped” record and trial judge's decision made without hearing). Addressing this court’s ability to decide a procedurally similar section 3109 issue, our colleague, Judge Spottswood Robinson, III wrote in Wylie: “Our call ... is to avoid an unnecessary burden on the District Court. To us, the facts and circumstances already of record dictate but one result squaring with the precedents and consistent with common sense.” 462 F.2d at 1190. Judge Robinson’s wisdom guides us today.
Affirmed.
. 18 U.S.C. § 3109. See supra p. 2. While section 3109 applies to searches by federal officers, the District of Columbia commands that its officers comply with section 3109's provisions. See 23 D.C.Code Ann. § 524(a) (1981). As previous cases addressing searches by District of Columbia police officers have done, we directly consider and apply section 3109.
. The dissent accords no weight to this concern, and suggests that we deduce it from the existence of any valid warrant to search for drugs. Diss. op. at 832. Rather, we believe that the particular facts known to the officers and underlying this warrant in this case (an informant’s report of trafficking, the controlled purchase, the additional drugs observed, see supra p. 823) readily support an inference that the apartment was the site of significant drug trafficking.
Additionally, the dissent suggests that the record supports no reasonable inference that drugs would likely be destroyed. Specific record evidence that those within know of the drugs or have some particular reason to destroy the drugs has never been thought necessary to support the inference of possible destruction (all the less necessary, in this case, considering the evidence supporting the warrant; the delay following the initial notice of purpose and authority; and the noises the officers heard from within).
. And thus in this case the items seized in the apartment included two sawed-off shotguns, which are not commonly employed in recreational activities.
. The dissent fails to discriminate between this case and those in which officers did not announce their purpose and (or) identity. See, e.g., Diss. op. at 832-833 & n. 5. The distinction between that circumstance and those in this case is important for resolving both whether subsequent lack of positive response might be interpreted as refusal and whether sufficient exigency exists (near-complete compliance with section 3109 requires less exigency to justify entrance than does entry with absence of notice, see infra pp. 826-827).
. Our decision rests upon Lt. Gales’ testimony, see supra p. 823, but readily draws additional support from Officer Neill’s testimony that he heard footsteps running from the door. Tr. 42-43, 51; see also Tr. 95-96 (Officer Shirk testified that yet another officer, stationed on the battering ram and prior to entrance, commented that he heard noises inside). Some cases appear to rely upon the testimony of all officers stationed outside the door. See, e.g., United States v. Smith, 520 F.2d 74, 75 (D.C.Cir.) ("Smith I"), later proceedings, 524 F.2d 1287 (D.C.Cir.1975) ("Smith II”); Masiello II, 317 F.2d at 122. Even distinguishing between the officer who orders the entrance and others near the door does not render Officer Neill's testimony irrelevant. That testimony might be relevant as elaborating and confirming the noise that Lt. Gales described, and is relevant for confirming that the sounds constituted no positive response (had they done so, Officer Neill might reasonably be expected to communicate that response to the other officers).
The dissent’s argument regarding both case law and remand requires a complete discounting of the noises the officers heard issuing from the apartment (as well as a discounting of evidence of drug trafficking and of the officers’ delay before entrance, see supra note 2; infra note 7). Discounting the noise is unjustified. The record reveals no conflict in the officers’ testimony, and the trial court credited and relied upon at least one officer's account of the noise within. See infra note 12. The trial judge referred to and credited either Gales’ testimony (a conclusion far from clearly erroneous and mooting the dissent's qualms) or Neill's testimony (making this an easy case, even by the dissent’s standards). This circuit’s cases also suggest that the record evidence of the noise within to be quite adequate. See infra notes 9, 10.
. In evaluating whether there was compliance with the statute, trial courts should not mechanically pursue a "stopwatch” approach (focusing rigidly upon the exact time between initial notice and entrance). Rather, the determination under section 3109 requires a contextual evaluation of various factors, none of which is necessary or inherently predominant.
. Our disagreement with the dissent, rhetoric aside, is quite narrow and concerns evaluation of the record. The Chief Judge objects to our conclusion because she finds in the record no "particularized information available to the police" indicating "flight or destruction of evidence” (or, presumably, danger to the officers). Diss. op. at 834. Had the trial judge only named the officer whose testimony he relied upon (regarding the noise within) and then added a bare legal conclusion, the case would apparently meet the dissent's standard. See id. at 830 n. 1. We rely upon and find in the record several of those factors, any one of which would appear to meet the dissent’s test (e.g., evidence allowing the officers to infer drug trafficking, establishing noise inconsistent with admittance, and marking a significant delay before entrance).
The dissent bootstraps its assessment of the state of the record into a characterization of our legal analysis as resting on only a drug warrant and indication of occupancy. Id. at 830-32. We trust that despite that characterization, the reader will discern that ours is a contextual understanding of both constructive refusal and exigency that relies upon all the foregoing factors.
. As the following discussion should make evident, see infra p. 827 we believe the (assumed, for argument's sake) degree by which the officers fell short of being completely and certainly "refused admittance" is relevant for analysis of exigency, and that the degree of departure in this case was extremely slight, even trivial (a matter of seconds). This conclusion does not, of course, mean that we view section 3109’s requirement as trivial. But cf. Diss. op. at 832.
. Masietto
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_origin
|
A
|
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.
MELLON, Director General of Railroads, v. WESTON DODSON & CO., Inc.
Circuit Court of Appeals, First Circuit.
July 8, 1927.
No. 2122.
1. Railroads <§=»5A(45) — Suit for difference between market value and price paid for coal requisitioned for use of railroad held properly brought against Director General (Transportation Act of 1920, § 206, subd. [a], being Comp. St. § (007(Ace; Lever Act, § 10 [Comp. St. § 3!I5I/Sü]).
Suit to recover for difference between market value and price paid for coal requisitioned by Director General for use of railroad held properly brought against Director General of Bailroads under Transportation Act 1920, § 206 (a), being Oomp. St. § 10071%cc, and not against the United States, under Lever Act, § 10 (Oomp. St. § 3115%ii), since the action was one arising out of operation .by president of the railroad system under the Federal Control Act (40 Stat. 451, as amended).
2. Railroads <§=351/2(40) — Director General held liable for difference between price paid and market value of coal seized, but not delivered prior to termination of federal control.
Where seizure of cargoes of coal by Director General for use of railroads was prior to termination of federal control and operation, Director General of Bailroads was liable for difference between market price and that paid, notwithstanding delivery was not made until after federal control had come to an end.
3. Railroads <§=»5A (40) — Action- cannot be maintained against Director General for difference between market value and price paid for coal sequestered and diverted when railroad was under private control (Transportation Act 1920, § 206 [a], being Comp. St. § 100711/4ce).
Where railroad, at time of sequestration and diversion of coal by an instrumentality of the government for the equitable distribution of fuel coal under emergency, was under private control, an action cannot be maintained against Director General of Bailroads under Transportation Act 1920, § 206 (a), being Comp. St. § 10071%cc, for the difference between market value and price paid therefor.
4. Railroads <§=351/2,(42) — Whether there was market value of coal requisitioned by Director General held for jury (Transportation Act of 1920, § 206 [a], being Comp. St. § 10071'/4cc),
In action under Transportation Act 1920, § 206 (a), being Oomp. St. § 10071% cc, against Director General of Bailroads, as Agent, to recover difference between market value and price paid for coal requisitioned for use of railroad, question of whether or not there was a market value of coal at place and at time of sequestration was a matter of fact for jury.
5. Railroads <§=5 A (48) — Evidence held to sustain finding that owner of coal requisitioned by Director General did not accept sums received in full payment (Transportation Act 1920, § 206 [a], being Comp. St. § 10071 Ace).
In action under Transportation Act 1920, § 206 (a), being Oomp. St. § 10071%ec, against Director General of Bailroads, for difference between market value and price paid for coal requisitioned for use of railroad, evidence held to sustain finding that plaintiff did not accept sums which it received therefor in full payment.
In Error to the District Court of the United States for the District of'Massachusetts; James M. Morton, Jr., Judge.
Action by Weston Dodson & Co., Inc., against James C. Davis, Director General of Bailroads, for whom Andrew W. Mellon was afterwards substituted. Judgment for plaintiff, and defendant brings error.
Modified, and, as modified, affirmed.
John E. Walker, of New York City (Evan Shelby, of New York City, and George E. Kimball, of Boston, Mass., on the brief), for plaintiff in error.
James F. Curtis, of New York City (Julian Codman, of Boston, Mass., on the brief), for defendant in error.
Before BINGHAM, JOHNSON, and ANDEBSON, Circuit Judges.
JOHNSON, Circuit Judge.
This was an action brought under section 206 (a) of the Transportation Act of 1920 (Comp. St. § 10071(400) against the Director General of Railroads, as the agent designated for that purpose, to recover the difference between the market value and the price paid the plaintiff for coal requisitioned by the Director General of Railroads for the use of the Boston & Maine Railroad. Six cargoes of coal with a gross tonnage of 7,441.06 tons were requisitioned and diverted at Hampton Roads, Va., by agencies through which the Director General of Railroads acted during the months of December, 1919, and January, 1920, and shipped to Boston for the use of the Boston & Maine Railroad, then under federal control. For these cargoes the plaintiff was paid by the Director General of Railroads $34,910.70. During the month of February, 1920, two- cargoes of coal, of a gross tonnage of 2,460.15 tons, were requisitioned and diverted by the same agencies and shipped to Boston for the use of the same, railroad, and the railroad paid $11,868.63 for the same. These cargoes were1 .loaded, one at Sewell’s Point, Va., February 20, 1920; the other at Newport News, Va., February 25, 1920. The first was unloaded at Boston on March 2, 1920; the other on March 6, 1920. Another cargo was requisitioned and diverted March 9, 1920, by the Tidewater Coal Exchange, and unloaded at Boston March 20, 1920, and delivered to the same railroad/ Its tonnage was 998.01 tons, and $4,862.50 was paid for it by a sight draft on the railroad. The other two cargoes which were delivered to the railroad after March 1,1920, were paid for by the railroad, but from federal funds in its possession as trustee. The United States Railroad Administration was credited with these payments.
In its declaration the plaintiff seeks to recover the' difference between the amount paid it and the market value of this coal at the times and places of seizure. The suit was originally brougvkt against James C. Davis, Director General of' Railroads, as the agent designated by the President of the United States under the Transportation Act of 1920. Andrew W. Mellon was afterwards substituted for James C. Davis and filed an answer as defendant. The action was tried before a jury in the District Court, who found specially that the fair market value of the coal requisitioned both before and after March 1, 1920, was $7.75 per ton; also that the plaintiff did not accept the sums which it received in full payment for the coal mentioned in the bills on which the payments were made. By a general verdict they found that the plaintiff should recover as damages on the cargoes of coal unloaded at Boston before March 1, 1920, $7,875.05, with interest amounting to $3,320.90, and on three cargoes unloaded at Boston after March 1, 1920, the sum of $3,158.12 and intérest, amounting to $1,301.14, a total of $15,655.-21, for which judgment was entered.
The defendant’s contentions, which are raised by his assignments of error, are (1) that this suit is improperly brought against the defendant as Director General of Railroads and Agent, and that it is maintainable, if at all, only against the United States for just compensation under section 10 of the Lever Act (Comp. St. § 3115%ü); (2) that if the action can be maintained in regard to' coal actually received in Boston prior to March 1, 1920, and used in the federal operation of the Boston & Maine Railroad, it cannot be maintained as to coal received in Boston after March 1, 1920, by the Boston & Maine Railroad, and used in the private operation of that system after the end of federal control; (3) that by reason of the embargo against the export of coal to foreign countries, except on special .permit, which prevailed at Hampton Roads in December, 1919, and January, 1920, there was no free and open market for export coal. These contentions in substance were raised by the exceptions of the defendant and by its assignments of error.
The defendant’s first contention is ruled by Davis v. Newton Coal Co., 267 U. S. 292, 45 S. Ct. 305, 69 L. Ed. 617. Under an executive order the President, August 23, 1917, appointed a United States Fuel Administrator and authorized, him to employ such assistants and subordinates as from time to time he deemed necessary, and provided also that all departments and established agencies of the government should cooperate with the United States Fuel Administrator in the performance of his duties as set forth therein. On October 30, 1919, the President authorized the Fuel Administrator, as occasion might arise, to make regulations relative to the sale, shipment, and apportionment of bituminous coal. Acting under the authority • conferred upon him, the United States Fuel Administrator designated the Director General of Railroads and his representatives “to make such diversions of coal which the railroads under his direction may as common carriers have in their possession, as’ may be necessary in the present emergency to provide for the requirements of the country in order of priority set out in the preference list included in the order of the United States Enel Administrator of May 25, 1918.” Then follows the preference list, headed by “railroads.” Under this designation the Director General of Railroads, through different committees, undertook the distribution and diversion of coal in the possession of railroads as common carriers for use as fuel upon the railroads under federal control. He was not acting as agent of the United States Fuel Administrator, but in his capacity as Director General of Railroads. This authority was delegated to him because his office afforded him the opportunity of knowing the needs of the railroads and of making a more equitable and efficient distribution of the coal supply to them than could be done by the Fuel Administrator. Under the executive order appointing the Fuel Administrator all departments and agencies of the government were directed to co-operate with the United States Fuel Administrator, and by virtue of this provision, as well as his designation by the United States Fuel Administrator, the Director General of Railroads undertook the work of supplying the different railroads under federal control with coal needed by ¡them for fuel purposes. The use was a public one, and under an emergency which had arisen it is not contended that the United States, in the exercise of its sovereign power, did not have authority to seize such a necessary commodity as fuel coal for railroads. There is no merit in the contention of the defendant that the suit should have been brought against the United States under section 10 of the Lever Act. The Transportation Act of 1920 (41 Stat. 456, § 206 [a]), is in part as follows:
“Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 19.16), of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act.”
This was an action arising out of the operation by the President of a railroad system under the Federal Control Act (40 Stat. 451, as amended), and was properly brought against the Director General of Railroads, the agent designated by the President. Stripped of all technicalities, the action against him is one against the United States. Davis v. O’Hara, 266 U. S. 314, 45 S. Ct. 104, 69 L. Ed. 303, and cases cited. It is not in dispute that the Director General of Railroads was designated as the agent against whom suit might be brought.
The defendant strenuously contends that no damages could be awarded as additional compensation for the seizure of the last three cargoes, two of which were seized in February and one in March, 1920, but not delivered to the Boston & Maine Railroad until after federal control of railroads had come to an end at midnight February 29, 1920. By executive order, Februkry 28, 1920, the President ordered and directed that “the Director General of Railroads and his representatives shall continue after 12:01 o’clock a. m. on the first day of March, 1920, to have and exercise the powers conferred upon him by the orders of the United States Fuel Administrator dated October 31, 1919, and December 8, 1919.” The two cargoes seized in February, 1920, before federal control had ceased, had been diverted by the Director General of Railroads to be used by the Boston & Maine Railroad, and were paid for by the railroad from federal funds in its possession as trustee. The seizure and diversion had taken place prior to the termination of federal control and operation, and the Boston & Maine Railroad was then in the possession of the President, and was being used and operated by him. As to these cargoes, the Director General of Railroads was liable for the additional amount necessary, in the opinion of the jury, to afford the plaintiff just compensation. ,
The last cargo of coal, of a gross tonnage of 998.01 tons, was not sequestered and diverted, however, until March 9, 1920, and was not unloaded in Boston until March 20, 1920. A draft for $4,862.50 was paid by the Boston & Maine Railroad Company. The railroad was under private control at the date of the sequestration and diversion, and under section 206 (a) of the Transportation Act this action cannot be maintained as to that, as its cause did not arise from the possession, use, or operation of the Boston & Maine Railroad by the President. It does not appear from the record that the Director General of Railroads seized and diverted this cargo of coal, but that it was sequestered and diverted by the Tidewater Coal Exchange, an instrumentality of the government for the equitable distribution of fuel coal under the emergency which had arisen. The tonnage of this last cargo of coal was 998.01 tons. The additional damages, which by their verdict the jury awarded to the plaintiff for the taking of the last three cargoes, was $3,158.12, and interest amounting to $1,301.14. The total tonnage of the last three cargoes was 3,458.16 tons. The additional damages upon these three cargoes was at the rate of 91% cents per ton. It was stipulated by counsel that the coal of the three cargoes was of the same value. As the last cargo contained 998.01 tons, the damages that were awarded on account of it at 91% cents per ton were $911.52, and the interest upon this from the time of its seizure to the date of the verdict would be $382.84, making a total of $1,294.36 awarded because of the taking of this last cargo of coal, for which there was no basis for an action brought under section 206 (a) of the Transportation Act.
Whether or not there was a market value' of coal at Hampton Roads at the times of sequestration was a matter of fact to be determined by the .jury under the instructions given, which were as follows:
“And the question for you to decide is, ‘What was the highest fair market value that could really have been obtained for this coal by this plaintiff at the time the coal was taken?’ The government says, ‘Well, you couldn’t have exported it without a license.’ And that is perfectly true. And they say, ‘Without a license it is coal that could only be traded in in this country at the price fixed for this country; and it was not coal that could have been sold or delivered for export because no coal could be sold or delivered for export expept with a permit and, non constat, no permit might have been granted.’ How does the embargo against export affect you in dealing with the question of values? Not in any technical way. It is one element that is to be considered in deciding the question which is at the bottom of the ease. The owner was entitled to what he lost by the taking of this coal, in dollars and cents. There was the coal. What would the man have got.out of it? What could he have got out of it, using it the best way-he could, or the best way he could have sold it to be used if it had not been taken? How much a ton? That is a pure question of fact, which you gentlemen must answer.”
There was testimony that the coal for which the plaintiff was seeking compensation had been sent to Hampton Roads for sale in the export trade and that the plaintiff main-tamed a foreign representative in Europe and had a consistent constant demand for its coal, and that the demand for coal for export of the quality seized during the months of December, 1919, and January, February, and Mareh, 1920, was very strong and the regular price obtained in * those months ranged between $8.25 and $10 per ton, dependent upon the ability of the exporter to obtain advantageous charters. In United States v. New River Collieries Co., 262 U. S. 341, 43 S. Ct. 565, 67 L. Ed. 1014, the court said, in discussing damages to which the owner was entitled for coal requisitioned at Hampton Roads between September 17, 1919, and February 1, 1921, covering the months in which the coal of the plaintiff was requisitioned: “The owner was entitled to what it lost by the taking. That loss is measured by the money equivalent of the coal requisitioned. It is shown by the evidence that every day representatives of foreign firms were purchasing, or trying to purchase, export coal., Transactions were numerous and large quantities were sold. Export prices for spot coal were controlled by the supply and demand. These facts indicate a free market. The owner had a right to sell in that market, and it is clear that it could have obtained the prices there prevailing for export coal.” There was evidence that during the months of January and February, 1920, the plaintiff did obtain permits for the export of coal to foreign countries by five vessels. There was evidence that would warrant the jury in finding that permits for the export of coal to foreign countries could ba obtained under certain conditions, and under the instructions given by the court it was a question of fact to be found by the jury what, under all the conditions which prevailed — the government restrictions against export, and the conditions upon which permits would be granted for export —the fair market price of coal was at the times of the seizure of the plaintiff’s coal. Tha jury have found, by their special verdict, that this was $7.75 per ton, and there was competent evidence to support this finding.
The jury by special verdict have also found that the plaintiff did not accept the sums which it received in full payment. The record discloses that when bills were rendered by the plaintiff it added to the cost of the coal at the mines a profit upon each ton but that item of profit was stricken out and a voucher returned for the plaintiff’s signatare covering- the cost only. Upon each hill •which the plaintiff submitted there was this notation: “This coal is billed without prejudice to our rights in ease consignee refuses to accept billing as rendered. We will accept payment on account without prejudice to your rights or ours” — thus leaving unsettled the question of what future payments should he ma,de in addition to the cost of the coal at the mines which had been determined by the government agencies to he the amount to which the plaintiff was entitled. This, we think, was sufficient evidence to sustain this finding of the jury.
The judgment of the District Court is modified, by deducting therefrom the amount of damages and interest, totaling $1,294.36, awarded on account of the last cargo of coal seized and diverted after March 1, 1920, and, so modified, it is affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_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".
ROBINSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 7386.
Circuit Court of Appeals, Ninth Circuit.
Nov. 19, 1934.
Robert T. Jacob, of Portland, Or., for petitioner.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, M. II. Eustace, and Carlton Fox, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges.
WILBUR, Circuit Judge.
Petitioner seeks a review of the decision of the Board of Tax Appeals approving the determination by the Commissioner of Internal Revenue of a deficiency of $3,597.28 in the income tax of petitioner for the year 1927.
Petitioner, a resident of Portland, Or., acquired in 1917 all of the capital stock of the Molalla Electric Company at a cost of $45,000 and sold the same to the Portland Electric Power Company in February, 1927. The selling price of the stock was $87,500, $17,500 of which was paid in cash. The deferred payments were evidenced by sixteen notes totaling $70,000, four of which, totaling $17,500, became duo on March 1st of each of the years 1928, 1929, 3930, and 1931. During the year 1927, petitioner purchased some real estate and gave the eight notes due March 1, 1928, and March 1, 1929, totaling $35,000, as part payment therefor and petitioner guaranteed payment of the same.
Petitioner claims that he is entitled to return the income from the sale of his stock in the Molalla Company upon the installment basis under section 212 (d) of the Revenue Act of 1926 (26 USCA § 953 (d) and assigns as error the holding of the Board of Tax Appeals that “the petitioner, having in said taxable period received in cash and property as initial payment more than one fourth the purchase price at which he sold his Molalla Electric Co. stock, is not entitled, in our opinion and we so determine, to have his tax on the profit computed on the installment basis, as contended by him.”
This holding of the Board of Tax Appeals is based upon the proposition that by giving the notes for $35,000 as part payment for the real estate during the same taxable year, the petitioner to that extent received an interest therein as part of the initial payment for his stock in the Molalla Company within the meaning of section 212 (d) of the Revenue Act of 1926, supra.
The question here involved has recently been decided by the Circuit Court of Appeals for the Second'Circuit in a similar case [Du-ram Building Corporation v. Commissioner of Internal Rev., 66 F.(2d) 253, 254] contrary to the conclusion reached by the Board of Tax Appeals. The Circuit Court of Appeals in Duram Building Corp. v. Commissioner, supra, stated:
“Therefore, as we interpret section 212 (d), the privilege of reporting upon the installment basis depends upon the transactions between the vendor and purchaser of the land during the taxable period; it is not made conditional upon what disposition the vendor may make of the purchaser’s evidences of indebtedness by transactions with third parties during the taxable period in which the land was sold. Such transactions are separate and independent and will themselves he the basis for a return of profit or loss.”
Respondent now concedes that petitioner is entitled under the provisions of section 212 (d), supra, to return the ineome from the sale of his stock on the installment basis as held in Duram Building Corp. v. Commissioner, supra. However, respondent contends that the transaction in 1927 whereby petitioner transferred eight of these notes maturing March 1, 1928, and. 1929, aggregating $35,-000, at their face value, as part payment for real estate, resulted in a gain or profit to petitioner and should be included in petitioner’s income tax return for 1927. This, respondent claims, is such a transaction as is referred to in the Duram Case as “separate and independent and will themselves be the basis for a return of profit or loss” and results in this case in a realization of the gain from the transaction to the extent that such gain was included in the installment notes transferred. This also is conceded by the petitioner as a correct application of the law where the exchange of the installment notes is made without recourse. But he contends that there was no gain or loss realized or determinable from this second transaction during 1927, the taxable year in question, because the petitioner guaranteed the payment of the notes so transferred and thus he did not realize upon these notes nor divest himself of liability for their payment.
In Shubin v. Comm’r of Int. Rev., 67 F. (2d) 199, the Circuit Court of Appeals for the Third Circuit held that the fact that the seller, who received the proceeds of a second mortgage put upon the property by the purchaser, remains secondarily liable on the mortgage indebtedness is not sufficient to prevent the proceeds received from being considered as a payment at the time of the.transaction. We agree with the conclusion reached in that ease and therefore hold that even though petitioner remained liable as guarantor on the notes transferred, the gain included in the installment notes (transferred) for the real estate at their face value should have been included in petitioner’s income tax return for the year 1927.
Petitioner also claims error in the amount fixed by the Commissioner and affirmed by the Board of Tax Appeals as the cost to him of the stock in the Molalla Electric Company. The amount fixed by the Commissioner and affirmed by the Board of Tax Appeals was the original purchase price of $45,000. Petitioner was president and general manager of the Molalla Company from 1917 to '1927 at a salary of $250 per month until 1921 when it was increased to $300 per month. During this period petitioner was entitled to $33,600 in salary and claims to have drawn only $24,297.20, leaving a balance of $9,302.80 which he claims was left with the company and invested in its business and therefore should be added to the cost of the Molalla Company stock to him. During the year 1923 petitioner sold certain real estate for $1,400, which amount he claims was turned over to and used by the Molalla Company as were the proceeds of certain life insurance owned by petitioner in the amount of $1,598.22. Petitioner contends that since these last two amounts were turned over to and used by the Molalla' Company and not returned to him in the form of dividends or otherwise, these amounts should also be added as part of the cost to him of the Molalla Company stock. The record does not contain any of the evidence on these matters and we cannot in view of that fact disturb the decision of the Board of Tax Appeals that the record before it did not justify the claims so made by the petitioner and that the cost of the stock was $45,000.
The order of the Board of Tax Appeals is reversed and the case remanded for further proceedings not inconsistent herewith.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
VITEK, CORRECTIONAL DIRECTOR, et al. v. JONES
No. 78-1155.
Argued December 3, 1979
Decided March 25, 1980
White, J., announced the Court’s judgment and delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, in which Brennan, Marshall, Powell, and Stevens, JJ., joined, and an opinion with respect to Part IV-B , in which Brennan, Marshall, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in part, post, p. 497. Stewart, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 500. Blackmun, J., filed a dissenting opinion, post, p. 501.
Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, argued the cause for appellants. With him on the brief was Paul L. Douglas, Attorney General.
Thomas A. Wurtz, by appointment of the Court, 441 U. S. 960, argued the cause and filed a brief for appellee.
Mr. Justice White
delivered the opinion of the Court, except as to Part IV-B.
The question in this case is whether the Due Process Clause of the Fourteenth Amendment entitles a prisoner convicted and incarcerated in the State of Nebraska to certain procedural protections, including notice, an adversary hearing, and provision of counsel, before he is transferred involuntarily to a state mental hospital for treatment of a mental disease or defect.
I
Nebraska Rev. Stat. § 83-176 (2) (1976) authorizes the Director of Correctional Services to designate any available, suitable, and appropriate residence facility or institution as a place of confinement for any state prisoner and to transfer a prisoner from one place of confinement to another. Section 83-180 (1), however, provides that when a designated physician or psychologist finds that a prisoner “suffers from a mental disease or defect” and “cannot be given proper treatment in that facility,” the director may transfer him for examination, study, and treatment to another institution within or without the Department of Correctional Services. Any prisoner so transferred to a mental hospital is to be returned to the Department if, prior to the expiration of his sentence, treatment is no longer necessary. Upon expiration of sentence, if the State desires to retain the prisoner in a mental hospital, civil commitment proceedings must be promptly commenced. § 83-180 (3).
On May 31, 1974, Jones was convicted of robbery and sentenced to a term of three to nine years in state prison. He was transferred to the penitentiary hospital in January 1975. Two days later he was placed in solitary confinement, where he set his mattress on fire, burning himself severely. He was treated in the burn unit of a private hospital. Upon his release and based on findings required by § 83-180 that he was suffering from a mental illness or defect and could not receive proper treatment in the penal complex, he was transferred to the security unit of the Lincoln Regional Center, a state mental hospital under the jurisdiction of the Department of Public Institutions.
Jones then intervened in this case, which was brought by other prisoners against the appropriate state officials (the State) challenging on procedural due process grounds the adequacy of the procedures by which the Nebraska statutes permit transfers from the prison complex to a mental hospital. On August 17, 1976, a three-judge District Court, convened pursuant to 28 U. S. C. § 2281 (1970 ed.). denied the State’s motion for summary judgment and trial ensued. On September 12, 1977, the District Court declared § 83-180 unconstitutional as applied to Jones, holding that transferring Jones to a mental hospital without adequate notice and opportunity for a hearing deprived him of liberty without due process of law contrary to the Fourteenth Amendment and that such transfers must be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners. Miller v. Vitek, 437 F. Supp. 569 (Neb. 1977). Counsel was requested to suggest appropriate relief.
In response to this request, Jones revealed that on May 27, 1977, prior to the District Court’s decision, he had been transferred from Lincoln Regional Center to the psychiatric ward of the penal complex but prayed for an injunction against further transfer to Lincoln Regional Center. The State conceded that an injunction should enter if the District Court was firm in its belief that the section was unconstitutional. The District Court then entered its judgment declaring § 83-180 unconstitutional as applied to Jones and permanently enjoining the State from transferring Jones to Lincoln Regional Center without following the procedures prescribed in its judgment.
We noted probable jurisdiction 434 U. S. 1060 (1978). Meanwhile, Jones had been paroled, but only on condition that he accept psychiatric treatment at a Veterans’ Administration Hospital. We vacated the judgment of the District Court and remanded the case to that court for consideration of the question of mootness. Vitek v. Jones, 436 U. S. 407 (1978). Both the State and Jones at this juncture insisted that the case was not moot. The State represented that because “Jones’ history of mental illness indicates a serious threat to his own safety, as well as to that of others . . . there is a very real expectation” that he would again be transferred if the injunction was removed. App. to Juris Statement 24. Jones insisted that he was receiving treatment for mental illness against his will and that he was continuing to suffer from the stigmatizing consequences of the previous determination that he was mentally ill. On these representations, the District Court found that the case was not moot because Jones “is subject to and is in fact under threat of being transferred to the state mental hospital under § 83-180.” Ibid. The District Court reinstated its original judgment. We postponed consideration of jurisdiction to a hearing on the merits. 441 U. S. 922 (1979). Meanwhile, Jones had violated his parole, his parole had been revoked, and he had been reincarcerated in the penal complex.
II
We agree with the parties in this case that a live controversy exists and that the case is not moot. Jones was declared to be mentally ill pursuant to § 83-180 and was transferred to a mental hospital and treated. He was later paroled but only on condition that he accept mental treatment. He violated that parole and has been returned to the penal complex. On our remand to consider mootness, the District Court, relying on Jones’ history of mental illness and the State’s representation that he represented a serious threat to his own safety as well as to that of others, found that Jones “is in fact under threat of being transferred to the state mental hospital under § 83-180.” We see no reason to disagree with the District Court’s assessment at that time, and the reality of the controversy between Jones and the State has not been lessened by the cancellation of his parole and his return to the state prison, where he is protected from further transfer by the outstanding judgment and injunction of the District Court. The State, believing that the case is not moot, wants the injunction removed by the reversal of the District Court’s judgment. Jones, on the other hand, insists that the judgment of the District Court be sustained and the protection against transfer to a mental hospital, except in accordance with the specified procedures, be retained.
Against this background, it is not “absolutely clear,” absent the injunction, “that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Phosphate Export Assn., 393 U. S. 199, 203 (1968); County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979); United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). Furthermore, as the matter now stands, the § 83-180 determination that Jones suffered from mental illness has been declared infirm by the District Court. Vacating the District Court’s judgment as moot would not only vacate the injunction against transfer but also the declaration that the procedures employed by the State afforded an inadequate basis for declaring Jones to be mentally ill. In the posture of the case, it is not moot.
Ill
On the merits, the threshold question in this case is whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the Due Process Clause. The District Court held that it did and offered two related reasons for its conclusion. The District Court first identified a liberty interest rooted in § 83-180 (1), under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in the correctional facility. Second, the District Court was convinced that characterizing Jones as a mentally ill patient and transferring him to the Lincoln ^Regional Center had “some stigmatizing” consequences which, together with the mandatory behavior modification treatment to which Jones would be subject at the Lincoln Center, constituted a major change in the conditions of confinement amounting to a “grievous loss” that should not be imposed without the opportunity for notice and an adequate hearing. We agree with the District Court in both respects.
A
We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment. There is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), but once a State grants a prisoner the conditional liberty properly dependent on the observance of special parole restrictions, due process protections attach to the decision to revoke parole. Morrissey v. Brewer, 408 U. S. 471 (1972). The same is true of the revocation of probation. Gagnon v. Scarpelli, 411 U. S. 778 (1973). In Wolff v. McDonnell, 418 U. S. 539 (1974), we held that a state-created right to good-time credits, which could be forfeited only for serious misbehavior, constituted a liberty interest protected by the Due Process Clause. We also noted that the same reasoning could justify extension of due process protections to a decision to impose “solitary” confinement because “[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct.” Id., at 571-572, n. 19. Once a State has granted prisoners a liberty interest, we held that due process protections are necessary “to insure that the state-created right is not arbitrarily abrogated.” Id., at 557.
In Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, “the predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell [was] totally nonexistent.” Meachum v. Fano, supra, at 226-227.
Following Meachum v. Fano and Montanye v. Haymes, we continued to recognize that state statutes may grant prisoners liberty interests that invoke due process protections when prisoners are transferred to solitary confinement for disciplinary or administrative reasons. Enomoto v. Wright, 434 U. S. 1052 (1978), summarily aff'g 462 F. Supp. 397 (ND Cal. 1976). Similarly, in Greenholtz v. Nebraska Penal Inmates, supra, we held that state law granted petitioners a sufficient expectancy of parole to entitle them to some measure of constitutional protection with respect to parole decisions.
We think the District Court properly understood and applied these decisions. Section 83-180 (1) provides that if a designated physician finds that a prisoner “suffers from a mental disease or defect” that “cannot be given proper treatment” in prison, the Director of Correctional Services may transfer a prisoner to a mental hospital. The District Court also found that in practice prisoners are transferred to a mental hospital only if it is determined that they suffer from a mental disease or defect that cannot adequately be treated within the penal complex. This “objective expectation, firmly fixed in state law and official Penal Complex practice,” that a prisoner would not be transferred unless he suffered from a mental disease or defect that could not be adequately treated in the prison, gave Jones a liberty interest that entitled him to the benefits of appropriate procedures in connection with determining the conditions that warranted his transfer to a mental hospital. Under our cases, this conclusion of the District Court is unexceptionable.
Appellants maintain that any state-created liberty interest that Jones had was completely satisfied once a physician or psychologist designated by the director made the findings required by §83-180(1) and that Jones was not entitled to any procedural protections. But if the State grants a prisoner a right or expectation that adverse action will not be taken against him except upon the- occurrence of specified behavior, “the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.” Wolff v. McDonnell, 418 U. S., at 558. These minimum requirements being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. In Morrissey, Gagnon, and Wolff, the States had adopted their own procedures for determining whether conditions warranting revocation of parole, probation, or good-time credits had occurred; yet we held that those procedures were constitutionally inadequate. In like manner, Nebraska’s reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting a transfer exist neither removes the prisoner’s interest from due process protection nor answers the question of what process is due under the Constitution.
“The plurality opinion evidently reasons that the nature of appellee’s interest in continued federal employment is necessarily defined and limited by the statutory procedures for discharge and that the constitutional guarantee of procedural due process accords to appellee no procedural protections against arbitrary or erroneous discharge other than those expressly provided in the statute. The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee’s property interest, but also the extent of the procedural protections to which he may lay claim. It seems to me that this approach is incompatible with the principles laid down in [Board of Regents v.] Roth[, 408 U. S. 564 (1972)] and [Perry v.] Sindermann[, 408 U. S. 593 (1972)]. Indeed, it would lead directly to the conclusion that whatever the nature of an individual’s statutorily created property interest, deprivation of that interest could be accomplished without notice or a hearing at any time. This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. As our cases have consistently recognized, the adequacy of statutory procedures for deprivation of a statu-
B
The District Court was also correct in holding that independently of § 83-180 (1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. The issue is whether after a conviction for robbery, Jones retained a residuum of liberty that would be infringed by a transfer to a mental hospital without complying with minimum requirements of due process.
We have recognized that for the ordinary citizen, commitment to a mental hospital produces “a massive curtailment of liberty,” Humphrey v. Cady, 405 U. S. 504, 509 (1972), and in consequence “requires due process protection.” Addington v. Texas, 441 U. S. 418, 425 (1979); O’Connor v. Donaldson, 422 U. S. 563, 580 (1975) (Burger, C. J., concurring). The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital “can engender adverse social consequences to the individual” and that “[w]hether we label this phenomena 'stigma’ or choose to call it something else ... we recognize that it can occur and that it can have a very significant impact on the individual.” Addington v. Texas, supra, at 425-426. See also Parham v. J. R., 442 U. S. 584, 600 (1979). Also, “[a]mong the historic liberties” protected by the Due Process Clause is the “right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham v. Wright, 430 U. S. 651, 673 (1977). Compelled treatment in the form of mandatory behavior modification programs, to which the District Court found Jones was exposed in this case, was a proper factor to be weighed by the District Court. Cf. Addington v. Texas, supra, at 427.
torily created property interest must be analyzed in constitutional terms. Goldberg v. Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971); Board of Regents v. Roth, supra; Perry v. Sindermann, supra.” Id., at 166-167.
The District Court, in its findings, was sensitive to these concerns:
“[T]he fact of greater limitations on freedom of action at the Lincoln Regional Center, the fact that a transfer to the Lincoln Regional Center has some stigmatizing consequences, and the fact that additional mandatory behavior modification systems are used at the Lincoln Regional Center combine to make the transfer a 'major change in the conditions of confinement’ amounting to a 'grievous loss’ to the inmate.” Miller v. Vitek, 437 F. Supp., at 573.
Were an ordinary citizen to be subjected involuntarily to these consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures required by the Due Process Clause. We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital.
Undoubtedly, a valid criminal conviction and prison sentence extinguish a defendant’s right to freedom from confinement. Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 7. Such a conviction and sentence sufficiently extinguish a defendant’s liberty “to empower the State to confine him in any of its prisons.” Meachum v. Fano, 427 U. S., at 224 (emphasis deleted). It is also true that changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.” Montanye v. Haymes, 427 U. S., at 242.
Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. Our cases recognize as much and reflect an understanding that involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. Baxstrom v. Herold, 383 U. S. 107 (1966); Specht v. Patterson, 386 U. S. 605 (1967); Humphrey v. Cady, 405 U. S. 504 (1972); Jackson v. Indiana, 406 U. S. 715, 724-725 (1972). A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.
In light of the findings made by the District Court, Jones’ involuntary transfer to the Lincoln Regional Center pursuant to § 83-180, for the purpose of psychiatric treatment, implicated a liberty interest protected by the Due Process Clause. Many of the restrictions on the prisoner’s freedom of action at the Lincoln Regional Center by themselves might not constitute the deprivation of a liberty interest retained by a prisoner, see Wolff v. McDonnell, 418 U. S., at 572, n. 19; cf. Baxter v. Palmigiano, 425 U. S. 308, 323 (1976). But here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.
IV
The District Court held that to afford sufficient protection to the liberty interest it had identified, the State was required to observe the following minimum procedures before transferring a prisoner to a mental hospital:
“A. Written notice to the prisoner that a transfer to a mental hospital is being considered;
“B. A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given;
“C. An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;
“D. An independent decisionmaker;
“E. A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate;
“F. Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own; and
“G. Effective and timely notice of all the foregoing rights.” 437 F. Supp., at 575.
A
We think the District Court properly identified and weighed the relevant factors in arriving at its judgment. Concededly the interest of the State in segregating and treating mentally ill patients is strong. The interest of the prisoner in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, however; and as the District Court found, the risk of error in making the determinations required by § 83-180 is substantial enough to warrant appropriate procedural safeguards against error.
We recognize that the inquiry involved in determining whether or not to transfer an inmate to a mental hospital for treatment involves a question that is essentially medical. The question whether an individual is mentally ill and cannot be treated in prison “turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” Addington v. Texas, 441 U. S., at 429. The medical nature of the inquiry, however, does not justify dispensing with due process requirements. It is precisely “[t]he subtleties and nuances of psychiatric diagnoses” that justify the requirement of adversary hearings. Id., at 430.
Because prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests they are currently enjoying and because of the inherent risk of a mistaken transfer, the District Court properly determined that procedures similar to those required by the Court in Morrissey v. Brewer, 408 U. S. 471 (1972), were appropriate in the circumstances present here.
The notice requirement imposed by the District Court no more than recognizes that notice is essential to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him. Wolff v. McDonnell, supra, at 564. Furthermore, in view of the nature of the determinations that must accompany the transfer to a mental hospital, we think each of the elements of the hearing specified by the District Court was appropriate. The interests of the State in avoiding disruption was recognized by limiting in appropriate circumstances the prisoner’s right to call witnesses, to confront and cross examine. The District Court also avoided unnecessary intrusion into either medical or correctional judgments by providing that the independent decisionmaker conducting the transfer hearing need not come from outside the prison or hospital administration. 437 F. Supp., at 574.
B
The District Court did go beyond the requirements imposed by prior cases by holding that counsel must be made available to inmates facing transfer hearings if they are financially unable to furnish their own. We have not required the automatic appointment of counsel for indigent prisoners facing other deprivations of liberty, Gagnon v. Scarpelli, 411 U. S., at 790; Wolff v. McDonnell, supra, at 569-570; but we have recognized that prisoners who are illiterate and uneducated have a greater need for assistance in exercising their rights. Gagnon v. Scarpelli, supra, at 786-787; Wolff v. McDonnell, supra, at 570. A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights. In these circumstances, it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill.
V
Because Mr. Justice Powell, while believing that Jones was entitled to competent help at the hearing, would not require the State to furnish a licensed attorney to aid him, the judgment below is affirmed as modified to conform with the separate opinion filed by Mr. Justice Powell.
So ordered.
Section 83-180 (1) provides:
“When a physician designated by the Director of Correctional Services finds that a person committed to the department suffers from a physical disease or defect, or when a physician or psychologist designated by the director finds that a person committed to the department suffers from a mental disease or defect, the chief executive officer may order such person to be segregated from other persons in the facility. If the physician or psychologist is of the opinion that the person cannot be given proper treatment in that facility, the director may arrange for his transfer for examination, study, and treatment to any medical-correctional facility, or to another institution in the Department of Public Institutions where proper treatment is available. A person who is so transferred shall remain subject to the jurisdiction and custody of the Department of Correctional Services and shall be returned to the department when, prior to the expiration of his sentence, treatment in such facility is no longer necessary.”
Section 83-180 (3) provides:
“When two psychiatrists designated by the Director of Correctional Services find that a person about to be released or discharged from any facility suffers from a mental disease or defect of such a nature that his release or discharge will endanger the public safety or the safety of the offender, the director shall transfer him to, or if he has already been transferred, permit him to remain in, a psychiatric facility in the Department of Public Institutions and shall promptly commence proceedings applicable to the civil commitment and detention of persons suffering from such disease or defect.”
After initially certifying this case as a class action, the District Court decertified the class, but permitted intervention by three individual plaintiffs, including Jones. The District Court subsequently dismissed the claims of all plaintiffs except Jones, who is the sole appellee in this Court.
The statute authorizing the convening of a three-judge court, 28 U. S. C. § 2281 (1970 ed.), was repealed by Pub. L. 94-381, 90 Stat. 1119, effective for actions commenced after August 12, 1976. Because the instant action was filed on November 12, 1975, the three-judge court was properly convened.
Because Jones has not completed serving his sentence, he remains subject to the transfer procedures he challenges, unlike the plaintiff in Weinstein v. Bradford, 423 U. S. 147 (1975), where a challenge to parole procedures was held to be moot because plaintiff had completed his sentence and there was no longer any likelihood whatsoever that he would again be subjected to the parole procedures he challenged.
A majority of the Justices rejected an identical position in Arnett v. Kennedy, 416 U. S. 134, 166-167 (1974) (opinion of Powell, J., joined by Blackmun, J.), 177-178 (opinion of White, J.), 210-211 (opinion of Marshall, J., joined by Douglas and BrennaN, JJ.). As Mr. Justice Powell’s opinion observed:
This part is joined only by Mr. Justice BRENNAN, Me. Justice Marshall, and Mr. Justice Stevens.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_state
|
50
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. Richard W. WIESNER, Defendant-Appellant.
No. 85-1939.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 30, 1985.
Decided May 1, 1986.
Sarah Furey Crandall, Crandall Law Office, Madison, Wis., for defendant-appellant.
John W. Vaudreuil, Asst. Atty. Gen., Madison, Wis., for plaintiff-appellee.
Before CUDAHY and POSNER, Circuit Judges, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation.
GRANT, Senior District Judge.
Defendant-appellant, Richard W. Wies-ner, appeals his conviction, in a jury trial, on four counts of transporting stolen automobiles from Illinois to Wisconsin, in violation of 18 U.S.C. §§ 2 and 2312. The court imposed consecutive five-year sentences of incarceration and fines of $5,000 on Counts II and IV, and suspended sentencing on Counts I and III, placing Wiesner on five years’ probation following his release from prison. Wiesner filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction.
Facts
Between November 1982 and September 1984, Wiesner delivered four cars stolen from the Chicago area to Lee Buchholz, the owner of a car service repair shop in St. Germain, Wisconsin. In early November 1982, Buchholz contacted Dennis Tatro, the owner of a Wisconsin salvage yard, looking for a 1979 Cadillac. Tatro called A1 Gschwin in Chicago, and a few days later Wiesner drove a 1979 Cadillac to Tatro’s salvage yard. Tatro knew that the car was stolen. He, Wiesner, and Wiesner’s companion, Anita Innes, then delivered the Cadillac to Buchholz. Buchholz received no title for the car, but paid Tatro, who in turn paid Wiesner from the cash he received. The Cadillac bore the serial number of a car reported stolen in Evanston, Illinois on November 5, 1982.
In the spring of 1983, Wiesner introduced himself to Buchholz as “Rich from Chicago,” informing him that he was taking over for Tatro, and that he would deal directly with Buchholz in the future. After that, Wiesner periodically telephoned Buch-holz to learn what types of vehicles he needed. Wiesner then delivered, or had someone deliver, whatever Buchholz requested. Such a transaction occurred on December 21,1983, when Wiesner and Anita Innes delivered a 1983 Oldsmobile, the subject of Count III, to Buchholz. The FBI identified it by the packing slip found in the back seat which matched the vehicle identification number of a car reported stolen by a Chicago resident shortly before Christmas 1983.
On February 14,1983, Wiesner and Innes delivered a 1981 Datsun 280ZX, the subject of Count IV, to Buchholz as he had requested. Buchholz agreed to mail a check for the payment of this car to Innes. She later received a check for a portion of the money Buchholz owed Wiesner.
Between April and August 1984, Wiesner telephoned Buchholz approximately forty times from Chicago, asking for money which Buchholz owed him, and discussing more cars, especially another Datsun 280ZX which Wiesner wanted Buchholz to take. Wiesner volunteered to sell one of Buchholz’ cars to get the money Buchholz owed him. In late May or early June, in Milwaukee, Buchholz paid Wiesner approximately $1,000, gave him a car to sell, and asked him to deliver the Datsun they had been discussing since April.
On July 16, 1985, Buchholz consented to an FBI search of his premises, in which they found the Cadillac, the station wagon, and the Datsun, the subjects of Counts II, III and IV.' In August 1984, Buchholz entered a plea agreement with the United States, promising to cooperate in the investigation of Wiesner. On August 26th, 27th and 30th, he tape-recorded telephone conversations with Wiesner about the delivery of the second Datsun. On August 31st, Wiesner delivered the car and received payment from Buchholz with money from the FBI. During a tape-recorded conversation which followed, Wiesner told Buchholz that he had had the Datsun so long that the battery had gone dead. The FBI took custody of the Datsun that same day. The owner had reported it stolen on April 2, 1984. This Datsun became the subject of Count I of the four-count indictment returned against Wiesner on December 19, 1984.
Wiesner raises three issues on appeal:
I. Whether sufficient evidence existed to convict him on Counts I and HI;
II. Whether the district court properly instructed the jury on the inference of interstate transportation of a vehicle; and,
III. Whether the district court adequately admonished the jury to not discuss the case prior to deliberation.
I. Whether sufficient evidence existed to convict him on Counts I and III.
Wiesner contends that the jury had insufficient evidence to conclude that either the Datsun of Count I or the Oldsmobile of Count III were stolen, because the owners did not testify and because the cars were “give-ups,” or cars taken with the owners’ consent in an effort to defraud an insurance company. He further asserts that the jury had insufficient evidence to conclude that he transported the Datsun in interstate commerce, because five months elapsed between its disappearance in Illinois and delivery to Buchholz in Wisconsin.
“[W]e must review the entire record in the light most favorable to the government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to justify a finding of guilty beyond a reasonable doubt.” United States v. Bailey, 763 F.2d 862, 863 (7th Cir.1985) (citations omitted). We may overturn a jury verdict only if “the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” United States v. Thomas, 774 F.2d 807, 811 (7th Cir.1985) (citations omitted). In this case, the government had to prove, beyond a reasonable doubt, that the cars were stolen, that Wiesner knew that they were stolen, and that he transported them in interstate commerce. 18 U.S.C. § 2312.
We find Wiesner’s arguments unpersuasive. First, the government presented ample evidence to establish the stolen nature of the cars. With respect to Count I, the government presented the wife of the owner of the Datsun, who testified about the theft of the car from her husband’s office on April 2, 1984. Buchholz testified that in April 1984, Wiesner called him to say that he had another Datsun 280ZX for him, and, that upon delivery in August, Wiesner told Buchholz that he had had it so long that the battery had gone dead. The government also introduced a photograph of the Datsun taken August 31st at Buch-holz’ shop, showing an ignition override device dangling from the steering column. With respect to Count III, the son of the owner of the Oldsmobile testified that he had seen his father in his car on approximately December 20, 1983, and that his father had reported it stolen just before Christmas 1983. Wiesner delivered that car to Buchholz in Wisconsin on December 21, 1983.
Second, Wiesner’s theory of “give-ups” has no merit. He did not develop this theory either on direct or on cross-examination.
Finally, we cannot overturn the jury’s verdict merely because five months elapsed between the disappearance of the Datsun in Illinois and its delivery in Wisconsin. Other evidence indicated Wiesner’s possession of the Datsun from early April 1984 until he delivered it on August 31st, five months later. We believe that a rational trier of fact could have found beyond a reasonable doubt that Wiesner transported the stolen Datsun from Illinois to Wisconsin. See Thomas, 774 F.2d at 811.
II. Whether the district court properly instructed the jury on the inference of interstate transportation of a vehicle.
The district court gave an instruction modeled after this circuit’s approved criminal jury instructions on inferences, adding a clause which Wiesner contests on appeal. Wiesner contends that the added clause, see instruction, supra, note 1, could have mistakenly caused the jury to find the element of willful transportation of the cars in interstate commerce based only upon their presence first in Illinois and subsequently in Wisconsin.
“In examining the propriety of jury instructions, we view the instructions as a whole, and ‘as long as they treat the issues fairly and accurately, they will not be interfered with on appeal.’ ” United States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir. 1985) (citations omitted). A fair reading of the instruction in question allows the jury to draw two inferences, if they find beyond a reasonable doubt that the cars were stolen in Illinois, and a short time later were in the defendant’s possession in Wisconsin: 1) that the defendant possessed the cars knowing that they were stolen, and 2) that the cars were transported in interstate commerce. It does not allow the jury to find the element of willful transportation by Wiesner, which previous instructions had already addressed. Transcript at I-B-66 to 68. This instruction also emphasizes the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence warrant such inferences beyond a reasonable doubt, and to find the defendant guilty only if they do. In viewing the instructions as a whole, we find that they treat the issues fairly and accurately, including the instruction on inferences.
III. Whether the district court adequately admonished the jury to not discuss the case prior to deliberation.
The district court admonished the jury only once not to discuss the case prior to deliberations. While the jury was deliberating, the alternate juror made a comment to one of Wiesner’s attorneys about “being confused.” After the trial, Wiesner made a motion for a new trial, alleging that premature discussions had prejudiced the jury, violating his Sixth Amendment right to an impartial jury. The affidavit of a private investigator confirmed that some of the jurors, prior to deliberations, had discussed the meaning of “give-up,” “clip,” “ride,” “title,” and “tag.” Other jurors had no recollection of any such discussion.
The management of juries traditionally lies within the sound discretion of the trial judge. United States v. Arciniega, 574 F.2d 931, 933 (7th Cir.), cert. denied, 437 U.S. 908, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978). Failure to admonish the jury, absent some showing of prejudice, does not warrant reversal. Id. at 933 n.4. In Wiesner’s trial, the district court gave the jury the following preliminary instruction after their selection and swearing in:
Now a few words about your conduct as jurors. First, I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss it with you until you retire to the jury room at the end of the case to deliberate on your verdict. You simply are not to talk about this case.
Transcript of sentencing hearing at 31. The court did not repeat this admonition during the one and a half day trial.
It is a fundamental principle of our jurisprudence that “the jury’s verdict must be based on evidence received in open court, and not from outside sources.” Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966). Nevertheless, a new trial is not required automatically whenever a jury is exposed to material not properly in evidence. Rather, a new trial is required only when there is a “reasonable possibility” that the material affected the jury verdict. United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc). Each case “must turn on its special facts,” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959), and in each case the crucial factor is “the degree and pervasiveness of the prejudicial influence possibly resulting” from the jury’s exposure to the extraneous material. United States v. Solomon, 422 F.2d 1110, 1118 (7th Cir.1970). The trial court has the primary responsibility for making this determination of prejudice, and an appellate court must review the trial court’s determination under an “abuse of discretion” standard. United States v. Brusci-no, 687 F.2d at 940.
United States v. Weisman, 736 F.2d 421, 424 (7th Cir.), cert. denied, — U.S.-, 105 S.Ct. 390, 83 L.Ed.2d 324 (1984).
In the instant case, the district court found that a new trial was not warranted because the discussions did not relate to the merits of the case, nor affect the impartiality of the jurors. We do not think that the district court abused its discretion in denying Wiesner’s motion for a new trial. Those terms were the substantial equivalent of matters already introduced into evidence and may, therefore, be held harmless. See Weisman, 736 F.2d at 425. We cannot imagine any prejudice resulting from the alternate juror’s definition of these words. Understanding those terms in no way jeopardized Wiesner’s theory of defense. Consequently, the court’s sole admonishment does not warrant reversal of this day and a half trial.
CONCLUSION
We affirm the decision of the district court.
. The district court gave this instruction:
The term “recently” is a relative term, it has no fixed meaning. Whether property may be considered recently stolen depends on the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
If you find beyond a reasonable doubt from the evidence in the case that a motor vehicle described in the indictment was stolen in Illinois, and that while recently stolen the motor vehicle was in the possession of the defendant in Wisconsin, you may from those facts draw the inference that the motor vehicle was possessed by the defendant with knowledge that the motor vehicle was stolen and infer transportation of that vehicle in interstate commerce unless possession of the recently stolen property by the defendant is explained to the satisfaction of the jury by other facts and circumstances in evidence in the case.
******
It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits you to draw from possession of recently stolen property. If any possession the accused may have had of recently stolen property is consistent with innocence, or if you entertain reasonable doubt of guilt, you must acquit the accused.
Transcript at II-B-69 (emphasis added to show which clause the court inserted). Compare II Committee on Federal Criminal Jury Instructions of the Seventh Circuit, Federal Criminal Jury Instructions of the Seventh Circuit 2 (1984).
. In the transcript of the sentencing hearing, the court acknowledges a gap in the transcript of the trial from 9:15 until 11:46 a.m. on March 18, 1985. During that time, the court gave the jury preliminary instructions, one of which is quoted above, as taken from the court’s notes. Transcript of sentencing hearing at 30-31. Neither the government nor Wiesner dispute the content of the instruction, nor the fact that the court read it then, and only then.
. Admonishing the jury is a critical and important duty and cannot be over-emphasized. A district judge must exercise his discretion to determine when and how frequently to admonish the jury, according to the circumstances of each case, and in the absence of an abuse of discretion by the trial judge in assessing the "reasonable possibility” that the challenged material affected the jury verdict, we will not reverse. United States v. Bruscino, 687 F.2d 938 (7th Cir.1982) (en banc).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_casesource
|
025
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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.
GIORDANO v. UNITED STATES.
No. 28.
Decided March 24, 1969
Carlton Roeser for petitioner in No. 28. Irving Anolik for petitioner in No. 54. Maurice Edelbaum for petitioner Franzese, William L. Lynch for petitioner Crabbe, Raymond A. Brown for petitioner Matera, and Peter L. F. Sabbatino for petitioner Potere in No. 84. Raymond J. Smith and Morris A. Haft for petitioner in No. 106. Maurice J. Walsh and John Powers Crowley for petitioner in No. 124. Charles A. Bellows for petitioner in No. 129. Ediuard Bennett Williams, Harold Ungar, Steven M. Umin, and Mr. Walsh for petitioner in No. 168. Charles Morgan, Jr., Howard Moore, Jr., George Pontikes, Marvin Karpatkin, Melvin L. Wulf, and Eleanor H. Norton for petitioner in No. 271. Edward J. Caliban, Jr., Mr. Crowley, and Robert S. Bailey for petitioners in No. 317. Anthony J. DeMarie for petitioner in No. 474. Morris A. Shenker, Joseph A. Fanelli, Jacques M. Schiffer, Cecil D. Branstetter, and Daniel B. Maher for petitioners in No. 546. Clyde W. Woody and Marian S. Rosen for petitioner in No. 668. Herald Price Fahringer and Frank G. Raichle for petitioner in No. 715. Messrs. Walsh and Shenker for petitioner Hoffa, George Callaghan for petitioner Strate, Richard E. Gorman for petitioner Burris, Mr. Schiffer for petitioner Weinblatt, and Harvey M. Silets for petitioner Kovens in No. 895. Frank Ragano for petitioner in No. 911.
Solicitor General Griswold for the United States in No. 28. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer for the United States in No. 54. Solicitor General Griswold, Assistant Attorney General Vinson, Miss Rosenberg, and Roger A. Pauley for the United States in Nos. 84, 271, and 317. Solicitor General Griswold, Assistant Attorney General Vinson, and Miss Rosenberg for the United States in Nos. 106, 129, and 168. Solicitor General Griswold, Assistant Attorney General Vinson, Miss Rosenberg, and Leonard H. Dickstein for the United States in No. 124. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Mr. Glazer for the United States in No. 474. Solicitor General Griswold, Assistant Attorney General Vinson, Theodore George Gilinsky, and Mr. Pauley for the United States in No. 546. Solicitor General Griswold, Assistant Attorney General Vinson, Miss Rosenberg, and Paul C. Summitt for the United States in No. 668. Solicitor General Griswold, Assistant Attorney General Wilson, Mr. Feit, and Kirby W. Patterson for the United States in No. 715. Solicitor General Griswold, Assistant Attorney General Wilson, Miss Rosenberg, and Mr. Feit for the United States in Nos. 895 and 911.
Together with No. 54, Scandifia v. United States; No. 84, Franzese et al. v. United States; No. 106, Evans v. United States; No. 124, Aiuppa v. United States; No. 129, Amabile v. United States; No. 168, Battaglia v. United States; No. 271, Clay, aka Ali v. United States; No. 317, Di Pietto et al. v. United States; No. 474, Natarelli v. United States; No. 546, Hoffa et al. v. United States; No. 668, Stassi v. United States; No. 715, Randaccio v. United States; No. 895, Hoffa et al. v. United States; and No. 911, Dranow v. United States, also on petitions for writs of certiorari. Nos. 54, 84, 474, and 715 are to the United States Court of Appeals for the Second Circuit; Nos. 271 and 668 are to the Court of Appeals for the Fifth Circuit; No. 546 is to the Court of Appeals for the Sixth Circuit; Nos. 106, 129, 168, 317, 895, and 911 are to the Court of Appeals for the Seventh Circuit; and No. 124 is to the Court of Appeals for the Tenth Circuit.
Per Curiam.
The petitions for writs of certiorari are granted, except that in No. 84 the writ is granted as to petitioner Franzese only and denied as to the other petitioners, and in No. 317 the petition is granted as to petitioners Mirro and McDonnell only and denied as to the other petitioners. The judgments of the Courts of Appeals in these cases are vacated, and the cases remanded to the respective District Courts for further proceedings in conformity with Alderman v. United States, Ivanov v. United States, and Butenko v. United States, ante, p. 165. It is not evident from the records in some of these cases whether the surveillances at issue were unlawful. It may be that the overhearings in some instances were not achieved by trespass, see Katz v. United States, 389 U. S. 347 (1967); Desist v. United States, ante, p. 244, and Kaiser v. New York, ante, p. 280, or for some other reasons were not unlawful. As we held in Alderman, Ivanov, and Butenko, ante, at 170, n. 3, “the District Court must develop the relevant facts and decide if the Government’s electronic surveillance was unlawful.” Of course, a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary. Similarly, it is not clear that each petitioner has standing to assert the illegality of the surveillance or of the introduction of its fruits. As in Alderman, Ivanov, and Butenko, these issues are to be resolved by the District Courts in the first instance.
Mr. Justice Black dissents, except in Nos. 895 and 911, in the consideration and disposition of which he took no part.
Mr. Justice White took no part in the consideration or disposition of Nos. 546, 895, and 911.
Mr. Justice Marshall took no part in the consideration or disposition of Nos. 28, 106, 129, 168, 271, 546, 895, and 911.
We read the papers filed by the United States in these two cases as stating that the surveillances neither invaded the premises of the other petitioners nor overheard their conversations.
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:
|
songer_appbus
|
99
|
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.
AMERICAN INVS-CO COUNTRYSIDE, INC., an Illinois Corporation, et al., Plaintiffs-Appellants, v. RIVERDALE BANK, an Illinois Banking Corporation, et al., Defendants-Appellees.
No. 78-1664.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 22, 1979.
Decided March 29, 1979.
Rehearing and Rehearing In Banc Denied June 5,1979.
Stephen Novack, Chicago, Ill., for plaintiffs-appellants.
Charles M. Shea, Chicago, Ill., for defendants-appellees.
Before PELL, Circuit Judge, MARKEY, Chief Judge, and WOOD, Circuit Judge.
The Honorable Howard T. Markey, Chief Judge of the United States Court of Customs and Patent Appeals, is sitting by designation.
HARLINGTON WOOD, Jr., Circuit Judge.
The plaintiff-appellant, American Invs-Co Countryside, Inc. (American), appeals from the district court’s dismissal of its second amended complaint for lack of subject matter jurisdiction. The appellant maintains that jurisdiction is conferred over the action by 28 U.S.C. §§ 1331 and 1337. We affirm.
I.
The facts alleged in American’s complaint, which we accept as true for purposes of determining whether subject matter jurisdiction exists, are as follows: K.K. & Co., a limited partnership under the laws of Illinois (KK), was the sole legal owner of a certain parcel of Illinois land on which it intended to construct multifamily housing. The housing was to be financed with a mortgage insured by the United States Department of Housing and Urban Development, Federal Housing Administration (FHA). In September 1970, apparently as part of the structuring of the financing, KK changed the form in which it held the property. It conveyed the realty to LaSalle National Bank and created an Illinois land trust with itself as the sole beneficiary. The trust agreement between KK and the Bank recited the rights and duties of the parties and contained additional provisions apparently required by the FHA as a condition to granting mortgage insurance.
The terms of the trust agreement made clear that it was to be construed in conformity with a yet to be executed regulatory agreement between KK, the Bank, and the FHA. The provisions of the trust and regulatory agreements restricted assignments of the beneficial interest in the property. The trust agreement provides, in pertinent part:
[N]o assignment shall be accepted by the Trustee or be valid until ten (10) days after the Commissioner has been advised by the beneficiary of any proposed assignment of beneficial interest and until the assignee of such beneficial interest shall have joined in any Regulatory Agreement which the Trustee may have entered into with the Commissioner. . . .
The corresponding provision of the FHA regulatory agreement provides:
Owners shall not without prior approval of the Secretary:
(a) Convey, transfer or encumber any of the mortgaged property.
* * * * * *
(c) Convey, assign, or transfer any beneficial interest in any trust holding title to the property, or the interest of any general partner in a partnership owning the property ... or the right to receive the rents and profits from the mortgaged property.
Early the following year, KK, the Bank, and the FHA, as anticipated, executed the regulatory agreement.
In August 1971, KK entered into a limited partnership agreement with several individual investors. KK agreed to become the sole general partner in the new venture, Countryside Apartment Associates (Countryside), and assigned its entire beneficial interest in the Illinois land trust to Countryside as a capital contribution. Countryside agreed to be bound by the FHA regulatory agreement and the requisite FHA approval of the assignment was later obtained.
According to the appellant’s allegations, less than a year after KK assigned its beneficial interest in the land trust to Countryside, KK conveyed one-half of that same interest to the appellee Riverdale Bank, as collateral for a loan transaction for its own benefit. This collateral assignment was not submitted to the FHA for approval and Riverdale did not join in the regulatory agreement. KK later defaulted on the loan, and Riverdale, pursuant to Article 9 of the Uniform Commercial Code, held a public sale at which it sold to itself the one-half interest in the land trust. This transaction also was without the consent of the FHA.
After the collateral assignment to River-dale, but before Riverdale’s foreclosure on the beneficial interest, the appellant, American, became a general partner in Countryside. Joining with the other general partners, it instituted this action naming River-dale and the Secretary of the Department of Housing and Urban Development, among others, as defendants. American seeks a declaratory judgment that Riverdale’s claim to one-half of the beneficial interest is void.
II.
The gist of American’s claim in Count I is that Countryside is the owner of the disputed one-half interest in the land trust because the restrictions contained in the trust agreement and the FHA regulatory agreement render Riverdale’s claimed interest void. Plaintiff argues that the resolution of its claim requires a determination of the meaning and effect of the FHA regulatory agreement and that the federal court must apply federal common law in making that determination. All parties agree that federal common law is sufficient to evoke the jurisdiction of the federal court under 28 U.S.C. § 1331. See Illinois v. Milwaukee, 406 U.S. 91, 98-100, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972).
Whatever else Count I may be, it is not a statement of a cause of action created by federal law. American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916). The beneficial interest in the land trust is a creation of Illinois law, and Countryside’s ownership, if any, of that interest and the right to protect it against the claims of other private persons are controlled by state law. See Butner v. United States, - U.S. -, -, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (“Property interests are created and defined by state law”); cf. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (Indian tribe’s right to possession of lands may be a right protected by federal law). No federal statute guarantees Countryside’s ownership rights against the actions of other private persons and no distinctive federal policy warrants the creation by the federal courts of remedies to vindicate those rights.
The fact that federal law does not create the cause of action, however, does not necessarily mean that the case does not “arise under” federal law under 28 U.S.C. § 1331. “[A] single old Supreme Court decision,” 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3562 at 412 (1975), holds that jurisdiction under section 1331 attaches if the complaint, although stating a state-created cause of action, necessarily raises a question of federal law. See Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921). Thus, “it has been found sufficient that some aspect of federal law is essential to plaintiff’s success. The litigation-provoking problem has been the degree to which federal law must be in the forefront of the case, and not be remote, collateral or peripheral.” Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 450, 75 S.Ct. 489, 495, 99 L.Ed. 510 (1955) (plurality opinion of Frankfurter, J.).
The district court, relying on a passage from Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), held that the plaintiff failed to demonstrate that a construction of the FHA regulatory agreement was “basic and necessary to the decision of the case.” The district court assumed that plaintiff could prevail on state law theories alone without the need for construing the FHA regulatory agreement, and therefore reasoned that the case did not directly raise the need to construe the agreement.
The problem with the district court’s approach is, as we see it, that it depends not upon an analysis of the four corners of the complaint but upon a forecast of the matters that would be dispositive at trial — a technique seemingly at odds with the well-pleaded complaint rule. The fact that a complaint also states a claim for relief under state law or could be decided exclusively on state law grounds does not necessarily negate the existence of a federal question.
Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. For to that extent “the party who brings a suit is master to decide what law he will rely upon, and . does determine whether he will bring a ‘suit arising under’ the . . . [Constitution or laws] of the United States by his declaration or bill.”
Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90 L.Ed. 939 (1946). It is too late in the day to deny that inventive pleading plays some part in conferring jurisdiction upon the federal courts.
The limit on the role of pleading in gaining access to a federal forum is found in the well-pleaded complaint rule: a federal question must appear in plaintiff’s well-pleaded complaint in order to make the case arise under federal law. See Louisville & Nashville R. R. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297 (1911). Were this an ordinary declaratory action we would have serious reservations about whether plaintiff’s complaint could properly raise the matter of the restriction on transfers imposed by the FHA regulatory agreement for purposes of establishing jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2767 (1973). Plaintiff, however, characterizes its complaint as a bill to remove a cloud on title, and it is well settled that such a bill must allege “the facts showing the plaintiff’s ti-tie and the existence and invalidity of the instrument or record sought to be eliminated as a cloud . . . Hopkins v. Walker, 244 U.S. 486, 490, 37 S.Ct. 711, 713, 61 L.Ed. 1270 (1917). See also New York v. White, 528 F.2d 336 (2d Cir. 1975). Here, although Countryside’s own title is rooted in state law, it is contended that Riverdale’s claim to title is invalid by reason of the FHA regulatory agreement. Furthermore, it is argued that resort to federal common law is necessary to determine the meaning and effect of that agreement. Consequently, we believe that if the last contention is correct, the question with respect to federal law is reasonably raised by the plaintiff’s well-pleaded complaint. Plaintiff could ultimately prevail on state law grounds alone, but its complaint is plainly framed so long as to require a determination of the meaning and effect of the FHA regulatory agreement.
Although the path from the provisions of the regulatory agreement to the relief plaintiff seeks is long, it is relatively direct. Consequently, we proceed to consider whether the regulatory agreement’s terms are governed by federal common law, thereby establishing the jurisdictional basis for this suit.
III.
Plaintiff’s argument for the application of federal common law rests on the fact that a federal agency, the FHA, is a party to the regulatory agreement. Plaintiff relies upon the chain of federal authority beginning with the National Housing Act, see 12 U.S.C. § 1701c(a) (authorizing the Secretary to promulgate regulations), proceeding through federal regulations governing mortgage insurance, see 24 C.F.R. §§ 207.9, 207.18, 221.529, and culminating in the FHA regulatory agreement as the basis for the creation of federal common law. See United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). We think, however, that “the fact that the contract was entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution,” id. at 209-10, 90 S.Ct. at 884, is only the beginning, not the end, of the analysis, where, as here, the contract is relied upon in a dispute between private parties. See, e. g., Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977) (whether private persons are third party beneficiaries of a contract between a county and the Federal Aviation Administration is governed by state, not federal, law); Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966) (dispute between private parties about the validity of assignments of leases of federally owned land determined by state law); Bank of America National Trust & Savings Association v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956) (rights of private transferees inter sese with respect to federal government bonds governed by state law).
This dispute does not challenge the interest of the FHA in the underlying property; the priority and validity of the FHA’s interest in the real estate are unquestioned. The dispute is simply between two claimants to the beneficial interest in the trust which holds title to the realty. The plaintiff maintains that the FHA will be bound by the construction which is given to the regulatory agreement and will be required to deal with whoever the court holds is the rightful owner, but it is not clear that a declaration of the effect of the agreement on the rights of the private parties inter sese would necessarily bind the FHA. See Smith v. Grimm, 534 F.2d 1346, 1351 (9th Cir.), cert, denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976).
Moreover, even if the FHA will be bound by the outcome of this litigation and will be required to deal with whoever is determined to be the owner of the beneficial interest, the plaintiff has been unable to identify any distinctive federal policy which requires the application of federal common law. Plaintiff has not shown that dealing with one claimant will be more onerous for the FHA than dealing with the other. Similarly, the plaintiff has not shown us, and we are not aware of, any body of Illinois law which would ignore whatever interest the FHA has in restricting transfers of the ownership of the property. A mortgagee typically has some interest in controlling who owns the mortgaged property. An impecunious or otherwise undesirable purchaser, for example, may increase the risk of default or decrease the value of the collateral through waste. But the interest of the FHA as a mortgage insurer and now, apparently, as a mortgagee in this regard is one shared with all private mortgagees who typically must look to state law to protect their interests. “In deciding whether rules of federal common law should be fashioned, normally the guiding principle is that a significant conflict between some federal policy or interest and the use of state law in the premises must first be specifically shown.” Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966). General assertions of the need for a uniform body of governing law are insufficient, particularly when there is no indication that application of the laws of the various states would result in varying or inconsistent rights and duties for the federal government.
Against the rather speculative and remote federal interest evident here, we must consider the state’s interest in the application of its law. The suit is primarily one between private litigants. It concerns the rights to property, rights typically governed by state law. See Note, The Federal Common Law, 82 Harv.L.Rev. 1512, 1518-19 (1969). Thus, it touches on an area where the federal courts are properly reluctant to trespass without clear congressional authorization. See Miree v. DeKalb County, 433 U.S. 25, 32, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966).
We do not believe that Congress, in spite of the substantial federal involvement in the mortgage market, see generally G. Nelson & D. Whitman, Real Estate Finance and Development 445-547 (1976), intended for federal courts to fashion a federal law to govern in suits of this nature. Nor does any distinctive federal policy provide a basis for the creation of federal common law here. The federal interest “is far too speculative, far too remote a possibility to justify the application of federal law to transactions essentially of local concern.” Bank of America National Trust & Savings Association v. Parnell, 352 U.S. 29, 33-34, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956).
IV.
Because the plaintiff’s complaint does not raise a question of federal common law, it does not “arise under” federal law within the meaning of 28 U.S.C. § 1331. For the same reason, the contention that jurisdiction is proper under 28 U.S.C. § 1337 must also fail. The district court, accordingly, was correct in dismissing the complaint for want of subject matter jurisdiction.
Affirmed.
. Before the district court, the plaintiff argued that 28 U.S.C. § 2410 provided yet another basis for the court’s jurisdiction. The trial court held that the statute did not constitute an independent source of federal jurisdiction. The appellant has not raised this issue on appeal and we do not consider it.
. An Illinois land trust is a peculiar creature of Illinois law in which the trustee holds both the legal and equitable title to the real estate. The interest of the beneficiary is personal property. Nevertheless, the beneficiary can retain substantial powers over the management of the property. For a discussion of the uses of and legal problems raised by this form of holding real property, see Garrett, Land Trusts, 1955 U.IU.L.F. 655, and G. Bogert & G. Bogert, Trusts and Trustees § 249 (2d rev. ed. 1977).
. The trust agreement provides:
Upon the execution of said Regulatory Agreement, the provisions of said Regulatory Agreement shall be binding on the Trustee and the beneficiaries, and, in the event that any provisions of this Trust Agreement shall or may conflict with the provisions of said Regulatory Agreement, the Regulatory Agreement shall be controlling.
. Because the beneficial interest in an Illinois land trust is personal property, most of the details of its disposition upon default are governed by Article 9 of the Uniform Commercial Code, not state real estate foreclosure statutes. Wambach v. Randall, 484 F.2d 572 (7th Cir. 1973); Bank of Broadway v. Goldblatt, 103 Ill.App.2d 243, 243 N.E.2d 501 (1968); Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425 (1968), noted in 18 De Paul L.Rev. 875 (1969) and 63 Nw.U.L.Rev. 632 (1968). See generally Kenoe, Land Trust Financing and the Uniform Commercial Code, 52 Chi.B.Rec. 419 (1971); Varsek, Assignments of Beneficial Interests in Land Trusts as Collateral, 60 Ill.B.J. 268 (1971).
. In addition, plaintiff has alleged in Count II that Riverdale’s interest is void for reasons of state law, a pendent claim the jurisdiction over which depends upon whether Count I evokes the jurisdiction of the federal court.
. Justice Brennan explained the factual background, holding, and possible significance of the Smith case in his dissenting opinion in Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963):
A shareholder sued to enjoin the Trust Company, a Missouri corporation, from investing in certain federal bonds, on the ground that the Act of Congress authorizing their issuance was unconstitutional. It was claimed that under Missouri law an investment in securities the issuance of which had not been authorized by a valid law was ultra vires and enjoinable. The cause of action, thus, was state-created. Nevertheless this Court held that the action was one arising under federal law within the meaning of the predecessor section to 28 U.S.C. § 1331(a). See also Fielding v. Allen, 2 Cir., 181 F.2d 163. It has been suggested that later decisions, e. g., Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903; Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, repudiated Smith. London, “Federal Question” Jurisdiction — A Snare and a Delusion, 57 Mich.L.Rev. 835, 853 (1959). But those decisions are clearly distinguishable as attempts to found federal jurisdiction upon “remote federal premises, or mere federal permission . . . , or other merely possible federal defenses.” Hart and Wechsler, The Federal Courts and the Federal System (1953), 769. Smith remains firm authority for the principle that “where federal law has inserted itself into the texture of state law, a claim founded on the national legislation could be brought into a federal forum” even if the right of action was state-created. Mishkin, The Federal “Question” in the District Courts, 53 Col.L.Rev. 157, 166 (1953). Stated differently, “in the Smith case the claim under federal law was an essential ingredient of the plaintiffs case, without which he could assert no right to relief.” Hart and Wechsler, supra, at 766. In short, there is federal-question jurisdiction if a proposition of federal law is inherent in the plaintiffs claim. Cf. Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law and Contemp.Prob. 216, 225 (1948).
Id. at 659-60, 83 S.Ct. at 1449. See generally Hart & Wechsler’s The Federal Courts and the Federal System 873-90 (2d ed. 1973).
. This Court has had occasion to point out how futile is the attempt to define a “cause of action” without reference to the context.
. . .To define broadly and in the abstract “a case arising under the Constitution or laws of the United States” has hazards of a kindred order. What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation. One could carry the search for causes backward, almost without end. . . . Instead, there has been a selective process which picks the substantial causes out of the web and lays the other ones aside. As in problems of causation, so here in the search for the underlying law. If we follow the ascent far enough, countless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by.
299 U.S. at 117-18, 57 S.Ct. at 100.
. But the passage [in Gully, see note 7, supra] is . . . troubling in its insistence on distinguishing between “basic” and “collateral” controversies and between “necessary” and “merely possible” disputes. That is reminiscent of a sentence earlier in the opinion in which Justice Cardozo said: “A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto . . and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal.” There is a paradox in insisting on a genuine and present controversy when the court is allowed to look only at the complaint. In the words of two distinguished commentators: “How this magic can be performed still remains a mystery of the judicial process.”
13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3562 at 411 (1975).
. Although a suit to remove a cloud on title is typically used to settle title to real estate and the subject matter of this action is personalty, this does not prevent the plaintiff from maintaining the action as such. This court has permitted an action to remove a cloud on title to personal property when, as here, the dispute involved rights closely related to rights in land. Chicago Auditorium Ass’n v. Willing, 20 F.2d 837 (7th Cir. 1927), rev’d on other grounds, 277 U.S. 274, 48 S.Ct. 507, 72 L.Ed. 880 (1928); see Annot., 105 A.L.R. 291 (1936).
. The final aspect of the well-pleaded complaint rule is that plaintiff cannot win admission to federal court by allegations to support his own case that are not required by nice pleading rules. This is well illustrated by cases involving disputes about land. If title to land is in doubt because of some matter of federal law, there is federal jurisdiction to entertain a bill to remove a cloud on title but not a suit to quiet title, since allegations as to the nature of the cloud are proper in the first kind of action but improper in the second. An action to enjoin another from using land that, by federal law, is asserted to be plaintiffs raises a proper federal question, but if plaintiff is out of possession, he has an adequate legal remedy in an action for ejectment, in which allegations as to the title of land are not proper, and he cannot invoke federal question jurisdiction.
These subtle distinctions, dependent on long-forgotten lore as to the forms of action, are difficult to apply and it is equally difficult to suppose that they correspond to any rational judgment on when federal jurisdiction should or should not exist.
13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3566 at 436-37 (1975).
. The plaintiff maintains that the question presented here has already been resolved in favor of the application of federal law by United States v. County of Allegheny, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209 (1944). In Allegheny, the Supreme Court said:
The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any State.
Id. at 183, 64 S.Ct. at 913. The Court’s remarks were made in the context of determining whether the United States held title to particular property. In this case, the property interests of the FHA are not directly contested. Moreover, in Allegheny the ultimate issue presented to the Court was whether the government’s property was subject to state taxation. Thus, the government’s interest in the controversy was much more direct than its interest in the outcome of this case. In any event, the broad language in Allegheny must be regarded as narrowed by the Court’s subsequent holdings in Miree, Wallis, and Parnell.
. The Secretary of the Department of Housing and Urban Development, who was named as a defendant in the proceedings before the trial court, filed a two page “suggestion” with the district court merely adopting the plaintiffs position on the jurisdictional issue and expressing the desire that the matters raised in the lawsuit be heard in the federal court. The Secretary, however, has not joined in this appeal.
. Cf. Butner v. United States,-U.S.-, -, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979):
Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both State and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving “a windfall merely by reason of the happenstance of bankruptcy.” Lewis v. Manu facturers National Bank, 364 U.S. 603, 609 [, 81 S.Ct. 347,350,5 L.Ed.2d 323], The justifications for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee .
. Even if the complaint raised a question of federal common law, whether the case could be considered one arising under an “Act of Congress” within the meaning of 28 U.S.C. § 1337 may be open to some question. We express no opinion on this issue.
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:
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sc_respondentstate
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41
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC., et al. v. VILLAGE OF STRATTON et al.
No. 00-1737.
Argued February 26, 2002
Decided June 17, 2002
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Souter and Ginsburg, JJ., joined, post, p. 169. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 171. Rehnquist, C. J., filed a dissenting opinion, post, p. 172.
Paul D. Polidoro argued the cause for petitioners. With him on the briefs were Philip Brumley, Richard D. Moake, and Donald T. Ridley.
Abraham Cantor argued the cause and filed a brief for respondents.
David M. Gormley, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae in support of respondents. With him on the brief were Betty D. Montgomery, Attorney General of Ohio, Elise W. Porter and Kirk A. Lindsey, Assistant Solicitors, and the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Steve Carter of Indiana, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J Joseph Curran, Jr., of Maryland, Thomas Reilly of Massachusetts, Frankie Sue Del Papa of Nevada, W. A. Drew Edmondson of Oklahoma, and Hoke MacMillan of Wyoming.
Briefs of amici curiae urging reversal were filed for Commonwealth of the Northern Mariana Islands by Herbert D. Soil, Attorney General, David, Collins, and Karen M. Klaver; for the Center for Individual Freedom by Eric S. Jaffe; for the Church of Jesus Christ of Latter-day Saints by Von G. Keetch; for the Electronic Privacy Information Center et al. by Marc Rotenberg, Steven R. Shapiro, and Raymond Vasvari; and for RealCampaignReform.org, Inc., et al. by William J. Olson, John S. Miles, and Herbert W. Titus.
Briefs of amici curiae urging affirmance were filed for the Ohio Municipal League by Barry M. Byron and John E. Gotherman; and for the International Municipal Lawyers Association et al. by Richard Ruda and James I. Crowley.
Briefs of amici curiae were filed for the Brennan Center for Justice by Burt Neuborne, Deborah Goldberg, and Richard L. Hasen; and for Independent Baptist Churches of America by Thomas TV King III.
Justice Stevens
delivered the opinion of the Court.
Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills.
I
Petitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah’s Witnesses throughout the United States and publishes Bibles and religious periodicals that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah’s Witnesses, Inc., supervises the activities of approximately 59 members in a part of Ohio that includes the Village of Strat-ton (Village). Petitioners offer religious literature without cost to anyone interested in reading it. They allege that they do not solicit contributions or orders for the sale of merchandise or services, but they do accept donations.
Petitioners brought this action against the Village and its mayor in the United States District Court for the Southern District of Ohio, seeking an injunction against the enforcement of several sections of Ordinance No. 1998-5 regulating uninvited peddling and solicitation on private property in the Village. Petitioners’ complaint alleged that the ordinance violated several constitutional rights, including the free exercise of religion, free speech, and the freedom of the press. App. 10a-44a. The District Court conducted a bench trial at which evidence of the administration of the ordinance and its effect on petitioners was introduced.
Section 116.01 prohibits “canvassers” and others from “going in and upon” private residential property for the purpose of promoting any “cause” without first having obtained a permit pursuant to § 116.03. That section provides that any canvasser who intends to go on private property to promote a cause must obtain a “Solicitation Permit” from the office of the mayor; there is no charge for the permit, and apparently one is issued routinely after an applicant fills out a fairly detailed “Solicitor’s Registration Form.” The canvasser is then authorized to go upon premises that he listed on the registration form, but he must carry the permit upon his person and exhibit it whenever requested to do so by a police officer or by a resident. The ordinance sets forth grounds for the denial or revocation of a permit, but the record before us does not show that any application has been denied or that any permit has been revoked. Petitioners did not apply for a permit.
A section of the ordinance that petitioners do not challenge establishes a procedure by which a resident may prohibit solicitation even by holders of permits. If the resident files a “No Solicitation Registration Form” with the mayor, and also posts a “No Solicitation” sign on his property, no uninvited canvassers may enter his property, unless they are specifically authorized to do so in the “No Solicitation Registration Form” itself. Only 32 of the Village’s 278 residents filed such forms. Each of the forms in the record contains a list of 19 suggested exceptions; on one form, a resident checked 17 exceptions, thereby excluding only “Jehovah’s Witnesses” and “Political Candidates” from the list of invited canvassers. Although Jehovah’s Witnesses do not consider themselves to be “solicitors” because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor “no solicitation” signs in the Village. They also explained at trial that they did not apply for a permit because they derive their authority to preach from Scripture. “For us to seek a permit from a municipality to preach we feel would almost be an insult to God.” App. 321a.
Petitioners introduced some evidence that the ordinance was the product of the mayor’s hostility to their ministry, but the District Court credited the mayor’s testimony that it had been designed to protect the privacy rights of the Village residents, specifically to protect them “from ‘Aim flam’ con artists who prey on small town populations.” 61 F. Supp. 2d 734, 736 (SD Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to “business or political canvassers,” id., at 737, 738.
The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that did not infringe on petitioners’ First Amendment rights. The court did, however, require the Village to accept narrowing constructions of three provisions. First, the court viewed the requirement in § 116.03(b)(5) that the applicant must list the specific address of each residence to be visited as potentially invalid, but cured by the Village’s agreement to attach to the form a list of willing residents. Id., at 737. Second, it held that petitioners could comply with § 116.03(b)(6) by merely stating their purpose as “the Jehovah’s Witness ministry.” Id., at 738. And third, it held that § 116.05, which limited canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision referring to “reasonable hours of the day.” Id., at 739. As so modified, the court held the ordinance constitutionally valid as applied to petitioners and dismissed the case.
The Court of Appeals for the Sixth Circuit affirmed. 240 F. 3d 553 (2001). It held that the ordinance was “content neutral and of general applicability and therefore subject to intermediate scrutiny.” Id., at 560. It rejected petitioners’ reliance on the discussion of laws affecting both the free exercise of religion and free speech in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), because that “language was dicta and therefore not binding.” 240 F. 3d, at 561. It also rejected petitioners’ argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we recognized in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995), reasoning that “the very act of going door-to-door requires the canvassers to reveal a portion of their identities.” 240 F. 3d, at 563. The Court of Appeals concluded that the interests promoted by the Village — “protecting its residents from fraud and undue annoyance” — as well as the harm that it seeks to prevent — “criminals posing as canvassers in order to defraud its residents” — though “by no means overwhelming,” were sufficient to justify the regulation. Id., at 565-566. The court distinguished earlier cases protecting the Jehovah’s Witnesses ministry because those cases either involved a flat prohibition on the dissemination of ideas, e. g., Martin v. City of Struthers, 319 U. S. 141 (1943), or an ordinance that left the issuance of a permit to the discretion of a municipal officer, see, e. g., Cantwell v. Connecticut, 310 U. S. 296, 302 (1940).
In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the permit requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village’s interest in eliminating fraud and unwanted annoyance. In his view, the Village “failed to demonstrate either the reality of the harm or the efficacy of the restriction.” 240 F. 3d, at 572.
We granted certiorari to decide the following question: “Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one’s name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?” 534 U. S. 971 (2001); Pet. for Cert, i.
II
For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering. It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah’s Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania, 319 U. S. 105, 108 (1943), the Jehovah’s Witnesses “claim to follow the example of Paul, teaching ‘publickly, and from house to house.’ Acts 20:20. They take literally the mandate of the Scriptures, ‘Go ye into all the world, and preach the gospel to every creature.’ Mark 16:15. In doing so they believe that they are obeying a commandment of God.” Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door.
Although our past cases involving Jehovah’s Witnesses, most of which were decided shortly before and during World War II, do not directly control the question we confront today, they provide both a historical and analytical backdrop for consideration of petitioners’ First Amendment claim that the breadth of the Village’s ordinance offends the First Amendment. Those cases involved petty offenses that raised constitutional questions of the most serious magnitude — questions that implicated the free exercise of religion, the freedom of speech, and the freedom of the press. From these decisions, several themes emerge that guide our consideration of the ordinance at issue here.
First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that “hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses. It has been a potent force in various religious movements down through the years.... This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.” Id., at 108-109.
In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U. S. 147 (1939), the petitioner was a Jehovah’s Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.” Id., at 164 (emphasis added).
Despite the emphasis on the important role that door-to-door canvassing and pamphleteering has played in our constitutional tradition of free and open discussion, these early cases also recognized the interests a town may have in some form of regulation, particularly when the solicitation of money is involved. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that an ordinance requiring Jehovah’s Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the license depended on the exercise of discretion by a city official. Our opinion recognized that “a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.” Id., at 306. Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a legitimate interest served by these ordinances and noted that “burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later.” 319 U. S., at 144. Despite recognition of these interests as legitimate, our precedent is clear that there must be a balance between these interests and the effect of the regulations on First Amendment rights. We “must ‘be astute to examine the effect of the challenged legislation’ and must ‘weigh the circumstances and ... appraise the substantiality of the reasons advanced in support of the regulation.’” Ibid, (quoting Schneider, 308 U. S., at 161).
Finally, the cases demonstrate that efforts of the Jehovah’s Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people.” 319 U. S., at 144-146.
That the Jehovah’s Witnesses are not the only “little people” who face the risk of silencing by regulations like the Village’s is exemplified by our cases involving nonreligious speech. See, e. g., Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Thomas v. Collins, 323 U. S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah’s Witnesses cases discussed above, the Court observed:
“As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly. . . .
“If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.” Id., at 539-540.
Although these World War II-era cases provide guidance for our consideration of the question presented, they do not answer one preliminary issue that the parties adamantly dispute. That is, what standard of review ought we use in assessing the constitutionality of this ordinance. We find it unnecessary, however, to resolve that dispute because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.
III
The Village argues that three interests are served by its ordinance: the prevention of fraud, the prevention of crime, and the protection of residents’ privacy. We have no difficulty concluding, in light of our precedent, that these are important interests that the Village may seek to safeguard through some form of regulation of solicitation activity. We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve.
The text of the Village’s ordinance prohibits “canvassers” from going on private property for the purpose of explaining or promoting any “cause,” unless they receive a permit and the residents visited have not opted for a “no solicitation” sign. Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village’s interest in protecting the privacy of its residents and preventing fraud. Yet, even though the Village has explained that the ordinance was adopted to serve those interests, it has never contended that it should be so narrowly interpreted. To the contrary, the Village’s administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial “canvassers” promoting a wide variety of “causes.” Indeed, on the “No Solicitation Forms” provided to the residents, the canvassers include “Camp Fire Girls,” “Jehovah’s Witnesses,” “Political Candidates,” “Trick or Treaters during Halloween Season,” and “Persons Affiliated with Stratton Church.” The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the may- or’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement.
First, as our cases involving distribution of unsigned handbills demonstrate, there are a significant number of persons who support causes anonymously. “The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” McIntyre v. Ohio Elections Comm’n, 514 U. S., at 341-342. The requirement that a canvasser must be identified in a permit application filed in the mayor’s office and available for public inspection necessarily results in a surrender of that anonymity. Although it is true, as the Court of Appeals suggested, see 240 F. 3d, at 563, that persons who are known to the resident reveal their allegiance to a group or cause when they present themselves at the front door to advocate an issue or to deliver a handbill, the Court of Appeals erred in concluding that the ordinance does not implicate anonymity interests. The Sixth Circuit’s reasoning is undermined by our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182 (1999). The badge requirement that we invalidated in Buckley applied to petition cir-culators seeking signatures in face-to-face interactions. The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in maintaining their anonymity. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes. Such preclusion may well be justified in some situations — for example, by the special state interest in protecting the integrity of a ballot-initiative process, see ibid., or by the interest in preventing fraudulent commercial transactions. The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to commercial transactions or to any special interest in protecting the electoral process.
Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.
Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor’s permission. In this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U. S. 233 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment, the Court stated that “‘[t]he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.’ ” Id., at 249-250 (quoting 2 T. Cooley, Constitutional Limitations 886 (8th ed. 1927)); see also Lovell v. City of Griffin, 303 U. S. 444 (1938).
The breadth and unprecedented nature of this regulation does not alone render the ordinance invalid. Also central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village’s stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime.
With respect to the former, it seems clear that § 107 of the ordinance, which provides for the posting of “No Solicitation” signs and which is not challenged in this case, coupled with the resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. Schaumburg, 444 U. S., at 639 (“[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs ... suggests] the availability of less intrusive and more effective measures to protect privacy”). The annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit.
With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyers or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant’s identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us.
The rhetoric used in the World War II-era opinions that repeatedly saved petitioners’ coreligionists from petty prosecutions reflected the Court’s evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Section 116.01 provides: “The practice of going in and upon private property and/or the private residences of Village residents in the Village by canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise or services, not having been invited to do so by the owners or occupants of such private property or residences, and not having first obtained a permit pursuant to Section 116.03 of this Chapter, for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services, is hereby declared to be a nuisance and is prohibited.” App. to Brief for Respondents 2a. The Village has interpreted the term “canvassers” to include Jehovah’s Witnesses and the term “cause” to include their ministry. The ordinance does not appear to require a permit for a surveyor since such an individual would not be entering private property “for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services.” Thus, contrary to the assumption of the dissent in its heavy reliance on the example from Dartmouth, post, at 172-173,177,179 (opinion of Rehnquist, C. J.), the Village’s ordinance would have done nothing to prevent that tragic crime.
Section 116.03 provides:
“(a) No canvasser, solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise or services who is described in Section 116.01 of this Chapter and who intends to go in or upon private property or a private residence in the Village for any of the purposes described in Section 116.01, shall go in or upon such private property or residence without first registering in the office of the Mayor and obtaining a Solicitation Permit.
“(b) The registration required by subsection (a) hereof shall be made by filing a Solicitor’s Registration Form, at the office of the Mayor, on a form furnished for such purpose. The Form shall be completed by the Registrant and it shall then contain the following information:
“(1) The name and home address of the Registrant and Registrant’s residence for five years next preceding the date of registration;
“(2) A brief description of the nature and purpose of the business, promotion, solicitation, organization, cause, and/or the goods or services offered;
“(3) The name and address of the employer or affiliated organization, with credentials from the employer or organization showing the exact relationship and authority of the Applicant;
“(4) The length of time for which the privilege to canvass or solicit is desired;
“(5) The specific address of each private residence at which the Registrant intends to engage in the conduct described in Section 116.01 of this Chapter, and,
“(6) Such other information concerning the Registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired.” Brief for Respondents 3a-4a.
Section 116.04 provides: “Each Registrant who complies with Section 116.03(b) shall be famished a Solicitation Permit. The permit shall indicate that the applicant has registered as required by Section 116.03 of this Chapter. No permittee shall go in or upon any premises not listed on the Registrant’s Solicitor’s Registration Form.
“Each person shall at all times, while exercising the privilege in the Village incident to such permit, carry upon his person his permit and the same shall be exhibited by such person whenever he is requested to do so by any police officer or by any person who is solicited.” Id., at 4a.
Section 116.06 provides: “Permits described in Section 116.04 of this Chapter may be denied or revoked by the Mayor for any one or more of the following reasons:
“(a) Incomplete information provided by the Registrant in the Solicitor’s Registration Form.
“(b) Fraud or misrepresentation contained in the Solicitor’s Registration Form.
“(c) Fraud, misrepresentation or false statements made in the course of conducting the activity.
“(d) Violation of any of the provisions of this chapter or of other Codified Ordinances or of any State or Federal Law.
“(e) Conducting canvassing, soliciting or business in such a manner as to constitute a trespass upon private property.
“(f) The permittee ceases to possess the qualifications required in this chapter for the original registration.” Id., at 5a.
Section 116.07 provides, in part: “(a) Notwithstanding the provisions of any other Section of this Chapter 116, any person, firm or corporation who is the owner or lawful occupant of private property within the territorial limits of the Village of Stratton, Ohio, may prohibit the practice of going in or upon the private property and/or the private residence of such owner or occupant, by uninvited canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors, by registering its property in accordance with Subdivision (b) of this Section and by posting upon each such registered property a sign which reads ‘No Solicitation’ in a location which is reasonably visible to persons who intend to enter upon such property.
“(b) The registration authorized by Subsection (a) hereof shall be made by filing a ‘No Solicitation Registration Form’, at the office of the Mayor, on a form furnished for such purpose. The form shall be completed by the property owner or occupant and it shall then contain the following information:.. ..” Id., at 6a.
The suggested exceptions listed on the form are:
1. Scouting Organizations
2. Camp Fire Girls
3. Children’s Sports Organizations
4. Children’s Solicitation for Supporting School Activities
5. Volunteer Fire Dept.
6. Jehovah’s Witnesses
7. Political Candidates
8. Beauty Products Sales People
9. Watkins Sales
10. Christmas Carolers
11. Parcel Delivery
12. Little League
13. Trick or Treaters during Halloween Season
14. Police
15. Campaigners
16. Newspaper Carriers
17. Persons Affiliated with Stratton Church
18. Food Salesmen
19. Salespersons. App. 229a.
Apparently the ordinance would prohibit each of these 19 categories from canvassing unless expressly exempted.
Specifically, from the Book of “Matthew chapter 28, verses 19 and 20, which we take as our commission to preach. ... So Jesus, by example, instituted a house-to-house search for people so as to preach the good news to them. And that’s the activity that Jehovah’s Witnesses engage in, even as Christ’s apostles did after his resurrection to heaven.” Id., at 313a-314a.
“The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U. S., at 304-307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).” 494 U. S., at 881 (footnote omitted).
In their briefs and at oral argument, the parties debated a factual issue embedded in the question presented, namely, whether the permit contains the speaker’s name. We need not resolve this factual dispute in order to answer whether the ordinance’s registration requirement abridges so much protected speech that it is invalid on its face.
Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Martin v. City of Struthers, 319 U. S. 141 (1943); Murdock v. Pennsylvania, 319 U. S. 105 (1943); Jamison v. Texas, 318 U. S. 413 (1943); Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State (Town of Irvington), 308 U. S.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_respondent
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099
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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.
DURO v. REINA, CHIEF OF POLICE, SALT RIVER DEPARTMENT OF PUBLIC SAFETY, SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, et al.
No. 88-6546.
Argued November 29, 1989
Decided May 29, 1990
■ Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. Brennan, J., filed a dissenting opinion, which Marshall, J., joined, post, p. 698.
John Trebon, by appointment of the Court, 490 U. S. 1079, argued the cause and filed briefs for petitioner.
Richard B. Wilks argued the cause for respondents. With him on the brief was M. J. Mirkin.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Assistant Attorney General Stewart, Harriet S. Shapiro, Robert L. Klarquist, Edward J. Shawaker, William G. Lavell, and Scott Keep.
Briefs of amici curiae urging affirmance were filed for the Three Affiliated Tribes of the Fort Berthold Reservation et al. by Charles A. Hobbs; and for the Sac and Fox Nation et al. by G. William Rice.
Briefs of amici curiae were filed for the Rosebud Sioux Tribe et al. by Jerilyn DeCoteau and Robert T. Anderson; and for the Salt River Project Agricultural Improvement and Power District by John B. Weldon, Jr., and Stephen E. Crofton.
Justice Kennedy
delivered the opinion of the Court.
We address in this case whether an Indian tribe may assert criminal jurisdiction over a defendant who is an Indian but not a tribal member. We hold that the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.
hH
The events giving rise to this jurisdictional dispute occurred on the Salt River Indian Reservation. The reservation was authorized by statute in 1859, and established by Executive Order of President Hayes in 1879. It occupies some 49,200 acres just east of Scottsdale, Arizona, below the McDowell Mountains. The reservation is the home of the Salt River Pima-Maricopa Indian Community, a recognized Tribe with an enrolled membership. Petitioner in this case, Albert Duro, is an enrolled member of another Indian Tribe, the Torres-Martinez Band of Cahuilla Mission Indians. Petitioner is not eligible for membership in the Pima-Maricopa Tribe. As a nonmember, he is not entitled to vote in Pima-Maricopa elections, to hold tribal office, or to serve on tribal juries. Salt River Pima-Maricopa Indian Community Code of Ordinances §§3-1, 3-2, 5-40, App. 55-59.
Petitioner has lived most of his life in his native State of California, outside any Indian reservation. Between March and June 1984, he resided on the Salt River Reservation with a Pima-Maricopa woman friend. He worked for the PiCopa Construction Company, which is owned by the Tribe.
On June 15, 1984, petitioner allegedly shot and killed a 14-year-old boy within the Salt River Reservation boundaries. The victim was a member of the Gila River Indian Tribe of Arizona, a separate Tribe that occupies a separate reservation. A complaint was filed in United States District Court charging petitioner with murder and aiding and abetting murder in violation of 18 U. S. C. §§2, 1111, and 1153. Federal agents arrested petitioner in California, but the federal indictment was later dismissed without prejudice on the motion of the United States Attorney.
Petitioner then was placed in the custody of Pima-Maricopa officers, and he was taken to stand trial in the Pima-Maricopa Indian Community Court. The tribal court’s powers are regulated by a federal statute, which at that time limited tribal criminal penalties to six months’ imprisonment and a $500 fine. 25 U. S. C. § 1302(7) (1982 ed.). The tribal criminal code is therefore confined to misdemeanors. Petitioner was charged with the illegal firing of a weapon on the reservation. After the tribal court denied petitioner’s motion to • dismiss the prosecution for lack of jurisdiction, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona, naming the tribal chief judge and police chief as respondents.
The District Court granted the writ, holding that assertion of jurisdiction by the Tribe over an Indian who was not a member would violate the equal protection guarantees of the Indian Civil Rights Act of 1968, 25 U. S. C. §1301 et seq. Under this Court's holding in Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), tribal courts have no criminal jurisdiction over non-Indians. The District Court reasoned that, in light of this limitation, to subject a nonmember Indian to tribal jurisdiction where non-Indians are exempt would constitute discrimination based on race. The court held that respondents failed to articulate a valid reason for the difference in treatment under either rational-basis or strict-scrutiny standards, noting that nonmember Indians have no greater right to participation in tribal government than non-Indians, and no lesser fear of discrimination in a court system that bars the participation of their peers.
A divided panel of the Court of Appeals for the Ninth Circuit reversed. 821 F. 2d 1358 (1987). Both the panel opinion and the dissent were later revised. 851 F. 2d 1136 (1988). The Court of Appeals examined our opinion in United States v. Wheeler, 435 U. S. 313 (1978), decided 16 days after Oliphant, a case involving a member prosecuted by his Tribe in which we stated that tribes do not possess criminal jurisdiction over “nonmembers.” The Court of Appeals concluded that the distinction drawn between members and nonmembers of a tribe throughout our Wheeler opinion was “indiscriminate,” and that the court should give “little weight to these casual references.” 851 F. 2d, at 1140-1141. The court also found the historical record “equivocal” on the question of tribal jurisdiction over nonmembers.
The Court of Appeals then examined the federal criminal statutes applicable to Indian country. See 18 U. S. C. §§ 1151-1153. Finding that references to “Indians” in those statutes and the cases construing them applied to all Indians, without respect to their particular tribal membership, the court concluded that “if Congress had intended to divest tribal courts of criminal jurisdiction over nonmember Indians they would have done so.” The tribes, it held, retain jurisdiction over minor crimes committed by Indians against other Indians “without regard to tribal membership.” 851 F. 2d, at 1143.
The Court of Appeals rejected petitioner’s equal protection argument under the Indian Civil Rights Act of 1968. It found no racial classification in subjecting petitioner to tribal jurisdiction that could not be asserted over a non-Indian. Instead, it justified tribal jurisdiction over petitioner by his significant contacts with the Pima-Maricopa Community, such as residing with a member of the Tribe on the reservation and his employment with the Tribe’s construction company. The need for effective law enforcement on the reservation provided a rational basis for the classification. Id., at 1145.
As a final basis for its result, the panel said that failure to recognize tribal jurisdiction over petitioner would create a “jurisdictional void.” To treat petitioner as a non-Indian for jurisdictional purposes would thwart the exercise of federal criminal jurisdiction over the misdemeanor because, as the court saw it, the relevant federal criminal statute would not apply to this case due to an exception for crimes committed “by one Indian against the person or property of another Indian.” See 18 U. S. C. § 1152. This would leave the crime subject only to the state authorities, which had made no effort to prosecute petitioner, and might lack the power to do so. 851 F. 2d, at 1145-1146.
Judge Sneed dissented, arguing that this Court’s opinions limit the criminal jurisdiction of an Indian tribe to its members, and that Congress has given the Tribé no criminal jurisdiction over nonmembers. He reasoned that the federal criminal statutes need not be construed to create a jurisdictional void, and stressed that recognition of jurisdiction here would place the nonmember Indian, unlike any other citizen, in jeopardy of trial by an alien tribunal. Id., at 1146-1151. These views were reiterated by three other Ninth Circuit judges in a dissent from denial of rehearing en banc. 860 F. 2d 1463 (1988). The dissenters accepted petitioner’s contention that tribal jurisdiction subjected him to an impermissible racial classification and to a tribunal with the potential for bias.
Between the first and second sets of opinions from the Ninth Circuit panel, the Eighth Circuit held that tribal courts do not possess inherent criminal jurisdiction over persons not members of the tribe. Greywater v. Joshua, 846 F. 2d 486 (1988). Due to the timing of the opinions, both the Eighth Circuit and the Ninth Circuit in this case had the benefit of the other’s analysis but rejected it. We granted certiorari to resolve the conflict, 490 U. S. 1034 (1989), and now reverse.
1 — 1 1 — 1
Our decisions in Oliphant and Wheeler provide the analytic framework for resolution of this dispute. Oliphant established that the inherent sovereignty of the Indian tribes does not extend to criminal jurisdiction over non-Indians who commit crimes on the reservation. Wheeler reaffirmed the longstanding recognition of tribal jurisdiction over crimes committed by tribe members. The case before us is at the intersection of these two precedents, for here the defendant is an Indian, but not a member of the Tribe that asserts jurisdiction. As in Oliphant, the tribal officials do not claim jurisdiction under an affirmative congressional authorization or treaty provision, and petitioner does not contend that Congress has legislated to remove jurisdiction from the tribes. The question we must answer is whether the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers.
We think the rationale of our decisions in Oliphant and Wheeler, as well as subsequent cases, compels the conclusion that Indian tribes lack jurisdiction over persons who are not tribe members. Our discussion of tribal sovereignty in Wheeler bears most directly on this case. We were consistent in describing retained tribal sovereignty over the defendant in terms of a tribe’s power over its members. Indeed, our opinion in Wheeler stated that the tribes “cannot try nonmembers in tribal courts.” 435 U. S., at 326. Literal application of that statement to these facts would bring this case to an end. Yet respondents and amici, including the United States, argue forcefully that this statement in Wheeler cannot be taken as a statement of the law, for the party before the Court in Wheeler was a member of the Tribe.
It is true that Wheeler presented no occasion for a holding on the present facts. But the double jeopardy question in Wheeler demanded an examination of the nature of retained tribal power. We held that jurisdiction over a Navajo defendant by a Navajo court was part of retained tribal sovereignty, not a delegation of authority from the Federal Government. It followed that a federal prosecution of the same offense after a tribal conviction did not involve two prosecutions by the same sovereign, and therefore did not violate the Double Jeopardy Clause. Our analysis of tribal power was directed to the tribes’ status as limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance. We recognized that the “sovereignty that the Indian tribes retain is of a unique and limited character.” Id., at 323.
A basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign’s territory, whether citizens or aliens. Oliphant recognized that the tribes can no longer be described as sovereigns in this sense. Rather, as our discussion in Wheeler reveals, the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own unique customs and social order. The power of a tribe to prescribe and enforce rules of conduct for its own members “does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe.” 435 U. S., at 326. As we further described the distinction:
“[T]he dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. . . . [T]hey are not such powers as would necessarily be lost by virtue of a tribe’s dependent status.” Ibid.
Our finding that the tribal prosecution of the defendant in Wheeler was by a sovereign other than the United States rested on the premise that the prosecution was a part of the tribe’s internal self-governance. Had the prosecution been a manifestation of external relations between the Tribe and outsiders, such power would have been inconsistent with the Tribe’s dependent status, and could only have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.
The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. Exemption from state taxation for residents of a reservation, for example, is determined by tribal membership, not by reference to Indians as a general class. We have held that States may not impose certain taxes on transactions of tribal members on the reservation because this would interfere with internal governance and self-determination. See Moe v. Confederated Salish & Kootenai Tribes, 425 U. S. 463 (1976); McClanahan v. Arizona Tax Comm’n, 411 U. S. 164 (1973). But this rationale does not apply to taxation of nonmembers, even where they are Indians:
“Nor would the imposition of Washington’s tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements.” Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 161 (1980).
Similarly, in Montana v. United States, 450 U. S. 544 (1981), we held that the Crow Tribe could regulate hunting and fishing by nonmembers on land held by the Tribe or held in trust for the Tribe by the United States. But this power could not extend to nonmembers’ activities on land they held in fee. Again we relied upon the view of tribal sovereignty set forth in Oliphant:
“Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U. S., at 565 (footnote omitted).
It is true that our decisions recognize broader retained tribal powers outside the criminal context. Tribal courts, for example, resolve civil disputes involving nonmembers, including non-Indians. See, e. g., Santa Clara Pueblo v. Martinez, 436 U. S. 49, 65-66 (1978); Williams v. Lee, 358 U. S. 217, 223 (1959); F. Cohen, Handbook of Federal Indian Law 253 (1982 ed.) (hereafter Cohen) (“The development of principles governing civil jurisdiction in Indian country has been markedly different from the development of rules dealing with criminal jurisdiction”). Civil authority may also be present in areas such as zoning where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination. See, e. g., Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U. S. 408 (1989). As distinct from criminal prosecution, this civil authority typically involves situations arising from property ownership within the reservation or “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana v. United States, supra, at 565. The exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties.
The tribes are, to be sure, “a good deal more than ‘private voluntary organizations,’” and are aptly described as “unique aggregations possessing attributes of sovereignty over both their members and their territory. ” United States v. Mazurie, 419 U. S. 544, 557 (1975). In the area of criminal enforcement, however, tribal power does not extend beyond internal relations among members. Petitioner is not a member of the Pima-Maricopa Tribe, and is not now eligible to become one. Neither he nor other members of his Tribe may vote, hold office, or serve on a jury under Pima-Maricopa authority. Cf. Oliphant, 435 U. S., at 194, and n. 4. For purposes of criminal jurisdiction, petitioner’s relations with this Tribe are the same as the non-Indian’s in Oliphant. We hold that the Tribe’s powers over him are subject to the same limitations.
f — i f — { I — i
Respondents and amici argue that a review of history requires the assertion of jurisdiction here. We disagree. The historical record in this case is somewhat less illuminating than in Oliphant, but tends to support the conclusion we reach. Early evidence concerning tribal jurisdiction over nonmembers is lacking because “[u]ntil the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than punishment.” Oliphant, supra, at 197. Cases challenging the jurisdiction of modern tribal courts are few, perhaps because “most parties acquiesce to tribal jurisdiction” where it is asserted. See National American Indian Court Judges Association, Indian Courts and the Future 48 (1978). We have no occasion in this case to address the effect of a formal acquiescence to tribal jurisdiction that might be made, for example, in return for a tribe’s agreement not to exercise its power to exclude an offender from tribal lands, see infra, at 696-697.
Respondents rely for their historical argument upon evidence that definitions of “Indian” in federal statutes and programs apply to all Indians without respect to membership in a particular tribe. For example, the federal jurisdictional statutes applicable to Indian country use the general term “Indian.” See 18 U. S. C. §§1152-1153. In construing such a term in the Act of June 30, 1834, ch. 161, 4 Stat. 733, this Court stated that it “does not speak of members of a tribe, but of the race generally, — of the family of Indians.” United States v. Rogers, 4 How. 567, 573 (1846). Respondents also emphasize that courts of Indian offenses, which were established by regulation 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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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
ROSEBUD SIOUX TRIBE v. KNEIP, GOVERNOR OF SOUTH DAKOTA, et al.
No. 75-562.
Argued January 12, 1977
Decided April 4, 1977
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Stevens, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stewart, JJ., joined, post, p. 615.
Marvin J. Sonosky argued the cause and filed briefs for petitioner.
William J. Janklow, Attorney General of South Dakota, argued the cause for respondents. With him on the brief were Torn D. Tobin and David L. Knudson, Special Assistant Attorneys General, and William F. Day, Jr.
H. Bartow Farr argued the cause for the United States pro hac vice as amicus curiae urging reversal. With him on the brief were Solicitor General Bork, Assistant Attorney General Taft, Edmund B. Clark, and Neil T. Proto.
Briefs of amici curiae urging reversal were filed by Richard A. Baenen and R. Anthony Rogers for the Arapahoe Tribe et al.; by Arthur Lazarus, Jr., for the Association on American Indian Affairs, Inc., et al.; and by Richard B. Collins and Robert S. Pelcyger for the National Congress of American Indians et al.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In June 1972, the Rosebud Sioux Tribe sued in the United States District Court for the District of South Dakota to obtain a declaratory judgment that the original boundaries of their reservation, as defined in the Act of March 2, 1889, 25 Stat. 888, had not been diminished by three subsequent Acts of Congress passed in 1904, 1907, and 1910 respectively. The District Court, noting that “[f]rom the time these acts were passed, these [four] counties have been treated as outside the Rosebud Sioux Reservation by the settlers, their descendants, the State of South Dakota and the federal courts,” 375 F. Supp. 1065, 1084, denied relief. It concluded that Congress had intended to diminish the Reservation so as to exclude the four counties in South Dakota affected by the 1904, the 1907, and the 1910 Acts. The United States Court of Appeals for the Eighth Circuit, in a careful and comprehensive opinion, affirmed the judgment of the District Court. 521 F. 2d 87. We granted certiorari, 425 U. S. 989, to review this determination in the light of our recent decisions in DeCoteau v. District County Court, 420 U. S. 425 (1975), and Mattz v. Arnett, 412 U. S. 481 (1973). Since we conclude that the three Acts of Congress in question satisfy the requirement that “[a] congressional determination to terminate [an Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history,” Mattz v. Arnett, supra, at 505, we affirm the judgment of the Court of Appeals.
I
When established, the Rosebud Indian Reservation contained somewhat over 3.2 million acres, and covered all or a portion of what later became five counties in South Dakota: Gregory, Tripp, Lyman, Mellette, and Todd. The three Acts we are asked to construe successively disposed of all unallotted lands in Gregory County (1904 Act), in Tripp and Lyman Counties (1907 Act), and in Mellette County (1910 Act). Only Todd County remains unaffected by these post-1889 enactments. The contention of the Rosebud Sioux Tribe is that these Acts, while opening up the unallotted land outside of Todd County to non-Indian settlement, did not thereby change the Reservation boundaries, which continued to encompass these five counties.
In determining whether or not the 1889 Reservation boundaries were subsequently diminished by congressional enactments, we are guided by well-established legal principles. The underlying premise is that congressional intent will control. DeCoteau v. District County Court, supra, at 444, 449; United States v. Celestine, 215 U. S. 278, 285 (1909). In determining this intent, we are cautioned to follow “the general rule that ‘[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' ” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 174 (1973), quoting Carpenter v. Shaw, 280 U. S. 363, 367 (1930); see also Mattz v. Arnett, supra, at 505. The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation status. Mattz v. Arnett, supra; see also Seymour v. Superintendent, 368 U. S. 351 (1962). But the “general rule” does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary. DeCoteau v. District County Court, supra. In all cases, “the face of the Act,” the “surrounding circumstances,” and the “legislative history,” are to be examined with an eye toward determining what congressional intent was. Mattz v. Arnett, supra, at 505.
Applying these principles to the facts of this case, we conclude that the Acts of 1904, 1907, and 1910 did clearly evidence congressional intent to diminish the boundaries of the Rosebud Sioux Reservation. The parties agree that an amendment to the 1889 Treaty, which provided for a fixed-sum payment and which was approved by three-fourths of the Rosebud Sioux Tribe’s adult males in 1901, would have resulted in the diminution of the Rosebud Reservation boundaries. Congress did not, however, approve the 1901 amendment to the Treaty which the Tribe had ratified. The Tribe contends that, lacking tribal ratification and a fixed-sum provision, the later Acts were ineffectual to accomplish this same result. In the Tribe’s view, the absence of these two factors vitally distinguishes the Acts in question from the otherwise similar Act examined in DeCoteau v. District County Court, supra. Because of the reasons hereafter set forth in greater detail, we conclude that, although the Acts of 1904, 1907, and 1910 were unilateral Acts of Congress without the consent of three-quarters of the members of the tribe required by the original Treaty, that fact does not have any direct bearing on the question of whether Congress by these later Acts did intend to diminish the Reservation boundaries. By the time of the first of these Acts, in 1904, Congress was aware of the decision of this Court in Lone Wolf v. Hitchcock, 187 U. S. 553 (1903), which held that Congress possessed the authority to abrogate unilaterally the provisions of an Indian treaty. We also conclude that the changed method of payment is not conclusive with respect to congressional intent. Although the later Acts of Congress made less secure provisions for payment to the Tribe for the lands in question than did the 1901 Treaty, their language with respect to the reservation status of the opened lands was identical with or derivative from the language used in that proposed amendment. The language was also substantially equivalent to that used in the executed agreement involved in DeCoteau. We agree with the Court of Appeals and the District Court that this language not only opened the land for settlement, but diminished the boundaries of the Reservation pro tanto.
II
The Rosebud Sioux are one of the tribes of Indians of the Sioux Nation. The Treaty of April 29, 1868, 15 Stat. 635, set aside all the land in South Dakota west of the Missouri River as the Great Sioux Reservation, consisting of some 25 million acres. Article 12 of the Treaty provided that no subsequent treaty for the cession of any part of the reservation would be valid without the written consent of three-fourths of the adult male Indians on the reservation. Despite this provision, in 1877 approximately 7.5 million acres, consisting of the Black Hills portion of the Great Sioux Reservation, were removed from the Reservation by the Act of February 28, 1877, 19 Stat. 254. See Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613 (1942), cert. denied, 318 U. S. 789 (1943). Of the remaining Reservation, approximately one-half was “restored to the public domain” under the Act of March 2, 1889, 25 Stat. 896, § 21, while six separate Reservations were carved out of the remainder, §§ 1-6. Section 2 set apart the Rosebud Reservation, encompassing what were later organized as three full counties (Todd, Mellette, and Tripp), a major portion of Gregory County, and a small portion of Lyman. This Reservation, as originally delimited, contained over 3.2 million acres.
Around the turn of the century, the “familiar forces” to which we referred in DeCoteau v. District County Court, led to demands to open up the Reservation. A provision in the Indian Department Appropriation Act, Mar. 3, 1901, 31 Stat. 1077, provided:
“[T]he Secretary of the Interior be, and he is hereby, authorized, in his discretion, to negotiate, through any United States Indian inspector, agreements with any Indians for the cession to the United States of portions of their respective reservations or surplus unallotted lands, any agreements thus negotiated to be subject to subsequent ratification by Congress.”
Shortly thereafter Inspector James McLaughlin was instructed by the Commissioner of Indian Affairs to begin “negotiations with the Indians of the Rosebud reservation, in South Dakota, for the cession of the unallotted eastern portion of their reserve.” Letter dated Mar. 19, 1901, from W. A. Jones, Commissioner, Office of Indian Affairs, Department of Interior. Following meetings with members of the Tribe during the spring and summer of 1901, Inspector McLaughlin obtained the written consent of three-fourths of the male Indian adults to the cession of some 416,000 acres of unallotted land in Gregory County for the sum of $1,040,000, subject to congressional ratification. The negotiated Agreement, however, was never ratified, “because of the fact that it provided that the Government should pay for the lands outright . . . ." 38 Cong. Rec. 1423 (1904) (remarks of Rep. Burke) .
What is important for our purposes is the undisputed fact that the 1901 Agreement, had it been ratified by Congress, would have disestablished that portion of the Rosebud Reservation which lay in Gregory County. Inspector McLaughlin explained to the Tribe that “[t]he cession of Gregory County” by ratification of the Agreement “will leave your reservation a compact, and almost square tract, and would leave your reservation about the size and area of Pine Ridge Reservation.” It is conceded that his description was correct; the effect and intent of the 1901 Agreement, if ratified, would have been to change the Reservation boundaries. As we noted in DeCoteau v. District County Court, 420 U. S., at 445, in construing virtually identical language: “The Agreement’s language . . . was precisely suited to this purpose [of disestablishment].” In this Agreement, therefore, we have—unlike the situation in Mattz v. Arnett, 412 U. S. 481 (1973)—an unmistakable baseline purpose of disestablishment.
An examination of the legislative processes which resulted in the 1904 Act convinces us, as it did the lower courts, that this purpose was carried forth and enacted. Because of the history of the 1901 Agreement, the 1904 Act cannot, and should not, be read as if it were the first time Congress had addressed itself to the diminution of the Rosebud Reservation.
In 1903, new bills were introduced, and subsequently reported from committee in both chambers of Congress, which proposed “to adopt a new policy in acquiring lands from the Indians [by] provid[ing] that the lands shall be disposed of to settlers . . ., and to be paid for by the settlers, and the money to be paid to the Indians only as it is received . . . from the settlers.” The Senate bill, S. 7390, passed the Senate in February, 36 Cong. Rec. 2748 (1903), but the 57th Congress expired before the House could give it consideration. In line with the changes in S. 7390, which related to the method of payment, Inspector McLaughlin was subsequently instructed to go to the Rosebud Reservation to negotiate a new agreement. He explained to the Rosebud Tribe: “I am here to enter into an agreement which is similar to that of two years ago, except as to the manner of payment . . . . You will still have as large a reservation as Pine Ridge after this is cut off.”
Inspector McLaughlin failed to get three-fourths of the adult male Indians to consent to this new method of payment, although he did obtain the consent of a majority, provided that the price to homesteaders be raised from $2.50 to $2.75 per acre. Agreement of Aug. 10, 1903. However, as Inspector McLaughlin had explained to the Tribe, Congress understood that it was not bound by the three-fourths-consent requirement of the 1868 Treaty with the Sioux Nation. In Lone Wolf v. Hitchcock, 187 U. S., at 566, 568, this Court, dealing with the validity of a cession of tribal lands enacted in contravention of a treaty requiring three-fourths Indian consent, held:
“The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress . . . .
“. . . In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation.”
Although Inspector McLaughlin failed to garner the signatures of three-quarters of the Indians in consent of the proposed changes, Congress understandably relied on this holding as authorizing it to diminish unilaterally the Reservation boundaries.
In examining congressional intent, there is no indication that Congress intended to change anything other than the form of, and responsibility for, payment. In recommending ratification of the 1901 Agreement, as modified, the accompanying House Report stated:
“The purpose of this bill is to ratify and amend an agreement made with the Rosebud Indians in South Dakota by Inspector James McLaughlin, dated September 14, 1901, providing for the cession to the United States of the unallotted portion of their lands in Gregory County, S. Dak., and opening the same to settlement and entry under the homestead and town-site laws.
“There is no question but what the Indians have no use for the land that is proposed to be ceded by this bill; that the tract is only a very small portion of the Rosebud Reservation, and is really only a corner of the reservation, which will be left compact and in a square tract and a reservation about equal in size to the Pine Ridge Reservation, in South Dakota.”
On the floor of the House, Congressman Burke, the 1904 Act’s sponsor, in discussing the changes in the Agreement since 1901, made clear that the new bill was concerned only with the responsibility for payment, 38 Cong. Rec. 1423 (1904):
“Mr. BURKE. . . . In 1901 a treaty was entered into with the Rosebud Indians on the part of the United States, by which the Indians agreed to sell to the Government this land for $2.50 per acre. That treaty was transmitted to Congress, and because of the fact that it provided that the Government should pay for the lands outright and then take the chance of the Treasury being reimbursed by disposing of the lands to settlers, it never got further than through the Committee on Indian Affairs, which unanimously reported it favorably. It was never given consideration in the House.
“Toward the concluding days of the last session of Congress a new bill was prepared, substantially as this bill now provides, and that bill provided that the lands should be ceded by the Indians to the Government, disposed of to settlers under the provisions of the homestead law, the price to be fixed at $2.50 an acre, as was provided in the original treaty. . . . This bill is substantially the same as the bill which I have just referred to . . . ."
The bill itself, as introduced and passed by both Houses, incorporated the entire text of the 1903 Agreement, which itself followed the 1901 Agreement except that: (1) the Indians were not guaranteed any consideration for the land except with respect to the 16th and 36th sections (school sections), but were to be paid only as the lands were actually sold to settlers; (2) the United States did not guarantee to find purchasers but agreed only to “act as trustee for said Indians to dispose of said lands.” In particular, the 1904 Act incorporated verbatim the language of immediate cession of the 1901 Agreement:
“The said Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted, situated within the boundaries of Gregory County . . . ." 33 Stat. 256.
As in DeCoteau v. District County Court, 420 U. S., at 445, this language is “precisely suited” to disestablishment.
Petitioner, however, objects that a “cession” requires bilateral consent, and the failure of Inspector McLaughlin to gain the approval of three-quarters of the male adult Indians vitiates any “cession.” As a matter of strict English usage, petitioner is undoubtedly correct: “cession” refers to a voluntary surrender of territory or jurisdiction, rather than a withdrawal of such jurisdiction by the authority of a superior sovereign. But as Mr. Justice (then Judge) Holmes commented, we are not free to say to Congress: “We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Johnson v. United States, 163 F. 30, 32 (CA1 1908). Congress was simply repeating verbatim language from a bill ratifying the 1901 Agreement, which had made the proper use of the word “cession” because the Agreement had been approved by the Tribe. The use of the word “cession” in the 1904 Act, which was not consented to by the required extraordinary majority of the Tribe, does-not make the meaning of the Act ambiguous as between diminution of the Reservation boundaries on the one hand, and merely opening up designated lands for settlement by non-Indians, on the other. The word is technically misused, but the meaning is quite clear. It was intended to accomplish, in 1904, precisely what it was intended to accomplish in 1901. Congress was under no misapprehension that the required portion of the Tribe had in fact approved the treaty. It knew that while a majority of the Tribe had approved it, the required extraordinary majority had not; but it had determined nonetheless to go ahead and accomplish the same result unilaterally as the Agreement would have accomplished bilaterally.
The “bill provided that the lands should be ceded by the Indians to the Government. . . ." 38 Cong. Rec. 1423 (1904) (remarks of Rep. Burke). It is clear that Congress was relying on Lone Wolf v. Hitchcock, 187 U. S. 553 (1903), in making this unilateral declaration. There is nothing in the changed method of payment, or the failure to obtain a three-quarters vote from the Indians, which indicates that the clear intent of the 1901 Agreement to diminish the Reservation boundaries had changed between 1901 and 1904. The Tribe, moreover, was eventually paid for the land, supra, at 588 n. 3.
This implied continuity in purpose from 1901 to 1904 does not, however, stand alone in indicating congressional intent. Section 4 of the 1904 Act, 33 Stat. 258, provides, in pertinent part:
“[S]ections sixteen and thirty-six of the lands hereby acquired in each township shall not be subject to entry, but shall be reserved for the use of the common schools and paid for by the United States at two dollars and fifty cents per acre, and the same are hereby granted to the State of South Dakota for such purpose . . . ."
When North and South Dakota were admitted into the Union, § 10 of the admitting Act, Act of Feb. 22, 1889, 25 Stat. 679, provided, in pertinent part:
“[U]pon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States . . . are hereby granted to said States for the support of common schools . . . : Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants . . . of this act, nor shall any land embraced in Indian, military, or other reservations of any character be subject to the grants ... of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain.”
The language of § 10 is mandatory: “nor shall” the 16th and 36th sections of lands within Indian reservations “be subject to the grants . . . until the reservation shall have been extinguished . . . .” While Congress would have had the power to establish other grants, cf. 43 U. S. C. § 856, the legislative history, in this case, demonstrates that Congress “included the provision to implement the grant in the enabling act and for no other reason.” 521 F. 2d, at 101. Both the House and Senate Reports explicitly noted that the “school sections” provision of what became the 1904 Act “is in conformity with the guarantee given to the State of South Dakota by Congress in the enabling act. . . .” Congress, therefore, clearly thought that it was acting pursuant to § 10 of the Act of February 22, 1889, and not sub silentio adding an additional grant for school lands located within a continuing reservation. The far more natural construction, then, is to read a congressional intent to disestablish Gregory County from the Rosebud Reservation, thereby making the sections available for disposition to the State of South Dakota for “school sections” under § 10 of the Act of February 22, 1889.
That it was clearly understood, at least by the Executive Branch, that the 1904 Act, like the 1901 Agreement, contemplated a diminution of the Reservation, is apparent from the Rosebud Proclamation of May 13, 1904, 33 Stat. 2354. In accordance with the requirement of § 2 of the 1904 Act that the land would “be disposed of under the general provisions of the homestead and town-site laws of the United States, and shall be opened to settlement and entry,” the Proclamation stated, in pertinent part:
“Whereas by an agreement between the Sioux tribe of Indians on the Rosebud Reservation, in the State of South Dakota, on the one part, and James McLaughlin, a United States Indian Inspector, on the other part, amended and ratified by act of Congress . . . the said Indian tribe ceded, conveyed, transferred, relinquished, and surrendered, forever and absolutely, without any reservation whatsoever, expressed or implied, unto the United States of America, all their claim, title, and interest of every kind and character in and to the unallotted lands embraced in the following described tract of country now in the State of South Dakota, . . .
“NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United States of America, by virtue of the power vested in me by law, do hereby declare and make known that all of the lands so as aforesaid ceded by the Sioux tribe of Indians of the Rosebud Reservation . . . will, on the eighth day of August, 1904, at 9 o’clock a. m., in the manner herein prescribed and not otherwise, be opened to entry and settlement and to disposition under the general provisions of the homestead and townsite laws of the United States.” (Emphasis supplied.)
The opening portion of the Proclamation is an unambiguous, contemporaneous, statement, by the Nation’s Chief Executive, of a perceived disestablishment of Gregory County. It reflects, we believe, the clear import of the congressional action in the 1904 Act.
In sum, an examination of the process leading up to the enactment of the 1904 Act, as well as the language and legislative history, leads us, as it led the Court of Appeals and the District Court, to the firm conclusion that congressional intent was to exclude Gregory County from the Rosebud Reservation.
Although the subsequent “jurisdictional history,” DeCoteau v. District County Court, 420 U. S., at 442, is not entirely clear, the single most salient fact is the unquestioned actual assumption of state jurisdiction over the unallotted lands in Gregory County since the passage of the 1904 Act, see 375 F. Supp., at 1084; Amended Complaint ¶ 21. Since state jurisdiction over the area within a reservation's boundaries is quite limited, 18 U. S. C. § 1151; McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973) ; Williams v. Lee, 358 U. S. 217 (1959); Worcester v. Georgia, 6 Pet. 515 (1832), the fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this area, or to challenge the State's exercise of authority is a factor entitled to weight as a part of the “jurisdictional history.” The longstanding assumption of jurisdiction by the State over an area that is over 90% non-Indian, both in population and in land use, not only demonstrates the parties' understanding of the meaning of the Act, but has created justifiable expectations which should not be upset by so strained a reading of the Acts of Congress as petitioner urges. We are simply unable to conclude that the intent of the 1904 Act was other than to disestablish.
III
Having determined that the 1904 Act carried forth the intent to disestablish which was unquestionably manifested in the 1901 Agreement, our examination of the 1907 and the 1910 Acts is made easier. None of the parties really disputes that the intent of the three Acts was the same. Because the later Acts do vary in some respects, however, we shall explain briefly why we find a continuity of intent through the 1907 and the 1910 Acts.
The “familiar forces" at work pressing for the opening of Indian lands did not cease with the cession of Gregory County. By late 1906, Congressman Burke was preparing a bill dealing with the “sale of that part of the reservation located in Tripp County.” Inspector McLaughlin was instructed to proceed to the Rosebud Reservation to negotiate an agreement for land in Tripp County which when “ceded should be disposed of under the general provisions of the homestead and townsite laws of the United States,” and he was given suggested terms, “similar to those in the disposal of the ceded lands in Gregory County Inspector McLaughlin’s negotiations produced virtually the same result as in 1904. A 1907 Agreement, signed by a majority, but not by three-fourths, of the adult male Indians, provided that the Indians “do hereby cede, grant, and relinquish to the United States all claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation [in Tripp and Lyman Counties], except such portions thereof as have been, or may hereafter be, allotted to Indians.” The Secretary of the Interior recommended that Congress ratify the Agreement, Letter from E. A. Hitchcock, supra, n. 33, and the Senate Committee on Indian Affairs reported a ratification bill out, S. Rep. No. 6831, 59th Cong., 2d Sess. (1907). By this time, however, the House had already passed a second bill introduced by Congressman Burke which did not incorporate the Agreement, 41 Cong. Rec. 3103-3105 (1907) (H. R. 24987), although it did substantially incorporate the terms of the Agreement, as noted by Congressman Burke, id., at 3104:
“The bill is substantially in accordance with an agreement which has just been made with the Indians, signed by [a majority]. . . . It is along the line of the bill which passed in the Fifty-eighth Congress for the sale of that portion of this same reservation that is located in Gregory County.
". . . They will have left, after this land is disposed of, a reservation that is substantially 50 miles square . . . .”
The operative language of the bill, subsequently passed by the Senate without debate, and enacted into law, 34 Stat. 1230, provided:
“[T]he Secretary of the Interior be, and he is hereby, authorized and directed, as hereinafter provided, to sell or dispose of all that portion of the Rosebud Indian Reservation in South Dakota [in Tripp and Lyman Counties], except such portions thereof as have been, or may hereafter be, allotted to Indians . . . .”
As the parties recognize, the substance of the 1907 Act is identical to the 1904 Act. Section 2 provides for the disposition of lands under the “general provisions of the homestead and town-site laws,” while § 3 specifies land purchase prices, with the proviso that “any lands remaining unsold after the said lands have been opened to entry for seven years may be sold to the highest bidder for cash, without regard to the above minimum limit of price.” Section 6 provides for the purchase by the United States of sections 16 and 36 of the lands in each township and their transfer to South Dakota for “the use of the common schools.” Sections 5 and 7 provide that the United States is to act as trustee for the Indians to dispose of the lands and to collect and dispense the proceeds.
In virtually all respects, then, except for the operative language in § 1 replacing the Agreement language, the 1907 Act is a functional twin of the 1904 Act. And, as the legislative comments make clear, supra, at 607-608, the change in § 1 language was not intended to modify or change the purposes or operation of the 1904 Act. We agree with the Court of Appeals’ conclusion, 521 F. 2d, at 104:
“Nothing in the language of the 1907 Act or in the surrounding circumstances and legislative history indicates a change in that congressional determination to alter the reservation boundaries which we have found in the 1904 Act.”
The 1907 Act, like the 1904 Act which preceded, it, disestablished the land in Tripp and Lyman Counties from the Rosebud Reservation.
The pressures for more land had not yet expended themselves with the passage of the 1907 Act. In late 1908, Senator Gamble submitted a new bill authorizing the sale and disposition of a portion of the surplus and unallotted lands in Mellette County and in a strip located in the eastern part of Todd County, S. 7379, 43 Cong. Rec. 65 (1908). The accompanying Senate Report noted, in proposing the opening to settlement of an area comprising about 900,000 acres, that “[t]he present area of the Rosebud Indian Reservation aggregates 1,800,000 acres.” S. Rep. No. 887, 60th Cong., 2d Sess., 1 (1909) (emphasis supplied). The school-sections provision was again included in the bill, “to be paid for by the Government in conformity with the provisions of the act admitting the State of South Dakota into the Union.” Id., at 2. Senator Gamble was unable to have the Senate consider the bill before the term of Congress expired, and Inspector McLaughlin was once again dispatched to conduct negotiations with the Rosebud Tribe concerning the Gamble bill. This time, he did not seek to negotiate an agreement with the Indians, but reported back to the Secretary of the Interior the “practically unanimous” concurrence of the Indians “in the opening of the northern strip, provided the two tiers of townships in the eastern part of Meyer [sic] County remain a part of the diminished reservation.”
New bills were introduced similar in purpose to the original Gamble bill. The Secretary of the Interior recommended to Congress that the bill open only Mellette County, and not the eastern part of Todd County, and that the bill also include a provision subjecting the land to be opened “for a period of twenty-five years to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country.” These changes were made in S. 183, see S. Rep. No. 68, 61st Cong., 2d Sess. (1910). The Report noted, id., at 2-4:
“The present area of the Rosebud Indian Reservation aggregates about 1,800,000 acres. The lands proposed to be opened to settlement under the provisions of this bill embrace an area of about 830,000 acres. . . .
“. . . . It also provides that the Secretary of the Interior, in his discretion, may permit Indians who have allotments within the area proposed to be opened to relinquish such allotments and to receive in lieu thereof allotments anywhere within the reservation proposed to be diminished.
“Sections 16 and 36 of the lands in each township are not to be disposed of, but are reserved for the use of the common schools of the State, and these lands are to be paid for by the Government in conformity with the provisions of the act admitting the State of South Dakota into the Union. . . .
“Although Congress has full power to enact legislation of this character without the consent of the Indians, it was felt the Indians should be fully advised as to the provisions of the pending measure and their views should be asked in regard thereto.”
The bill was passed by the Senate on January 17, 1910, 45 Cong. Rec. 1065-1066, 1075 (1910), and the House Committee on Indian Affairs decided to adopt the Senate bill, its Report noting:
“The Rosebud Indian Reservation when set aside as a separate reservation under the Sioux act of 1889 contained something over 3,000,000
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
N. H. NEWMAN et al., Respondents-Appellees, v. STATE OF ALABAMA and Bill Baxley, Attorney General for the State of Alabama, Petitioners-Appellants, United States of America, Amicus Curiae.
No. 73-2033.
United States Court of Appeals, Fifth Circuit.
Nov. 8, 1974.
Rehearing and Rehearing En Banc Denied Jan. 10, 1975.
William J. Baxley, Atty. Gen., Herbert H. Henry, George Beck, Thomas Sorrels, Asst. Attys. Gen., Montgomery, Ala., for petitioners-appellants.
Joseph Phelps, Phillip H. Butler, Montgomery, Ala., for respondents-ap-pellees.
Michael S. Loftman, Civ. Rights, Dept, of Justice, Washington, D. C., Ira DeMent, U. S. Atty., Montgomery, Ala., J. Stanley Pottinger, Asst. Atty. Gen., Patricia G. Littlefield, Walter W. Barnett, Attys., Dept, of Justice, Civil Rights Div., Washington, D. C., amicus curiae.
Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
GEWIN, Circuit Judge:
This appeal emanates from a district court order, reported at 349 F.Supp. 278 (M.D.Ala.1972), sustaining a challenge to the quality of medical care dispensed to inmates incarcerated in the Alabama Penal System (APS). While laboring arduously and meticulously to implement the extensive relief mandated by the district court in the interim between that decree and oral argument before this court, appellants nevertheless raise numerous evidentiary objections, contest the finding of a constitutional violation as erroneous, and dispute the authority of a federal court in fashioning remedial relief to dictate medical standards which must be implemented. Our en banc opinion in Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973), cert. denied, Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974), prompted consideration, sua sponte, of whether the issues presented in this case were appropriate for disposition solely by a three judge court. Concluding that appellants’ contentions cannot be sustained, and that the three judge court act, 28 U.S.C. § 2281, does not pose a jurisdictional impediment to the result obtained below, we affirm.
I
This class action litigation was initiated by the filing of a pro se complaint, designating the State of Alabama and various named individuals including the State Attorney General and the Warden of the Mt. Meigs Medical & Diagnostic Center (Mt. Meigs) as defendants. The original complaint chronicled examples of patient neglect transpiring at Mt. Meigs, one of several institutions in the APS. After granting the request of the United States to appear as amicus curiae and appointing counsel to appear on Newman’s behalf, the district court, in a pretrial order, extended the scope of the challenge registered from merely the shortcomings at Mt. Meigs to the inadequacies prevalent in the state system as a whole. In addition, it ordered further discovery procedures, pursuant to which a multitude of interrogatories and depositions were taken, and voluminous hospital records were subpoenaed. The facts recounted in this opinion are distilled from the information produced by these procedures and the evidentiary hearing at which this information was admitted into evidence.
The APS contains 5 major prisons which house several thousand inmates: (1) Mt. Meigs with 331 prisoners; (2) Holman with 677 prisoners; (3) Atmore with 1,022 prisoners; (4) Draper with 867 prisoners; and (5) Julia Tutwiler with 117 female prisoners. Additionally, the state operates 13 prison road camps which house 737 prisoners, the state Cattle Ranch which houses 25 prisoners, and the Frank Lee Youth Correctional Center in which 73 prisoners are incarcerated. Each facility is beset by certain deficiencies, though to different degrees.
The most critical infirmity, from which no institution has escaped, is insufficient staffing. Although a paragon of quality when compared to the other institutions, Mt. Meigs, which serves as the central receiving unit and the general hospital and diagnostic center for the entire system, was staffed only by 2 physicians whose consolidated efforts replaced one full-time physician, 3 registered nurses, 8 medical technical assistants (M.T.A’s), 1 lab and x-ray technician, and 1 pharmacist. It lacked a hospital administrator, a dietician, a medical records clerk, and a psychiatric consultant. Moreover, because the registered nurses worked a standard week, on the weekends and at night inmates would be attended only by M.T.A’s and inmate assistants, neither of which are technically qualified medical personnel. The personnel shortages at the other institutions were more severe. Draper, for example, was staffed only by 1 M.T. A. and inmate assistants. A licensed practical nurse worked a dayshift at Tut-wiler. Atmore was serviced by 3 M.T. A’s, a part-time dentist, and a contract physician who conducted sick call 5 days a week. Holman was similarly staffed by 3 M.T.A’s unavailable on weekends, a part-time dentist and a contract physician who made 3 visits per week for two hours at a time. Neither the road camps, the Cattle Ranch, nor the Youth Correctional Center was staffed by any medical personnel.
The deleterious consequences predictably occasioned by these shortages can be summarized as follows. First, it is necessary that unsupervised inmate assistants administer treatment and medication, take x-rays, give injections, and perform suturing and minor surgery on patients. Second, medical records are incomplete, inaccurate and not standardized. Third, and in conjunction with the latter deficiency, lines of therapeutic responsibility, if any exist, are poorly organized with the result that both doctors and their subordinates are often unaware of their responsibilities with respect to particular patients. Finally, emergency patients at Mt. Meigs are, as the medical records of several inmates reveal, left unattended for protracted periods of time.
Beyond staff deficiencies, the institutions suffer from unsanitary conditions. For example, although Mt. Meigs contains separate wards for tuberculosis and hepatitis patients, soiled linens and dishware from these wards are cleansed in the same area as the linens and dishware of the general ward population, a fact which heightens the potential for contagion. At one of the institutions, a whirlpool was discontinued due to a “lack of adequate material to clean [the] pool for staph infection.” Moreover, the physical plants of some of the facilities, particularly Draper and Julia Tutwiler, were in such a state of disrepair that sanitary conditions were jeopardized.
Assessments of the quality and quantity of medical supplies varied from institution to institution. For example, Dr. Joseph Alderete, the Hospital Director for the U. S. Penitentiary Hospital in Atlanta, Georgia, who conducted a survey of medical care in the APS, maintained that the drug supply at Mt. Meigs was adequate although some of the drugs administered were obsolete. At other institutions, chronic shortages were claimed to exist. Moreover, one institution was known to have employed rags and towels in lieu of gauze, the supply of which had been depleted.
The institutions generally also suffered from the existence of either ill-serviced or anachronistic equipment and medical procedures. For example, Tut-wiler, the women’s institution, employed drip ether as an anesthetic in delivery operations, despite estimates that this method had not been used after 1953. Dental equipment at several of the facilities was generally characterized as outmoded. Moreover, witnesses related instances of x-ray machines that were not monitored for leakage and hence were potential sources of radiation exposure.
Witnesses identified numerous other foibles, including the absence of ambulances at the institutions, the lack of established procedures for fire emergencies, the existence of interminable delays in effecting medical referrals to Mt. Meigs and, in individual cases, in filling requests for eyeglasses and prosthetic devices, and the inadequacy of facilities for geriatric inmates.
Finally, despite an estimate by Dr. Mracek, Medical Director of the Board of Corrections, that approximately one-third of the inmate population suffers from mental retardation, and an assessment by Dr. Alderete that 60 percent of the inmates are disturbed enough to require treatment, the APS provides only nominal assistance to mentally ill inmates. At the time this suit was filed, the Board of Corrections employed one clinical psychologist who devoted one afternoon per week to disturbed inmates at Mt. Meigs and spent an equally limited amount of time at Draper and Tut-wiler. No psychiatrists, social workers or counsellors were employed in the system. Additionally, obstreperous inmates were often placed in the general population and when finally removed, were left unattended in lockup cells not equipped with restraints.
The record is replete with examples of inmates upon whom untold suffering was visited as a result of these deficiencies. These examples provide graphic testimony to the cumulative shortcomings which beset the APS. One inmate, a quadriplegic suffering from a maggot infested wound because of unchanged dressings, was forced to endure approximately 20 additional days after the problem was identified before the wound was cleaned and the dressings changed. Another patient, a geriatric rendered partially incontinent by a stroke, was required to sit day after day on a wooden bench beside his bed so that the bed would be kept clean. He reportedly fell from the bench and his legs, one of which was subsequently amputated, became blue and swollen. He died one day after the amputation. Because of the unavailability of a surgeon to attend an inmate who had sustained a serious head injury, a doctor was forced to employ towels and clamps to remove the inmate’s skull from his brain. One inmate, transferred to Mt. Meigs as an emergency case, was not seen by a doctor until after a lapse of two days. The record contains numerous other examples of inmates who were discharged from facilities as cured or who were dismissed as malingerers, and yet were subsequently discovered to be suffering from an infectious malady or a terminal disease.
The district court found that the pitfalls inhering in the quality of medical care afforded inmates of the APS transgressed the interdictions of the cruel and unusual punishment clause of the eighth amendment. The ameliorative decree ordered that extensive relief be undertaken. In addition to enjoining the APS from, inter alia, failing to formulate plans detailing emergency evacuation procedures and sanitation measures to be implemented, failing to provide drugs, eyeglasses and prosthetic devices to inmates in need, and failing to place geriatric inmates in separate uncrowded quarters, the district court ordered the APS to take the following measures: (1) elevate the Mt. Meigs Medical & Diagnostic Center to a quality comparable to that envisioned in the United States Department of Health, Education & Welfare Proposed Revised Regulations for Participation of Hospitals in Medicare Programs; (2) formulate within 90 days a plan detailing the nature and extent of care to be provided at each infirmary facility, including the evaluation and modernization of equipment and medical techniques; (3) conduct a survey of staffing needs and file proposed minimum staffing requirements for each of the institutions; (4) adopt procedures which would facilitate the expeditious administration of treatment to emergency patients and inmates referred to Mt. Meigs, (5) circumscribe the functions unlicensed personnel could perform; and (6) ensure that needed medical care be provided to any afflicted inmate.
II
Although not raised by the parties below or in their briefs on appeal, this court, sua sponte, requested opposing counsel to address the issue of whether a three judge court should have been convened to adjudicate the merits of Newman’s claims. Since this issue is jurisdictional, we are. required to consider it, despite the failure of the parties to introduce it at any previous stage in the litigation. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, 460 (1974); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644, 652 (1963); Sands v. Wainwright, 491 F.2d 417, 424 (5th Cir. 1973); Johnson v. Netterville, 488 F.2d 394, 395-396 (5th Cir. 1974).
The relevant portion of the three judge court act, 28 U.S.C. § 2281, stipulates that a court of three judges must be convened when an injunction is sought against “enforcement or execution of such [state] statute or of an order made by an administrative board or commission acting under State statutes, Appellants point to two statutes which authorize the Alabama Board of Corrections to promulgate rules and regulations concerning the sanitation, health and hygiene of the general inmate population, and concerning inmates for whom long term medical confinement is necessary, see Code of Alabama, tit. 45, §§ 3, 4 (1959), as support for the conclusion that as in Sands v. Wainwright, supra, the state-wide practices under attack must be evaluated by a three judge court. This position, however, has only superficial appeal, and consequently we reject it.
In Sands v. Wainwright, supra, the en banc court considered whether challenges to various prison practices, registered in four consolidated cases, were amenable to three judge court jurisdiction. In one of these cases, Baker v. Estelle, petitioners attacked two practices of the Texas Department of Corrections (TDC). Under the first, inmates claimed to have been subjected to solitary confinement and loss of good time without requisite due process guarantees, and under the second, prisoners attacked the TDC practice of reading and censoring attorney-inmate correspondence as transgressing the first amendment. Neither the 1953 TDC regulations nor those adopted in 1973 subsequent to the filing of the complaint condoned the specific practices deemed objectionable by Baker. Indeed, he vigorously contended that because of this fact, resort to a three judge court was unwarranted. This court concluded, however, that in the context before it, the distinction between practices and regulations was artificial. The incisive reasoning undergirding this conclusion was articulated by Judge Goldberg as follows:
“The ‘practices’ whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. Plaintiffs claim that no particular paragraph or section of those Rules and Regulations — either the 1953 version in effect at the time this litigation was initiated, or the July 9, 1973, version currently in effect — is constitutionally offensive, and that no injunction is sought against any such paragraph or section. The entire thrust of plaintiffs’ argument, however, is that the Rules and Regulations, as a whole and as applied, are constitutionally deficient standing alone. More complete and more specific regulations must be mandated in order to assure that the present ‘practices’ will not be continued.” (Emphasis added)
491 F.2d at 428. Thus, the import of our disposition of the claims presented by Baker is that the complaint’s failure to explicitly challenge the constitutionality of a specific regulation will not vitiate the need to convene a three judge court, where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not spe-cifieally challenged. Adoption of the contrary view would have been tantamount to sanctioning the resort to se-mantical and legal artifices, a practice which should be steadfastly abjured.
Contrary to appellants’ contention, however, the challenges levelled in this case are fundamentally different from those orchestrated in Baker v. Estelle, and hence the reasoning enunciated therein is inapposite here. Initially, we apprehend a salient qualitative distinction between the pre-punitive confinement disciplinary procedures and mail censorship practices attacked in Baker v. Estelle and the calibre of medical care attacked by inmates of the APS. The practices in Baker v. Estelle had in fact been ordained by the TDC, and, as witnessed by the regulations on administrative confinement at issue in Guajardo v. McAdams, one of the four consolidated cases, were amenable to codification in regulation form. In contrast, the APS is not governed by any uniform practice or procedure in the administration of medical care, beyond the purported uniform practices of neglectful treatment dispensed at the various prison locations throughout the state. Moreover, it is sheer sophistry to suppose that the Alabama Board of Corrections would undertake, for example, to prescribe statewide the supply of gauze and drugs available to inmates, or the hours during which licensed medical personnel would be available to render treatment, or to mandate the inordinate delays to which emergency patients would be subjected. In this respect, the medical conditions were not susceptible to codification in the form of regulations.
A second difference between the case before us and that presented in Baker v. Estelle, is that here, unlike Baker, a decision granting the requested relief will not eviscerate any regulations governing medical care in the APS. Beyond the aforementioned Alabama statutes, which are only of remote significance, no codified statute or regulation will be affected by this litigation.
A final distinction, which underscores the sanctity of the regulations or statutes which must be passed upon by a court of three j udges, flows from the axiom that three judge court status is to be determined from allegations appearing on the face of a complaint. And this axiom, in turn, presupposes that the existence vel non of a uniform statewide practice is likewise ascertainable from the pleading stages of the litigation. Thus, in Sands v. Wainwright, supra, and the three companion cases, the state conceded that the practices complained of were of state-wide effect and only disagreed with the assertions of constitutional infirmity. In the case before us, the state not only questions the constitutional significance of medical conditions alleged to pervade the APS, but also contests whether in fact any uniform practice exists.
The decision in Sands v. Wainwright, supra, comported with what we characterized as a proclivity for a broad interpretation of the language “ ‘State statute . or . order made by an administrative board or commission acting under State statutes.’ ” 491 F.2d at 423. To countenance the application of Sands to the instant case would work an unprecedented expansion of the jurisdiction of three judge courts and would erode the customarily constrictive view of three judge court jurisdiction which the Supreme Court has mandated. See Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577, 591 (1974); Bd. of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 30 L.Ed.2d 697, 702 (1972); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800, 805 (1941). Accordingly, we conclude that this litigation was appropriately disposed of by a single judge district court.
Ill
In addition to challenging the district court’s conclusion that the quality of medical care violated the eighth amendment, appellants assign as error numerous evidentiary rulings rendered below. We have examined these rulings and find them to be compatible with F.R. Civ.Pro. 43(a) and the broad discretion extended in an equitable proceeding to a judge acting in his capacity as chancellor. Compare Castilleja v. Southern Pacific Co., 445 F.2d 183, 186 (5th Cir. 1971), and Butler v. Southern Pacific Co., 431 F.2d 77, 79 (5th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971), with Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 394-395 (5th Cir. 1961). Hence, we proceed to consider whether the finding of a constitutional violation can be sustained.
As appellants vigorously maintain, and as the district court acknowledged, courts must be wary to avoid obtrusively monitoring the conduct of prison officials and thereby encumbering the administration of prison affairs. This court has been sedulously mindful of its circumscribed role, see, e. g., Campbell v. Beto, 460 F.2d 765, 767 (5th Cir. 1972); Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir. 1970); Schack v. State of Florida, 391 F.2d 593, 594 (5th Cir.), cert. denied, 392 U.S. 916, 88 S.Ct. 2080, 20 L.Ed.2d 1376 (1968), and the foundation to which this role is pinioned. The underpinnings of judicial deference were recently articulated in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224, 235 (1974) by Mr. Justice Powell:
“Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.”
At the same time, however, this court has been cognizant of the fact that deference which shields officials engaging in intemperate action and which excuses judicial myopia is incompatible with our role as arbiters of the Constitution and hence cannot be countenanced. Thus, while obedient to our limited function in passing upon prison complaints, we have not been impervious to the need to fetter prison officials where constraints are constitutionally appropriate. For example, in Jackson v. Godwin, 400 F.2d 529, 535 (5th Cir. 1968), we remonstrated that once an individual is incarcerated, “any further restraints or deprivations in excess of that inherent in the sentence and in the normal structure of prison life should be subject to judicial scrutiny.” And we amplified these concerns in Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) j observing that:
“Whatever may be the outer contours of the ‘prison discipline rule’, it is apparent that the courts cannot close their judicial eyes to prison conditions which present a grave and immediate threat to health or physical well being . If ‘the deprivation of basic elements of hygiene’ has consistently been held violative of constitutional guarantees . . ., then certainly practices which result in the deprivation of basic elements of adequate medical treatment, particularly such deprivation as immediately threatens life and limb, would be equally vulnerable.” (citations omitted).
Underlying the reasoning articulated in these two cases is the conviction that deference should be tendered only as to these necessary or essential concomitants of incarceration, see Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir. 1970); Edwards v. Duncan, 355 F.2d 993, 994 (4th Cir. 1966); Newkirk v. Butler, 364 F.Supp. 497, 501 (S.D.N.Y. 1973). While limited mobility, for example, may be endemic to confinement, forcing inmates to endure severe infirmities without treatment for the duration of confinement is not. In conjunction with this reasoning, there has been a proliferation of decisions in which the fact that incarceration disables an inmate from procuring aid and creates total dependency upon the state for treatment has been seized upon as a justification for judicial scrutiny of prison medical practices. E. g., Fitzke v. Shap-pell, 468 F.2d 1072, 1076 (6th Cir. 1972); Mills v. Oliver, 367 F.Supp. 77, 79 (E.D.Va.1973); Sawyer v. Sigler, 320 F.Supp. 690, 696 (D.Neb.1970); Ramsey v. Ciccone, 310 F.Supp. 600, 604-605 (W.D.Mo.1970); cf. United States ex rel. Fear v. Rundle, 364 F.Supp. 53, 61 (E.D.Pa.1973).
Of course, neither the diminished need to defer on matters of inmate medical care to judgments of prison officials nor the heightened need to vouchsafe the interests of inmates can attenuate the requisite showing of a constitutional infirmity which triggers judicial disapprobation. The district court concluded that medical conditions in the APS transgressed the eighth amendment’s prohibition against cruel and unusual punishment. Numerous other courts have anchored their decisions to this provision. See, e. g., Nelson v. Heyne, 491 F.2d 352, 354-356 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir. 1970); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971), aff’g, 309 F.Supp. 362, 372-373 (E.D.Ark.1970); Coppinger v. Townsend, 398 F.2d 392, 393 (10th Cir. 1968); Ramsey v. Ciccone, supra, 310 F.Supp. at 605. An equally satisfactory constitutional repository is the due process clause. See Fitzke v. Shappell, supra; Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 688 (D.Mass.1973), aff’d, 494 F.2d 1196 (1st Cir. 1974). Under either of these rubrics, however, the challenge to the district court's conclusions of law cannot be sustained.
As was noted, the most critical shortage in the APS is of qualified medical personnel. In Campbell v. Beto, supra, 460 F.2d at 769, we characterized as serious the allegation that the Texas Department of Corrections failed to provide a full-time doctor at the Wynn Unit and employed, instead, unlicensed individuals to diagnose ailments and prescribe medicines. See also United States ex rel. Fear v. Rundle, supra, 364 F.Supp. at 59; Gates v. Collier, 349 F. Supp. 881, 888, 894 (N.D.Miss.1972), aff’d, 501 F.2d 1291 (5th Cir. 1974). Clearly, under Campbell v. Beto, supra, the widespread use of inmate assistants and M.T.A.’s is suspect. Conversely, the limited availability of qualified personnel poses a problem of constitutional magnitude.
The inexorable nonattention and delays in receiving treatment attributable to personnel shortages, the ill-conceived system for referrals of inmates to Mt. Meigs from other facilities, and the maladroitly operated “emergency” referral system also present grave constitutional problems. This court has repeatedly reversed dismissals of complaints alleging failure to treat or allowing a protracted period of time to elapse before rendering treatment. See Campbell v. Beto, supra, 460 F.2d at 767 (TDC’s refusal to permit inmate to see a doctor until 13th day of confinement in segregated status); Hutchens v. State of Alabama, 466 F.2d 507, 508 (5th Cir. 1972) (allegation of present lack of medical attention and medication, which produces intolerable pain and shortens life expectancy); Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961) (refusal to give needed attention or allow plaintiff to call a physician for 13 hours after he was jailed for driving his car into a ditch, as a result of which he sustained a broken neck). See also Fitzke v. Shappell, supra; Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969); Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969); Mills v. Oliver, supra, 367 F.Supp. at 79; Sawyer v. Sigler, supra, 320 F.Supp. at 695; Talley v. Stephens, 247 F.Supp. 683, 687 (E.D.Ark.1965); McCollum v. Mayfield, 130 F.Supp. 112, 114-115 (N.D.Cal. 1955). Certainly, if the infirmity — lack of attention — is of constitutional magnitude, then the deficiency which spawns the infirmity — lack of available personnel, and ill-conceived emergency and referral procedures — can also be deemed to be of constitutional import. Accordingly, the referral and emergency procedures presently employed cannot withstand scrutiny.
The record also revealed shortages in drug supplies, the unavailability of eyeglasses and prosthetic devices, and the employment of obsolete medical equipment and techniques. Courts will not tolerate serious shortages in medication. See Hutchens v. State of Alabama, supra, 466 F.2d at 508; Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970). See also Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974). Since equally severe harm can be occasioned by the unavailability of eyeglasses and the use of anachronistic and precarious medical techniques and equipment, we should not be any less prone to disparage these deficiencies.
A fourth debility under which the APS was found to labor was the presence of disorganized lines of therapeutic responsibility. An ineluctable by-product of this condition is that treatment prescribed by doctors is not administered by medical subordinates. Since the failure of prison officials to comply with doctors’ orders has occasioned judicial disapprobation, see Martinez v. Mancusi, supra-, Sawyer v. Sigler, supra, a medical organizational system pregnant with the possibility of noncompliance is similarly amenable to attack.
Finally, the record revealed glaring unhygienic conditions, including the potential for contagion caused by nonsegregated sanitary facilities for the Mt. Meigs general ward population and hepatitis and tuberculosis ward populations, and the facilities in a state of disrepair at Draper and Tutwiler. This court has scrutinized sanitary conditions of facilities and demonstrated its unwillingness to condone the use of such facilities which jeopardize the life or health of inmates. See Anderson v. Nosser, 456 F.2d 835 (5th Cir. 1972) (en banc), aff’g in part and reversing in part, 438 F.2d 183 (5th Cir. 1971). See also Thomas v. Pate, supra; Wright v. McMann, 460 F. 2d 126, 131 (2d Cir. 1972); Gates v. Collier, supra 349 F.Supp. at 887, 894; Hamilton v. Schiro, 338 F.Supp. 1016 (E.D.La.1970); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966).
We acknowledge that the inquiries of this court and the court below have not been free from difficulty. The challenge registered herein is unprecedented in scope. It evokes an evaluation of systemic medical deficiencies. Courts are not as readily equipped to quantify the suffering occasioned by pervasive shortcomings as they are to assess whether a particular inmate has been maltreated. Nevertheless, three factors coalesce, impelling us to conclude that the district court’s findings of constitutional inadequacy were not infirm.
First, many of the shortcomings prevalent in the APS have been judicially acknowledged to raise the spectre of constitutional infirmity in cases brought by individual prisoners. Moreover, most of those deficiencies which have not been specifically addressed by other courts but which we deem egregious are causes of conditions which have been abjured. For example, in our view, the causes of non-treatment or delays in treatment should trigger disapproval as strident as that prompted by the fact of non-attention or delay. Second, the pitfalls identified are of such a nature as to render large-scale improvident treatment inevitable. The use of dangerously out-mod-ed equipment and medical techniques threatens the welfare of every inmate upon whom such equipment and techniques are employed. Third, and in conjunction with the latter point, the record is replete with countless examples of inmates who were subjected to incalculable discomfort and pain as a result of the lack of medical care or inadequacy in the treatment administered. These examples fortify the conclusion that deficiencies were not isolated and bespeak of callous indifference to the welfare of inmate-patients. Moreover, these examples also belie any suggestion that suffering resulted merely from legitimate discrepancies of opinion as to the proper treatment to be rendered.
IV
Despite laboring strenuously to comply with the district court’s mandates, appellants nevertheless challenge the remedy it devised. The relief ordained, appellants claim, prescribes specific standards of medical care and thereby transgresses the principle that courts should not intrude into matters related to prison administration. But whatever force this argument has derives largely from its generality. For the existence of constitutional infirmities deprives the prison deference rule of its indomitably insulating nature and dictates that the rule yield to the remedial power of a court.
Moreover, far from being intrusive, the measures formulated leave virtually all initiative with the APS while being particularly well tailored to ameliorate the unconstitutional deficiencies acknowledged to exist. Certainly, those aspects of the decree which, for example, enjoin the APS from perpetrating further denials, from failing to file a fire emergency plan, and from failing to elevate sanitary conditions, etc., are not obtrusive or cumbersome. Indeed, it would appear that only 3 provisions of the decree envision pervasive, though necessary, changes. These provisions require (1) the submission of plans for improvement of each facility, (2) the submission of similar plans for staffing, at each facility, and (3) the elevation of Mt. Meigs to the standards enunciated in the Proposed Revised Regulations for Participation of Hospitals in Medicare. The former two requirements vest the APS with the initiative in the first instance. The latter requirement, though quite specific, was imposed only when appellants were remiss in submitting proposed standards requested by the court at the termination of the eviden-tiary hearing.
Moreover, we would note that there is a striking congruity between the relief ordered and various improvements which Dr. Mracek, Medical Director of the APS, desired to implement upon his assumption of duties. This congruity tends to belie the suggestion that the district court intemperately imposed its will upon prison administrators. And Dr. Mracek’s merely modest success leaves us less than sanguine that salutary change could be effected without moderate judicial monitoring.
Finally, it is axiomatic that the remedial power of a district court is coterminous with the scope
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_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
RAMIREZ v. INDIANA
No. 84-5059.
Argued March 19, 1985
Decided April 1, 1985
Kenneth F. Ripple, by appointment of the Court, 469 U. S. 1015, argued the cause for petitioner. With him on the briefs were David T. Link, Douglas W. Kenyon, Mollie A. Murphy, and Richard S. Myers.
William E. Daily, Deputy Attorney General of Indiana, argued the cause for respondent. With him on the brief were Linley E. Pearson, Attorney General, and Lisa M. Paunicka, Deputy Attorney General.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Justice Powell took no part in the decision of this case.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Leoda NEWPORT, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY, a Division of Southern Railway, Defendant-Appellant.
No. 74-1782.
United States Court of Appeals, Sixth Circuit.
Feb. 5, 1975.
Don S. Stansberry, Jr., Baker, Worthington, Crossley & Stansberry, Huntsville, Tenn., for defendant-appellant.
Richard W. Krieg, Morton, Lewis, King & Jones, John K. King, Knoxville, Tenn., for plaintiff-appellee.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
McCREE, Circuit Judge.
This is an appeal from the denial of a motion for judgment notwithstanding the verdict or in the alternative for a new trial, entered after the jury returned a verdict for plaintiff-appellee in the amount of $55,000. Jurisdiction is based on diversity of citizenship, and the law of Tennessee applies.
The case arises out of a railroad crossing accident in which plaintiff’s decedent was killed. On January 14, 1970, shortly before 4 p. m., Leland Newport, a resident of Scott County, Tennessee, was driving his truck in a westerly direction on Carson Road, a public road in Scott County. This road is intersected by two sets of railroad tracks constituting the main line of the Cincinnati, New Orleans & Texas Pacific Railway. The intersection is known as Pemberton Crossing and vehicular traffic is warned of the railroad tracks by a erossbuck warning sign located on the northeastern corner of the crossing.
The railroad tracks south of Pemberton Crossing appear to be straight and level to a motorist driving west on Carson Road. Moreover, for a distance in excess of fifty feet east from Pemberton Crossing, Carson Road is also straight and level. The railroad right-of-way extends fifty feet east of the center line of the eastern set of tracks.
Along the eastern right-of-way of the railroad south of Carson Road there is a bank covered with weeds and debris which, to some extent, prevents motorists driving west on Carson Road from seeing railroad trains traveling north. Nevertheless, a motorist who is driving west is able to see fifty feet to the south of Pemberton Crossing when he is on Carson Road fifty feet from the eastern track of the railroad; ninety feet when he is forty feet away; and four hundred fifty feet when he is twenty feet away. Near the crossing, on the western side of the track is a factory from which noise emanates.
Leland Newport approached Pemberton Crossing from the east on Carson Road. At approximately the same time, one of appellant’s trains was proceeding north on the eastern set of, tracks at approximately 32 miles per hour and was, at the time Newport was proceeding into the crossing, some 75 to 80 feet south of it. The train had been continuously blowing its whistle for a quarter of a mile south of the crossing.
Despite the train whistle and the crossbuck, Newport, who had driven across Pemberton Crossing before, drove straight into the path of the train without looking or stopping or even slowing down. When he approached within fifteen feet of the tracks and gave no indication that he was aware of the approaching train, the train’s engineer put the train into emergency in a futile attempt to stop it. Nevertheless, the train and the truck collided and Newport sustained fatal injuries.
On October 9, 1973, Leoda Newport, the wife of the deceased, filed a complaint alleging that her husband was killed because the Railroad was negligent in the operation of its train, in maintaining the right-of-way adjacent to the crossing, and in failing to employ warning devices other than a crossbuck at Pemberton Crossing. The Railroad denied that it was negligent in any of these respects and responded that plaintiff’s action was barred because her husband’s conduct constituted proximate contributory negligence.
The case was tried on March 14, 1974, before a jury which returned a verdict for plaintiff. On April 1, 1974, the Railroad’s post-trial motions were denied.
On appeal, the Railroad contends that a judgment should have been entered for it for two reasons: (1) because it was guilty of no negligence which was the proximate cause of the accident and the death of Leland Newport; and (2) because Leland Newport was guilty of proximate contributory negligence as a matter of law.
We conclude, after a careful examination of the record and of Tennessee law, that Leland Newport’s failure to stop or slow down, or even look for approaching trains at Pemberton Crossing despite the presence of a clearly visible crossbuck ^warning sign, constituted, as a matter of law, contributory negligence which was a proximate cause of his death. In light of this conclusion, we need not determine whether the Railroad was negligent in any respect.
As a general rule, “[t]he law in Tennessee, as elsewhere, provides that whether or not a plaintiff acted with due care is [a question] for determination by the jury.” Doane Agricultural Service, Inc. v. Coleman, 254 F.2d 40, 43 (6th Cir.), cert. denied, 358 U.S. 818, 79 S.Ct. 29, 3 L.Ed.2d 60 (1958), citing Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510 (1945). Nevertheless, in some cases, where reasonable minds could reach only one conclusion — -that plaintiff failed to exercise ordinary care and that his negligence was the proximate cause of his injury — it is appropriate to remove the case from the jury’s consideration.
In Tennessee, “a railroad crossing is a warning of danger and a motorist is required to exercise ordinary care for his own safety, including the precautions of stopping, looking and listening where ordinary care would require as much.” Maxwell v. Western Atlantic R.R. Co., 295 F.Supp. 740, 745 (E.D.Tenn.), aff’d, 406 F.2d 1326 (6th Cir. 1967). In that case, thiá court affirmed a judgment n. o. v. for the railroad in an action where the facts disclosed that plaintiff’s decedent attempted to cross railroad tracks without stopping to look for approaching trains .even though it was clear that he should have known he was at a train crossing.
In Fluckey v. Southern Ry. Co., 242 F. 468, 470 (6th Cir. 1917), this court, again applying Tennessee law, affirmed a directed verdict for the railroad rendered because plaintiff’s decedent was guilty of proximate contributory negligence and explained:
Upon the first question, it is unnecessary to go into great detail. We are satisfied that the court below was right. When the automobile reached a point 40 feet from the rail, the buildings and the standing cars on the driver’s left had so far ceased to obstruct his view that he could see 120 feet along the straight'5 track upon which the car was approaching, and at that moment the car was not more than 100 feet from the point of collision. It was broad daylight, there was neither smoke nor dust to obscure the view, there was no other moving train to drown the noise of the approaching car, nor was there anything to distract the driver’s attention. It is not to be disputed that, if the driver had looked at the first instant when looking would do any good, he would have seen the car coming. He was familiar with the crossing, and knew that, by reason of the obstructions, it was a dangerous crossing and must be approached cautiously. His clear duty was not only to look as soon as he could see, but to have his machine under such control that, if necessary, he could stop before getting into the danger zone. . . . [citations omitted].
Under these undisputed facts, there can be no tenable basis for a finding that Mr. Fluckey exercised that degree of care which would be observed by a reasonably prudent man in such a situation.
In this case, although the railroad permitted debris to accumulate on the eastern side of the track to the south of Carson Road thereby obscuring the southerly view of a motorist approaching the crossing from the east, the undisputed facts disclose that.the crossbuck sign was clearly visible to Leland Newport and that he failed to look, stop or slow down for an approaching train. If he had slowed down and looked after seeing the crossbuck sign, the evidence of physical facts, including the sight measurements of a civil engineer already referred to and photographs of the crossing submitted as part of the record in this appeal, render inescapable the conclusion that Leland Newport would have seen the train. See Southern Railway Co. v. Hutson, 170 Tenn. 5, 91 S.W.2d 290 (1936). A motorist who proceeds across a railroad track without looking for danger of which he is warned by a crossbuck sign cannot be said to have exercised due, or any, care for his own safety, and if his view is obstructed, he should slow down or, if necessary, stop to permit him to see whether it is safe to cross.
We hold, therefore, as a matter of law, that Leland Newport’s failure to slow down and look for approaching trains after being apprised of that danger by the crossbuck sign constituted contributory negligence which proximately caused his injury. Accordingly, the district court erred in refusing to grant appellant’s motion for judgment notwithstanding the verdict.
Reversed and remanded with instructions to enter a judgment for appellant notwithstanding the verdict.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_8_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 appellant. 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.
UNITED STATES of America, In its own right and for and on Behalf of the ACOMA AND LAGUNA INDIAN PUEBLOS, Plaintiffs-Appellants, Pueblo of Laguna and Pueblo of Acoma, Applicants for Intervention-Appellants, v. BLUEWATER-TOLTEC IRRIGATION DISTRICT OF NEW MEXICO, et al., Defendants-Appellees, Acoma and Laguna Indian Pueblos, Amici Curiae.
No. 84-1851.
United States Court of Appeals, Tenth Circuit.
Dec. 11, 1986.
Peter Thomas White, Sp. Asst. Atty. Gen. (Eric R. Biggs, Sp. Asst. Atty. Gen., Paul Bardacke, Atty. Gen., Douglas Meiklejohn, Asst. Atty. Gen., with him on the briefs), State Engineer Office, Santa Fe, N.M., for defendant-appellee State of New Mexico ex rel. S.E. Reynolds, State Engineer.
Paul L. Bloom and Benjamin J. Phillips, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., for defendants-appellees City of Grants and Grants Municipal Schools.
Richard A. Simms of Hinkle, Cox, Eaton, Coffield & Hensley, Santa Fe, N.M., for defendants-appellees Kerr-McGee Corp., Atlantic Richfield Co. and Fernandez Co., Ltd.
John B. Draper and Galen M. Buller of Montgomery & Andrews, P.A., Santa Fe, N.M., for defendant-appellee El Paso Natural Gas Co.
Clifford K. Atkinson and Walter E. Stern, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M., for defendants-appellees Berryhill, Exxon, N.M; and Arizona Land Co., Red Lake Ranch, Republic Supply Co., Santa Fe Mining, Inc., Santa Fe Pacific Railroad Co. and Star Lake Railroad Co.
Arturo G. Ortega of Ortega & Snead, P.A., Albuquerque, N.M., (Harold A. Ran-quist of Payne & Ranquist, P.C., Albuquerque, N.M., with him on the briefs) for Ami-cus Acoma Indian Pueblo.
Alan R. Taradash, of Nordhaus, Haltom, Taylor & Taradash, Albuquerque, N.M., for Amicus Laguna Indian Pueblo.
Before LOGAN and MOORE, Circuit Judges, and BROWN, District Judge.
Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation.
PER CURIAM.
This is an appeal from a judgment granting a motion to dismiss this case on grounds of abstention developed in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The reasoning of the district court is set forth in United States v. Bluewater-Toltec Irrigation District, 580 F.Supp. 1434 (D.N.M.1984), and in its memorandum opinion and order of April 12, 1984, docket entry number 1571 (unpublished). We have examined the briefs and the record and have concluded the dismissal was warranted. We therefore affirm the judgment of the district court for the reasons contained in its written opinions.
Question: This question concerns the first listed appellant. 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:
|
sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
ALVARADO v. UNITED STATES
No. 89-6985.
Decided June 25, 1990
Per Curiam.
At his criminal trial, petitioner claimed that the Government used certain peremptory challenges to remove black jurors solely on the grounds of race, contrary to Batson v. Kentucky, 476 U. S. 79 (1986). The District Court accepted the Government’s explanations for its challenges, and petitioner was convicted. He pursued his Batson claim in the Court of Appeals, claiming that the Government’s explanations were pretextual. The Government asserted that petitioner had not made out a prima facie Batson error and that it had race-neutral reasons for each challenge. The Court of Appeals did not rule on these competing claims, for it held that no appellate inquiry was required into the merits of a Batson claim if the jury finally chosen represented a fair cross section of the community, as did this jury. The conviction was affirmed.
Petitioner, seeking certiorari, urges that the Court of Appeals relied on an erroneous ground in rejecting the Batson claim. The United States agrees that the Court of Appeals erred in holding that as long as the petit jury chosen satisfied the Sixth Amendment’s fair-cross-section concept, it need not inquire into the claim that the prosecution had stricken jurors on purely racial grounds. That holding, the Government states, is contrary to Batson and is also discredited by our decision in Holland v. Illinois, 493 U. S. 474 (1990), which held that the fair-cross-section requirement of the Sixth Amendment did not apply to the petit jury and which was handed down after the Court of Appeals issued its opinion below. The Government urges us to deny certiorari, however, because petitioner failed to make out a prima facie case of intentional discrimination and because the reasons given for the challenges were race-neutral grounds for decision that the Court of Appeals did not reach.
When the Government has suggested that an error has been made by the court below, it is not unusual for us to grant certiorari, vacate the judgment below, and direct reconsideration in light of the representations made by the United States in this Court. See, e. g., Biddle v. United States, 484 U. S. 1054 (1988); Malone v. United States, 484 U. S. 919 (1987). Nor is it novel to do so in a case where error is conceded but it is suggested that there is another ground on which the decision below could be affirmed if the case were brought here. Indeed, a case decided earlier this Term presented such a situation and, without dissent, we vacated the judgment below for reconsideration in light of the position asserted by the Government in this Court. Chappell v. United States, 494 U. S. 1075 (1990). This is the appropriate course to follow in this case. If the judgment below rested on an improvident ground, as the Government suggests, the Court of Appeals should in the first instance pass on the adequacy of the Government’s reasons for exercising its peremptory challenges.
Consequently, the motion of petitioner for leave to proceed informa pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of the position asserted by the Government in its brief filed May 21, 1990.
It is so ordered.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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.
Lawrence J. KORB, Plaintiff-Appellant, v. John F. LEHMAN, Jr.; Everett Pyatt; Melvyn R. Paisley, Defendants-Appellees, and Carl M. Smith, Defendant.
No. 88-1746.
United States Court of Appeals, Fourth Circuit.
Argued March 9, 1989.
Decided Nov. 26, 1990.
As Amended Dec. 6, 1990.
As Amended Jan. 9, 1991.
Kate Martin, argued, American Civil Liberties Union Foundation, Washington, D.C., for plaintiff-appellant.
Robert S. Bennett argued (Amy Sabrin, Dunnells, Duvall, Bennett & Porter, Washington, D.C., on brief), for defendant-appel-lee Lehman.
Coleman S. Hicks, Covington & Burling, Washington, D.C., for defendant-appellee Pyatt.
Robert Plotkin, argued (E. Lawrence Barcella, Jr., on brief), Laxalt, Washington, Perito & Dubuc, Washington, D.C., for defendant-appellee Paisley.
Before RUSSELL and SPROUSE, Circuit Judges, and STAKER, District Judge for the Southern District of West Virginia, sitting by designation.
STAKER, District Judge:
The appellant, Dr. Lawrence J. Korb, appeals from the dismissal of his Bivens claim against the appellees, John F. Lehman, Melvyn Paisley, and Everett Pyatt, which sought compensatory and punitive damages for the alleged violation of his First Amendment rights. For the reasons set forth below, we affirm.
I.
Dr. Korb served as President Reagan's Assistant Secretary of Defense (Manpower, Installations and Logistics) from 1981 to 1985. After he resigned his Defense Department position in September of 1985, Korb was hired by Raytheon Corporation as Vice President in charge of the Washington, D.C., office. In that position, Korb was responsible for Raytheon’s relations with Congress and various government departments, including the Department of Defense.
Despite his reputation as a champion of President Reagan’s arms build-up policy, Korb joined the Committee for National Security (CNS), a group of private citizens organized to encourage informed debate about national security issues. The group, which includes former Defense Department officials and military officers, publishes an annual alternative defense budget that is largely critical of the amount of monies spent on national defense. Korb’s CNS membership was approved by Raytheon.
In February of 1986, Korb spoke at a news conference to announce the publication of CNS’ alternative defense budget. At that conference, the events of which were chronicled in local newscasts and a Washington Post news article, Korb called for a reordering of priorities and suggested a $200 billion reduction in defense spending over a period of five years to be accomplished, in part, by scaling back a planned 600-ship, 15-carrier Navy fleet. This planned Navy build-up was strongly supported by the Secretary of the Navy, John Lehman. The Washington Post article, entitled “Pentagon Ex-Defender Turns Critic” identified Korb as “a private citizen working for arms-maker Raytheon Co.”
Reports of the press conference soon reached both the Department of Defense and Raytheon. Upon reading the Washington Post article, Secretary Lehman met with members of his staff and expressed his indignation about Korb’s remarks and his belief that a company under contract to the Navy might be advancing programs that would seriously impair national defense. However, Lehman made no representation that he would seek retribution against either Korb or Raytheon, and at no time during the meeting did he encourage his subordinates to pursue the matter with Korb’s superiors. Meanwhile, at Ray-theon, there was also concern about Korb’s activities. Several executives felt that the statements attributed to Korb were not appropriate for a Raytheon employee and that the company would be inexorably associated with the well-publicized views of Korb.
Shortly after the conclusion of Secretary Lehman’s meeting, two staff members who were in attendance, Melvyn R. Paisley, Assistant Secretary of the Navy (Research, Engineering and Systems), and Everett Pyatt, Assistant Secretary of the Navy (Shipbuilding and Logistics), called Ray-theon executives to voice their displeasure with Korb’s statements. Paisley, believing Korb’s position to be contrary to that taken by Raytheon in earlier meetings with Navy officials, called R. Gene Shelley, a senior vice president of Raytheon and well-known business associate. During that call, Paisley was frank in his criticism of Korb, averring that a Raytheon official ought to be careful about talking in a public forum because of the possibility of inaccurate reporting. At no time during the conversation did Paisley suggest that Raytheon take any punitive action against Korb. In fact, in a follow-up letter dated March 19, 1986, Paisley communicated to Shelley his belief that the entire matter had been resolved to his satisfaction.
Also on February 26, 1986, Pyatt called Dennis Picard, senior vice president and general manager of Raytheon’s missile division. During that conversation, Pyatt expressed his dismay about the positions attributed to Korb — in particular, the claim that $200 billion could be cut from defense spending over the next five years and the contention that the Navy’s commitment to build and staff 600 ships could be abandoned, without affecting the security of the United States. Pyatt also informed Picard that the Navy is not permitted to absorb a contractor’s lobbying expenses as reimbursable costs, and that, through the payment of general overhead accounts, the Navy was, in effect, contributing to a portion of Korb’s Raytheon salary. Pyatt did not demand, request, or suggest that Ray-theon take any personnel action regarding Korb. Nor does the record before us reflect that Pyatt attempted to intimidate, coerce, or threaten Picard or Raytheon in any way.
During subsequent interviews conducted during an investigation into this matter, both Picard and Shelley indicated that they did not consider the telephone calls to be inappropriate in any way. And, although Secretary Lehman did not ask Paisley or Pyatt to contact Raytheon directly, he did express approval upon learning that the calls had been made.
Picard and Shelley both contacted Korb’s principal supervisor, Philip Phalon, to express their own dissatisfaction with Korb’s news conference and to report on the Navy’s reaction. Phalon was the individual principally responsible for the hiring of Korb. In the months preceding the news conference, both he and several other high-ranking Raytheon officials had become increasingly dissatisfied with the way in which Korb performed his job. Specifically, Phalon took exception to Korb’s regular absence from the office, the result of speaking engagements around the country. Further, Phalon was angered by a network evening news program on which Korb appeared making comments that were critical of the then unannounced federal defense budget. That particular interview was taped in Raytheon’s Washington, D.C., office.
Concluding that Korb was not the right man for the job, Phalon made an initial determination to terminate him. Admittedly, the calls from the Navy were a factor considered by Phalon in making such a decision. However, those calls were not determinative. Phalon described the events leading to Korb’s demise as follows: “Dr. Korb’s departure from [Raytheon was] part of a continuum. It was not triggered by Navy calls. Nor [were such calls] a decisive moment in time for Dr. [Korb] and his relationship with Raytheon Company.” This sentiment was echoed by J. Brainard Holmes, then president of Ray-theon, who testified he too was generally dissatisfied with the manner in which Korb performed his job.
Although Secretary Lehman was frank in his comments about Korb’s actions, stating that he “had every hope Raytheon would tell [Korb] to shut up and stop testifying against its principal customer,” upon hearing of Korb’s impending termination, Lehman called Holmes to reiterate that the Navy could continue to work with Korb and to urge Holmes to reconsider the decision to dismiss Korb. Holmes assured Lehman that Raytheon would take the Secretary’s views into consideration, but that a decision based upon Korb’s entire employment record would be made.
Ultimately, against the articulated wishes of Lehman, Paisley and Pyatt, Ray-theon decided to offer Korb another position in Philadelphia, which he declined to accept. Shortly thereafter, at the request of Congress, the Department of Defense conducted an investigation into the affair headed by Special Inquiries Investigator Lieutenant Colonel R.P. Jones, USAF. At the conclusion of the investigation, Jones reported that there was no evidence to suggest that Navy officials either requested or intended that Korb be fired. Further, according to the report, Korb’s departure from Raytheon was not solely attributable to the complaints by Paisley and Pyatt, but rather to a combination of factors that included the complaints of the Navy officials, as well as complaints from a staff member of the Senate Armed Services Committee, Carl M. Smith, and other Raytheon executives.
II.
In dismissing this action prior to trial, Fed.R.Civ.P. 12(b)(6), the district court relied on alternative grounds. The court held that “when the defendants’ alleged conduct is judged ‘in light of pre-existing law,’ what is ‘apparent’ is that the conduct was entirely appropriate and lawful.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It decided, therefore, that “plaintiff’s allegations fail to state a claim of violation of clearly-established law and defendants are ... protected by qualified immunity.” Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1987). Alternatively, the court held that “[a] plaintiff seeking damages for a constitutional tort must prove causation in fact, Beard v. O’Neal, 728 F.2d 894, 898 (7th Cir.1984), cert. denied, 469 U.S. 825 [105 S.Ct. 104, 83 L.Ed.2d 48] (1984), and government officials may not be held liable where the harm suffered by the plaintiff was ‘too remote a consequence’ of the official conduct. Martinez v. California, 444 U.S. 277, 285 [100 S.Ct. 553, 559, 62 L.Ed.2d 481] (1980).”
Because this was a decision based solely on the pleadings and supporting materials, our review of the record before us is de novo, and we are constrained by the standard employed by the district court. Fed.R.Civ.P. 56(c); Pachaly v. City of Lynchburg, 897 F.2d 723 (4th Cir.1990). We may, however, affirm on any ground fairly supported by the record. Lee v. United States, 809 F.2d 1406, 1408 (9th Cir.1987). After reviewing the record before us, we believe that the district court correctly dismissed Korb’s cause of action and, without reaching the issue of causation in fact, affirm on the basis that the appellees were protected by qualified immunity.
III.
In almost any action against a government official involving an alleged deprivation of constitutional rights a court is presented with a threshold question of the defendant’s immunity. “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted). This type of immunity is generally referred to as qualified immunity. Id. at 807, 102 S.Ct. at 2732. Except for certain specified exceptions, this is the form of immunity applicable to federal executive officials. Id. Qualified immunity not only shields a government official from liability for damages but it will also shield him or her from having to stand trial. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985). Consequently, the question of immunity is independent of the merits of a plaintiff’s claim, id. at 527-28, 105 S.Ct. at 2816-17, and may be decided in the early stages of litigation, even prior to discovery. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; accord, Turner v. Dammon, 848 F.2d 440, 443 (4th Cir.1988). This is what the district court did in this case, finding that the appellees were immune from suit because their conduct did not violate clearly established law. District Court’s Memorandum Opinion, Joint Appendix at 205, 212-17.
The central question in determining the issue of qualified immunity is whether or not the conduct of the government official violated “clearly established law,” i.e., the “ 'objective legal reasonableness’ of [his] action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.... ” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. at 640, 107 S.Ct. at 3039 (citations omitted). “[UJnder [this] test, an official may be entitled to immunity from suit even where he has violated a plaintiff’s rights — if [those rights] were not then ‘clearly established’ or if a ‘reasonable person’ in the official’s position could have failed to appreciate that his conduct would violate them.” Collinson v. Gott, 895 F.2d 994, 998 (4th Cir.1990) (per curiam) (Judge Phillips concurring) (citation omitted). A court, in making the determination as to whether a constitutional right has been violated, should not look at the right at its most general level but at “its application to the particular conduct being challenged.” Id. (citation omitted); Anderson, 483 U.S. at 639-40, 107 S.Ct. at 3038-39. If there exists a “legitimate question” as to whether particular conduct violates a particular right then the right is not clearly established and qualified immunity applies. See Tarantino v. Baker, 825 F.2d 772, 775 (4th Cir.1987).
The conduct being challenged herein is the appellees’ contact with officials of Korb’s employer in order to express their displeasure with and criticism of Korb for his public critical comments regarding the proposed Department of Defense budget and allegedly to cause his employer to fire him for making such comments. Korb contends that this conduct violated his First Amendment right of free speech. The district court found that the appellees were entitled to qualified immunity because no statute or agency rule or regulation prohibited the conduct alleged. Furthermore, case law, Donohoe v. Watt, 546 F.Supp. 753 (D.D.C.1982), aff'd mem., 713 F.2d 864 (D.C.Cir.1983), had held that high-level government officials had the right to communicate to entities doing business with their department adverse comments concerning the entities’ representatives. Id. at 756. Thus, the unlawfulness of the appel-lees’ conduct was not clearly established. Joint Appendix at 216-17.
The protection of citizens’ right to speak publicly on matters of public concern, such as the nation’s defense budget, is at the very heart of the First Amendment. First National Bank v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707 (1978). On such matters “free and open debate is vital to informed decision mak-ing_” Pickering v. Board of Education, 391 U.S. 563, 571-72, 88 S.Ct. 1731, 1736, 20 L.Ed.2d 811 (1968). The Supreme Court has said that it is essential to protect the rights of persons having special knowledge or expertise to speak on an issue of public concern. Id. at 572, 88 S.Ct. at 1736. “ ‘[Statements criticizing public policy and the implementation of it must be similarly protected.’ ” Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 2898, 97 L.Ed.2d 315 (1987) (citations omitted). It is for this reason that the Supreme Court has held that government officials may not retaliate against public employees for speaking on matters of public concern. E.g., id.; Pickering, supra. We see no reason why the same protection should not extend to employees of private entities.
“[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty’ and ‘property’ concepts of the Fifth Amendment_” Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959). The actions of government officials which cause a private employee to be deprived of his employment give rise to a Bivens-type action against those officials for violation of due process. Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987). We believe a Bivens action should also exist when government officials cause a private employee to be fired by his private employer for exercising his First Amendment right to speak out on matters of public concern. Cf. Reuber v. United States, 750 F.2d 1039, 1054-59 (D.C.Cir.1985) (private employee has Bivens -type cause of action against his employer-a government contractor-for violation of First Amendment rights when disciplinary action taken against plaintiff at behest of and in conjunction with government officials). Government officials may "offer adverse commentary upon the integrity, competence, judgment or discretion," Donohoe, 546 F.Supp. at 756, of a private employee. Even if it ought to be the law that such officials may not seek to retaliate against a private employee through his private employer solely for his exercising his First Amendment rights; however, such was not clearly established to have been the law when appellees committed the acts of which Korb complained.
Given what we have just said, what is clear is that at the time the conduct alleged in the complaint occurred, there was no law declaring that such conduct might give rise to a constitutional violation. In fact, the contrary was indicated. Dono-hoe, supra. The district court, therefore, was correct in finding that the appellees did not violate “clearly established” law and were thus protected from suit by qualified immunity. The judgment of the district court in dismissing this action is
AFFIRMED.
. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. Washington Post, Pg. A17, Col. 2, Wednesday, Feb. 26, 1986.
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_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.
Patricia ROHDE, Plaintiff-Appellant, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 78-3582.
United States Court of Appeals, Sixth Circuit.
Argued June 2, 1980.
Decided Oct. 13, 1980.
Michael R. Kube, Tricarichi, Carnes & Kube, Cleveland, Ohio, for plaintiff-appellant.
C. Richard Andrews, Burgess, Fullmer, Parker, Steck & Andrews, Cleveland, Ohio, for defendant-appellee.
Before LIVELY and BOYCE F. MARTIN, Jr., Circuit Judges, and PECK, Senior Circuit Judge.
JOHN W. PECK, Senior Circuit Judge.
This is a diversity action under Ohio law in which the district court entered judgment for the defendant insurance company declaring that no insurance contract existed on the life of plaintiff’s deceased husband. Plaintiff contends that defendant’s bad faith determination that her husband was an unacceptable risk entitles her, as beneficiary, to recover the full value of the insurance policy applied for by her husband. We agree and reverse the judgment of the district court.
I
Plaintiff is the widow of a man who applied for life insurance, arranged for payment of the initial premium, and took the required physical examination all on the same day. In exchange for these acts, defendant’s agent completed a form designated as a “Conditional Receipt.” This form contained a promise by the defendant to insure the applicant under the policy sought, effective the latest date on which the applicant completed the application and physical examination. The receipt further stated that defendant had no obligation except to return payment unless the company determined that as of the completion of the physical and application the applicant was an acceptable risk under its “limits, rules, and standards.”
The same day that the defendant applied for life insurance he died of an apparent heart attack. Acting under the condition of the receipt requiring the defendant to determine whether the applicant was an acceptable risk, the defendant investigated the application of plaintiff’s husband and determined that the deceased had been uninsurable for the policy sought. Accordingly, defendant denied liability under the agreement with the decedent and returned the premium payment to plaintiff.
II
An application for life insurance is an offer to purchase a policy and the insurer must accept before a contract exists. During the time the offer is outstanding and unaccepted the applicant has the power to revoke the offer. Such revocation would not only deny the insurer the right to accept and complete a sale, but also would be likely to cause the insurer to lose the expense of processing and investigating an application.
Insurers discourage or prevent the revocation of offers by use of conditional receipts or “binders” that give the insurer the option of ultimately accepting or rejecting the offer while making the offer irrevocable by conditionally accepting it. The most straightforward of these binders accept the offer and, as consideration for the applicant’s promise to purchase insurance, create immediate insurance for the applicant while reserving a right of the insurer to cancel all insurance after an opportunity to investigate the application.
The more prevalent form of binder, however, seeks to make the applicant’s offer irrevocable without giving the applicant interim insurance in exchange. See 7 Williston on Contracts, § 902A, pp. 197-203 (3d. ed. 1963). In this form insurance is promised to begin as of the date of the application or receipt subject to the qualification that the application must first be accepted or approved before any coverage begins. With these two provisions standing side-by-side in the binder, all that the applicant actually receives in exchange for his promise to purchase is the possibility of interim insurance. If the insurer does not approve the application, then no coverage ever exists. Of course, by the time the insurer approves or rejects, it will be likely to know whether the applicant has incurred a covered loss and can exercise its option to reject. Thus, the possibility of interim coverage is largely illusory under this type of binder. Recognizing that such binders are confusing to applicants and that applicants generally would be unlikely to enter such bargains if they actually understood them, courts have tended to find that binders that condition liability on “approval” of the insurer are ambiguous and that the parties to such contracts actually intend interim insurance as consideration for the applicants’ promises to purchase insurance if the insurer approves. E. g., Leube v. Prudential Life Insurance Company of America, 147 Ohio St. 450, 453, 72 N.E.2d 76 (1947).
Plaintiff in this case argues that the condition contained in defendant’s receipt is ambiguous and that the receipt should be liberally construed to provide interim insurance for the applicant pending the defendant acting on the condition. We agree with the finding of the district court that this condition is unambiguous and cannot be construed to provide the applicant with coverage prior to defendant’s determination that the applicant is “insurable.”
Unlike conditions which make an insurer’s liability depend solely on the insurer’s approval of the application, the condition contained in defendant’s receipt requires that the defendant determine whether the applicant meets limits, rules and standards of the defendant company regarding the policy sought by the applicant. This condition does not involve judgments based on subjective factors, but rather considerations of actuarial and medical prediction balanced against the company’s ordinary risk assignment practices. The defendant’s satisfaction or dissatisfaction with the risk represented by the applicant’s offer must be based on a reasonable examination of the application. See Schatzinger v. Lake View Land & Improvement Co., 23 O.C.D. 247, 250 (1910), aff’d, 87 Ohio St. 505, 102 N.E. 1126 (1912); Clewell v. Toledo Metal Sign & Advertising Co., 34 O.C.D. 40, 42 (1903), aff’d, 71 Ohio St. 471, 74 N.E. 1134 (1904). The defendant’s liability under the contract represented by the conditional receipt does not depend on the defendant’s subjective approval. Rather, the defendant promised to be liable for a covered loss if the applicant was qualified on the date his application was completed. This promise was the consideration agreed to by the applicant for his promise to purchase the policy. Since the defendant’s promise was not illusory and thus not inherently ambiguous, the cases cited by the plaintiff in arguing that defendant’s receipt should be construed as a promise of interim insurance are inapposite. The defendant’s receipt clearly stated that no interim insurance was provided and that coverage would become effective as of the date of the application only if the defendant found the applicant an acceptable risk under objective standards.
This conclusion is also responsive to plaintiff’s argument that the condition of insurability is a condition subsequent, the occurrence of which terminates insurance arising upon completion of the application. Under Ohio law insurers may attach conditions precedent to liability. See Gregg v. Insurance Co., 43 Ohio St.2d 119, 123, 330 N.E.2d 913 (1975). Cases cited by plaintiff finding conditions in insurance receipts to be conditions subsequent involve situations where sufficient ambiguity existed in the language of the receipt to warrant findings that the applicant could have believed that he received immediate temporary insurance. Defendant’s receipt in the present case clearly states that no interim insurance is provided until the occurrence of the condition that the defendant determine the applicant to be an acceptable risk. We agree with the district court that the second condition in defendant’s conditional receipt is a condition precedent to liability of the defendant. There is no ambiguity either in the language of the agreement or in the consideration given by the defendant sufficient to warrant a finding that temporary insurance in fact existed upon completion of the application.
III
Based on trial testimony and considering the entire record, the district court found that the defendant acted in bad faith and was without reasonable grounds in determining that plaintiff’s husband failed to meet the requirements for the policy sought. The issue of defendant’s good or bad faith is primarily a question of fact requiring an examination of defendant’s intent or state of mind. Occidental Life Insurance of California v. Bob LeRoy’s, Inc., 413 F.2d 819, 822 (5th Cir. 1969). The district court had the opportunity to weigh the credibility of defendant’s witnesses and was in a position to make the necessary inferences regarding defendant’s intent. This court will overturn the finding of bad faith only if the record does not support that finding. We have examined the record and the opinion of the district court and find substantial support for the finding of bad faith on the part of the defendant.
Having found defendant’s determination that the applicant was uninsurable to have been made in bad faith, the district court proceeded to determine what conclusion the defendant would have reached had it acted in good faith. Deciding that the defendant in good faith would have determined that the applicant was uninsurable under the standard policy applied for, the district court concluded that the defendant was not liable. This analysis fails to give defendant’s bad faith determination of the applicant’s uninsurability proper legal effect under Ohio law.
The defendant’s good faith determination that the applicant meet the defendant’s standards of insurability was a condition precedent to defendant’s liability under the contract represented by the conditional receipt. When the defendant acted in bad faith and determined that the applicant failed to meet the defendant’s standards, then the defendant’s own act prevented the occurrence of the condition precedent. The nonoccurrence or nonperformance of a condition is excused where that failure of the condition is caused by the party against whom the condition operates to impose a duty. Fire Assoc. of Philadelphia v. Appel, 76 Ohio St. 1, 80 N.E. 952 (1907); Hulett v. Fairbanks, 40 Ohio St. 233 (1883). Defendant’s failure to honor its obligation' of good faith in exercising its right to examine the application deprives defendant of any benefit it might obtain from that condition. The fact that the defendant might have found the applicant uninsurable had the defendant acted in good faith is not relevant under Ohio law.
With the condition precedent of determining the applicant to be insurable deleted from the contract, all conditions precedent to defendant’s liability were satisfied. By the terms of the contract agreed to by the defendant and the applicant when the receipt was completed the policy applied for became effective as of the day the applicant died and prior to his death. The defendant is therefore liable to the plaintiff in the full amount of the policy.
For these reasons we conclude that the judgment of the district court must be reversed and the case is remanded to the district court for further proceedings consistent herewith.
. The portions of defendant’s receipt relevant to this appeal read as follows:
This Conditional Receipt does not create temporary or interim insurance, and does not provide any coverage except as provided herein. This payment is made and accepted subject to the limits provision on the reverse side and to the following terms and conditions :
If:
... 2. the Company determines that, as of the latest of the dates of all required parts of the application, initially required medical examination . .. and tests, each person proposed for insurance was a risk acceptable under the limits, rules and standards of the Company for the basic policy plan and sum insured .. . then the insurance under the terms of the policy . .. applied for shall take effect as of the latest of the dates of all required parts of the application, [and] medical examinations. . . . Unless all of the preceding conditions are met, there shall be no liability on the part of the Company except to return payment.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
UNITED STATES of America v. Calvin L. RANDOLPH, Appellant.
No. 23222.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1970.
Decided Dec. 22, 1970.
Bazelon, Chief Judge, concurred in part and dissented in part and filed opinion.
Mr. Grant Stetter, Washington, D.C. (appointed by this court), for appellant.
Mr. John O’B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
The office of Lea’s Green Meadows, Inc. (Lea’s), a wholesale food enterprise, was held up and robbed at about 11 A. M. on November 8, 1968 by two men. Appellant Calvin Randolph was subsequently convicted by a jury on two counts and sentenced to a term of imprisonment for robbery and assault with a dangerous weapon. He appeals and we affirm.
I
At trial, the single contested issue was the identification of the accused and the Government presented an abundance of proof that Randolph was the robber in the dark raincoat who participated in the holdup using a sawed-off shotgun.
Otis Davis, a truck driver for Lea’s, testified that he had known Randolph for about one or two years, had seen him quite a few times, had been in games with him, they had loaned each other money, and he identified Randolph as the defendant. He further testified that between 10:30 A.M. and 11 A.M. on the day of the robbery he saw Randolph with Anthony McDonald (also later identified as one of the robbers) about two blocks away from Lea’s Green Meadows; that Randolph was wearing a dark green or black coat; that Randolph asked him where he was going and he told him he was going back to the plant (Lea’s Green Meadows), whereupon Randolph asked if he had any money and Davis said no and they parted going in opposite directions, Davis toward the plant.
Mr. Lea, the proprietor of Lea’s Green Meadows, testified he and others in his plant were held up at about 11 A.M. on November 8, 1968, that Randolph was one of the robbers, that the lighting was good in the plant at the time of the robbery, that Randolph first engaged him in conversation from a distance of about two feet before he held him up, that he had a good opportunity to view Randolph at that time and once or twice later in the holdup and that Randolph was not disguised. Later in the day of the robbery, Mr. Lea looked at several albums of pictures of possible suspects shown him by the Robbery Squad but did not identify any of the photographs and also did not identify any of the suspects he saw at Randolph’s apartment that same day. Within about a week of the crime, without any assistance, Lea identified a photograph of Randolph from nine or ten photographs shown to him at that time. He also made a lineup identification of Randolph and Me- ‘ Donald on December 10, 1968 and an in-eourt identification of Randolph at trial. Mr. Lea further testified that Randolph wore a (a) dark raincoat at the time of the robbery, that he held him up with a (b) sawed-off shotgun and carried away the proceeds of the robbery (over $500) in an (c) El Producto cigar box. These details assumed particular significance as the trial progressed.
Rogers, the shipping clerk at the plant, who was also held up corroborated Mr. Lea’s testimony of the circumstances of the robbery, the time of the holdup, the use by one robber of the sawed-off shotgun and that one of the robbers wore a black or dark green raincoat. Rogers, also without any assistance, from about 15 or 20 photographs shown him within the week after the robbery, made a photographic identification of Randolph (“[T]his is him.”) as being the robber in the dark raincoat who used the sawed-off shotgun (about two feet long) and made an in-court identification of Randolph. However, Rogers did not attend the lineup on December 10, 1968 when Mr. Lea testified he identified Randolph and McDonald.
Further significant evidence supporting the conclusion that Randolph was one of the robbers was adduced through the testimony of Officer Charles A. Mussomele (a 7-year veteran police officer) who testified that he knew Randolph previously, that on the day of the robbery at about 10:55 A.M. he was cruising in a police car about two blocks away from Lea’s Green Meadows when he saw two men walking very hurriedly on the side of the street; they appeared nervous as they kept looking around, their manner aroused his suspicions and he decided to stop them; he cruised to within about 14 feet of them and called to appellant “Calvin” [Randolph] by name to stop but both suspects ran away. He had observed Randolph carrying (a) something black under his arm (it looked about the way a black raincoat looks rolled up), and a (b) sawed-off shotgun under the light trench coat he was wearing at that time. Randolph was in the company of the other man who was carrying an (c) El Producto cigar box. Mussomele testified further that he chased the two men but was not able to apprehend them at that time. He made an in-court identification of Randolph and testified that the other man with him was about 21 years old, about 6 feet tall and had a mustache, goatee and light skin. The description fit that of McDonald.
There was thus ample evidence, both direct and circumstantial, that Randolph committed the offenses of which he stands convicted.
II
The principal issue on this appeal concerns the introduction in evidence of Lea’s identification of appellant at the lineup held on December 10, 1968. Specifically, appellant argues that he was not represented by counsel at the lineup and that the introduction of the identification at trial therefore violates the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
On December 10, Lillian Havenner, a bookkeeper at Lea’s Green Meadows, and Lea viewed a lineup in which both appellant and McDonald appeared. At the time of the lineup, appellant had not been arrested for the instant robbery and consequently did not have counsel in this case. However, he had been arrested previously on another robbery charge and counsel had been appointed to represent him on that charge. Appellant had been ordered to appear in the December 10 lineup in connection with the second robbery charge and his counsel on the other charge had been notified of the lineup and invited to attend. This he did not do. A lawyer for the Legal Aid Agency, Mr. Christensen, was present at the lineup, however, and testified that he
was a general representative lawyer there to represent those defendants who were unrepresented by counsel for purposes of that line-up.
Appellant does not contest the fact that Mr. Christensen was present at the lineup but argues instead that Christensen was not representing him for purposes of the lineup. On this issue, the evidence was somewhat ambiguous. Christensen testified twice on the matter, first, at the pretrial hearing held on appellant’s motion to suppress Lea’s lineup identification and, secondly, at the trial which followed. At the pretrial hearing, his testimony was that he attended a great many lineups, that he had no independent recollection of the instant one and that such testimony as he could give was based exclusively on the notes he had contemporaneously written on the separate cards he used to record the circumstances surrounding each lineup. He further testified that he had attended 14 lineups on the night of December 10, that his notes reflected that appellant was present on the stage but that he interpreted his notes to indicate that he “did not conduct a line-up” with appellant and that he “never had [appellant] particularly in mind as the defendant [he] represented.” He did, however, represent other persons suspected of participation in the same robbery who were present in the lineup, and made no objection to the lineup itself.
At trial the next day, Christensen modified his pretrial suppression hearing testimony somewhat to indicate that, although his attention was focused on another person in the lineup, he was representing appellant in a “general” way. On his cross-examination, it was also elicited that among the notes he made of the lineups he attended on December 10th was one which had appellant’s name at the top of the card relating to lineup 19. He further testified that it was his general practice to place the name of the person whom he was representing at the top of the card on which he wrote his notes concerning the lineup in which that person was involved.
Both at the pretrial hearing and at trial, Christensen testified that his lineup notes indicated that Lea did identify McDonald at the lineup. There was no indication on his notes that Lea had identified appellant, however, and from the absence of such indication, Christensen concluded that Lea had not identified appellant. However, Lea and two detectives who were present at the lineup testified that Lea did identify appellant and the police records of the lineup, which were admitted in evidence, indicated that he had.
Based on the foregoing, we are of the opinion that it was not erroneous for the trial court to conclude that appellant was represented by counsel at the lineup and therefore it was not error for testimony to be admitted concerning Lea’s lineup identification of appellant. Since Christensen had no independent recollection of the circumstances surrounding the lineup, great weight must be placed on his contemporaneous notes which recorded certain facts. See generally Zassenhaus v. Evening Star Newspaper Co., 131 U.S.App.D.C. 384, 387 n.18, 404 F.2d 1361, 1364 n.18 (1968); United States v. Riccardi, 174 F.2d 883 (3d Cir.), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The notes themselves were admitted into evidence without objection and, when Christensen’s testimony concerning his function at lineups is added to them, we think that it was permissible for the trial court to rely upon them and to conclude that he was representing appellant at the lineup.
The fact that Christensen’s notes do not indicate whether or not Lea identified appellant does not alter this conclusion. Obviously it would have been better if Christensen’s recollection of the circumstances surrounding the lineup were such that he could made a definite statement as to whether Lea did or did not identify appellant. See United States v. Wade, 388 U.S. 218, 230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, 1234, cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). However, Christensen could have missed hearing Lea’s identification in the general atmosphere surrounding the lineup. Even if his testimony is taken as indicating that Lea did not identify appellant, this testimony would be for the jury to evaluate in determining how much weight should be given to the identification in reaching its ultimate conclusion. Cf. United States v. Williams, 137 U.S.App.D.C. 231, 232-233, 421 F.2d 1166, 1167-1168 (1970).
Assuming, however, that appellant was not represented by Christensen, and that the admission of Lea’s lineup identification was error, we conclude that the error was harmless.
To summarize the testimony, Randolph was observed, by a person who knew him, near Lea’s Green Meadows shortly before it was robbed and was observed, again by a person who knew him, minutes after the crime, about two blocks from the scene of the crime, carrying a sawed-off shotgun, in the company of a person who was carrying an El Producto cigar box, the same brand of cigar box which was taken in the robbery. Mr. Rogers, an employee at Lea’s identified Randolph from photographs as being one of the men who robbed him and was able also to identify Randolph in court even though he had not viewed the lineup. In addition, there was testimony of three witnesses that Randolph was wearing a dark raincoat at the time and one testified he was carrying what could have been such a raincoat; the same three witnesses testified that the man with Randolph at the time was McDonald or at least a man who met McDonald’s description. The five identifications of appellant (excluding Lea’s lineup and in-court identifications) were unequivocal. Finally, Lea had an excellent opportunity to observe appellant under good lighting conditions at the time of the crime and without any assistance selected appellant’s photograph from a group of photographs shortly after the robbery. We are of the opinion that his in-court identification of appellant had a source independent of the lineup and was therefore admissible on its own. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; Clemons v. United States, supra, 133 U.S.App.D.C. at 34, 408 F.2d at 1237.
There was thus strong uncontroverted testimony (appellant did not testify) connecting appellant with the crime and the admission of Lea’s lineup identification was cumulative. If the admission of the lineup identification constituted error, based on our evaluation of its impact on the minds of the jury, we conclude that it did not contribute to their verdict and was thus harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gilbert v. California, supra, 388 U.S. at 274, 87 S.Ct. 1951; Chapman v. California, 386 U.S. 18 at 24, 87 S.Ct. 824, 17 L.Ed. 2d 705; Willard v. United States, 421 F.2d 59, 60 (9th Cir. 1969), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 572 (1970); see Long v. United States, 137 U.S.App.D.C. 311, 316-317, 424 F.2d 799, 804-805 (1969); Taylor v. United States, 134 U.S.App.D.C. 246, 248-249, 414 F.2d 1142, 1144-1145 (1969); Solomon v. United States, 133 U.S.App.D.C. 103, 106, 408 F.2d 1306, 1309 (1969).
We have carefully examined appellant’s other contention and find no error.
Affirmed.
. There was conflicting testimony on this point. See pp. 731-732, infra.
. Mrs. Havenner worked in the back room in Lea’s Green Meadows and saw only one of the robbers. She testified at trial that the robber she saw had a pistol (not the sawed-off shotgun which the testimony of other witnesses indicated that appellant was carrying), that he wore a brown scarf over his face from his nose down and that one of the men she saw at appellant’s apartment shortly after the robbery “looked like the one [she] saw” during the robbery. At the suppression hearing, there was testimony that she identified a person other than appellant or McDonald at the lineup. She made no in-eourt identification and no testimony was elicited concerning her participation in the lineup.
. Appellant was exhibited to witnesses in the instant case pursuant to an “Adams” order issued by the Court of General Sessions. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).
. Christensen was thus a “substitute” counsel. See United States v. Wade, 388 U.S. 218, 219, 237 n. 27, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Russell v. United States, 133 U.S.App.D.C. 77, 80, 408 F.2d 1280, 1283, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). We have indicated that the right to counsel extends to pre-indictment lineups, such as the one here and have discussed substitute counsel in that context. Mason v. United States, 134 U.S.App.D.C. 280, 282, 414 F.2d 1176, 1178 (1969). See also, United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970).
. Transcript, Vol. I, at 24:
Q. You have no independent recollection who the officer was?
A. I have no independent recollection of the line-up.
Q. No independent recollection of the line-up at all?
A. Correct.
Q. Everything you told us came from these notes?
A. That is correct.
. In Christensen’s terms, however, a “lineup * * * [is] when a witness comes in the line-up room and looks at the line-up men.” His testimony that he attended 14 lineups does not mean that he attended 14 separate arrays of suspects but merely that 14 separate witnesses looked at the lineups.
. Prom the pictures of the lineup, it does not appear to have been suggestive in any way and appellant does not contend here that it was.
. We express no view on the question of whether, in a different case, a substitute counsel’s inability to recall more of the circumstances surrounding a lineup than Mr. Christensen recalled here would meet the constitutional requirement of effective assistance of counsel. In such a case, the questions posed by Judge Bazelon may well be crucial. See page 734 infra. Here, however, the only issue raised concerning the events which took place at the lineup was whether Lea did or did not identify appellant. At its strongest, Mr. Christensen’s testimony indicates that he did not, thus presenting a jury question.
. Davis, Lea and Rogers indicated that appellant was wearing the coat and Mussomele said he had it rolled under his arm. Davis and Mussomele knew appellant previously.
. Davis as to his presence on the street two blocks away from Lea’s Green Meadows prior to the robbery; Rogers as to his photographic and in-court identifications; Lea as to his photographic identification; and Mussomele as to his identification two blocks away from Lea’s Green Meadows on the street after the robbery.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_interven
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
In the Matter of STEEL STRUCTURES, INC., Bankrupt-Appellee, v. STAR MANUFACTURING COMPANY and Detroit Gasket & Manufacturing Co., Petitioners-Appellants.
Nos. 72-1171, 72-1172.
United States Court of Appeals, Sixth Circuit.
Aug. 3, 1972.
Hugh W. Morgan, James A. Ridley, III, of Kramer, Dye, Greenwood, Johnson, Rayson & McVeigh, Knoxville, Tenn., James K. Giffen, of Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., for appellants.
Issie L. Jenkins, Scott P. Crampton, M. Rothwacks, B. N. Hollander, of Dept, of Justice, Tax Division, Washington, D. C., John L. Bowers, Jr., U. S. Atty., Leon Steinberg, Trustee in Bankruptcy, Knoxville, Tenn., for appellees.
John A. Walker, Jr., Knoxville, Tenn., of Egerton, McAfee, Armistead, Davis & McCord, Knoxville, Tenn., for trustee.
Before PHILLIPS, Chief Judge, and TUTTLE and O’SULLIVAN, Senior Circuit Judges.
Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for tbe Fifth Circuit, sitting by designation.
PER CURIAM.
This is an appeal from the decision of the District Court, 346 F.Supp. 332, affirming an order of the Referee in Bankruptcy which set aside a transaction as a fraudulent conveyance and voidable preference. We affirm on the basis of the comprehensive memorandum of Referee Clive W. Bare, set forth as an Appendix hereto.
Star Manufacturing Company further appeals from the District Judge’s refusal to receive additional evidence. The District Court found that “[t]he proposed evidence would not [have] change[d] [its] conclusions.” We agree. Star has failed to show such abuse of discretion as would warrant overturning this decision.
Affirmed.
APPENDIX
MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
I
This controversy over the execution of a fourth mortgage on the bankrupt’s real property which is attacked by the trustee as a lien obtained by legal or equitable proceedings within four months of bankruptcy, void under Sec. 67a(1) of the Bankruptcy Act; and/or a fraudulent transfer under Sec. 67d(3) of the Act; and/or a voidable preference under Sec. 60a and b of the Act. A fifth mortgage executed by the bankrupt at the same time is pertinent only insofar as it pertains to the entire transaction involving the bankrupt; Star Manufacturing Company of Oklahoma; and Detroit Gasket and Manufacturing Company, as the funds realized by the trustee from the sale of the real property are sufficient only to pay the first three mortgages in full and $10,000.00 on the fourth mortgage or to general creditors, as the facts and law require. Facts which have either been stipulated by the parties or found by the court are as follows.
II
(1) Steel Structures, Inc. (hereafter Steel Structures or bankrupt), entered into a contract with Detroit Gasket and Manufacturing Company (hereafter Detroit Gasket) to construct a steel addition /to an existing building belonging to Detroit Gasket in Newport, Tennessee. The contract was in the approximate amount of $27,000.00 and not bonded.
(2) Star Manufacturing Company of Oklahoma (hereafter Star) furnished materials for this construction to Steel Structures in the amount of $18,045.04.
(3) The contract was completed and Detroit Gasket paid Steel Structures in full in December, 1969, and/or January, 1970.
(4) On January 30, 1970, Star filed a Notice of Lien for materials and supplies furnished with the Register of Deeds, Cocke County, Tennessee. This notice of lien was filed against the property of Detroit Gasket.
(5) On April 30, 1970, Star filed an Original Lienor’s Bill in the Chancery Court for Cocke County, Tennessee, naming as defendants Steel Structures and Detroit'Gasket. This Bill was filed to enforce Star’s claimed lien for materials and supplies as set forth in the Notice of Lien described above. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970.
(6) An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On or about May 29, 1970, Detroit Gasket filed an Answer denying the validity of the claimed lien.
(7) On July 29, 1970, Hugh W. Morgan (an attorney representing Star), Thomas S. Matthews (President of Steel Structures), Doyle Vaden (Vice-President and Secretary of Steel Structures), John O. Threadgill (an attorney representing Steel Structures), and James K. Giffen (an attorney representing Detroit Gasket), assembled at the office of John O. Threadgill, and the Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket was settled on the following basis:
Steel Structures executed and delivered to Detroit Gasket a promissory note in the amount of $16,276.54 secured by a fourth mortgage on Steel Structures’ real estate located in Knox County. Detroit Gasket delivered two checks to Steel Structures payable to Steel Structures and in the amounts of $16,240.54 and $36.00. The former check was endorsed by Steel Structures and delivered to Star together with a promissory note in the amount of $1,-804.50 secured by a fifth mortgage on the Steel Structures, Knox County, real estate. The latter check was delivered to the Cocke County Chancery Court Clerk for payment of court costs of Star’s Lienor’s Bill filed in that court. Star executed a- release of its claimed lien and all the parties approved for entry an agreed order of dismissal with full prejudice of the suit commenced by Star against Steel Structures and Detroit Gasket.
(8) On July 29, 1970, after the transaction referred to in paragraph (7), the assets and liabilities of Steel Structures were the same as set forth in its petition in bankruptcy filed on August 11, 1970. The summary of such debts and assets taken from Schedules A & B of such petition are as follows:
Taxes due United States ............$ 23,959.73
Taxes due States................... 1,630.73
Secured claims..................... 48,287.04
Unsecured claims .................. 107,185.17
Accommodation Paper .............. 7,440.22
Schedule A — Total .............$188,502.89
Real Estate ......................$ 35,000.00
Stock In trade .................... 55,115.00
Debts due on open accounts.......... 75,319.58
Deposits of money In banks and elsewhere ................. 50,00
Schedule B — Total .............$165,484.58
(9) During May or June of 1970, Mr. Matthews, President of Steél Structures, and Doyle Vaden, Vice-President and Secretary of Steel Structures, discussed the advisability of filing a petition in bankruptcy on behalf of said corporation with E. L. Hicks, Certified Public Accountant of Knoxville, Tennessee. During the latter part of July or the first part of August, 1970, Messrs. Matthews and Vaden discussed the filing of a petition in bankruptcy for the corporation with Max M. Morrison, attorney of Knoxville, Tennessee. Mr. Morrison’s petition for compensation at attorney for the bankrupt filed September 3, 1970, reflects conferences with officers of the bankrupt commencing August 2 and ending August 10 when the petition and completed schedules were sworn to by-Mr. Matthews.
III
Lien obtained by legal or equitable proceeding within four months before the filing of the bankruptcy petition.
The trustee’s first attack on the transaction in question is based on Sec. 67a (1) of the Bankruptcy Act which provides as follows:
“Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this Act.”
The trustee cannot prevail under this section. No lien was obtained by legal or equitable process or proceedings against any property of the bankrupt. The Original Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket in the Chancery Court for Cocke County, Tennessee, sought to enforce a lien against property owned by Detroit Gasket — not by the bankrupt. Also, Sec. 67a(l) relates to and invalidates liens obtained by legal or equitable proceedings and not contractual liens. Such liens, however, may, of course, be invalidated if they constitute voidable preferences under Sec. 60 of the Act or fraudulent conveyances under Sec. 67d.
Collier summarizes the conditions that must be satisfied in order for the trustee to avoid a lien under Sec. 67a(l) as follows:
“A lien obtained in or pursuant to judicial proceedings, to be voidable at the suit of the trustee or the debtor, as the case may be, must, however, satisfy certain conditions: (1) it must attach the property of the bankrupt which passes to the trustee under Sec. 70a or is exempt under Sec. 6; (2) it must have been acquired within four months prior to the initiation of the bankruptcy proceedings ; and (3) it must either have attached during the insolvency of the bankrupt,, or it must have been sought and permitted in fraud of the provisions of the Act.” Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.03, p. 66.
As heretofore stated, neither Star nor Detroit Gasket obtained a lien against the bankrupt’s property in or pursuant to a judicial proceeding. The trustee’s attack under Sec. 67a(l) therefore fails.
IV
Fraudulent transfer under Sec. 67d(8) of the Bankruptcy Act.
Sec. 67d(3) enacts:
“Every transfer made and every obligation incurred by a debtor who is or will thereby be rendered insolvent, within four months prior to the filing of a petition initiating a proceeding under this Act by or against him is fraudulent, as to then existing and future creditors: (a) if made or incurred in contemplation of the filing of a petition initiating a proceeding under this Act by or against the debtor or in contemplation of liquidation of all or the greater portion of the debt- or’s property, with intent to use the consideration obtained for such transfer or obligation to enable any creditor of such debtor to obtain a greater percentage of his debt than some other creditor of the same class, and (b) if the transferee or obligee of such transfer or obligation, at the time of such transfer or obligation, knew or believed that the debtor intended to make such use of such consideration. The remedies of the trustee for the avoidance of such transfer or obligation and of any ensuing preference shall be cumulative: Provided, however, That the trustee shall be entitled to only-one satisfaction with respect thereto.” Sec. 67d(6) enacts:
“A transfer made or an obligation incurred by a debtor adjudged a bankrupt under this Act, which is fraudulent under this subdivision d against creditors of such debtor having claims provable under this Act, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value . . . ”
Sec. 67e of the Bankruptcy Act of 1898 enacted that all conveyances, transfers, assignments, or encumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt within four months prior to the filing of the bankruptcy petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against creditors except as to purchasers in good faith and for a present fair consideration. When subdivision (d) of Sec. 67 of the Bankruptcy Act was set up in the course of the 1938 revision, as a substitute for the former first sentence of Sec. 67e, Congress introduced as Paragraph (5) of Sec. 67(d) a provision making fraudulent transfers and obligations within four months of the filing of a bankruptcy petition, “made or incurred with intent to use the consideration . to effect a preference to a third person voidable under Sec. 60 of this Act.” The purpose of this provision, according to the House Judiciary Committee Report, was to cure a conflict in court decisions. The Supreme Court in Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917), had held that a mortgage was void under Sec. 67e of the Act, as in fraud of creditors, where it was given to the debtor’s brother-in-law to obtain funds to pay off the debt- or’s liability to a bank on forged documents, the debtor being hopelessly insolvent and the mortgagee fully aware of all the facts. Remington on Bankruptcy, Vol. 4, Sec. 1647, p. 149. Remington goes on to say that thereafter some of the lower courts reached the same result, that some went even further, but that others reached a contrary result. Remington, Vol. 4, pp. 150 and 151.
The 1938 version of Sec. 67d(3) was amended in 1952. Again quoting Remington—
“The 1938 version of Sec. 67(d)(3) was subjected to two criticisms: (1) it went considerably beyond the Supreme Court’s decision in Dean v. Davis and, as phrased, extended to any ease where an insolvent debtor borrowed money on security intending to use the security to pay off unsecured creditors; (2) it limited its application to instances where the intent was to effect preferences voidable under Sec. 60. In connection with proposed revision of this paragraph by the Act of July 7, 1952, the Report of the House Judiciary Committee recognizes the force of these criticisms. With respect to the latter, it says that ‘If anything, the estate needs greater protection in a case where the preference is not voidable [under Sec. 60], since the need for pursuing the auxiliary transaction is more acute where the preferred creditor is invulnerable.’ ” Remington, Vol. 4, p. 152.
To meet these objections and to provide a more accurate statutory embodiment of Dean v. Davis, the present language of Sec. 62d(3) (sic) was enacted.
Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.38, p. 545, states that 67d(3), as amended in 1952, “is designed to coordinate with Secs. 60 and 67a(l)(b) in codifying the rule of Dean v. Davis.”
To reach a determination of the issues involved in the present controversy, the actual situation that existed on July 29, 1970, must be scrutinized. Steel Structures, in the latter part of 1969, completed the construction of an addition to an existing building on Detroit Gasket’s property. Detroit Gasket paid Steel Structures approximately $27,000.-00 in full for this work. Steel Structures, while constructing this building, had purchased materials for such construetion from Star. Steel Structures did not pay Star for these materials. Star’s materials’ claim amounted to $18,045.04. On January 30, 1970, Star filed notice of lien and on April 30, 1970, filed a lienor’s bill against Detroit Gasket’s property. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970. Tennessee Code Annotated 64-1101 et seq. An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On May 28, 1970, Detroit Gasket filed an answer denying the validity of the claimed lien. Steel Structures did not answer. Steel Structures did not have the money to satisfy the lien claim. On July 29, 1970, Detroit Gasket advanced Steel Structures $16,276.54 to pay Star 90 per cent of its debt so that the asserted lien would be released. To secure this advance, Detroit Gasket took a fourth mortgage on Steel Structures’ property. As this advance did not pay Star in full, it took a fifth mortgage on Steel Structures’ property in the amount of $1,804.50 for the balance due on the Detroit Gasket job.
The parties agree that for the trustee to prevail under Sec. 67d(3) he must allege and prove the following:
(1) That the debtor has made a transfer of his property or incurred an obligation;
(2) That the debtor was insolvent at the time or as a result of the transfer or obligation;
(3) That the transfer or obligation became effective within four months of the filing of the petition initiating a proceeding under the Bankruptcy Act;
(4) That the transaction must have been entered into in contemplation of the filing of such a petition or in contemplation of liquidation of all or the greater portion of the debtor’s property;
(5) That the transaction must have been entered into with the intent to use the consideration obtained to enable a creditor of the debtor to obtain a greater percentage of his debt than some other creditor of the same class;
(6) That the transferee or obligee must, at the time of the transaction, know or believe that the debtor intends to make such use of the consideration.
See generally Collier, 14th Ed., Vol. 4, Sec. 67.38.
From the stipulated facts, the parties also agree that the bankrupt made a transfer of property (Element (1) above); that the bankrupt was insolvent at that time (Element (2) above); and that such transfer was effective within four months of bankruptcy (Element (3) above). This leaves for consideration by the court Elements (4), (5), and (6).
At the outset, it appears appropriate to point out that, for the trustee to avoid the transfer in question under Sec. 67d(3) of the Bankruptcy Act, a finding of “fraudulent intent” is not required, nor is the question of “fair consideration” or “good faith” involved. Stripped to its essential elements, this court’s decision under Sec. 67d(3) must be based on findings of whether (1) the transaction was entered into in contemplation of the bankrupt’s filing of a bankruptcy petition; (2) with the intent to use the consideration obtained to enable a creditor (Star) to obtain a greater percentage of its debt than some other creditor of the same class; and (3) Detroit Gasket’s knowledge or belief that Steel Structures intended to make such use of the proceeds.
Contemplation of Bankruptcy
The testimony of Mr. Matthews, president of Steel Structures, on this point is clear:
Q. — At this time [July 29] were you contemplating filing a petition in bankruptcy for the corporation?
A. — It looked pretty evident, Mr. Brooks. Yes, sir.
* -x- -x- * * -x-
Q. — You just testified that at that time it looked imminent that you were to file a petition in bankruptcy. Had you decided to file a petition in bankruptcy on July 29?
A. — No, sir. I don’t think so.
Q. — Had you consulted an attorney on July 29?
A. — Yes, sir. I had talked to an attorney prior to that time.
Q. — I believe Mr. Morrison represented you. Did you talk to Mr. Morrison about this ?
A. — Yes.
Q. — Prior to that time ?
A. — Yes.
Mr. Matthews further testified that, prior to July 29, 1970, he had discussed bankruptcy with Mr. Hicks, Steel Structures’ auditor. Three days after the July 29 transaction, Mr. Matthews actually went to an attorney who commenced preparation of the bankrupt’s petition and schedules.
Detroit Gasket insists that the purpose of the loan was to enable Steel Structures to continue in business and obtain materials from Star, its principal supplier. At one point Mr. Matthews testified that, when he executed the mortgage, he hoped to induce Star to extend further credit. The plain facts, however, form no basis for this expectation. Even after executing the two mortgages, Steel Structures still owed Star $28,000.00 on another job. Star had not extended credit to Steel Structures for many months. Star, therefore, was not a major supplier of Steel Structures on July 29, 1970, as insisted by Detroit Gasket.
Although the stipulation entered into between the parties indicates insolvency of some $23,000.00 on July 29, 1970, the actual amount of insolvency was much greater. Three accounts receivable carried on Steel Structures’ books in the amount of some $57,000.00 were either disputed or uncollectable. In June, 1970, its business had been seized by Internal Revenue agents but released about a week later when it was able to raise $11,000.00. Even this payment did not bring its tax account to a current status, as on July 29, 1970, it apparently owed an additional $25,000.00 for withholding and social security taxes. In 1967, 1968, and 1969 its total losses had exceeded $125,000.00. It was indebted to some one hundred twenty-five unsecured creditors with claims totaling over $90,000.00. These facts, of course, were known to Steel Structures’ president, Mr. Matthews, on July 29, 1970.
It is my conclusion that, when Steel Structures entered into the transaction on July 28, 1970, it was contemplating bankruptcy. In fact, such date can be considered the “eve of bankruptcy,” for preparation of the bankruptcy petition and schedules commenced within seventy-two hours thereafter.
Under Sec. 67d(3) the trustee is not required to show that the knowledge or belief of the transferee or obligee extended to the debtor’s contemplation of liquidation or a proceeding under the Bankruptcy Act. “The statute requires only knowledge or belief ‘that the debtor intended to make such use of such consideration,’ i. e„ that the debtor intended ‘to use the consideration ... to enable any creditor to obtain a greater percentage of his debt than some other creditor of the same class.’ Such a belief or knowledge includes a realization or surmise, at least, that the debtor is insolvent.” Collier, 14th Ed., Vol. 4, Sec. 67.38, p. 554 (emphasis added).
Clearly, the transfer in question diminished Steel Structures’ assets available for payment to general creditors. Prior to the transaction, Star was an unsecured creditor in the amount of $18,045.04 (as to the transaction under consideration). After the transaction, Star’s unsecured indebtedness had been reduced by $16,240.54 and Detroit Gasket was a secured creditor in that amount (plus an additional $36.00 advanced by Detroit Gasket to pay court costs in Star’s lienor’s suit). Star, thereafter, was also a secured creditor holding a fifth mortgage on the bankrupt’s property in the amount of $1,804.50.
The sole purpose of the transaction was to enable Steel Structures to pay Star an unsecured debt. All of the parties to the transaction knew this to be true. It was intended that the funds be used for that purpose; the funds were so used. Detroit Gasket’s check was not even deposited in Steel Structures’ bank account but immediately endorsed over to Star and deposited to its own account.
Intent
It cannot be seriously disputed that Steel Structures’ intent was to use the consideration obtained from Detroit Gasket to enable Star to be paid a greater percentage of its debt than other creditors of the same class (unsecured creditors). It was not only the intent of Steel Structures’ to use the consideration obtained for that purpose, it was the sole purpose underlying the entire transaction. The reason for executing the deed of trust was “to get Star paid and get the lien taken off” Detroit Gasket’s property. (Matthews' testimony February 17, 1971.) The purpose to which the proceeds of a loan are immediately applied is in itself evidence of the intent with which it was sought. Matter of Anderson, 252 F. 272 (DCRI 1918).
“When bankruptcy or liquidation is contemplated, an intent to make even a fractional payment to a particular creditor will ordinarily satisfy this requirement of Sec. 67d(3). The reason is that in the ensuing bankruptcy or other distribution on liquidation the fractional payment will enable the creditor receiving it to have an advantage pro tanto over creditors whose claims were not so reduced.” Collier, 14th Ed., Vol. 4, sec. 67.38, p. 553, footnote 27.
Transferees’ Knowledge
Both Star and Detroit Gasket knew at the time of the transaction that Steel Structures intended to pay Star the proceeds of the advance. This fact cannot be disputed.
In December, 1969, Star’s credit manager came to Steel Structures’ offices and went over the Detroit Gasket account. When he saw that Steel Structures was unable to pay Star, the lien action against Detroit Gasket was commenced. After the lien notice was filed, Steel Structures’ president, Mr. Matthews, promised Detroit Gasket he would “make an effort to pay [Star] which we were unable to do.” Thereafter, Detroit Gasket made several inquiries of Steel Structures and was informed that they were still trying to make arrangements to pay. Detroit Gasket never threatened legal action but advised Steel Structures they were turning the matter over to their attorneys. (Mr. Matthews’ testimony February 17, 1971.)
The trustee has carried the burden of proof required to avoid the transfer under Sec. 67d(3) of the Bankruptcy Act.
Detroit Gasket insists that, even if the court finds that all six elements of proof required to avoid the transfer under Sec. 67d(3) are satisfied, the mortgage is still valid against the trustee because of the exception provided in Sec. 67d(6) of the Bankruptcy Act — a transfer fraudulent under subdivision (d) “shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value.” Collier, 14th Ed., Vol. 4, Sec. 67.41, p. 588.
Detroit Gasket overlooks the statement in Collier that, “Knowledge of the transferor’s insolvency may, in conjunction with other factors, disable the transferee from asserting good faith. Indeed, the presence of any circumstance placing the transferee on inquiry as to the financial condition of the transferor may be a contributing factor in depriving the former of any claim to good faith unless investigation actually disclosed no reason to suspect financial embarassment.” (emphasis added) Collier, 14th Ed., Vol. 4, Sec. 67.41, pp. 588-590.
“Notice of facts which would incite a man of ordinary prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would disclose.” Coder v. McPherson, 152 F. 951 (CA 8th 1907). “No principle of law is better settled or more universally accepted.” Grandison v. National Bank of Commerce, 231 F. 800 (2d Cir. 1916), cert. denied 242 U.S. 644, 37 S.Ct. 213, 61 L.Ed. 542.
Both Star and Detroit Gasket on July 29, 1970, had knowledge of many circumstances which would place prudent business persons on inquiry as to Steel Structures’ financial condition. The debt to Star was months past due, in spite of the fact that Steel Structures had been fully paid for its work by Detroit Gasket. A lien had been filed against Detroit Gasket’s property and an attachment levied. Detroit Gasket’s advance to Steel Structures was not in the ordinary course of business. Detroit Gasket is a manufacturing company, not a lending institution. Detroit Gasket’s advance to Steel Structures was for one purpose only — to pay Star’s indebtedness so that its property could be released from Star’s lien and attachment.
Solvent business concerns do not permit materialmen’s liens to exist for several months. It is a “red flag” of warning that cannot be ignored by those who deal with builders and contractors. Detroit Gasket and Star are sophisticated commercial enterprises and are not unaware of realities. Nor are their attorneys. Although Detroit Gasket insists that Star’s lien against its property was not valid, it elected not to defend but to advance money to the bankrupt to pay Star and thereby obtain a release of its property from Star’s asserted lien. Detroit Gasket thereby assumed whatever risks were involved in this unusual transaction, including the present attack on the transfer by the trustee in bankruptcy.
Voidability under Sec. 67d(3) is not restricted to instances where the transfer meets all the terms of a Sec. 60 preference. See Remington, Vol. 4, Sec. 1647, p. 153.
To avoid a transfer under Sec. 67d(3), the burden of proof is initially upon the trustee, but, if a prima facie case is made out and the transferee claims to have been a bona fide purchaser or lienor, protected as such by the statute, he has the burden of so showing. Remington, Sec. 1641, Vol. 4, p. 118. Neither Detroit Gasket nor Star introduced any proof.
Detroit Gasket also insists that the facts in the present case differ substantially from those in Dean v. Davis, supra, as Steel Structures was not motivated by a fear of criminal prosecution to get a particular creditor paid before it went under. I am not sure this statement is correct. This court must take judicial notice of Tennessee statutes.
Tennessee Code Annotated 64-1140 enacts that any contractor, subcontractor, or other person who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor performed on, or materials furnished by his order for, this specific improvement, while any amount for which he may be or become liable for such labor or materials remain unpaid, shall be guilty of a felony and punished accordingly. The gist of this offense is that a person, exercising a contractual relation, cannot obtain funds for a specific purpose and then divert those funds to his own use, leaving outstanding obligations for which a creditor would have a lien upon the owner’s property. See State v. Overton, 193 Tenn. 171, 245 S.W.2d 188 (1951). This statute appears to be used infrequently; however, there can toe no doubt but that those engaged in the contracting business are fully aware of its existence and implications.
V
Voidable preference under Sec. 60 of the Bankruptcy Act.
The trustee also alleges the transfers are void as preferences under Sec. 60 of the Act. That section enacts:
“a(l). A preference is a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class, “b. Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent.”
Thus, this section requires seven elements of proof before a transfer can be set aside:
(1) That the bankrupt made or suffered a transfer of his property;
(2) That the transfer was to or for the benefit of a creditor;
(3) That the transfer was for or on account of an antecedent debt;
(4) That the transfer was made while the bankrupt was insolvent;
(5) That the transfer was made within four months of bankruptcy;
(6) That the effect of the transfer was to enable the creditor to obtain a greater percentage of his debt than some other creditor of the same class;
(7) That the creditor receiving the preference had reasonable cause to believe that the debtor was insolvent. Star insists that the payment to Steel
Structures from the proceeds of the advance from Detroit Gasket is not a preference under Sec. 60 of the Bankruptcy Act, citing Collier, 14th Ed., Vol. 3, Sec. 60.26, p. 882, as follows:
“[W]here a third person makes a loan to a bankrupt debtor specifically to enable him to satisfy the claim of a designated creditor, the proceeds never become part of the bankrupt’s assets, and therefore no preference is created. The rule is the same regardless of whether the proceeds of the loan are transferred directly by the lender to the creditor or are paid to the debtor with the understanding that they will be paid to the creditor in satisfaction of his claim, so long as such proceeds are clearly ‘earmarked.’ ”
Star also cites Grubb v. General Contract Purchase Corporation, 94 F.2d 70 (CA 2d Cir. 1938); In re Henry C. Reusch & Co., Inc., 44 F.Supp. 677 (DC NJ 1942); and Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (CA 10th Cir. 1955).
Star is correct when there is no diminution of the bankrupt’s assets. However, when there is a diminution of the bankrupt’s estate, the transfer can be avoided. Collier, 14th Ed., Vol. 3, Sec. 26, p. 884, states—
“Of course, the fact that an alleged preferential payment was made by a third party instead of by the bankrupt will not validate the transaction where the bankrupt’s assets were diminished thereby.” (Emphasis added.)
From time immemorial, courts of law have refused to sanction acts done by indirection, which, if performed directly, would be barred by law. Courts of Bankruptcy have from the beginning placed emphasis upon the purpose and effect of a given transaction irrespective of the manner in which it was accomplished — that is, regardless of whether such transfer was a direct or indirect transaction. The principle has been firmly established that a transfer which indirectly evades the provisions of the Bankruptcy Act by effecting an undue preference to a creditor is voidable. Collier, Sec. 60.08, p. 793, cases cited under footnote 1.
In the case of National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 56 L.Ed. 1042, the court said—
“To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_appel2_7_3
|
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 second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Walter F. BARTON and Betty E. Barton, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 88-8844.
United States Court of Appeals, Eleventh Circuit.
Jan. 29, 1990.
Roger A. Pies, Morgan, Lewis & Bocki-us, Washington, D.C., for petitioners.
Gary R. Allen, Chief, William S. Rose, Jr., William S. Estabrook, Charles Bricken, Appellate Section, Tax Div., Dept, of Justice, Washington, D.C., for respondent.
Before CLARK and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
CLARK, Circuit Judge:
In this appeal from the United States Tax Court, we are asked to untangle a complicated “sale/lease-baek” transaction to determine whether, during 1982, the appellants were “at risk” within the meaning of Section 465(b) of the Internal Revenue Code of 1954, as amended. Based on a stipulated factual record, the Tax Court found that the appellants were not at risk and upheld the Commissioner’s deficiency assessment. Having extensively analyzed the facts as stipulated by the parties, as understood by the Tax Court, and as presented by the parties on appeal, we find that the Tax Court erred in refusing to consider relevant evidence and based its ruling on a misunderstanding of the facts of the case. Furthermore, we are unable to rectify the misunderstanding because the factual record is incomplete. Therefore, we vacate the Tax Court’s decision and remand this case for further proceedings consistent with this opinion.
This ease involves multi-layered contractual relations among five parties that arise from the purchase and lease of $700,000 worth of computer equipment. It appears from the record that as of October 30, 1978, St. Joseph Leasing Corporation (“Leasing”) was the sole owner of the computer equipment. (Exh. R-18) By June 26, 1981, Leasing had leased all of the computer equipment to TRW, Inc. (Exh. R-18) From that point on, the computer equipment has apparently remained in the possession of TRW, Inc., which uses it in its business. Although the documents relating to this transfer of ownership are not in the record, it appears that sometime after June 26 and on or before November 25, 1981, Leasing sold its ownership interest in the computer equipment to St. Joseph Equity Corporation (“Equity”). On November 25, 1981, Equity sold its ownership interest in the computer equipment to petitioner Walter F. Barton, in return for $20,000 cash, a full-recourse Promissory Note for $110,000, and a non-recourse Installment Note for $570,000. (Exh. G — 7, H-8, 1-9, E-5) On that same day Mr. Barton leased the computer equipment back to Equity. (Exh. K-ll)
Pursuant to the terms of the Installment Note and the lease agreement between Mr. Barton and Equity, Mr. Barton was required to make 96 monthly Installment Note payments of $10,102.60 and Equity was required to make 96 monthly lease payments of $10,535.93. (Petitioner’s Brief, p. 5; Commissioner’s Brief, p. 4-5) Equity’s monthly obligation to Mr. Barton therefore exceeded Mr. Barton’s monthly obligation to Equity by $433.33. Instead of tendering checks to each other monthly, Equity offset Mr. Barton’s obligation under the Installment Note, and paid Mr. Barton $2,599.98 (six times $433.33) every six months.
The parties agree that Mr. Barton was at-risk for the amount of the full recourse Promissory Note. The question of whether he was at-risk for the amount of the Installment Note would not have arisen but for a December, 1982 amendment to the Installment Note. As noted above, the Installment Note was originally written to be a non-recourse obligation, and thus, Mr. Barton was not originally personally at-risk for the $570,000. The December, 1982 amendment (the “Amendment”) was intended to convert a portion of the Installment Note debt to recourse debt. Specifically, it provided that during certain years the non-recourse language of the Installment Note would only apply to amounts in excess of specified amounts, as follows:
December 31, 1982 $ 91,000
December 31, 1983 $201,000
December 31, 1984 $299,000
December 31, 1985 $383,000
December 31, 1986 $305,000
December 31, 1987 $216,000
December 31, 1988 $113,000
December 31, 1989 $ 5,000
Paragraph 2(ii) of the Amendment further provided:
The Seller [Equity] and its Assignee ... (ii) agree that if either: (a) the corporate bond rating of the lessee to whom the Seller is leasing the Equipment as published by Moody’s Investors Service, Inc. falls below such lessee’s rating as of the Commencement Date of the Original Term of the Lease; or (b) the net worth of the lessee to whom the Seller is leasing the Equipment falls below such lessee’s net worth as set forth in the most recent audited financial statement available as of the Commencement Date of the Original Term of the Lease, the Buyer may rescind this Amendment, in whole or in part, by tendering written notice to the Seller by registered mail, return receipt requested.
(Exh. F-6) This paragraph clearly gives Mr. Barton the option to relieve himself of the recourse liability for the amounts listed above upon the happening of one of two events. The Commissioner and the Tax Court take the position that this “opt-out” provision serves to prevent Mr. Barton from ever being at-risk, while Mr. Barton contends that the “opt-out” provision does not protect him in two “worst case scenarios” and thus he was at-risk for the listed amounts.
Mr. Barton and the Commissioner agree that if the word “rescind” in the Amendment was intended to mean prospective rescission only, then the Amendment would not operate as a stop-loss agreement, because Mr. Barton would still be at-risk for the listed amounts prior to the date of rescission. On the other hand, if “rescind” means that Mr. Barton could be relieved of all personal liability, past, present and future, then the Amendment would operate as a stop-loss agreement. Mr. Barton argues on appeal that the Tax Court erred in refusing to consider evidence that he and Equity intended for the word “rescind” to allow prospective rescission only. The Tax Court stated in a footnote: “In view of our conclusion and discussion in this opinion we do not consider it necessary to discuss the various arguments made by the parties ... such as whether the parol evidence rule would bar testimony as to the intent of the parties with respect to the provisions and whether “rescind” as used in the arrangement means ‘rescind’ or ‘revoke’.” Nevertheless, the Tax Court necessarily determined that the word “rescind” allowed rescission ab initio, because the Tax Court held:
[T]he net effect of the Amendment is to protect petitioner from economic loss because the only circumstance under which he realistically would be called upon to pay is where the end-user, TRW, would not or could not pay on its obligation and that is exactly the circumstance in which petitioner could get out of his recourse liability.
Tax Court Memorandum Opinion, p. 14.
The parties have stipulated that Virginia law is the applicable law to the construction of the Amendment. Under Virginia law, extrinsic (parol) evidence is admissible to determine the meaning of ambiguous contract terms. See Renner Plumbing, Heating and Air Conditioning, Inc. v. Renner, 225 Va. 508, 303 S.E.2d 894 (Va. 1983); Reed v. Dent, 194 Va. 156, 72 S.E.2d 255 (1952); Sunbury Textile Mills, Inc. v. Commissioner, 585 F.2d 1190 (3d Cir. 1978). The Commissioner concedes that the word “rescind” is ambiguous, but argues that the Tax Court did consider the surrounding circumstances when it was determining the effect of the Amendment, because the Tax Court made specific reference to the contractual relations of all the parties before and after the execution of the Amendment. The Tax Court offers no valid explanation for its refusal to consider the evidence offered by Mr. Barton regarding the parties’ intentions as to the meaning of the word “rescind”. Because the meaning and effect of the Amendment is crucial to the determination of whether Mr. Barton was ever at-risk, we must remand this issue so that the Tax Court may receive and consider all relevant evidence the parties have to offer with respect to the meaning of the word “rescind” in the Amendment.
Mr. Barton also argues on appeal that even if the Tax Court properly determined that the word “rescind” was intended to allow rescission ab initio, the Tax Court erred in finding that the “opt-out” provision in the Amendment would protect him from all potential personal liability on the Installment Note. To properly determine whether Mr. Barton was ever at-risk for the listed amounts, we must fully understand the contractual relations among the parties, because we must determine whether Mr. Barton could ever be in default under the Installment Note such that the holder of the Installment Note could hold him personally liable for the recourse portion.
The transactions between Leasing, TRW, Equity and Mr. Barton described above provide only the basic framework of the contractual relations among them. Contemporaneously with the purchase and lease-back of the computer equipment between Mr. Barton and Equity, several additional assignments were made. The stipulation of facts provided to the Tax Court and the Tax Court’s understanding of the facts are not consistent with the documents. For example, the documents show that Equity assigned to Mr. Barton its interest in the TRW lease as security for Equity’s obligation to make lease payments to Mr. Barton. (Exh. S-19) As security for his obligation to make payments under the Installment Note, Mr. Barton assigned his interest in the monthly lease payments due to him from Equity and his interest in the TRW lease back to Equity. (Exh. T-20, AJ-36) The supplemental stipulation of facts states only that:
d. [Mr. Barton] assigned to Equity all [his] rights under the lease between [Mr. Barton] and Equity.
f. Equity assigned its interest in the lease with TRW, Inc. to [Mr. Barton].
g. [Mr. Barton] assigned [his] interest in the lease with TRW, Inc. to Equity.
Thus, although the documents appear to show that the interests were not assigned outright, but rather were assigned as security for certain obligations, the parties appear to have stipulated that the assignments were outright assignments. However, their arguments on appeal show that they consider these to be “collateral” assignments, that is assignments as security for obligations, not outright assignments.
This sort of discrepancy also appears in the various versions of the facts presented in relation to the fifth party involved in this case. Describing the relationship of this fifth party to the other four is virtually impossible, because the record is incomplete, and the parties present inconsistent versions of this fifth party’s relationship to the case. It appears that when Equity purchased the computer equipment from Leasing, Leasing assigned an interest in its lease of the computer equipment to TRW to Equity. Whether this was a security interest only, or an outright assignment of Leasing’s interest in the TRW lease is impossible to determine, because the documents relating to the transfer of ownership of the computer equipment from Leasing to Equity are not in the record. Furthermore, although it would seem logical that having sold the computer equipment to Equity, Leasing would also make an outright assignment of its interest in the TRW lease to Equity, the documents sometimes refer to Leasing as the lessor (Exh. H-8), and sometimes to Equity as the lessor (Exh. J-10). This inconsistency becomes important when attempting to determine how the fifth party in this case relates to Mr. Barton.
On July 20, 1982, Leasing sold its interest in various lease payments to ■ Citicorp Industrial Credit, Inc. (“Citicorp”). The documents relating to this sale show that Leasing’s interest in the TRW lease was included in the sale. The problem is that other documents indicate that Equity at some point in time had an interest in the TRW lease, because Equity assigned that interest to Mr. Barton as security for its obligations to Mr. Barton under its lease of the equipment from him. No document in the record shows that Equity ever assigned an interest in the TRW lease back to Leasing. Therefore, it is unclear what interest Leasing actually had in the lease payments that TRW owed under the TRW lease. The Commissioner sometimes indicates that Equity was receiving the payments under the TRW lease (Commissioner’s Brief, p. 38), and at other times indicates that Leasing was receiving those payments (Commissioner’s Brief, p. 42). Also in connection with the sale of lease payments to Citicorp, Leasing agreed to act as a collection agent for Citicorp with respect to the lease payments. As security for that obligation, Leasing assigned its interest in various installment notes to Citicorp. Among these was Leasing’s interest in the Installment Note given by Mr. Barton to Equity when he purchased the computer equipment. Leasing obtained an interest in the Installment Note when Equity assigned its interest in the Installment Note to Leasing as security for Equity’s obligations to Leasing under the purchase agreement in which Equity purchased the computer equipment from Leasing. It appears then that, at the end of the day on July 20, 1982, Citicorp had an interest in the Installment Note.
Both Mr. Barton and the Commissioner argue on appeal that Citicorp only had a security interest in the Installment Note, and that Equity remained the beneficial owner of the Note and continued to be entitled to receive payments under the Note. The documents track this fairly clearly. However, in the supplemental stipulation of facts, the parties state that Equity assigned the Installment Note to Leasing, and that Leasing assigned the Note to Citicorp. No explanation that these assignments were assignments of a security interest, rather than outright assignments, appears in the stipulation of facts. The Tax Court erroneously concluded that Citicorp became the holder of the Installment Note. The Tax Court also concluded that the lease payments from TRW under the TRW lease, which were assigned to Citicorp, somehow managed to offset Mr. Barton’s obligation under the Installment Note such that TRW’s monthly lease payments served to discharge Mr. Barton’s monthly obligation to make payments under the Installment Note. It is unclear how the Tax Court reached this conclusion, but it may have been misled by the stipulations of the parties with respect to the assignments between Equity and Mr. Barton relating to the TRW lease. See supra, page 309. Nevertheless, both Mr. Barton and the Commissioner agree on appeal that TRW’s lease payments did not serve to discharge Mr. Barton’s obligations under the Installment Note, because Equity, and not Citicorp, remained the holder of the Installment Note throughout this myriad of assignments.
In reaching its decision the Tax Court relied on this erroneous understanding of the facts. Unfortunately, identifying the true holder of the Installment Note does not aid us in evaluating the arguments of the parties. A complete explanation of the parties’ arguments is almost impossible at this point, because they do not agree between themselves on what the facts are, and at times appear to change the facts to suit their arguments. Mr. Barton argues that there are two possible situations in which he could be held personally liable for the listed amounts. The first involves a default by Equity in its obligation to make monthly lease payments to Mr. Barton, and the second involves a default by TRW in its obligation to make monthly lease payments under the TRW lease. Both Mr. Barton and the Commissioner argue that a default by TRW would somehow give Citicorp an opportunity to pursue Mr. Barton on the note. However, they dispute the extent of the interest Citicorp has in the Installment Note. Mr. Barton claims that a default by TRW causes Mr. Barton to be in default on the Installment Note, while the Commissioner claims that a default by TRW only allows Citicorp to become the holder of Leasing’s security interest in the Installment Note.
Try as we might, we cannot properly evaluate the merits of these arguments based on the current condition of the factual record. Because Mr. Barton and the Commissioner disagree as to the relationships among the parties, we are forced to make an independent evaluation of the documents. Several crucial documents do not appear in the record, and thus we are unable resolve this issue on appeal. On remand, the parties must provide the court with the documents relating to Equity’s purchase of the computer equipment from Leasing, including documents showing what interest, if any, Equity obtained in the TRW lease. Additionally, the parties must explain what interest Leasing had in the TRW lease after selling the computer equipment to Leasing, and at the time that it sold its interest in the TRW lease to Citicorp. Only when these and any other missing links in the documentary chain have been provided, can the Tax Court make a proper ruling in this case.
Because the Tax Court failed to consider relevant evidence on an issue which might be dispositive of the case, and because the Tax Court based its analysis on a misunderstanding of the facts of the case, the decision of the Tax Court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. We remand the case for the Tax Court to start with a clean slate. None of the factual statements in this opinion are binding upon the Tax Court. Because of the complexity of the transactions, we suggest to the Tax Court that it not proceed upon a stipulation of facts by the parties nor upon the documents alone. To give meaning to the transactions, it will be necessary for the Tax Court to take evidence from the persons who structured the various transactions.
VACATED and REMANDED.
. TRW leased the computer equipment from Leasing under two separate leases. These leases are referred to throughout this opinion as "the TRW lease.”
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES v. CENTER VEAL & BEEF CO. et al.
Nos. 274-276, Docket 20622-20624.
Circuit Court of Appeals, Second Circuit
July 25, 1947.
See also, D.C., 61 F.Supp. 72.
George Troslc and Kaufman, Gallop, Cli-mcnko, Gould & Lynton, all of New York City, for appellants Frank J. Murray Co., Inc., Center Veal & Beef Co., [nc., and Siegfried Hermann.
Joseph C. Kenney, of New York Gty (Jesse Climenko and Joseph C. Kenney, both of New York City, of counsel), for appellant Albert Merlis.
Frederick H. Block and John F. X. Mc-Gohey, U. S. Atty., both of New York City, (Bruno Schachner, of New York City, Asst. U. S. Atty., of counsel), for the United States.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The defendants, Hermann and Merlis and their companies, were charged with buying false ration cheques, with fraudulently obtaining subsidies from the Defense Supplies Corporation, and with conspiracy to commit both these crimes. The charge against them for buying forged ration cheques was in seventy-six counts, each count for a separate cheque (we shall speak of it as the “Information”) ; the charge for fraudulently obtaining subsidies was in twenty-five counts, each count for a separate payment (we shall speak of it as the “Subsidy Indictment”). Judge Picard submitted all the counts in the three accusations to the jury, except counts 9, 12, 13, 14 and 15 of the “Subsidy Indictment,” and the jury brought in a verdict of guilty on all counts submitted. The judge dismissed counts sixteen to twenty-five, inclusive, of the “Subsidy Indictment.” Pie then sentenced Merlis and Hermann to five years on each count of the “Subsidy Indictment,” the sentences to run concurrently; and to $5000 fine on each count cumulatively. The only corporate defendant in the “Subsidy Indictment” was the Fratik J. Murray Co., Inc., and he sentenced it to a fine of $5000 on each count. Under the “Information” he sentenced Merlis and Hermann to one year’s imprisonment on each of the seventy-six counts — the sentence to run concurrently with the sentence on the two indictments — and he fined them $1000 each on the first fifty counts; and he fined each corporation $1000 on each of the first fifty counts. Under the conspiracy indictment he sentenced Merlis and Hermann to two years’ imprisonment — the sentence to run concurrently with the other sentences; he fined each $5000; and he fined each corporation $5000. The result was that Merlis and Hermann have been sentenced to imprisonment for five years, and each to a fine of $105,000; the P'rank J. Murray Co., Inc., has been fined $105,000, and the Center Veal & Beef Co., $55,000. Upon this appeal the appellants depend chiefly upon the insufficiency of the evidence; but they also complain of the conduct of the trial by the judge and the prosecutor; and that the conspiracy indictment was invalid, the object of the conspiracy having been in part accomplished. . We proceed first to state the evidence and to discuss the inferences which the jury was justified in making from it.
The Center Company was a wholesale meat seller which bought most, though not all its meat from the Murray Company, a butcher which bought cattle direct from the breeders. Both were corporations, and Hermann and Merlis owned all the shares of each, half and half (Hermann had assigned his interest in the Center Company to his wife; .but it is not necessary to say that a jury would be justified in finding that this was a mere fetch to conceal his continued interest). He was president of the Murray Company, and Merlis was president of the Center Company. The two companies had a single New York office, but the Murray Company’s butchery was at Chester, New York; it did not appear that Merlis ever went to Chester, but Hermann was at time's at the New York office. Beginning in June, 1943, the Murray Company began to file with the Defense Supplies Corporation applications for subsidies, which the regulations allowed to butchers to cover the “spread” between what they had to pay to the unregulated breeders, and the “ceilings”which limited the prices they might charge to wholesalers or retailers. Each of these petitions had alleged that the Murray Company had filed with the O.P.A. a statement of the number of pounds of meat it had butchered, the number of points it had received from wholesalers; and that the statement had been accompanied by ration cheques of the Murray Company, to the order of the O.P.A. upon its ration point account in its own bank. Until April, 1944, all these petitions were false, because the Murray Company had never filed any such statements with O.P.A. and had not of course filed any ration cheques with them.
It does not appear how or why the O.P.A. learned that the Murray Company had been getting subsidies in this way; but it did learn so at least as eárly as April, 1944, and it demanded an accounting. The Murray Company then filed cheques drawn on its account for the deficiency up to date, together with a statement covering all past transactions. Since its point account in the bank was not large enough at the time to meet the necessary drafts, it built it up by cheques of the Center Company drawn on the Center Company’s point account in another bank for past purchases from the Murray Company. On the other hand, as the Center Company’s own account was not itself large enough to cover these drafts, that company built it up by the deposit of forged ration cheques, purporting to be drawn by meat dealers upon a New Jersey bank. These the Center Company procured as follows. They were in blank— without payees — and the company bought them from one, Tapen, a wholesale meat dealer, who had them from Bertola, a painter, who forged the makers’ names upon blank cheques, which he got from the bank’s teller, Hahn. As the cheques were presented at the bank, Hahn abstracted them before they were charged against the supposed makers’ accounts — out of the four-names used only one was fictitious. Thus the Center Company got a credit in its point account when the clearing house —Federal Reserve Bank — credited the cheques to its account in its own bank, and Hahn’s bank never apparently discovered that any charge had been made against it. How the charge, which must have appeared in the clearing house accounts, was concealed from Hahn’s bank docs not appear; but it makes no difference, for conccdedly the scheme was for a time successful. The Center Company continued to buy these cheques until the autumn of 1944, when the fraud was discovered; but not until it had bought cheques for about twelve million points, -ivhich — since the only testimony is that the price was one dollar a thousand — a jury might conclude had cost $12,000.
The guilt of the Murray Company upon those counts of the “Subsidy Indictment” which covered petitions filed before the Center Company began to pay ration cheques, is too clear for debate. Only someone in authority could conceivably have had any motive so to fill the company’s treasury: moreover, it is incredible that the practice should have gone on' for so long as it did without, not only the connivance, but the active direction, of Her-mann. The fact that his signature to the petitions was not proved — if it was not — is irrelevant; if he was not the guilty person, a jury would have had to assume that some subordinate, who could not profit a penny, vicariously continued throughout the period to filch money from the United States and pour it into Hermann’s and Merlis’ pockets. Picard, J., left to the jury all the counts of the “Subsidy Indictment” (except, as we have said, numbers 9, 12, 13, 14, 15) upon the theory that, even after the Center Company had begun to pay ration cheques, if the cheques delivered to the O.P.A. were based upon the forged cheques deposited by the Center Company, the statements were fraudulent. Later Picard, J., out of what was perhaps an excessive caution, dismissed counts 16 to 25 inclusive, leaving only those ten counts charging petitions filed during the period when no statements and no cheques whatever were filed with the O.P.A. On these ten counts the sentences against Hermann and the Murray Company are impregnable.
The only question as to the “Information” is whether Merlis knew that the cheques were forged, — if so, he and the Center Company were guilty on all counts. That he could not have supposed that he was engaged in lawful transactions is apparent from their very nature, although there was corroboratory evidence. Such cheques could not be the subject of lawful sale; their only permissible use was in the purchase of meat and the jury was justified in imputing to Merlis knowledge of this basic condition of the business.' The only even plausible argument is that, although he may have known that the cheques were in some way illicit, nothing proved that lie knew them to have been forged. This can easily be shown to be without foundation; for there were only three possibilities: the cheques might have been bought from the makers; they might have been stolen; they might have been forged. The first we can rule out at once; no wholesaler or retailer, even if fraudulently disposed, would be likely to sell points, which were absolutely necessary to his own accounts. Moreover, if he did, he would not sell them to a confederate at such a price that the confederate could get his share of the loot by selling them at one dollar a thousand. Again, it was impossible that they should have been stolen from the makers; for they were in blank and yet they were for a given number of points. That meant that, although the wholesaler or retailer had drawn them to cover some specific purchase, he had left the seller’s name blank. That Tapen or his unknown confederate should be able-before the makers delivered them to the sellers — to steal a series of such cheques which were not prepared in advance of the transactions, is fantastic. If stolen, they must have stolen from the sellers, and even though we were to assume that it was customary to pay in cheques which had no payee, it would be highly unreasonable to suppose that the sellers, finding their cheques stolen, would not at once have stopped payment at the bank on which they were drawn; or, if they did not know what the bank was, would not have notified the buyers. For these reasons the guilt of Merlis and the Center Company upon the “Information” was as clearly proved as that of the Murray Company and Hermann on the “Subsidy Indictment.”
There remains only the conspiracy indictment, our discussion of which will also dispose of Hermann’s and the Murray Company’s guilt under the “Information” and Merlis’s guilt under the “Subsidy Indictment.” It was an irrefragable inference that each man must have known what the other was doing. Each was an equal owner in both companies, together they were the only owners. While it is true that the Center Company did not get all its meat from the Murray Company, it got by far the greater part; and, conversely, while the Murray Company did sell meat to others than the Center Company, it sold by far the greater part to that company; to all intents the men were doing a single business as butchers and wholesalers. The butchering part of the business had been going on for months by a series of frauds; and when these were eventually discovered, and it became necessary to cover them, the selling part of the business stepped in with a complementary series of frauds by which the first series could be, and for a time in fact were, concealed. Yet we are asked to say that this seamless web was woven in part by one hand and for the rest by another and that one hand did not know what the other was doing. We are to say that a jury had to conclude that although Hermann carried on his raids upon the Treasury for the equal benefit of Merlis and himself, he did not communicate them to Merlis; and that, although when Hermann’s crucial need arose for points which he knew Merlis had not supplied, Merlis did not tell him that the points by which he was making up for his past illegal purchases were based upon credits in his bank fabricated by forged cheques. Even if the two men had been dealing at arms length, this obvious concert of action to extract them from past illegal transactions would have been enough to charge them; but, as we have seen, they were not dealing at arms length, but had always been joint and equal owners. Any jury which had allowed itself to be fobbed off with the blind that each man had not been privy to what the other was doing, would have been made up of simpletons or knaves. No doubt, at the outset the purchase of forged cheques was not contemplated; the two men may have supposed that their frauds would never ,be discovered; perhaps they trusted to their ingenuity to devise an escape, if they were. The ame when they first decided to purchase the forged cheques, is not. of any consequence ; it did not divide the conspiracy into two parts; the means which confederates adopt to disentangle themselves from the consequences of their earlier offences, are part of their enterprise; avoiding detection is implicit in every conspiracy
The next point is that the conviction for conspiracy must fail under the doctrine which we accepted in United States v. Zeuli, which is that, where the object of the conspiracy is a crime to which the conspirators are the only parties and which they have consummated, they may not be indicted for a conspiracy to commit it. The indictment charged Hahn, Bertola and Tapen, as well as Merlis and Hermann, with a conspiracy to commit a number of offenses, among them that of buying forged ration cheques. The argument is that, when Merlis bought and Hahn, Bertola and Tap-en sold the cheques, it was no longer possible to indict them for conspiracy to commit it; and that it does not appear that the sale was not the only offense which the jury found that the defendants did conspire to commit. This reasoning misconceives the doctrine. It does not mean that whenever conspirators have consummated the crime which they have planned, they can no longer be convicted of conspiracy. That might have been a good doctrine, but it is not the law. What it does mean is that, when thewhen the crime, which is the object of the putative conspiracy, requires for its commission some reciprocal action of the conspirators indicted, they may not be indicted for conspiring to commit it if they have in fact consummated it. This is because the crime presupposed their mutual agreement which was therefore a part of it. We'may assume that, if Tapen had been indicted with Merlis for conspiracy to sell the forged cheques, the indictment would not have stood; but the conspiracy charged, although Tapen was said to have been a party to it, was not so limited. It charged two crimes: the purchase of the cheques and the filing of the petitions; arid to neither of these crimes were Merlis and Hermann necessary parties. Merlis did not buy the cheques of Hermann; Hermann did not file the petitions with Merlis.
The now almost inevitable challenge of the fairness of the prosecution’s summing up has little foundation. Part of it appears to rest on the theory that if the inferences are untenable which a prosecutor asks a jury to make, the verdict cannot stand: a strange conception. Provided the prosecutor confines “himself to the evidence and makes an argument which he believes to be valid, it would be an utterly impossible standard to require the judge to check its cogency; and it would be the clearest invasion of the jury’s function. It is true that in his peroration the prosecutor in the case at bar seems in substance to have asked the jury, if they had doubts about the defendants’ guilt, to consider the effect upon the public of a verdict of not guilty. That he plainly should not have done; but upon objection by the defendants the judge corrected it as follows: “I will eliminate * * * the statement * * * about broadcasting to the American people in the event of another emergency.” We think it incredible that with this caution the remark, ill advised as it was, could have left any effect upon the jury. As to the prosecutor’s allusion — it was nothing more —to Romanoff’s testimony before the grand jury, it was plainly a slip, for he had just .before told the jury to “strike * * * out any reference to Romanoff.” Nobody obj ected to it at the trial; plainly it is now brought forward as an afterthought.
The chief complaint of the charge is that the judge did not read or explain to the jury that regulation which required the petitions to be supported by statements made to the O.P.A. and by ration cheques; and that other regulation which forbade the purchase of forged ration cheques. It is true that the Third Circuit in three decisions, has held, where the crime was selling above the ceiling price, that it is necessary to explain the regulations to the jury, and that the judge’s failure to do so vitiates the conviction, even though the defendant did not ask him to do so. Moreover, there is language in the hooks lo the effect that the jury must always be told to “apply the law to the facts,” and that it is not enough merely to tell them what issues of fact determine guilt. In Morris v. United States, there is an elaborate collection of these expressions Tt is of course true that a jury has the power to acquit the accused, though they may believe that he is guilty; and that this is an inherent element in the system. Nevertheless, since admittedly it is their duty to accept the law as the judge gives it to them, we cannot understand what distinction there is, except one of mere form, between telling them what issues determine guilt, and what legal propositions they should apply to the evidence. The only conceivable difference, so far as we can see, is that the second method may be thought to give them a larger apparent latitude for disregarding the law and substituting their own notions of justice. We are extremely sceptical that it has even that it has even that effect; and we are not at the moment ready to assume that the encouragement of such a disposition is essential to the preservation of our liberties.
Be that as it may, the present appeal does not require us to decide the point, and, arguendo, we will assume that it was necessary for the judge to leave the case to the jury in the form of those general propositions of law which they were to apply. He begun his charge with the “Subsidy Indictment” and read to them the statute, which makes it a crime to present any false claim against the United States. He then took up the “Information” which was for a violation of an extremely long and prolix statute, giving power to the President to ration scarce goods in time of war, one subdivision of which (No. 5), makes it a crime not to obey orders issued in pursuance of the authority so conferred. He suggested that it was not necessary to read this statute, and the defendants expressly assented. Pie then read one count of the “Information” which incorporated in ipsissimis verbis § 2.5 of Article II of Ration Order No. 8. He then recurred to the “Subsidy Indictment,” and told the jury that it charged the defendants with making a fraudulent statement that the Murray Company had filed “the report required * * * under Ration Order No. 16.” That order is a very long one in twenty-four articles occupying over twenty pages of agate print in the Federal Register; and laying out with the greatest conceivable particularity the whole system of rationing meat, fats, fish and cheeses. He did not then go into any details; hut after his colloquial charge, while dealing with the prosecution’s requests, he said of Ration Order No. 16 that it “required the deposit with the office of Price Administration of certified checks of slaughterers based on credits legitimately acquired by the deposit of legitimate meat ration checks.” That was an entirely accurate synopsis of the regulation, so far as it went; all it omitted was that part of the regulation which required the filing of statements which the cheques were to accompany, and nobody suggested that the omission was material. We will not upset a conviction for such an omission, or require a judge to befuddle a jury by reading pages of verbiage, which for its comprehension needs hours of study. If this is part of trial by jury, the Supreme Court must declare it; we cannot see that as yet any court has gone so far.
The only other point that requires discussion is the judge’s refusal to grant the defendants’ fifteenth request to charge which in substance was that, if Hermann had in good faith filed the subsidy petitions on the advice of counsel, he was guiltless. The judge gave as his reason that there was no evidence that Hermann had acted on any legal advice, in which we may for argument assume that he was wrong. However, he had just charged the jury at length that the mere signing of the cheques was not a crime; that the person who signed them— Hermann — must have known them to be untrue and have signed them to accomplish some unlawful end; and that intent was always crucial. “Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion.” Having so unequivocally told them that they must find that Hermann was engaged in what he knew was unlawful transaction, it would have been bringing coals to Newcastle to add that he was not guilty if he acted in good faith upon his lawyer’s advice.
There are other objections, but they are trivial,' and we shall not discuss them. The accused had a fair trial; their guilt was manifest; their offense struck at the nation’s protection in its hour of peril; if punishment is ever justified,' the sentences they received were just. Their sordid contribution toward breaking down the collective effort to conserve our national resources, was morally removed only a step from giving aid and comfort to the enemies of their country.
Convictions affirmed.
2 Cir., 137 F.2d 845.
Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 57 L.Ed. 450; United States v. Uram, 2 Cir., 148 F.2d 187.
United States v. Levy, 3 Cir., 153 F. 2d 995; United States v. Noble. 3 Cir., 155 F.2d 315; United States v. Pincourt, 3 Cir., 159 F.2d 917.
9 Cir., 156 F.2d 525.
Title 18, U.S.C.A. § 80.
Title 50 U.S.C.A. War Appendix, § 633.
United States v. Bayer, 330 U.S. 67 S.Ct. 1394.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_district
|
E
|
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".
O’BRIEN v. PUBLIC SERVICE TAXI CO.
No. 9942.
United States Court of Appeals Third Circuit.
Submitted on briefs Oct. 11, 1949.
Decided Dec. 7, 1949.
William A. Bissell, Scranton, Pa., and Stark, Bissell & Griffith, Scranton, Pa., for appellant.
Carlon M. O’Malley, Scranton Pa., and John W. Bour Scranton, Pa., for appellee.
Before McLAUGHLIN and KALODNER, Circuit Judges, and FEE, District Judge.
KALODNER, Circuit Judge.
In this action, the plaintiff seeks redress for injuries alleged to have been sustained while he was riding in a taxicab owned by the defendant and operated by one of its employees. The jury returned a verdict in his favor, upon which judgment was entered, and the District Judge denied the defendant’s alternative motions for a new trial or for judgment notwithstanding the verdict. 83 F.Supp. 55.
It should be stated that federal jurisdiction exists here through the diversity of citizenship of the parties, and, since all the events relevant to the action occurred in Pennsylvania, its law is determinative of their rights. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
The verdict of the jury requires that the evidence and the inferences therefrom be taken favorably to the plaintiff. We do not deem it of utility to repeat the evidence; rather, it is sufficient to state that our examination of the record leads us to hold that there was adequate evidence to permit the jury to find, either directly or through legitimate inference, the following critical facts:
At about 2 o’clock on the morning of August 16, 1946, the plaintiff was a fare-paying passenger in the defendant’s taxicab, then being driven by one Angelo Cali who was, at that time, engaged in executing the contract of carriage. The plaintiff was occupying the front seat to the right of Cali at the latter’s request, and there were no other persons in the taxicab. The plaintiff, without having done anything to provoke it, received from Cali a blow on his head of such force as to render him unconscious.
The plaintiff, in seeking to support the verdict on this appeal, asserts that a presumption of negligence arose On proof that he was a passenger in a vehicle operated by the defendant as a common carrier and that he was injured during the carriage. He relies, as did the court below, on Bickley v. Philadelphia & Reading Ry. Co., 1917, 257 Pa. 369, 101 A. 654, although it would appear, from later cases, that the requisites for such a presumption in Pennsylvania are more exacting: see Nebel v. Burrelli, 1945, 352 Pa. 70, 74-75, 41 A.2d 873. However, neither the issue of negligence nor the suggested presumption was submitted to the jury. Indeed, the jury was instructed, in accordance with the defendant’s request, that it was bound to return a verdict for the defendant if it did not find that Cali had struck the plaintiff. Accordingly, in our view of the case, the issue of negligence is not of decisive importance.
The learned District Judge exhaustively dealt with the problem of determining the state of the law of Pennsylvania with respect to the liability of the defendant for the assault of a passenger by its employee. There is no dispute that the defendant was a common carrier. Cf. Hughes v. Pittsburgh Transportation Co., 1930, 300 Pa. 55, 150 A. 153. And we agree with the holding of the court below that the rationale of Artherholt v. Erie Elec. Motor Co., 1905, 27 Pa.Super. 141, warrants the result it reached.
In that case, the court said, 27 Pa.Super at pages 146-147: “1. The responsibility of a common carrier for the tortious acts of its servants affecting passengers being transported, does not rest alone upon the doctrine respondeat superior. When a passenger has entered a car of a street railway company and has paid his fare, a quasi contractual relation is established whereby the company assumes certain duties from responsibility for the breach of which it cannot discharge itself by prescribing rules for the government of the conduct of its servants. True, common carriers do not, in legal contemplation, warrant the absolute safety of their passengers, but they are bound to the exercise of the utmost degree of diligence and care, and it has been held that this duty includes the exertion of such power as conductors and other trainmen have to protect passengers from violence of other persons. * * * If the duty of the carrier to afford protection, which he is to discharge through his servants, extends to the prevention of injury from the acts of third persons which it is practicable for the servant in charge to prevent, it is difficult to see why it should be held not to include protection against the active participation of the servant himself in an unprovoked and wanton assault upon a passenger, committed while he is being transported, and while the servant is engaged in executing the contract of carriage. According to the great weight of authority the carrier is responsible for such misconduct of the servant to whom it has intrusted the safe carriage of passengers * * * and none of the Pennsylvania cases cited by the appellant’s counsel upon this point hold a different doctrine.”
The principle enunciated in the Artherholt case was adhered to in Greb v. Pennsylvania R. Co., 1909, 41 Pa.Super. 61, 67-68, where it was held to be a logical conclusion to those cases in Pennsylvania imposing a duty on the carrier to protect passengers from violence of other persons.
The Artherholt case was also cited with approval in Durando v. Philadelphia Rapid Transit Co., 1922, 80 Pa.Super. 65. In Cherillo v. Steinberg, 1935, 118 Pa.Super. 485, 493-494, 180 A. 115, 119,’ it was said; “Common carrier cases, where the carrier was held liable for the assault of its employee on a passenger, are also distinguishable, because there the liability was based, not so much on the doctrine ‘respondeat superior,’ as because of the duty of the common carrier to exercise the utmost degree of diligence and care in the transportation of its passengers, and this duty includes protection against the active participation of its servants in a wanton and unprovoked attack upon a passenger, while he is being transported and while the servant is engaged in executing the contract of carriage.”
A like result is adopted in the Restatement of the Law of-Agency, Section 214 Comment d, and is consistent with the weight of authority.
Patently, non-carrier cases, where a special duty toward the person injured does not exist, are not in point. Other carrier cases merely serve to set out the limitations upon the Artherholt decision. Thus, the special duty dissolves upon termination of the contract of carriage, and there is an indication that its consequences would not attend a passenger who is on the station premises. Similarly, the rule would, not seem to be applicable where the employee has left his post and deserted his duty, nor where the employee’s duties are not of the class of a conductor, e. g., a porter, a brakeman, or a policeman. Indeed, in another connection the Supreme Court of Pennsylvania has recognized the peculiar nature of a conductor’s position: Ainsley v. Pittsburgh, C., C. & St. Louis Ry. Co., 1914, 243 Pa. 437, 90 A. 129. And, insofar as the issue of the instant case is concerned, we cannot say that there is such a difference between a taxicab or bus driver, on the one hand, and a street car or railroad car conductor, on the other, as to justify a difference in result. -
We conclude, therefore, that the instant case comes within the specific sphere of Artherholt v. Erie Elec. Motor Co.; supra, in that an employee of the defendant who was in charge and to whom the safe carriage of passengers had been entrusted, while he was engaged in executing the contract of carriage, committed an assault upon a passenger being transported at the time.
For the reasons stated, the judgment of the court below will be affirmed.
. We deem irrelevant the defendant’s contention that Cali and the plaintiff had stopped at various bars and engaged in a “drinking bout” inasmuch as, the jury by its verdict found that at the time of the assault the contract of carriage was in effect.
. The leading cases were, and still are, Pittsburgh, Ft. W. & C. Ry. Co. v. Hinds, 1867, 53 Pa. 512, 91 Am.Dec. 224, and Pittsburgh & Connellsville R. Co., v. Pillow, 1875, 76 Pa. 510, 18 Am.Rep. 424.
. See 10 Am.Jur., Carriers, Sections 1443, 1447; 13 C.J.S., Carriers, §§ 691, 692; 2 Hutchinson on Carriers (3rd Ed., 1906) Sections 1093, 1094, cited with approval in Greb v. Pennsylvania R. Co., 41 Pa. Super. 61, 70-71 (1909); 4 Williston on Contracts (Rev.Ed., 1936), Section 1113.
. Berryman v. Pennsylvania R. Co., 1910, 228 Pa. 621, 77 A. 1011, 30 L.R.A.,N.S., 1049; see Greb v. Pennsylvania R. Co., 1909, 41 Pa.Super. 61, 70-71.
. See Greb v. Pennsylvania R. Co., supra, note 3, quoting with approval 2 Hutchinson on Carriers (3rd Ed., 1906), Section 1093.
. See Greb v. Pennsylvania R. Co., supra, note 3, 41 Pa.Super. at page 69.
. Rohrback v. Pennsylvania R. Co., 1914, 244 Pa. 132, 90 A. 557.
. Win v. Atlantic City R. Co., 1915, 248 Pa. 134, 93 A. 876.
. See Berryman v. Pennsylvania R. Co., supra, note 3, 228 Pa. at page 627, 77 A. 1011, 30 L.R.A.,N.S., 1049. As to policemen in non-carrier eases, see Pilipovich v. Pittsburgh Coal Co., 1934, , 314 Pa. 585, 172 A. 136, citing with approval Greb v. Pennsylvania R. Co., supra, note 3.
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_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
CHAS. PFIZER & CO., Inc., v. ZENITH LABORATORIES, INC., and Continental Vitamins Corp. Continental Vitamins Corp., Appellant.
No. 15172.
United States Court of Appeals Third Circuit.
Argued Dec. 30, 1964.
Decided Dec. 31, 1964.
Abraham J. Nydick, New York City (Wilentz, Goldman & Spitzer, Perth. Amboy, on the brief), for appellant.
Arthur G. Connolly, Connolly, Bove &. Lodge, Wilmington, Del. (James R. E.. Ozias, McCarter & English, Newark, N.. J., Thomas S. Lodge, F. L. Peter Stone,. Wilmington, Del., on the brief), for ap-pellee.
Before BIGGS, Chief Judge, and FOR-MAN and SMITH, Circuit Judges.
PER CURIAM.
We have examined and re-examined the' record in this case and have weighed the arguments of the parties. It is clear that the court below did not err in its decree of December 16, 1964 (entered December 17, 1964), denying a motion by the defendant-appellant, Continental Vitamins Corp., to enjoin the plaintiff-appellee, Chas. Pfizer & Co., Inc., inter alia, from proceeding with the prosecution of a civil suit instituted by the plaintiff against Barry-Martin Pharmaceuticals, Inc., in the United States District Court for the Southern District of Florida, Miami Division, viz., Civil Action No. 64-175-Civ.-EC.
Consequently, the decree appealed from ■will be affirmed.
Question: This question concerns the first listed appellant. 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_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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").
Routh Jake GRAY, Appellant, v. UNITED STATES of America, Appellee.
No. 3677.
Circuit Court of Appeals, Fourth Circuit.
June 21, 1934.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
George M. Dunn and Simmonds & Bowman, all of Johnson City, Tenn., for appellant.
Joseph H. Chitwood, U. S. Atty., of Roanoke, Va.
PER CURIAM.
This is an appeal from an order dismissing a suit on a policy of war risk insurance, on the ground that the court was without jurisdiction to entertain it because of the provisions of the Act of Congress of March 20, 1983 ( 38 USCA § 701 et seq.). The court below followed the decision of the Circuit Court of Appeals of the Fifth Circuit in Lynch v. United States, 67 F.(2d) 490. The Supreme Court, however, has reversed that decision, Lynch v. United States, 54 S. Ct. 840, 78 L. Ed. 1434, decided June 4, 1934; and the United States has confessed error in this case. The order appealed from will accordingly be reversed.
Reversed.
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:
|
songer_othappth
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original 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".
In re NATIONAL MORTGAGE EQUITY CORPORATION MORTGAGE POOL CERTIFICATES LITIGATION, Defendant-Appellant. The BANK OF AMERICA, Plaintiff-Appellee, v. David A. FELDMAN; National Mortgage Equity Corporation, Defendant-Appellant.
No. 86-5880.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 9, 1987.
Decided July 15, 1987.
See also, D.C., 636 F.Supp. 1138.
Alan D. Bersin, Anne H. Egerton, Susan E. Nash, Los Angeles, Cal., for plaintiff-appellee.
Charles C. Wehner, Rodney M. Perlman, Karen A. Rooney, Los Angeles, Cal., for defendants-appellants.
Before ANDERSON, SKOPIL, and REINHARDT, Circuit Judges.
SKOPIL, Circuit Judge:
Defendants/appellants National Mortgage Equity Corporation and David Feldman (NMEC) appeal the district court’s order denying their motion for a protective order and stay. The district court granted a motion to compel the production of documents from a third-party witness. ■ We dismiss the appeal for lack of jurisdiction.
FACTS AND PROCEEDINGS BELOW
The dispute arises out of litigation by Bank of America (B of A) against NMEC, David Feldman, and others concerning a series of transactions in which NMEC sold certificates representing ownership of pools of mortgage loans to numerous institutional investors.
B of A served NMEC’s accounting firm, Pat Stein Accountancy Corporation, and Pat Stein with a deposition subpoena requiring her to produce documents. Stein appeared for the deposition but, on instructions from NMEC’s counsel, refused to answer substantive questions or to produce any documents. NMEC asserted at the deposition that the documents were protected by a privilege rooted in state law. NMEC claimed an accountant-client privilege as well as a privilege to the confidentiality of tax returns and tax return information.
B of A then obtained from the magistrate an order compelling Stein’s testimony and the production of the subpoenaed documents, except tax returns, by May 15, 1986. The district court upheld the order but interpreted the exclusion of tax returns to include “(1) tax returns; (2) drafts of tax returns; and (3) working papers prepared directly in the process of preparing tax returns.” The district court denied NMEC’s request for a protective order and a stay of the order pending appeal. Both the magistrate and the district court imposed sanctions.
NMEC appealed to this court. It first sought to stay implementation of the order compelling the deposition and a protective order concerning the documents at issue. B of A sought to dismiss the appeal for lack of jurisdiction. On May 14, 1986 a motions panel denied the motion for a stay and referred the motion to dismiss the appeal to this panel. The deposition was held as scheduled. Stein answered questions and produced some of the requested documents. Eventually, all the disputed documents were turned over to B of A pursuant to a stipulation that the documents would be returned if NMEC is successful on appeal.
DISCUSSION
An order compelling discovery is not a final judgment under 28 U.S.C. § 1291 (1982). See City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.1984). The general rule is that a party not wishing to comply with a subpoena must risk a contempt order before it may appeal the issue. See In re Grand Jury Subpoena (Niren), 784 F.2d 939, 941 (9th Cir.1986) (citing United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971), Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940)). NMEC attempts to obtain jurisdiction invoking an exception to the rule prohibiting interlocutory appeals.
A. The Perlman Rule
NMEC’s first contention is that this case falls within an exception created by Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L.Ed. 950 (1918). Under the Perlman rule an immediate appeal is proper if it is unlikely that the third party will risk a contempt citation simply to create a final order for the person asserting the privilege. Newton v. National Broadcasting Co., 726 F.2d 591, 593 (9th Cir.1984) (citing United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974)). We have applied the Perl-man rule in a grand jury setting when a party sought immediate review of an order compelling testimony or documents from the party’s attorney. See In re Grand Jury Proceedings (Schofield), 721 F.2d 1221, 1222 (9th Cir.1983); In re Grand Jury Subpoenas Duces Tecum (Lahodny), 695 F.2d 363, 364-65 (9th Cir.1982). But see Niren, 784 F.2d at 941 (finding that the Perlman rule does not apply to an order directed to a party’s in-house counsel).
This court has never considered whether an appeal under the Perlman doctrine is permissible in a civil setting or to an accountant-client relationship, and we do not reach those issues in this case. We decline to find jurisdiction here because Stein has already testified and produced the documents requested by B of A. It would therefore be impossible for us to provide effective relief. See Newton, 726 F.2d at 593 (“Any evidentiary privilege ... is liable to being irretrievably breached once the material for which the privilege is claimed has been disclosed”). In William T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3rd Cir.1982), the Third Circuit permitted an appeal even though the information had already been revealed. In that case, however, the deposition was noticed for a circuit other than that in which the action was pending. Id. at 102. Thus in Thompson no review of the enforcement proceeding would have been available after a final judgment on the merits. Id.
NMEC suggests that we direct the district court to issue a protective order preventing use of the material in this and other related proceedings. It argues that we can “control the damage” by limiting the use of the alleged privileged information. Because it has taken every possible measure to avoid disclosure of the information, NMEC maintains that disclosure of the information does not affect our jurisdiction under Perlman.
The fashioning of such a remedy does not, however, fall within the scope of the Perlman rule. Perlman applies only if its application will prevent the disclosure of privileged information. .If the third party has already disclosed the information, the reason for expedited review no longer exists. Review is not available to determine whether previously disclosed material should be the subject of a protective order or whether the material is admissible at trial. These matters are for the district court and will properly be before us after the district court has issued its final judgment. Perlman does not confer jurisdiction in this case.
B. Collateral Order Doctrine
NMEC also attempts to establish jurisdiction under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). The collateral order doctrine allows an appeal if the issue falls within “ ‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411 (1985) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). The interlocutory order must (1) conclusively determine the disputed question; (2) resolve an important issue separate from the merits; and (3) be effectively unreviewable on appeal from a final judgment. Stringfellow v. Concerned Neighbors in Action, — U.S. -, 107 S.Ct. 1177, 1181-82, 94 L.Ed.2d 389 (1987) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). Although the collateral order rule has been applied in a variety of circumstances, courts have generally denied review of pretrial discovery orders. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981); see also In re Subpoena Served on California Public Utilities Comm’n, 813 F.2d 1473, 1476 (9th Cir.1987).
We decline to exercise jurisdiction under the collateral order doctrine for the same reason that we find there is no jurisdiction under Perlman. NMEC has already produced the requested documents, and we cannot restore the privilege. The issues which remain will be reviewable on appeal from the final judgment. We find no reason to depart from the “strong congressional policy against piecemeal review. .." Nixon, 418 U.S. at 690, 94 S.Ct. at 3099.
C. Writ of Mandamus
NMEC argues in the alternative that the appeal may be construed as a writ of mandamus under 28 U.S.C. § 1651 (1982). See United Sewer Agency of Washington County v. Jelco, Inc., 646 F.2d 1339, 1343 (9th Cir.1981) (construing an appeal from an unappealable order as a writ of mandamus). Mandamus is an extraordinary remedy to be used only in exceptional circumstances. Foley, 747 F.2d at 1296 (citing Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976)). Mandamus review is occasionally appropriate for discovery matters which otherwise would only be reviewable on direct appeal after resolution of the merits. Foley, 747 F.2d at 1297.
We consider five factors in determining whether a case is appropriate for mandamus review. Those factors are:
1. Whether the party seeking the writ has no other adequate means to obtain the desired relief.
2. Whether the petitioner will be prejudiced or damaged in such a way as to be irremediable on direct appeal.
3. Whether the district court’s order is clearly erroneous as a matter of law.
4. Whether the district court’s order is an oftrepeated error or manifests a pattern evincing a consistent disregard for the federal rules of procedure.
5. Whether the district court’s order raises new, important, or unique issues, generally of first impression.
Armster v. United States Dist. Court, 806 F.2d 1347, 1352 (9th Cir.1986) (citing Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.1977)). These factors are “ ‘not susceptible of mechanical application’ and are only a ‘useful starting point.’ ” Armster, 806 F.2d at 1352 (quoting In re Cement, 688 F.2d 1297, 1301 (9th Cir.1982), aff'd for lack of a quorum, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)).
This case is not an appropriate one for exercise of mandamus jurisdiction. NMEC fails to meet the Bauman standards. Because the alleged privilege has already been breached, review at this stage in the proceedings would not provide NMEC with the relief it desires. Nor will NMEC be prejudiced or damaged by our refusal to reach the merits. Any remedy that might be available will also be available after a final judgment is reached. We decline to construe the appeal as a writ of mandamus.
D. Sanctions
For the same or similar reasons we decline to review the propriety of the imposition of sanctions on NMEC and its attorneys. It is not appealable at this juncture. See Kordich v. Marine Clerks Ass’n, 715 F.2d 1392 (9th Cir.1983) (per curiam).
DISMISSED.
Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
D
|
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, Appellee, v. Lorenzo ALLEN, a/k/a Ren, Appellant. UNITED STATES of America, Appellee, v. Frances Sylvester LINDSEY, Appellant. UNITED STATES of America, Appellee, v. Roger Lee HARRELL, a/k/a DuBuck, Appellant.
Nos. 85-5170(L), 85-5171 and 85-5172.
United States Court of Appeals, Fourth Circuit.
March 31, 1987.
John W. Eppler (Harlan, Knight, Dudley & Pincus on brief); Chris A. Christie (Christie, Held, Kantor, Spanoulis & Christie on brief); Paul Ray for appellants.
Philip Krajewski, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., on brief) for appellee.
Before ERVIN and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Appellants were convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) and for conspiracy to commit that offense under 18 U.S.C. § 371. They appealed on three grounds, one of which claimed that the prosecutor’s selection of the jury was racially motivated. This court affirmed. 787 F.2d 933 (4th Cir.1986). In Batson, the Supreme Court held that defendants may establish a prima facie case of purposeful discrimination in juror selection “solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” Batson v. Kentucky,— U.S.-, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986).
The Supreme Court subsequently held that Batson applied retroactively to all cases pending on direct review. Griffith v. Kentucky,—U.S.-, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Therefore, the Supreme Court granted certiorari, vacated the judgment, and remanded this case for reconsideration. Allen v. U.S.,—U.S.-, 107 S.Ct. 1271, 94 L.Ed.2d 132 (1987). The holdings on the other two issues, regarding the admissibility of lay opinion evidence and evidence obtained during a Terry stop, were not affected.
The appellants initially contended that the prosecutor used his peremptory challenges to systematically exclude blacks from the jury. The government responded that three black citizens served on the trial jury. In the supplemental briefs requested by this court after Batson, the government also contended that it did not use its final peremptory challenge to remove any of these black jurors.
We believe that factual contentions of this nature are best resolved in the district court. “We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson, 106 S.Ct. at 1723. Therefore, we remand to the district court for reconsideration of this issue in light of Batson.
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_casetyp1_7-2
|
C
|
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".
HERMINIO MADERA, Inc., et al. v. MADERA.
No. 3183.
Circuit Court of; Appeals, First Circuit.
March 15, 1937.
Enrique Tgaravidez, of San Juan, P. R. (Juan B. Soto, of San Juan, P. R., and John W. Blakeney, Jr., of Boston, Mass., on the brief), for appellants.
L. E. Dubon, of San Juan, P. R. (B. F. Sanchez and Dubon & Ochoteco, all of San Juan, P. R., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
This is a suit to recover on a promissory note and foreclose a mortgage on real estate by which the note is secured. The District. Court of San Juan gave judgment for the "defendant; on appeal the Supreme Court of Puerto Rico held that the plaintiff was entitled to recover; and the defendant has appealed. We shall refer to the parties plaintiff and defendant as they appeared in the trial court.
The essential fact’s are not in controversy. The defendant and his three brothers, Jose, Manuel, and Bautista, were in business together as partners, and also through three corporations which they controlled. The business appears to have been of rather extensive character. Controversies arose between them and several lawsuits were instituted. There were many points of disagreement. The parties got together and made an agreement of complete settlement dated March 3, 1931. It is a rather elaborate multilateral contract executed by each of them individually, by the partnership, and by each of the three corporations. The present controversy involves the construction of this agreement, the defendant’s contention being that the plaintiff has no right to enforce the note and mortgage because he and his assignor are themselves in default under the agreement.
The agreement contains five preliminary clauses which state the parties and the circumstances which have led to the making of it, and that it is the intention to settle all matters in dispute. Then follow twelve clauses stating what is agreed. In the first of these clauses disposition is made of certain shares of stock of the Combate Tobacco Corporation, and the dismissal of certain suits is provided for. In the second clause Jose Madera in consideration of $12,000 relinquishes to the present defendants all his rights in Riera & Co., Inc., and in the partnership of Herminio Madera and Hermano (brother), this relinquishment not to be effective until the consideration shall have been paid. The third clause specifies the manner in which this payment shall be made, viz., $2,000 by a contemporaneous transfer of certain tobacco, the receipt of which is acknowledged, and-$10,000 to be paid in gold on January 1, 1936, with interest at 8 per cent, per annum. The fourth clause relates to the security for the postponed payment, that it shall be secured by a mortgage on certain real estate, the title to which stood in the name of one of the corporations, and by an assignment from Herminio Madera of a contract which he held to purchase other real estate. This clause also contains provisions requiring Herminio to reduce prior incumbrances on the mortgaged . property to specified amounts. The fifth clause requires Herminio Madera to pay interest and taxes on the mortgaged property and to keep it insured; and the sixth clause provides that on his failure to do so the principal sum shall forthwith become due, and the mortgagee shall be entitled to proceed to the collection of it. In the seventh clause Herminio Madera agrees to obtain the execution and registration of the mortgage “to secure Mr. J-ose Madera the $10,000 agreed upon under the terms above mentioned” etc. (Italics supplied.) The eighth clause requires Jose Madera and Manuel Madera, the plaintiff, upon execution and registration of the mortgage to dismiss all law suits in which they were plaintiffs and provides for the exchange of mutual releases between all parties. The final paragraph of this clause is what has led to the present controversy. It reads as follows:
“It is mutually agreed between Jose Madera, Manuel Madera and Herminio Madera that upon the execution of the mortgage in the Registry of Property in favor of Jose Madera on the Tobacco Palace-Bldg., subject to the terms of this covenant, and the inscription of the said mortgage without defects and as provided for in this clause that Jose Madera and Manuel Madera will deliver to Herminio Madera duly endorsed in blank the shares of stock that they may now hold of the corporation Alonso Riera & Co., Inc.”
The ninth clause provides for the dissolution of the partnership, Herminio Madera assuming all its debts. By the tenth clause the name of a corporation, having the same name as the partnership, is to be changed so that it shall not appear that Jose Madera is associated with it. By the eleventh clause Herminio Madera agrees not to use the words “and Hermano” in such a way as to indicate that Jose is associated with him. The twelfth and last clause reads as follows:
“Twelfth: That the defaulting party shall forfe'it and pay to the other of them the sum of $2,000.00 as liquidated damages ; and then that these presents shall become void.”
The mortgage was duly executed and registered by the defendants about two weeks after the contract of settlement; it is dated March 16, 1931. The note reads in part as follows:
“We will severally pay to Jose Madera Rivero, or to his order, on the first day of January One Thousand Nine Hundred Thirty-Six, at the Royal Bank of Canada (San Juan, Porto Rico Branch), the sum of Ten Thousand Dollars ($10,000.00) in gold of the legal tender of the United States of America, which sum shall bear interest, from this date, and up to the date of payment in full thereof, at the rate of eight per cent (8%) per annum, which interest we severally oblige ourselves to pay monthly on the first day of every month at the Royal Bank of Canada (San Juan, Porto Rico Branch) or at stích other place in Porto Rico which the holder of this note may designate. This note is executed by us, for value received; and in further consideration of the stipulation contained in an agreement executed by us and other persons, on the third of March, One Thous- and Nine Hundred and Thirty-One, before the notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, recorded under the number 3,505 of the Registry of Affidavits of the said notary.
“This note is secured by a mortgage executed by the maker herein Tetuan Tobacco Leaf, Inc., on the Property known as the Tobacco Palace Building, situated at numbers 58, 60 and 62 on Tetuan Street, in the City of San Juan, Puerto Rico, as it appears by the Deed of Mortgage authorized on this date before the Notary of San Juan, Puerto Rico, Mr. Luis E. Dubon, and which Deed is number 22 of the Protocol of Deeds of said notary, corresponding to the present year, and this note is executed and delivered by us subject also to all terms stipulated in the aforesaid Deed of Mortgage.” .
“Default in the payment of the interests agreed upon and as provided herein as well as noncompliance with any of the conditions stipulated in the Deed of Mortgage referred to in the foregoing paragraph, shall produce the maturity of this obligation, and the holder thereof may proceed to its collection without previous demand or notice.” (Italics supplied.)
The various dismissals, releases, transfers, etc., called for by the agreement appear to have been, for the most part, at least, duly performed, though it is claimed that Herminio failed to reduce the prior obligations on the mortgaged property in accordance with his agreement to do so. The shares of stock in Riera & Co., Inc., which were to have been delivered by Jose Madera and Manuel Madera have never been delivered; they are in default under that clause of the agreement. The original mortgagee, Jose, assigned his interest in the mortgage and note to Manuel. For default in payment of interest and other defaults Manuel brought suit to collect the note and foreclose the mortgage. The defendant alleged that he was not entitled to do so because of the breach of the agreement by himself and Jose in failing to deliver the Riera stock.
The case is governed by the Civil Code of Puerto Rico, § 1053: “In mutual obligations none of the persons bound shall incur default if the other does not fulfill or does not submit to properly fulfill what is incumbent upon him. From the time one of the persons obligated fulfills his obligation the default begins for the other party.”
The District Judge held that the provisions of the agreement relating to the giving of the mortgage by Herminio, and the delivering of the stock by Jose and Manuel, constituted mutual obligations; that this mutuality extended to the mortgage and note while in the hands of the original parties or persons taking with notice, as Manuel clearly did; and that the plaintiff was not entitled to foreclose the mortgage or collect the note because of his own and his assignor’s breach of the agreement. The Supreme Court of Puerto Rico held that the agreements, relating to the giving of the mortgage and note, and to the transfer of the stock, were not “mutual obligations,” under section 1053. It also held that, “The covenant, on the part of Jose Madera as to the endorsement and delivery of stock was, at most, a negligible part of the consideration and his failure to endorse and deliver the stock was but a partial and immaterial failure of consideration.” It accordingly held that the failure of the plaintiff or his assignor to deliver the Riera stock did not bar enforcement by them of the mortgage and note.
■ The note and mortgage were given in performance of the fourth clause of the agreement. When executed and delivered they constituted independent agreements by the makers of them, and were not “mutual obligations” with any other clause of the contract, under section 1053, unless made so by express terms. The recital in the note that it was given in consideration of the agreement of settlement did not tie the two together so as to condition the note and mortgage on performance by payee of all his obligations under the settlement agreement. Explicit language or very unusual circumstances would be required to show such an intention with respect to an agreement as inherently independent as a promissory note and a mortgage securing it A recital that a mortgage and note are made in consideration of an agreement does not have that effect. See Powell & Powell v. Greenleaf & Currier, 104 Vt. 480, 162 A. 377, collecting cases.
There was ample consideration for the mortgage and note aside from the transfer of the Riera stock, viz., releases, dismissals of suits, transfers of property rights, etc., were involved. These are specified in the agreement preceding the provision relating to the note and mortgage. The agreement refers to them when it explicitly states that the note and mortgage are given “upon the terms above mentioned” which terms did not include the transfer of t-he Riera stock. It is clear, we think, that the plaintiff’s failure to transfer the stock was only a partial failure of consideration, and did not make the note and mortgage unenforceable at common law. No authorities have been cited which indicate that a different result would be reached under the Puerto Rico Code. There is no reason to suppose that the Supreme Court of Puerto Rico was in error on this point. The citations from the commentators relied on by the appellant do not apply where a clause in a bilateral contract has been performed and has resulted in the creation of an independent obligation.
The purpose and effect of the twelfth clause of the contract are hot entirely clear; but we think it was intended to provide against a breach' in limine, if one of the parties should refuse to make the settlement which had been agreed upon. The provision “and then that these present shall become void” would hardly be applicable to any other situation.
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_appel1_1_3
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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)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
The POSTER EXCHANGE, INC., Plaintiff-Appellant, v. NATIONAL SCREEN SERVICE CORPORATION et al., Defendants, Columbia Pictures Corp. et al., Defendants-Appellees.
No. 74-1512.
United States Court of Appeals, Fifth Circuit.
Aug. 8, 1975.
Rehearing and Rehearing En Banc Denied Sept. 24, 1975.
Francis T. Anderson, New Orleans, La., Glenn B. Hester, Augusta, Ga., C. Ellis Henican, Jr., New Orleans, La., for plaintiff-appellant.
Warren O. Wheeler, Tench C. Coxe, Gambrell, Russell, Killorin, Wade & Forbe, Atlanta, Ga., Phillip A. Wittmann, New Orleans, La., for Columbia Pictures Corp. et al.
Walter Beck, New York City, Charles H. Kirbo, John Izard, Atlanta, Ga., for Nat. Screen Serv.
Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
GOLDBERG, Circuit Judge:
This case evolves from the same industry and raises, among others, the same issues decided today in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459 and Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 129, No. 74-2172, also decided today. Plaintiff here, The Poster Exchange Inc., (Poster), an Atlanta-based poster renter, initiated this treble damage suit on February 26, 1969, in the Northern District of Georgia against National Screen Service Corp. (National Screen) and six motion picture producers (Producers) charging their continuation of an unlawful antitrust conspiracy, attempted monopoly, and monopoly, in the motion picture accessory industry in derogation of Sherman Act §§ 1 and 2. In December, 1973, the district court granted the Producers (but not National Screen) a summary judgment on grounds of collateral estoppel and limitations. Poster appeals.
We affirm as to all Producers except Columbia on grounds of collateral estoppel; we reverse as to Columbia, and remand for further proceedings with respect to the claim against it.
I
The industry here is the same as that described in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., supra, but ever since 1943 plaintiff Poster has encountered rougher treatment from National Screen than has its counterpart in New Orleans. After settlement of the first motion picture accessory suit, in Philadelphia in 1943, National Screen granted Exhibitors in New Orleans a sub-license to distribute posters manufactured by National Screen; but, despite repeated requests, plaintiff Poster in Atlanta was afforded no such license. After entering the Atlanta Exchange Market, National Screen did supply Poster with accessories to some extent, until 1961, but these provisions were not sufficient to meet Poster’s needs in supplying all of its own customers, and the prices to Poster were substantially higher than those to other independent poster renters. Finally, on May 16, 1961, Poster was cut off entirely from National Screen’s posters.
In response, Poster sued National Screen in the Northern District of Georgia in 1961, charging National Screen with violations of § 2 of the Sherman Act and praying for treble damages and injunctive relief. The district court denied National Screen’s motion for a summary judgment in its favor, and awarded a preliminary injunction. Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1961, 198 F.Supp. 557. On appeal we affirmed, 5 Cir. 1962, 305 F.2d 647, holding in particular that the outcome of the Philadelphia-based litigation of Lawlor v. National Screen Service Corp., 3 Cir. 1959, 270 F.2d 146, cert. denied, 1960, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742, in Philadelphia was not conclusive in this case.
Poster subsequently filed an amended complaint adding all of the Producers presently charged, save Columbia, as parties defendant. As amended, the complaint recited that each of the Producers, including Columbia, had contracted with National Screen regarding the production and distribution of its accessories, and alleged that the arrangements “were entered into pursuant to and in furtherance of a conspiratorial plan or scheme deliberately concerned and launched by the parties thereto for the purpose of creating a national monopoly of distributing standard accessories.” The Producers moved for summary judgment, which was granted by the district court in 1963. Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1963, 35 F.R.D. 558. In granting judgment, the district court found no genuine issue as to any material facts, and relying on the Lawlor case as stare decisis, concluded that upon the facts asserted by Poster, the Producers were entitled to judgment as a matter of law. Poster appealed, and we affirmed per curiam sub nom. Poster Exchange, Inc. v. Paramount Film Distributing Corp., 5 Cir. 1965, 340 F.2d 320.
Poster’s action against National Screen still remained, and it ultimately won a judgment for damages suffered day to day for the four years prior to initiation of its suit. On National Screen’s appeal we affirmed. Poster Exchange Inc. v. National Screen Service Corp., 5 Cir. 1970, 431 F.2d 334. A few days thereafter Poster initiated this suit against National Screen and all six Producers, complaining that National Screen had continued in its monopoly and attempted monopoly in violation of Sherman Act § 2 and that all the defendants had continued in a “combination and conspiracy ... in unreasonable restraint of the interstate trade and commerce in the production and distribution of standard and specialty accessories in violation of Section 1 of the Sherman Act,” through the date of suit, all to the considerable pecuniary damage of Poster.
The district court then granted summary judgment in favor of the Producers on grounds of limitations and res judicata, and Poster appealed. We reversed. Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir.1972, 456 F.2d 662. First, we held that the res judicata reasoning relied upon by the trial court could not support its judgment. Second, we held that the intervening decision in Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 91 5. Ct. 795, 28 L.Ed.2d 77, required a reversal of the district court’s conclusion on the limitations issue. Anticipating the significance of collateral estoppel issues on remand, we additionally directed the district court to the principles enunciated in our 1970 opinion in the New Orleans litigation, Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, cert. denied, 1971, 400 U.S. 991, 91 S.Ct. 454, 27 L.Ed.2d 439. We observed that:
With respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the 1969 suit. As to such acts occurring prior to 1965, it can recover for such damages as could not reasonably have been proved prior to February 26, 1965. . . .
456 F.2d at 667. Moreover, in remanding the case we advised that:
Good judicial husbandry calls for an effective pretrial management of this case which has now occupied the attention of not less than four trial judges, fifteen Circuit judges and Supreme Court justices twice. [T]he District Court should require by suitable means that Poster outline in detail what its claim is. The Court should determine as to the parties to the 1963 suit what, if any, issues were necessarily determined in the 1963 summary judgment . . .. Then, with precision, Poster should demonstrate what post-1961 acts substantively constitute antitrust violations on theories declared in [our 1970 opinion in the New Orleans litigation]. With respect to such substantive acts occurring prior to February 26, 1965, Poster should show the relevant facts on which to fix the earliest reasonable time or times for which damages for such claim or claims could have been proved to fix the commencement of the limitations period under Zenith. Considering the persistent inability of Poster to appreciate the significance of res judicata- — collateral estoppel or the difficulties from parrotting the prior complaints in amended ones covering different periods of time and, on the other hand, like persistence by National [Screen] in asserting contentions now so often rejected by us, it would surely be in order to appoint a special master (F.R.Civ.P. 53), with his allowance to be taxed as costs for an orderly determination of just what remains to be disposed of by summary judgment on the basis of the facts, not just pleadings, or by trial.
456 F.2d at 668.
Pursuant to our recommendation, on remand the district court did appoint a master to facilitate the progress of Poster’s lawsuit. In a response to the master’s order to outline in detail the precise nature of its claims and state “the specific acts (or nonacts) of the defendants to be relied upon as proof of [the alleged] violations,” Poster recited the pre1961 history of dealings between the Producers and National Screen in regard to the standard motion picture accessory market, and charged that all the defendant Producers have persisted through the four-year period preceding suit (February 26, 1965, to February 26, 1969) in their alleged exclusive dealing with National Screen. As in Exhibitors Poster Exchange, Inc. v. National Screen Services Corp., 5 Cir., 517 F.2d 110, No. 74-1459, the plaintiff asserted no basis for belief or inference that the alleged Producer-conspirators have engaged in conduct different in any way from that complained of in the prior suit against them. After an exhaustive review of the record in the prior case in which the Producers had won summary judgment, the master determined that in this action Poster complains only of the Producers’ continuation in the conduct adjudged lawful in the district court’s 1963 summary judgment in their favor. The master thus concluded that the Producers who were defendants in that prior action were entitled to a summary judgment on the basis of collateral estoppel. Moreover, the master observed that the allegations and attempted proof of conspiracy in Poster’s 1961 suit applied equally to Columbia although Columbia was itself not a defendant, and recommended on that basis that Columbia was equally entitled to employ the 1963 judgment as an estoppel against Poster’s present case against it for continuation in identical conduct. Finally, the master suggested that Poster’s claims against all the Producers were barred by the four year statute of limitations, because the acts complained of transpired more than four years prior to the initiation of this suit in 1969, and because Poster had not shown its case to come within the Zenith exception, see Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77, permitting the present recovery of previously unprovable damages from prior actionable antitrust acts. After reviewing the record, the master’s report, and Poster’s objections to that report, the district court entered an opinion adopting the recommendations of the master in full, and granted the Producers a summary judgment.
II
We are faced with three issues on this appeal: first, the correctness of the district court’s collateral estoppel holding in favor of the Producer defendants exonerated in Poster’s 1961 suit; second, the entitlement of Columbia — -which was not a defendant in that suit — to employ it as a collateral estoppel here; third, the applicability of the statute of limitations to bar Poster’s claim against these defendants’ allegedly continuing antitrust conspiracy.
We have no difficulty in affirming the district court’s collateral estoppel judgment for the Producers who were charged as defendants in Poster’s 1961 suit. This aspect of the case is identical to and controlled by our decision today in Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir., 517 F.2d 110, No. 74-1459. Poster has failed to demonstrate any change in the facts or circumstances differentiating the conspiracy alleged here from the conspiracy among the identical defendants alleged and unproved in its 1961 suit. The entire case alleged against the Producers is that they have continued to supply National Screen with accessories, pursuant to the pre-1961 allegedly exclusive dealing contracts unsuccessfully sued upon in Poster’s last action. As in Exhibitors Poster Exchange, the sole argument raised by Poster against collateral estoppel is that it cannot be estopped by a summary judgment entered without specific findings. But as we have pointed out today in Exhibitors Poster Exchange, this argument has already been rejected in our 1970 opinion in the New Orleans litigation, Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 421 F.2d 1313, 1319-20, and we are bound by that decision.
The summary judgment entered in the 1961 suit by necessity determined that upon the facts shown none of the Producer defendants had conspired unlawfully with Columbia. Columbia seeks here by that judgment to estop Poster from proceeding on its allegations that Columbia illegally conspired with the remaining Producers. We agree with the district court that collateral estoppel is correctly invoked here with respect to Columbia as well. Prior practice would not have recognized the estoppel here, for lack of mutuality, but as we recognized in Rachal v. Hill, 5 Cir. 1970, 435 F.2d 59, 61-62:
Although many states still honor the rule of mutuality of estoppel, the modern trend has been to discard the rule and preclude a party from relitigating an issue decided against him in a prior action, even if the party asserting the,, estoppel was a stranger to the prior action.....The federal rule comports with the modern trend and thus it is clear that the requirements of mutuality need not be met for collateral estoppel to be applied in an action presenting a federal question in the courts of the United States.
See also Zdanok v. Glidden Co., 2 Cir. 1964, 327 F.2d 944, 954-56, cert. denied 1964, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298; Bruszewski v. United States, 3 Cir. 1950, 181 F.2d 419, cert. denied, 1950, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632; Bernhard v. Bank of America, etc., 1942, 19 Cal.2d 807, 811-13, 122 P.2d 892, 894-95. This trend, which has been smiled upon by the Supreme Court, see Blonder-Tongue Laboratories, Inc., v. University of Illinois Foundation, 1971, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, has already been embraced by this Court. See Cheramie v. Tucker, 5 Cir. 1974, 493 F.2d 586, 589 n. 10; Rachal v. Hill, supra; see also James Talcott, Inc. v. Allahabad Bank, Ltd., 5 Cir. 1971, 444 F.2d 451, 461; Monsanto Co. v. Dawson Chemical Co., 5 Cir. 1971, 443 F.2d 1035; Seguros Tepeyac, S.A., Compania Mexicana v. Jernigan, 5 Cir. 1969, 410 F.2d 718, 727, cert. denied, 1969, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181. Where mutuality is lacking, a plaintiff may not be collaterally estopped if he did not enjoy “a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time,” Blonder-Tongue, supra, 402 U.S. at 333, 91 S.Ct. at 1445, 28 L.Ed.2d at 802, quoting Eisel v. Columbia Packing Co., D.Mass.1960, 181 F.Supp. 298, 301. But here, where plaintiff Poster had the initiative in a recognizably substantial litigation, and specifically chose to cite Columbia as one of the alleged conspirators, there is no suggestion of any failure of fairness in the original litigation, so as to render it unsupportive of an estoppel. See generally, Blonder-Tongue, supra, 402 U.S. at 332-34, 91 S.Ct. at 1444-1446, 28 L.Ed.2d at 402; Zdanok v. Glidden Co., supra, 327 F.2d at 955—56; James Talcott, Inc. v. Allahabad Bank, Ltd., supra, 444 F.2d at 462-63. Admitting “that in the modernized version of the law of collateral estoppel the ancient requirements of mutuality is no longer necessary,” Poster’s argument on this aspect of its appeal is only a recitation of its position that collateral estoppel must be based upon the result of a trial to the jury. A plaintiff’s failure to muster sufficient proof to survive a summary judgment motion in the trial court or to sustain a jury verdict, however, is no demonstration’ that it was denied a fair opportunity to present its claim. See Cheramie v. Tucker, supra.
We believe that the district court did err, however, in holding that Poster’s entire claim against Columbia was resolved by the collateral estoppel of the summary judgment for the Producers in Poster’s 1961 suit. No judgment was ever entered in that litigation regarding the allegation that Columbia conspired with National Screen for the purpose of establishing or augmenting National Screen’s monopoly. Thus, we cannot agree that Poster is collaterally estopped from maintaining its claim in this suit that Columbia’s relations with National Screen amount to a vertical § 1 conspiracy.
Ill
Poster’s remaining claim against Columbia is that Columbia continued through the four year period preceding initiation of this suit in 1969 to conspire with National Screen to consolidate National Screen’s monopoly position as the sole distributor of standard motion picture advertising accessories, in return for a share of the monopoly profits extracted from theater owners left dependent upon National Screen for their supplies. Accordingly, Poster seeks to recover triple the damages it has suffered during this four year period which result from the continuation of the alleged conspiracy and monopoly during this four year period.
The district court believed that Poster’s claim was barred by the four year statute of limitations, 15 U.S.C. § 15b, however, because it considered Poster’s claim as one arising essentially from National Screen’s May 16, 1961, refusal to continue dealing with Poster. In adopting this approach the court adhered to the view expressed in its earlier summary judgment for all the Producers, Poster Exchange, Inc. v. National Screen Service Corp., N.D.Ga.1969, 306 F.Supp. 491, 492, “That the theory of ‘continuing conspiracy’ is not the law in the Fifth Circuit.” But we reversed that summary judgment, 5 Cir. 1972, 456 F.2d 662, in light of Zenith Radio Corp. v. Hazeltine Research, Inc., 1971, 401 U.S. 321, 338—42, 91 S.Ct. 795, 806-808, 28 L.Ed.2d 77, 92—94. There we said:
[T]he statute of limitations problem is present with respect to (i) pre-1961 conduct (or non-action) not foreclosed by collateral estoppel and (ii) post-1961 conduct occurring more than four years prior to [the filing of this suit].
Here Zenith, supra, cuts a big figure. First, whatever expressions we have used from time to time, which might suggest that in antitrust situations there is no such thing as a continuing conspiracy, now must yield their sweeping force. .
More importantly, what is emphasized, perhaps for the first time, is that for acts which have long since taken place — and which are in no sense repeated in conjunction with new acts (or non-acts) — the act in effect is “revived” as a basis for later damages under a certain circumstance. That circumstance is the inability of the injured victim to earlier prove with requisite certainty the existence and amount of damages. In that circumstance it is a holding that in antitrust cases subsequent damages have not yet “accrued.” They do not “accrue” until they can be reasonably established. The moment the victim can prove such subsequent damages, the statute begins to run leaving four more years in which to assert them.
456 F.2d at 666-67. Thus, we concluded that:
With respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the initiation of [this suit]. As to such acts occurring prior to 1965, it can recover for such damages as could not reasonably have been proved to February 26, 1965.
456 F.2d at 467.
On remand Poster declined to bring forward any evidence to show that it now suffers any damages from pre1965 acts, which damages were unprovable before February 26, 1965. Thus, this aspect of Zenith is out of the case. As we have already stated, however, Poster has consistently maintained, in reliance on the “continuing conspiracy” aspect of Zenith, that it is entitled to recover for damages accruing during the four year period preceding this suit which have been caused by continuation of the alleged injurious acts of the alleged conspiracy and monopoly during that period. Poster is correct in this assertion. To repeat our 1972 opinion once again, we held that “with respect to post-1961 actions which substantively are not foreclosed by the 1963 summary judgment, Poster may recover damages for all such acts which occurred within four years of the [initiation of this] suit.” As we have pointed out in part II, supra, Poster’s claim against Columbia for conspiring with National Screen is not foreclosed by the 1963 summary judgment in favor of the other Producers, and thus it is clear from our previous opinion — which binds us at the least as the law of the case and stare decisis — that this claim is not barred by limitations. The vigor with which counsel have debated the limitations issue, however, and the decisions below and in Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir., 517 F.2d 129, No. 74-2172, persuade us of the necessity to explain in some greater detail the precise rationale of our holding on this complex issue.
Since Crummer Co. v. Du Pont, 5 Cir. 1955, 223 F.2d 238, 248, we have recognized that for statute of limitations purposes a new cause of action against an antitrust conspiracy arises “from each act in violation of the antitrust laws for the damages flowing therefrom.” The question presented here is whether the alleged continuing conspiracy and monopoly interfering with Poster’s ability to supply itself with advertising accessories is to be treated for statute of limitations purposes as a single act and invasion of Poster’s rights, occurring with the original refusal to deal on May 16, 1961, or with the earlier birth of the alleged conspiracy, or whether it may be viewed as a continuing series of acts upon which successive causes of actions may accrue. We are persuaded that the latter view is correct.
Columbia’s argument to the contrary rests upon Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., N.D.Ala. 1960, 197 F.Supp. 333, 338, opinion on limitations adopted, 5 Cir. 1961, 295 F.2d 362 to establish that a continued refusal to deal such as Poster allegedly suffers from here constitutes a single invasion of the plaintiffs’ right, and gives rise to a single substantive cause of action. The plaintiff wholesaler in Norman Tobacco complained of a “classic” conspiratorial refusal to deal by the defendant manufacturer Gillette; but the Court held that the plaintiff’s suit was barred under the then applicable Alabama one year limitations statute, since the initial cut-off had occurred more than a year before the suit was filed, and since there was no reiteration of the refusal within a year. The court also reasoned, that even if the refusal had been reiterated during the latest year, “it probably would not constitute an actionable claim.” 197 F.Supp. at 338 n. 17. This conclusion was apparently reached upon the reasoning that “recovery in this action may not be predicated upon the theory that the original refusal to deal is in the nature of a continuing tort or done pursuant to a continuing conspiracy.” Id. 338.
A subsequent case, Braun v. Berenson, 5 Cir. 1970, 432 F.2d 538, 542, while distinguishing Norman Tobacco, recognized that the dictum there was in accord with the refusal to deal cases from other jurisdictions which held in similar circumstances that “the cause of action accrued when the initial refusal to deal was made, and was therefore barred by the running of the statute of limitations, because the damages suffered by the distributors were sustained at that time and in no way altered or affected by the subsequent refusals occurring within the limitations period.” Id. 542—43. See, e. g., Garelick v. Goerlich’s, Inc., 6 Cir. 1963, 323 F.2d 854.
We are persuaded that after Zenith and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 1968, 392 U.S. 481, 502 n. 15, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231, 1246, the Norman Tobacco dictum cannot be understood to control, at least in this monopoly context. As we particularly noted in our last opinion in this Atlanta litigation, “Here Zenith, supra, cuts a big figure. . . . [Wjhatever expressions we have used from time to time, which might suggest that in antitrust situations there is no such thing as a continuing conspiracy, now must yield their sweeping force.” 456 F.2d at 666.
Poster’s complaint in this case is based on continuing antitrust behavior, not merely the continuing damage it feels from a single day’s monopoly and refusal to deal in 1961. Indeed, our 1970 opinion affirming Poster’s recovery in its 1969 trial against National Screen of damages whose computation was based on a day by day calculation of accruing injury according to Bigelow v. R. K. O. Radio Pictures, Inc., 1945, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652, demonstrates the continuing nature of the injury Poster complains of, as well as its daily calculability. Cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 3 Cir. 1967, 377 F.2d 776, 794, aff’d in this regard, 392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246, distinguishing Norman Tobacco, supra. Moreover, in cases where plaintiffs have suffered from a continued refusal to deal, they have been forbidden to prove damages inflicted by persistence of the refusal after the date of filing suit, precisely on the ground that a plaintiff is barred from recovering on injuries caused by wrongful acts subsequent to suit, and the
cause of action is founded on an act of a continuing nature. The [initial] express refusal to deal constituted no more than a refusal to deal at that time.
Flintkote Co. v. Lysfjord, 9 Cir. 1957, 246 F.2d 368, 394—96, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46; Connecticut Importing Co. v. Frankfort Distilleries, 2 Cir. 1939, 101 F.2d 79; Frey & Son, Inc., v. Cudahy Packing Co., D.Md.1917. 243 F. 205. See also Momand v. Universal Film Exchange, Inc., D.Mass.1942, 43 F.Supp. 996, 1006, aff’d, 1 Cir. 1948, 172 F.2d 37, 49, cited with approval in Zenith, 401 U.S. at 338, 91 S.Ct. at 806, 28 L.Ed.2d at 92.
The Supreme Court’s approval of this approach is indicated in Hanover Shoe, supra. There the antitrust defendant had exercised its monopoly power since 1912 to force the plaintiff to lease (and not buy) its machinery at monopoly rates but the plaintiff did not sue until 1955. The Court held that the antitrust action was not barred by the statute of limitations with respect to the period 1951 — 1955 because
[w]e are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span. Cf. Emich Motors Corp. v. General Motors Corp., 229 F.2d 714 (C.A. 7 1956), upon which [the defendant] relies. Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing' and accumulating harm on [the plaintiff],
392 U.S. at 502 n. 15, 88 S.Ct. at 2236, 20 L.Ed.2d at 1246. This language applies equally aptly to the matter at bar.
These authorities lay to rest the theory that under Norman Tobacco’s dictum, suit upon a continued antitrust violation must be prosecuted within four years from the first act of illegality (plus, of course, any period during which the limitations period was tolled). Where the violation is final at its impact, for example, where the plaintiff’s business is immediately and permanently destroyed, or where an actionable wrong is by its nature permanent at initiation without further acts, then the acts causing damage are unrepeated, and suit must be brought within the limitations period and upon the initial act. But here, where the action complained of was the exclusion of Poster from any participation in the standard accessory industry, such action, while perhaps unequivocal, was not of necessity permanent, see Flintkote Co. v. Lysfjord supra, 246 F.2d at 395; see also Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 328 n. 13 and accompanying text, 75 S.Ct. 865, 868 n. 13, 99 L.Ed. 1122, 1127, “we are not dealing with an act which occurs within some specific and limited time span. . . . Rather, we are dealing with conduct which constituted a continuing violation.” See also Baker v. F. & F. Investment, 7 Cir. 1970, 420 F.2d 1191, 1200; Highland Supply Corp. v. Reynolds Metals Co., 8 Cir. 1964, 327 F.2d 725, 732; Susser v. Carvel Corp., S.D.N.Y.1962, 206 F.Supp. 636, 651-52, aff’d, 2 Cir. 1964, 332 F.2d 505, cert. dismissed, 1965, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284; Cardinal Films, Inc., v. Republic Pictures, Corp., S.D.N.Y.1957, 148 F.Supp. 156, 159-60. This reasoning is sealed by the unqualified embrace in Zenith of the recognition that each injurious act of a continuing conspiracy gives rise to an antitrust cause of action, and the Zenith opinion’s conspicious selection of authorities eschewing the requirement of acts different in kind to set up a later accruing cause of action:
In the context of a continuing conspiracy to violate the antitrust laws . [it] has usually been understood . that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. See, e. g., Crummer Co. v. Du Pont, 223 F.2d 238, 247-48 (C.A. 5 1955);
Question: This question concerns the first listed appellant. 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:
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