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songer_procedur
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D
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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.
ATLAS BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 16252.
United States Court of Appeals District of Columbia Circuit-
Argued Sept. 25, 1961.
Decided Oct. 6, 1961.
Mr. Mark E. Fields, Washington, D. C., with whom Mr. Samuel Miller, Washington, D. C., was on the brief, for appellant.
Mrs. Ruth Y. Reel, Counsel, Federal Communications Commission, Washington, D. C., with whom Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, and Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, Washington, D. C., were on the brief, for appellee.
Before Fahy, Bastían and Burger, Circuit Judges.
PER CURIAM.
The appeal is from a decision and order of the Federal Communications Commission denying the application of standard broadcast station WMAX, Grand Rapids, Michigan, for authority to increase its operating power from 1 kilowatt to 5 kilowatts. The order denying rehearing is also included in the appeal.
There is no contention the issues designated for hearing on the application were not adequate, or that the hearing and resulting findings of the Hearing Examiner, adopted by the Commission in its decision and order, were not factually supported by the evidence, or that any procedural defects afflict the hearing or other proceedings leading to the decision and order. The complaint is that the conclusion of the Commission, like that of the Examiner, was so unreasonable that we should set it aside. The Commission found that the appellant had failed to demonstrate a need for its proposed new service which would outweigh the loss of service caused to station WIOS by the resulting interference. Accordingly, the Commission concluded that the proposed application for service was not in the public interest and therefore should be denied. We think the Commission’s conclusion was within the discretion available to it under the standards applicable to judicial views.
As to the refusal of the Commission to defer action on appellant’s petition for rehearing pending disposition of the WIOS application for a change of frequency, this also was within the permissible range of the Commission’s discretion. See Greenwich Broadcasting Corp. v. Federal Communications Comm., 111 U.S. App.D.C. -, 294 F.2d 913.
Affirmed.
. Appellant, Atlas Broadcasting Company, became the licensee of station WMAX on October 24, 1960, pursuant to Commission approval of tbe assignment of the license from WMAX, Inc.
. 47 C.F.R. § 3.24(b) (Supp.1961).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_adminaction
|
069
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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.
HCSC-LAUNDRY v. UNITED STATES
No. 80-338.
Decided February 23, 1981
Per Curiam.
Petitioner HCSC-Laundry is a Pennsylvania nonprofit corporation. It was organized in 1967 under the law of that Commonwealth “[t]o operate and maintain a hospital laundry and linen supply program for those public hospitals and non-profit hospitals or related health facilities organized and operated exclusively for religious, charitable, scientific, or educational purposes that contract with [it].”
Petitioner provides laundry and linen service to 15 nonprofit hospitals and to an ambulance service. All these are located in eastern Pennsylvania. Each organization served possesses a certificate of exemption from federal income taxation under § 501 (c) (3) of the Internal Revenue Code of 1954, 26 U. S. C. § 501 (c)(3). Each participating hospital pays petitioner annual membership dues based upon bed capacity. The ambulance service pays no dues. Petitioner’s only other income is derived from (a) a charge for laundry and linen service based upon budgeted costs and (b) a charge of 1% cents per pound of laundry. Budgeted costs include operating expenses, debt retirement, and linen replacement. The amounts charged in excess of costs have been placed in a fund for equipment acquisition and replacement.
No part of petitioner’s net earnings inures to the benefit of any individual.
Petitioner was formed after the Lehigh Valley Health Planning Council determined that a shared, nonprofit, off-premises laundry would best accommodate the requirements of the member hospitals with respect to both quality of service and economies of scale. The Council had investigated various alternatives. It had rejected a joint service concept because no member hospital had sufficient laundry facilities to serve more than itself. A commercial laundry had declined an offer for the laundry business of all the hospitals, and most of the other available commercial laundries were not capable of managing the heavy total volume.
Petitioner’s laundry plant was built and equipped at a cost of about $2 million. This was financed through loans from local banks, with 15-year contracts from 10 of the hospitals used as collateral. Petitioner employs approximately 125 persons.
In 1976, petitioner applied for exemption under § 501 (c) (3) from federal income taxation. The Internal Revenue Service denied the exemption application on the grounds that § 501 (e) of the Code was the exclusive provision under which a cooperative hospital service organization could qualify as “an organization organized and operated exclusively for charitable purposes” and therefore exempt. Because subsection (e)(1) (A) does not mention laundry, the Service reasoned that petitioner was not entitled to tax exemption.
Petitioner duly filed its federal corporate income tax return for its fiscal year ended June 30, 1976. That return showed taxable income of $123,521 and a tax of $10,395. The tax was paid. Shortly thereafter, petitioner filed a claim for refund of that tax and, when the Internal Revenue Service took no action on the claim within six months, see 26 U. S. C. § 6532 (a)(1), petitioner commenced this refund suit in the United States District Court for the Eastern District of Pennsylvania.
On stipulated facts and cross-motions for summary judgment, the District Court ruled in favor of petitioner, holding that it was entitled to exemption as an organization described in § 501 (c) (3). 473 F. Supp. 250 (1979). The United States Court of Appeals for the Third Circuit, however, reversed. It held that § 501 (e) was the exclusive provision under which a cooperative hospital service organization could obtain an income tax exemption, and that the omission of laundry services from § 501 (e)(l)(A)’s specific list of activities demonstrated that Congress intended to deny exempt status to cooperative hospital service laundries. 624 F. 2d 428 (1980).
Because the ruling of the Court of Appeals is in conflict with decisions elsewhere, we grant certiorari, and we now affirm.
This Court has said: “The starting point in the determination of the scope of 'gross income’ is the cardinal principle that Congress in creating the income tax intended 'to use the full measure of its taxing power.’ ” Commissioner v. Kowalski, 434 U. S. 77, 82 (1977), quoting from Helvering v. Cliford, 309 U. S. 331, 334 (1940). See § 61 (a) of the Code, 26 U. S. C. § 61 (a). Under our system of federal income taxation, therefore, every element of gross income of a person, corporate or individual, is subject to tax unless there is a statute or some rule of law that exempts that person or element.
Sections 501 (a) and (c) (3) provide such an exemption, and a complete one, for a corporation fitting the description set forth in subsection (c) (3) and fulfilling the subsection’s requirements. But subsection (e) is also a part of § 501. And it expressly concerns the tax status of a cooperative hospital service organization. It provides that such an organization is exempt if, among other things, its activities consist of “data processing, purchasing, warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services.” Laundry and linen service, so essential to a hospital’s operation, is not included in that list and, indeed, is noticeable for its absence. The issue, thus, is whether that omission prohibits petitioner from qualifying under § 501 as an organization exempt from taxation. The Government’s position is that subsection (e) is controlling and exclusive, and because petitioner does not qualify under it, exemption is not available. Petitioner takes the opposing position that § 501 (c) (3) clearly entitles it to the claimed exemption.
Without reference to the legislative history, the Government would appear to have the benefit of this skirmish, for it is a basic principle of statutory construction that a specific statute, here subsection (e), controls over a general provision such as subsection (c)(3), particularly when the two are interrelated and closely positioned, both in fact being parts of § 501 relating to exemption of organizations from tax. See Bulova Watch Co. v. United States, 365 U. S. 753, 761 (1961).
Additionally, however, the legislative history provides strong and conclusive support for the Government’s position. It persuades us that Congress intended subsection (e) to be exclusive and controlling for cooperative hospital service organizations. Prior to the enactment of subsection (e) in 1968, the law as to the tax status of shared hospital service organizations was uncertain. The Internal Revenue Service took the position that if two or more tax-exempt hospitals created an entity to perform commercial services for them, that entity was not entitled to exemption. See Rev. Rul. 54-305, 1954-2 Cum. Bull. 127. See also § 502, as amended, of the 1954 Code, 26 U. S. C. § 502. This position, however, was rejected by the Court of Claims in Hospital Bureau of Standards and Supplies, Inc. v. United States, 141 Ct. Cl. 91, 158 F. Supp. 560 (1958). After expressly noting the uncertainty in the law, Congress enacted subsection (e). See Revenue and Expenditure Control Act of 1968, Pub. L. 90-364, § 109 (a), 82 Stat. 269.
In considering the provisions of the tax adjustment bill of 1968 that ultimately became subsection (e), the Senate sought to include laundry in the list of services that a cooperative hospital service organization could provide and still maintain its tax-exempt status. The Treasury Department supported the Senate amendment. See 114 Cong. Rec. 7516, 8111-8112 (1968). At the urging of commercial interests, however (see Hearings on Certain Committee Amendments to H. R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 608 (1976)), the Conference Committee would accept only a limited version of the Senate amendment. In recommending the adoption of subsection (e), the managers on the part of the House emphasized that shared hospital service organizations performing laundry services were not entitled to tax-exempt status under the new provision. See H. R. Conf. Rep. No. 1533, 90th Cong., 2d Sess., 43 (1968); Senate Committee on Finance and House Committee on Ways and Means, Revenue and Expenditure Control Act of 1968, Explanation of the Bill H. R. 15414, 90th Cong., 2d Sess., 1, 20 (Comm. Print 1968).
Later, in 1976, at the urging of the American Hospital Association, the Senate Committee on Finance proposed an amendment that would have added laundry to the list of services specified in subsection (e)(1)(A). Hearings on H. R. 10612 before the Senate Committee on Finance, 94th Cong., 2d Sess., 2765-2772 (1976); S. Rep. No. 94-938, pt. 2, pp. 76-77 (1976). The amendment, however, was defeated on the floor of the Senate. 122 Cong. Rec. 25915 (1976).
In view of all this, it seems to us beyond dispute that subsection (e)(1)(A) of § 501, despite the seemingly broad general language of subsection (c)(3), specifies the types of hospital service organizations that are encompassed within the scope of § 501 as charitable organizations. Inasmuch as laundry service was deliberately omitted from the statutory list and, indeed, specifically was refused inclusion in that list, it inevitably follows that petitioner is' not entitled to tax-exempt status. The Congress easily can change the statute whenever it is so inclined.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice White dissents and would set the case for plenary consideration.
The quoted language is from petitioner’s articles of incorporation, as amended May 29, 1970. The articles further state that petitioner’s corporate purposes are to be accomplished “in a manner consistent with the provisions of Section 501 (c) (3) of the- Internal Revenue Code of 1954.” See 624 F. 2d 428, 429, n. 1 (CA3 1980).
Subsections (a) and (c) of §501, to the extent pertinent here, read: “(a) Exemption from taxation
“An organization described' in subsection (c) or (d) or section 401 (a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503.
“(c) List of exempt organizations
“The following organizations are referred to in subsection (a):
“(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.”
Section 501 (e) reads:
“(e) Cooperative hospital service organizations
“For purposes of this title, an organization shall be treated as an organization organized and operated exclusively for charitable purposes, if—
“(1) such organization is organized and operated solely—
“(A) to perform, on a centralized basis, one or more of the following services which, if performed on its own behalf by a hospital which is an organization described in subsection • (c) (3) arid exempt from taxation under subsection (a), would constitute activities in exercising or performing the purpose or function constituting the basis for its exemption: data processing, purchasing, warehousing, bitting and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, and personnel (including selection, testing, training, and education of personnel) services; and
“(B) to perform such services solely for two or more hospitals each of which is—
“(i) an organization described in subsection (c) (3) which is exempt from taxation under subsection (a),
“(ii) a constituent part of an organization described in subsection (c) (3) which is exempt from taxation under subsection (a) and which, if organized and operated as a separate entity, would constitute an organization described in subsection (c)(3), or
“(iii) owned and operated by the United States, a State, the District of Columbia, or a possession of the United States, or a political subdivision or an agency or instrumentality of any of the foregoing.”
Among the eases in conflict with the Third Circuit’s ruling are Northern California Central Services, Inc. v. United States, 219 Ct. Cl. 60, 591 F. 2d 620 (1979), and United Hospital Services, Inc. v. United States, 384 F. Supp. 776 (SD Ind. 1974). See also Chart, Inc. v. United States, 491 F. Supp. 10 (DC 1979) (appeals pending, Nos. 80-1138 and 80-1139 (CADC)).
Decisions in accord with the ruling of the Third Circuit include Hospital Central Services Assn. v. United States, 623 F. 2d 611 (CA9 1980), cert. denied, post, p. 911, and Metropolitan Detroit Area Hospital Services, Inc. v. United States, 634 F. 2d 330 (CA6 1980). See also Associated Hospital Services, Inc. v. Commissioner, 74 T. C. 213, 231 (1980) (reviewed by the court, with four dissents; appeal pending, No. 80-3596 (CA5)).
Since the enactment of subsection (e), the Internal Revenue Service has adhered to its view that laundry service provided by a cooperative hospital service organization is not entitled to exemption under § 501. See Rev. Rul. 69-160, 1969-1 Cum. Bull. 147; Rev. Rul. 69-633, 1969-2 Cum. Bull. 121.
See S. Rep. No. 744, 90th Cong., 1st Sess., 200-201 (1967); H. R. Conf. Rep. No. 1030, 90th Cong., 1st Sess., 73 (1967); 114 Cong. Rec. 7516, 8111-8112 (1968).
We do not agree with the suggestion made by the Court of Claims in Northern California Central Services, Inc. v. United States, 219 Ct. Cl., at 67, 591 F. 2d, at 624, that Congress “may have wished not to encourage cooperative hospital laundries by new tax exemptions, to which commercial laundries made vehement objections, yet to leave such laundries free to obtain from the courts the exemptions that existing law might afford them.” The extended hearings, the Committee considerations, and the floor debates all reveal that Congress was well informed on the issue and made a deliberate decision. We necessarily recognize that congressional choice.
The Commissioner never expressly announced a nonacquiescence in this decision. However, in an apparent response to the Hospital Bureau case, the feeder regulation, § 1.502-1 (b), was amended in several respects in 1963. See T. D. 6662, 1963-2 Cum. Bull. 214, 215-216. See also Associated Hospital Services, Inc. v. Commissioner, supra, at 219.
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
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songer_state
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24
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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, Appellee, v. Randall Dale DAHLIN, Appellant.
No. 83-2452.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1984.
Decided May 18, 1984.
James M. Rosenbaum, U.S. Atty., Douglas A. Kelley, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., for appellee.
Faegre & Benson by James Duffy O’Connor, Mary K. Bachman, Federal Public Defender Panel, Minneapolis, Minn., for appellant.
Before BOWMAN, Circuit Judge, SWYGERT and HENLEY, Senior Circuit Judges.
The Honorable Luther M. Swygert, United States Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation.
PER CURIAM.
Randall Dale Dahlin appeals from his bank robbery conviction under 18 U.S.C. § 2113(a). For reversal he argues that the district court improperly admitted evidence of a bad act and that it abused its discretion by not ruling on Dahlin’s pretrial motion to exclude evidence of prior convictions. We affirm.
Dahlin was apprehended for the robbery of a Minneapolis savings and loan association after tellers described him and identified him in bank photographs which recorded the robbery. At trial Dahlin and his sister disputed the identification and testified that Dahlin was babysitting his infant niece at the time of the robbery.
In constructing his babysitting alibi Dahlin and his sister testified that Dahlin was deeply devoted to his niece and his family and that he never left the child alone. On cross-examination the government disputed this account of Dahlin’s family relations. After Dahlin admitted to problems and quarrels with his father and siblings, the government’s questions produced a colloquy on which Dahlin partly bases his appeal:
Q. In fact on one occasion sometime ago you injured [your father] rather severely, did you not?
A. No, I didn’t. It wasn’t severely, it was pretty minor.
MR. O’CONNOR: Your Honor, I am going to object to going into any of this. Once again, if it is character evidence it is not relevant and it is not permissible under Rule 404.
THE COURT: Objection overruled on the grounds previously indicated, under 404(a)(1).
THE WITNESS: Do you want me to tell you about it?
MR. KELLY:
Q. Yes, I would.
A. I can remember like it happened yesterday. I was about 15 years old at that time and I had just come home from school, he didn’t like me fighting and I was using pills at the time, barbiturates, and I believe I came in one night, I was at the house, he came in, he had been drinking, him and my mother, and he came up to me, and we got in an argument. We got to wrestling, he got up on top of me and pinned my arms down and as he pinned my arms down he pulled out a pocket knife and he held it up to my throat and said I should cut your throat and he set the pocket knife on a coffee table to the side and started slapping me in the face.
Well, I reached over and grabbed the knife and stabbed him in the ass.
I knew where I was going to stab him, but I struck him in the ass.
Fed.R.Evid. 404(a)(1) approves the admission of “evidence of a pertinent trait” of a person’s character offered by the accused or by the prosecution in rebuttal. Several courts have approved the use, in rebuttal, of evidence of the accused’s character under this rule. United States v. Wilford, 710 F.2d 439, 448 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); United States v. Gaertner, 705 F.2d 210, 216-17 (7th Cir.1983) (where defendant tried to depict himself as a “clean-liver,” he opened the door to the prosecution regarding his drug involvement); United States v. Adamson, 665 F.2d 649, 660 (5th Cir.1982) (defendant opened the door for rebuttal by his attempt to negate inference of intent by describing his career, personal history and philosophy, family and business ties, medical problems and civic contributions).
Prudential guidelines govern the administration of this rule. Questions must be narrowly framed and restricted to actual events which affect the traits the accused has placed in issue. United States v. Lewis, 482 F.2d 632, 639 (D.C.Cir.1973). The court must closely supervise this questioning and must balance the probative value of information elicited against possible prejudice to the defendants. Id.; see United States v. Murzyn, 631 F.2d 525, 529 (7th Cir.1980) (balancing test involves inquiry into the relevance, reliability, and unfair effect of the evidence), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981).
Dahlin’s alibi put at issue his reliability, responsibility and familial devotion, which were traits pertinent to the jury’s appraisal of his defense. Thus, to a limited extent the government was entitled to question Dahlin’s role in family fights as well as his dependency on drugs. The difficulty with appellant’s position, however, is that he volunteered the questionable testimony hereinabove set forth. His account of the family fight simply was not given in response to any direct question. In these circumstances, we will not order a new trial or vacate the conviction. We add that our conclusion is reinforced by the fact that in closing argument counsel made no direct reference to the episode, and we observe that the trial court instructed the jury not to consider it in determining the guilt or innocence of the defendant.
Dahlin also contends that the district court erred in refusing to rule on his pretrial motions to exclude prior convictions. He argues that, because he would have been susceptible to impeachment for these crimes had he testified, his attorney was compelled to disclose them in his opening statement.
We have held that when defense counsel moves in limine to exclude evidence of prior convictions but then introduces them in defendant’s direct testimony, the defense has wavied the right to appeal the trial court’s refusal to grant the motion. United States v. Johnson, 720 F.2d 519, 522 (8th Cir.1983); United States v. Cobb, 588 F.2d 607, 613 (8th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). The same waiver should be invoked where counsel for the defendant discloses the conviction in his opening statement.
While some other courts recommend ruling on pretrial motions of this sort, United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Oakes, 565 F.2d 170, 171 (1st Cir.1977), we have repeatedly declared that, even if the defendant is discouraged from testifying, in most circumstances the trial court has no duty to rule on such motions until the defendant takes the stand. United States v. Jankowski, 713 F.2d 394, 397 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 732, 79 L.Ed.2d 192 (1984); United States v. Rivers, 693 F.2d 52, 53-54 (8th Cir.1982) (Alsop, J., sitting by designation); United States v. Fay, 668 F.2d 375, 379 (8th Cir.1981); United States v. Witschner, 624 F.2d 840, 844 (8th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980); United States v. Johnston, 543 F.2d 55, 59 (8th Cir.1976). Forbearance can prevent gratuitous advisory opinions and can promote judicial economy and accurate decisions. United States v. Burkhead, 646 F.2d 1283, 1286 (8th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981).
Although we recognize the potential prejudicial effect that prior crimes evidence may have on juries, we do not find here that the district court abused its discretion in deferring its ruling. Moreover, we reject as well the suggestion that the cumulative effect of the trial court’s alleged error and the prosecutor’s alleged misconduct deprived Dahlin of a fair trial.
Accordingly, the judgment of the district court is affirmed.
. The Honorable Donald D. Alsop, United States District Judge, District of Minnesota.
. Although refusal to rule was reversible error in Burkhead, that result flowed from the unusual fact that the prior crimes and the crime at issue were charged in the same indictment but tried separately. The trial court refused to rule on the use of the prior substantive crimes at the latter trial for conspiracy. Thus, Burkhead’s defense testimony was chilled due to circumstances absent in this case.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_circuit
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G
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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.
Bertram W. COLTMAN, Jr., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Michelle COLTMAN, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
Nos. 92-1165, 92-1169 and 92-1170.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 10, 1992.
Decided Dec. 7, 1992.
Brian J. Yagoda, Northbrook, Ill., Michael H. Lurie, and Mark J. Unterberger (argued), Chicago, Ill., for petitioner-appel-lee.
Sheldon P. Migdal and John E. Frey (argued), Wildman, Harrold, Allen & Dixon, Chicago, Ill., for petitioner-appellant.
Gary R. Allen, Ann Belanger Durney, Charles Bricken (argued), Kenneth W. Rosenberg, Dept, of Justice, Tax Div., Appellate Section; Charles S. Casazza, U.S. Tax Court; Shirley D. Peterson, Department of Justice, Tax Div.; and Brian C. Griffin, U.S. Dept, of Justice, Tax Div., Washington, D.C., for respondent.
Before FLAUM and RIPPLE, Circuit Judges, and SHADUR, Senior District Judge.
The Honorable Milton I. Shadur, of the Northern District of Illinois, is sitting by designation.
SHADUR, Senior District Judge.
This three-party dispute involves the income tax deductibility or nondeductibility of payments made by a husband to his estranged wife pursuant to a court order during taxable years in which, though they were actively engaged in divorce proceedings, he had not removed himself entirely from the family residence. Bertram Colt-man, Jr. (“Bertram”) disputes the assertion by the Commissioner of Internal Revenue of a tax deficiency stemming from Bertram’s deduction of those payments in 1982 and 1983, while the Commissioner has issued protective notices of deficiency against Bertram’s ex-wife Michelle Colt-man (“Michelle”) for taxability of the amounts if Bertram wins.
Before the Tax Court Bertram lost and the Commissioner won — though of course the Commissioner “lost” the obverse-side-of-the-coin litigation with Michelle. Here Bertram appeals the Tax Court decision, while the Commissioner has filed a protective appeal against Michelle.
During the tax years at issue the relevant provisions of the Internal Revenue Code (“Code” ) were these: Section 71(a)(3):
Decree for Support. If a wife is separated from her husband, the wife’s gross income includes periodic payments (whether or not made at regular intervals) received by her after the date of the enactment of this title from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. This paragraph shall not apply if the husband and wife make a single return jointly.
Section 215(a):
General Rule. In the case of a husband described in section 71, there shall be allowed as a deduction amounts includible under section 71 in the gross income of his wife, payment of which is made within the husband’s taxable year.
Section 71 was fleshed out by Treas.Reg. (“Reg.”) § 1.71 — 1 (b)(3)(i), which not too subtly altered the statutory term “separated” to “separated and living apart”:
(3) Decree for support, (i) Where the husband and wife are separated and living apart and do not file a joint income tax return for the taxable year, paragraph (3) of section 71(a) requires the inclusion in the gross income of the wife of periodic payments (whether or not made at regular intervals) received by her after August 16, 1954, from her husband under any type of court order or decree (including an interlocutory decree of divorce or a decree of alimony penden-te lite) entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. It is not necessary for the wife to be legally separated or divorced from her husband under a court order or decree; nor is it necessary for the order or decree for support to be for the purpose of enforcing a written separation agreement.
Before the Tax Court the battle lines formed over the question whether the fact of the parties’ living (at least part-time) under the same roof automatically rendered Bertram’s payments nondeductible. Just as the only two reported Court of Appeals decisions had split between the approval of such a bright-line rule (in Lyddan v. United States, 721 F.2d 873, 875-76 (2d Cir.1983)) and the rejection of such a rule in favor of a factual analysis of the spouses’ lack of familial relationship and their occupancy of separate quarters in the same residence (in Sydnes v. Commissioner, 577 F.2d 60, 62-63 (8th Cir.1978)), so the Tax Court in an earlier case (Washington v. Commissioner, 77 T.C. 601 (1981)) had divided sharply — the majority adhering to its own prior decision in Sydnes (which announced the same principle that was later espoused in Lyddan), while the seven dissenting judges (in three separate opinions) agreed with the Eighth Circuit’s Sydnes opinion. In this case the Tax Court followed its own majority decision in Washington.
During the taxable years at issue, which included the time of the Coltmans’ divorce trial, Bertram used the family residence in suburban Winnetka, Illinois as a part-time waystation between his real residence in Kenosha (where he was living with a “significant other” for most of the week) and his business in Chicago. We will not dwell as the parties have on the details of Bertram’s living arrangements, for we view the matter as controlled by the Reg. § 1.71-l(b)(3)(i) gloss on Section 71.
To be sure, the statutory word “separated” could arguably be read either (1) as demanding only the spouses’ total marital estrangement (something that could coincide with their living separate lives under the same roof) or (2) as also requiring at least the spouses’ physical separation by their not sharing the same home at all. But the Commissioner certainly made a rational choice by opting for the latter requirement in the course of construing the statute via the regulation. “Separated and living apart” is thus a valid reading of the congressional term “separated,” and we reject Bertram’s effort to invoke a skewed reading of “living apart” that would encompass the lifestyle that he and Michelle followed in 1982 and 1983.
We also decline Bertram’s invitation to accept his fallback position of apportioning his payments on a day-by-day basis, based on the number of nights that he was away from Winnetka each week (nearly 70% of the time in 1982 and 85% of the time in 1983). Although that suggestion does not lack for ingenuity, there is no warrant for it in the statute or regulation — and Bertram cannot succeed by invoking La-Bow v. Commissioner, 763 F.2d 125 (2d Cir.1985), which dealt with two wholly discrete time periods (involving a change in the payor spouse’s full-time residence, not a daily flip-flop).
One related final observation may be made, not as a reason for the result that we have reached based on the regulation’s reading of Section 71, but as to the effect of that result. This is certainly an area in which a bright-line rule affords a real advantage to taxpayers, who can negotiate (or who can obtain judicial rulings as to) their financial arrangements during the unpleasantness of the pre-divorce-decree period, with full knowledge as to whether they are dealing in pre-tax or post-tax dollars. It provides a classic illustration of the Coase Theorem, which has earned Professor Ronald Coase a long-belated but much-deserved Nobel Prize: So long as the rule of law is known when parties act, the ultimate economic result is the same no matter which way the law has resolved the issue. That of course provides cold comfort for Bertram, who has had the misfortune to negotiate without that degree of legal certainty.
In sum, we come down on the same side of the issue as Lyddan and the majority of the Tax Court judges. Both decisions of the Tax Court — that in favor of the Commissioner against Bertram, and that in favor of Michelle against the Commissioner— are Affirmed.
. Citations to Code provisions will simply take the form “Section — ,” omitting any reference to Title 26.
. Since then the Code provisions that apply to payments made by one spouse (or ex-spouse) to the other during the various stages of domestic disharmony, both before and after a formal divorce decree, have been amended. We draw no inference from the statutory changes, nor (of course) do we opine on how like payments would be treated under present law.
. Should it really matter whether, as Michelle stresses, she "regularly would clean his broiling pan after Bertram failed to clean it” (it is undisputed that Bertram cooked for himself when he ate any meals in the house), or whether “Bertram regularly ate the children’s breakfast cereal” (both those quotations are from Michelle’s Br. vi), or whether Bertram’s occasional use of the middle bathroom rather than his own ”caus[ed] his younger son to miss his school bus which obligated Michelle to drive their younger son to school” (id. at v)? Despite those and similar nits on which Michelle and the Commissioner rely, if in law the statutory term "separated” were to be equated with "estranged" rather than with the regulation’s "separated and living apart," the nature of the armed-camp existence between the parties in 1982 and 1983 would certainly have met the former standard.
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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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF A WOMAN OF PLEASURE” et al. v. ATTORNEY GENERAL OF MASSACHUSETTS.
No. 368.
Argued December 7-8, 1965.
Decided March 21, 1966.
Charles Rembar argued the cause and filed briefs for appellants.
William I. Cowin, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Edward W. Brooke, Attorney General, and John E. Sullivan, Assistant Attorney General.
Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens for Decent Literature, Inc., et al., as amici curiae, urging affirmance.
Me. Justice Brennan
announced the judgment of the Court and delivered an opinion in which The Chief Justice and Mr. Justice Fortas join.
This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in about 1750, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. The proceeding was a civil equity suit brought by the Attorney General of Massachusetts, pursuant to General Laws of Massachusetts, Chapter 272, §§ 28C-28H, to have the book declared obscene. Section 28C requires that the petition commencing the suit be “directed against [the] book by name” and that an order to show cause “why said book should not be judicially determined to be obscene” be published in a daily newspaper and sent by registered mail “to all persons interested in the publication.” Publication of the order in this case occurred in a Boston daily newspaper, and a copy of the order was sent by registered mail to G. P. Putnam’s Sons, alleged to be the publisher and copyright holder of the book.
As authorized by § 28D, G. P. Putnam’s Sons intervened in the proceedings in behalf of the book, but it did not claim the right provided by that section to have the issue of obscenity tried by a jury. At the hearing before a justice of the Superior Court, which was conducted, under § 28F, “in accordance with the usual course of proceedings in equity,” the court received the book in evidence and also, as allowed by the section, heard the testimony of experts and accepted other evidence, such as book reviews, in order to assess the literary, cultural, or educational character of the book. This constituted the entire evidence, as neither side availed itself of the opportunity provided by the section to introduce evidence “as to the manner and form of its publication, advertisement, and distribution.” The trial justice entered a final decree, which adjudged Memoirs obscene and declared that the book “is not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States against action by the Attorney General or other law enforcement officer pursuant to the provisions of ... § 28B, or otherwise.” The Massachusetts Supreme Judicial Court affirmed the decree. 349 Mass. 69, 206 N. E. 2d 403 (1965). We noted probable jurisdiction. 382 U. S. 900. We reverse.
I.
The term “obscene” appearing in the Massachusetts statute has been interpreted by the Supreme Judicial Court to be as expansive as the Constitution permits: the “statute covers all material that is obscene in the constitutional sense.” Attorney General v. The Book Named “Tropic of Cancer," 345 Mass. 11, 13, 184 N. E. 2d 328, 330 (1962). Indeed, the final decree before us equates the finding that Memoirs is obscene within the meaning of the statute with the declaration that the book is not entitled to the protection of the First Amendment. Thus the sole question before the state courts was whether Memoirs satisfies the test of obscenity established in Both v. United States, 354 U. S. 476.
We defined obscenity in Roth in the following terms: “[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
The Supreme Judicial Court purported to apply the Roth definition of obscenity and held all three criteria satisfied. We need not consider the claim that the court erred in concluding that Memoirs satisfied the prurient appeal and patent offensiveness criteria; for reversal is required because the court misinterpreted the social value criterion. The court applied the criterion in this passage:
“It remains to consider whether the book can be said to be ‘utterly without social importance.’ We are mindful that there was expert testimony, much of which was strained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is superior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the ‘social importance’ test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.” 349 Mass., at 73, 206 N. E. 2d, at 406.
The Supreme Judicial Court erred in holding that a book need not be “unqualifiedly worthless before it can be deemed obscene.” A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.
II.
It does not necessarily follow from this reversal that a determination that Memoirs is obscene in the constitutional sense would be improper under all circumstances. On the premise, which we have no occasion to assess, that Memoirs has the requisite prurient appeal and is patently offensive, but has only a minimum of social value, the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected. Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States, post, pp. 470-473, where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value. In this proceeding, however, the courts were asked to judge the obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by a specific set of circumstances of production, sale, and publicity. All possible uses of the book must therefore be considered, and the mere risk that the book might be exploited by panderers because it so pervasively treats sexual matters cannot alter the fact — given the view of the Massachusetts court attributing to Memoirs a modicum of literary and historical value — that the book will have redeeming social importance in the hands of those who publish or distribute it on the basis of that value.
Reversed.
Mr. Justice Black and Mr. Justice Stewart concur in the reversal for the reasons stated in their respective dissenting opinions in Ginzburg v. United States, post, p. 476 and p. 497, and Mishkin v. New York, post, p. 515 and p. 518.
APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.
State Statute.
Massachusetts General Laws, Chapter 272.
Section 28B. Whoever imports, prints, publishes, sells, loans or distributes, or buys, procures, receives, or has in his possession for the purpose of sale, loan or distribution, a book, knowing it to be obscene, indecent or impure, or whoever, being a wholesale distributor, a jobber, or publisher sends or delivers to a retail storekeeper a book, pamphlet, magazine or other form of printed or written material, knowing it to be obscene, indecent or impure, which said storekeeper had not previously ordered in writing, specifying the title and quantity of such publication he desired, shall be punished by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, or by a fine of not less than one hundred dollars nor more than five thousand dollars, or by both such fine and imprisonment in jail or the house of correction.
Section 28C. Whenever there is reasonable cause to believe that a book which is being imported, sold, loaned or distributed, or is in the possession of any person who intends to import, sell, loan or distribute the same, is obscene, indecent or impure, the attorney general, or any district attorney within his district, shall bring an information or petition in equity in the superior court directed against said book by name. Upon the filing of such information or petition in equity, a justice of the superior court shall, if, upon a summary examination of the book, he is of opinion that there is reasonable cause to believe that such book is obscene, indecent or impure, issue an order of notice, returnable in or within thirty days, directed against such book by name and addressed to all persons interested in the publication, sale, loan or distribution thereof, to show cause why said book should not be judicially determined to be obscene, indecent or impure. Notice of such order shall be given by publication once each week for two successive weeks in a daily newspaper published in the city of Boston and, if such information or petition be filed in any county other than Suffolk county, then by publication also in a daily newspaper published in such other county. A copy of such order of notice shall be sent by registered mail to the publisher of said book, to the person holding the copyrights, and to the author, in case the names of any such persons appear upon said book, fourteen days at least before the return day of such order of notice. After the issuance of an order of notice under the provisions of this section, the court shall, on motion of the attorney general or district attorney, make an interlocutory finding and adjudication that said book is obscene, indecent or impure, which finding and adjudication shall be of the same force and effect as the final finding and adjudication provided in section twenty-eight E or section twenty-eight F, but only until such final finding and adjudication is made or until further order of the court.
Section 28D. Any person interested in the sale, loan or distribution of said book may appear and file an answer on or before the return day named in said notice or within such further time as the court may allow, and may claim a right to trial by jury on the issue whether said book is obscene, indecent or impure.
Section 28E. If no person appears and answers within the time allowed, the court may at once upon motion of the petitioner, or of its own motion, no reason to the contrary appearing, order a general default and if the court finds that the book is obscene, indecent or impure, may make an adjudication against the book that the same is obscene, indecent and impure.
Section 28F. If an appearance is entered and answer filed, the case shall be set down for speedy hearing, but a default and order shall first be entered against all persons who have not appeared and answered, in the manner provided in section twenty-eight E. Such hearing shall be conducted in accordance with the usual course of proceedings in equity including all rights of exception and appeal. At such hearing the court may receive the testimony of experts and may receive evidence as to the literary, cultural or educational character of said book and as to the manner and form of its publication, advertisement, and distribution. Upon such hearing, the court may make an adjudication in the manner provided in said section twenty-eight E.
Section 28G. An information or petition in equity under the provisions of section twenty-eight C shall not be open to objection on the ground that a mere judgment, order or decree is sought thereby and that no relief is or could be claimed thereunder on the issue of the defendant’s knowledge as to the obscenity, indecency or impurity of the book.
Section 28H. In any trial under section twenty-eight B on an indictment found or a complaint made for any offence committed after the filing of a proceeding-under section twenty-eight C, the fact of such filing and the action of the court or jury thereon, if any, shall be admissible in evidence. If prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene, indecent or impure, shall be conclusively presumed to have known said book to be obscene, indecent or impure, or if said decree had been in favor of the book he shall be conclusively presumed not to have known said book to be obscene, indecent or impure, or if no final decree had been entered but a proceeding had been filed prior to said offence, the defendant shall be conclusively presumed to have had knowledge of the contents of said book.
The text of the statute appears in the Appendix.
In dissenting from the Supreme Judicial Court’s disposition in this case, 349 Mass. 69, 74-75, 206 N. E. 2d 403, 406-407 (1965), Justice Whittemore summarized this testimony:
“In the view of one or another or all of the following viz., the chairman of the English department at Williams College, a professor of English at Harvard College, an associate professor of English literature at Boston University, an associate professor of English at Massachusetts Institute of Technology, and an assistant professor of English and American literature at Brandéis University, the book is a minor 'work of art’ having ‘literary merit’ and ‘historical value’ and containing a good deal of ‘deliberate, calculated comedy.’ It is a piece of ‘social history of interest to anyone who is interested in fiction as a way of understanding society in the past.’ A saving grace is that although many scenes, if translated into the present day language of ‘the realistic, naturalistic novel, could be quite offensive’ these scenes are not described in such language. The book contains no dirty words and its language ‘functions ... to create a distance, even when the sexual experiences are portrayed.’ The response, therefore, is a literary response. The descriptions of depravity are not obscene because ‘they are subordinate to an interest which is primarily literary’; Fanny’s reaction to the scenes of depravity was ‘anger,’ ‘disgust, horror, [and] indignation.’ The book ‘belongs to the history of English literature rather than the history of smut.’ ”
" One of the witnesses testified in part as follows: ‘Cleland is part of what I should call this cultural battle that is going on in the 18th century, a battle between a restricted Puritan, moralistic ethic that attempts to suppress freedom of the spirit, freedom of the flesh, and this element is competing with a freer attitude towards life, a more generous attitude towards life, a more wholesome attitude towards life, and this very attitude that is manifested in Fielding’s great novel “Tom Jones” is also evident in Cleland’s novel. . . . [Richardson’s] “Pamela” is the story of a young country girl; [his] “Clarissa” is the story of a woman trapped in a house of prostitution. Obviously, then Cleland takes both these themes, the country girl, her initiation into life and into experience, and the story of a woman in a house of prostitution, and what he simply does is to take the situation and reverse the moral standards. Richardson believed that chastity was the most important thing in the world; Cleland and Fielding obviously did not and thought there were more important significant moral values.’ ”
“ In the opinion of the other academic witness, the headmaster of a private school, whose field is English literature, the book is without literary merit and is obscene, impure, hard core pornography, and is patently offensive.”
The record in this case is thus significantly different from the records in Ginzburg v. United States, post, p. 463, and Mishkin v. New York, post, p. 502. See pp. 420-421, infra.
Section 28B makes it a criminal offense, inter alia, to import, print, publish, sell, loan, distribute, buy, procure, receive, or possess for the purpose of sale, loan, or distribution, “a book, knowing it to be obscene.” Section 28H provides that in any prosecution under § 28B the decree obtained in a proceeding against the book “shall be admissible in evidence” and further that “[i]f prior to the said offence a final decree had been entered against the book, the defendant, if the book be obscene . . . shall be conclusively presumed to have known said book to be obscene . . . .” Thus a declaration of obscenity such as that obtained in this proceeding is likely to result in the total suppression of the book in the Commonwealth.
The constitutionality of §28H has not been challenged in this appeal.
Although the final decree provides no coercive relief but only a declaration of the book’s obscenity, our adjudication of the merits of the issue tendered, viz., whether the state courts erred in declaring the book obscene, is not premature. There is no uncertainty as to the content of the material challenged, and the Attorney General’s petition commencing this suit states that the book “is being imported, sold, loaned, or distributed in the Commonwealth.” The declaration of obscenity is likely to have a serious inhibitory effect on the distribution of the book, and this probable impact is to no small measure derived from possible collateral uses of the declaration in subsequent prosecutions under the Massachusetts criminal obscenity statute. See n. 4, supra.
We infer from the opinions below that the other adjectives describing the proscribed books in §§28C-28H, “indecent” and “impure,” have either been read out of the statute or deemed synonymous with “obscene.”
“[M]aterial dealing with sex in a manner that advocates ideas ... or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance. See Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 383 P. 2d 152, 165, 31 Cal. Rptr. 800, 813 (1963).” Jacobellis v. Ohio, 378 U. S. 184, 191 (opinion of Brennan, J.). Followed in, e. g., People v. Bruce, 31 Ill. 2d 459, 461, 202 N. E. 2d 497, 498 (1964); Trans-Lux Distributing Corp. v. Maryland Bd. of Censors, 240 Md. 98, 104-105, 213 A. 2d 235, 238-239 (1965).
In his dissenting opinion, 349 Mass., at 76-78, 206 N. E. 2d, at 408-409, Justice Cutter stated that, although in his view the book was not “obscene” within the meaning of Roth, “it could reasonably be found that distribution of the book to persons under the age of eighteen would be a violation of G. L. c. 272, § 28, as tending to .corrupt the morals of youth.” (Section 28 makes it a crime to sell to “a person under the age of eighteen years a book . . . which is obscene ... or manifestly tends to corrupt the morals of youth.”) He concluded that the court should “limit the relief granted to a declaration that distribution of this book to persons under the age of eighteen may be found to constitute a violation of [G. L.] c. 272, § 28, if that section is reasonably applied . . . .” However, the decree was not so limited and we intimate no view concerning the constitutionality of such a limited declaration regarding Memoirs. Cf. Jacobellis v. Ohio, 378 U. S., at 195.
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
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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130. South Carolina Eastern U.S. District Court
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132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
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135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
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140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
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143. New York U.S. District Court
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145. Ohio U.S. District Court
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150. Norfolk U.S. District Court
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153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_genresp1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Myra Holladay SIMS and Florida Import and Compliance Association, Plaintiffs-Appellees, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Defendant-Appellant.
No. 86-3055.
United States Court of Appeals, Eleventh Circuit.
Dec. 2, 1987.
Eric J. Taylor, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for defendant-appellant.
William C. Owen, Carlton, Fields, Ward, Emmanuel, George N. Meros, Tallahassee, Fla., amicus: Fla. Auto. Dealers Ass’n.
Susan Greco Tuttle, Moffitt, Hart & Miller, Tampa, Fla., amicus: Import Auto. Dealers of Florida, Inc.
Edward T. O’Donnell, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., amicus: Mercedes-Benz of North America, Inc.
Robert P. Smith, Jr., Tallahassee, Fla., for plaintiffs-appellees.
Before TJOFLAT and HATCHETT, Circuit Judges, and EATON , District Judge.
Honorable Joe Eaton, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.
HATCHETT, Circuit Judge.
The State of Florida, and the Department of Highway Safety and Motor Vehicles, appeal from the district court’s declaration that Florida Statute § 320.02(9) is unconstitutional because it is preempted under the supremacy clause and violates the commerce clause of the United States Constitution. We affirm in part and remand.
FACTS
On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile. “Gray market” automobiles are imported automobiles which are not designed or manufactured to comply with United States emissions and safety standards. Florida Import and Compliance Association (FICA) is a trade association whose members are directly involved in the importation of gray market automobiles.
Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act, 42 U.S.C. § 7522, and the Safety Act, 15 U.S.C. § 1397, bar the importation of motor vehicles that do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits
the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute].
42 U.S.C. § 7522(a)(1). Also, under section 7522(b)(2), the statute provides that
[t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part.
Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1397(a)(1)(A). In addition, that statute provides as follows:
[T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by ... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States.
15 U.S.C. § 1397(b)(3).
Despite general prohibitions against the importation of nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that federal environmental and safety laws are not unlawfully circumvented. The EPA, the DOT, and the Treasury Department promulgated regulations governing the importation of gray market vehicles. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, a gray market vehicle is conditionally admitted into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity.” 19 C.F.R. § 12.80(b)(l)(iii). The entry bond serves as a means to enforce the importer’s obligation to comply with the requirements of federal emission and safety standards. Thus, Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F.R. §§ 12.73c and 12.80e.
When Sim’s automobile arrived at port in Jacksonville, Florida, she complied with all of the applicable federal regulations governing the importation of gray market automobiles, which included posting a bond in the requisite amount. Sims was exempt from conforming her automobile to the applicable federal emission standards and received a letter from the EPA releasing the EPA obligation on the bond. In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii).
In 1984, the Florida legislature passed the following statute concerning automobile titling and registration:
Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle.
Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla.Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents the owner of a gray market vehicle from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government.
Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s automobile because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because of the excessive number of forms the DOT had to review.
Following refusal to title and register the automobile, Sims and the FICA filed suit in United States District Court for the Northern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the supremacy and commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) places an impermissible burden on foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling.
On September 29, 1986, we heard oral arguments addressing whether Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution. On February 18, 1987, we requested “all counsel of record” to submit supplemental briefs addressing (1) standing, (2) Florida’s sovereign immunity under the eleventh amendment, and (3) mootness. The parties complied with our request.
DISCUSSION
A. Standing
The state of Florida alleges that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they have failed to show (1) a judicially cognizable injury traceable to the enforcement of the statute, and (2) the likelihood of redress if the Florida statute is declared preempted or in violation of the commerce clause. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to satisfy the requirements of standing, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood of redress by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
Sims and the FICA allege that the state’s enforcement of Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution because it prevents the owner of a “gray market” vehicle from acquiring title and registration in Florida prior to release of the entry bond and final admission of the vehicle into the United States.
We note that whether the appellees have sufficiently alleged standing is not determined by the likelihood that they will prove what has been alleged. The Supreme Court’s ruling in Warth, 422 U.S. at 501, 95 S.Ct. at 2206, requires the courts to “accept as true all material allegations of the complaint, and ... construe the complaint in favor of the complaining party.” See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial requirement under the Article III doctrine relating to standing—an allegation of “a distinct and palpable injury,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Sims and the FICA’s complaints allege that the state’s enforcement of section 320.02(9) unlawfully prevents the titling and registering of gray market vehicles in Florida. In assuming, as we must, the truth of the allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct, palpable, and personal injury to Sims and the FICA.
Also, Sims’s and the FICA’s complaints contain assertions sufficient to establish the second requirement necessary to show standing—the likelihood of redress by the requested relief. Absent the state’s enforcement of section 320.02(9), Sims and other owners of gray market vehicles would immediately have their vehicles titled and registered in Florida. Federal statutes do not prohibit the titling and registering of gray market vehicles prior to final admission; similarly, the DOT does not prohibit the operation of gray market vehicles on public highways prior to the issuance of a release letter Only the EPA, under Title 40 C.F.R. § 85.1507 (1985), requires that gray market vehicles “be stored and ... not ... operated on the public highways [prior to] final admission.” The state’s argument is that since Sims and other owners of gray market vehicles are prohibited by section 85.1507 from operating such vehicles on the state roads until final admission is granted, they have no reason to seek titling and the registration of these vehicles. Such a contention amounts to mere speculation as to the owner’s need for, or the reason for which the owner seeks titling and registration. Moreover, Fla.Stat. § 320.02(1) does not prohibit the registration of vehicles that are not operated on Florida roads. We cannot conclude that titling and registration of a gray market vehicle are necessary only for the operation or sale of the automobile. In this case, we also find that Sims and the FICA have sufficiently alleged a distinct, palpable, and personal injury in the state’s enforcement of Fla.Stat. § 320.02(1). “There is [a] casual connection between the asserted injury and the conduct being challenged.” Allen v. Wright, 468 U.S. 737, 770, 104 S.Ct. 3315, 3334, 82 L.Ed.2d 556 (1984) (noting Simmon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976)). We hold that this lawsuit presents a “case or controversy” as required by article III of the United States Constitution and does not constitute a “hypothetical case.” Sims and FICA have standing to bring this lawsuit.
B. Preemption
Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the supremacy clause of article IV, clause 2 of the United States Constitution, which reads as follows:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The Supreme Court in Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) stated the three ways in which federal law may preempt state law.
Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law.
Michigan Canners, 467 U.S. at 469, 104 S.Ct. at 2523.
In Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983), we “acknowledge[d] the well established principle that the touchstone of preemption analysis is congressional intent....” Additionally, “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards:
No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicles engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress's intent to exclusively regulate the control of emissions from new motor vehicles prior to the initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518.
The state contends that Fla.Stat. § 320.02(9) simply ensures that new automobiles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although this contention may be based on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state ... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.”
The Safety Act likewise contains a preemptive provision which reads in part as follows:
Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard.
15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, 15 U.S.C. § 1392(d) precludes states from enforcement of safety standards only when such standards are not identical to federal standards.
The district court held that prior to the first sale ¡of a motor vehicle, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree.
Section 1392(d) does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. In Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714, 722 (1985), the United States Supreme Court stated that “[t]he question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966), U.S.Code Cong. & Admin.News 1966, p. 2709. Section 1392(d), as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Cong. & Admin.News 2709, 2720.
Also, the District Court for the Middle District of Pennsylvania in Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979), held that state safety standards identical to federal standards were preempted because the intent of Congress was to preclude states from presale enforcement of federal safety standards. The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, Fla.Stat. § 320.02(9) does not impose additional requirements on the importer of a gray market vehicle than those imposed by the applicable federal standards.
In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion in an attempt to interpret the extent to which section 1392(d) preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed.Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated:
[I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question.
47 Fed.Reg. at 885.
Recently, the Fifth Circuit in Direct Automobile Importers Association, Inc. v. Townsley, 804 F.2d 1408 (5th Cir.1986), examined a Texas statute similar in language to Fla.Stat. § 320.02(9) and stated:
H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Ree. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles.
Townsley, 804 F.2d at 1414. The same rationale holds true in this case regarding Fla.Stat. § 320.02(9). As noted above, Fla. Stat. § 320.02(9) neither imposes additional requirements or burdens on the manufacturer or importer, nor involves the payment of additional fees. Additionally, section 320.02(9) does not have the effect of prescribing the sale of federally certified equipment, or impairing the objective of Congress in establishing uniform federal safety standards to permit the free marketability of vehicles in all states.
In 1982, Congress amended section 1392(d) by adding the following sentence to the end of the provision: “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) (1982). The Senate issued a report on the amendment which reads in part as follows:
The committee intends that states are not preempted from enforcing safety standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter.
S.Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News 3169, 3174.
In Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (1986), the District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.1, 40-3-29.1, and 16-9-110 (1985) in light of 15 U.S.C. § 1392(d) (1982). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives when the bill was passed indicating congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong.Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated in regard to section 1392(d), as amended, that “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong.Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Dingell).
We agree with the court’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla.Stat. § 320.02(9) does not create an impairment to the enforcement of federal safety standards or frustrate the intent of Congress in establishing uniformity of standards for manufacturers of vehicles; consequently, we hold that 15 U.S.C. § 1392(d) (1982) does not preempt Fla.Stat. § 320.02(9) (1985).
C. Commerce Clause
The district court concluded that since Fla.Stat. 320.02(9) prevents owners of gray market vehicles from titling and registering their vehicles prior to presenting proof of compliance with federal emission and safety standards, the marketability of gray market vehicles is limited and prevents their free introduction into the stream of commerce.
The commerce clause of the United States Constitution reads in part as follows: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states_” U.S. Const. art I, § 8, cl. 3. In determining whether Fla.Stat. § 320.02(9) is violative of the commerce clause, we must (1) determine exactly what interest the statute purports to protect, (2) determine whether the statute burdens commerce, and if so, to what extent, and (3) balance the weight and nature of the interests protected by the statute against the extent to which it imposes a burden on commerce. See generally Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).
In addressing the extent to which states may create laws affecting commerce, the Supreme Court has held that:
The commerce clause does not ... invalidate all state restrictions on commerce. It has long been recognized that, ‘in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’ [Citation omitted.] The extent of permissible state regulation is not always easy to measure. It may be said with confidence, however, that a state's power to regulate commerce is never greater than in matters traditionally of local concern. [Citation omitted.] For example, regulations that touch upon safety — especially highway safety — are those that ‘the Court has been most reluctant to invalidate.’ [Citations omitted.] Indeed, ‘if safety justifications are not illusory, the Court will not second guess legislative judgment about their importance in comparison with related burdens on interstate commerce.’ [Citation omitted.] Those who would challenge such bona fide safety regulations must overcome a ‘strong presumption of validity.’ [Citation omitted.]
Kassel, 450 U.S. at 669-70, 101 S.Ct. at 1315-16.
The objective of Fla.Stat. § 320.02(9) is to ensure that gray market vehicles comply with federal emission and safety standards before receiving titles and registration in Florida. Fla.Stat. § 320.02(9) advances a legitimate and local concern for the health and safety of the state’s citizens in that it attempts to prevent the sale and operation of vehicles in Florida that are not considered safe for persons and the environment under federal standards.
We must now determine the extent to which Fla.Stat. § 320.02(9) burdens commerce. Section 320.02(9) imposes restrictions on the importation of gray market vehicles into the United States. We agree with the district court that:
The statute prevents the titling and registration of vehicles which in turn limits the marketability of the cars. To force an importer to use a different port of entry, for example, Savannah, Georgia, or Mobile, Alabama, in order to receive registration and titles from the relevant state authorities without having to endure the trials and tribulations that Florida has erected in their path destroys the common market of commerce for the entire United States as established by the Constitution. It is precisely this type of state action that the Commerce Clause was designed to prevent; thus the statute is constitutionally infirm.
Accordingly, in weighing the local concerns of section 320.02(9) against the burden on commerce, we find that Fla.Stat. § 320.02(9) does violate the commerce clause. Although Fla.Stat. § 320.02(9) requires no greater compliance than compliance with applicable federal standards, Florida’s titling and registration statute imposes a burden on foreign and interstate commerce. The Florida Statute directs the
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_petitioner
|
183
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
HARRIS v. UNITED STATES.
No. 6.
Argued October 11-12, 1965.
Decided December 6, 1965.
Ronald L. Goldfarb argued the cause for petitioner. With him on the briefs were E. David Rosen and Jacob Kossman.
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin, Beatrice Rosenberg and Sidney M. Glazer.
Mr. Justice Douglas
delivered the opinion of the Court.
This case brings back to us a question resolved by a closely divided Court in Brown v. United States, 359 U. S. 41, concerning the respective scope of Rule 42 (a) and of Rule 42 (b) of the Federal Rules of Criminal Procedure. Petitioner was a witness before a grand jury and refused to answer certain questions on the ground of self-incrimination. He and the grand jury were brought before the District Court which directed him to answer the questions propounded before the grand jury, stating that petitioner would receive immunity from prosecution. He refused again to give any answers to the grand jury. He was thereupon brought before the District Court and sworn. The District Court repeated the questions and directed petitioner to answer, but he refused on the ground of privilege. The prosecution at once requested that petitioner be found in contempt of court “under Rule 42 (a).” Counsel for petitioner protested and requested an adjournment and a public hearing where he would be permitted to call witnesses. The District Court denied the motion and thereupon adjudged petitioner guilty of criminal contempt, imposing a sentence of one year’s imprisonment. The Court of Appeals affirmed, 334 F. 2d 460. We granted certiorari, 379 U. S. 944.
Rule 42 (a) is entitled “Summary Disposition” and reads as follows:
“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”
Rule 42 (a) was reserved “for exceptional circumstances,” Brown v. United States, 359 U. S. 41, 54 (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of “the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,” ibid., and in light of the wording of the Rule. Summary contempt is for “misbehavior” (Ex parte Terry, 128 U. S. 289, 314) in the “actual presence of the court.” Then speedy punishment may be necessary in order to achieve “summary vindication of the court’s dignity and authority.” Cooke v. United States, 267 U. S. 517, 534. But swiftness was not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings.
Cases of the kind involved here are foreign to Rule 42 (a). The real contempt, if such there was, was contempt before the grand jury — the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify “committed in the actual presence of the court” for the purposes of Rule 42 (a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Even though we assume arguendo that Rule 42 (a) may at times reach testimonial episodes, nothing in this case indicates that petitioner’s refusal was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures (Cooke v. United States, supra, at 536), was necessary. Summary procedure, to use the words of Chief Justice Taft, was designed to fill “the need for immediate penal vindication of the dignity of the court.” Ibid. We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, that the limits of the power to punish for contempt are “[t]he least possible power adequate to the end proposed.” In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here committed was far outside the narrow category envisioned by Rule 42 (a).
Rule 42 (b) provides the normal procedure. It reads:
“A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”
Such notice and hearing serve important ends. What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened'silence. Refusal to answer may be due to fear — fear of reprisals on the witness or his family. Other extenuating circumstances may be present. We do not suggest that there were circumstances of that nature here. We are wholly ignorant of the episode except for what the record shows and it reveals only the barebones of demand and refusal. If justice is to be done, a sentencing judge should know all the facts. We can imagine situations where the questions are so inconsequential to the grand jury but the fear of reprisal so great that only nominal punishment, if any, is indicated. Our point is that a hearing and only a hearing will elucidate all the facts and assure a fair administration of justice. Then courts will not act on surmise or suspicion but will come to the sentencing stage of the proceeding with insight and understanding.
We are concerned solely with “procedural regularity” which, as Mr. Justice Brandéis said in Burdeau v. McDowell, 256 U. S. 465, 477 (dissenting), has been “a large factor” in the development of our liberty. Rule 42 (b) prescribes the “procedural regularity” for all con-tempts in the federal regime except those unusual situations envisioned by Rule 42 (a) where instant action is necessary to protect the judicial institution itself.
We overrule Brown v. United States, supra, and reverse and remand this case for proceedings under Rule 42 (b).
Reversed and remanded.
Mr. Justice Stewart, with whom Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice White join, dissenting.
The issue in this case is the procedure to be followed when a witness has refused to answer questions before a grand jury after he has been ordered to do so by a district court. This issue, involving Rule 42 (a) and Rule 42 (b) of the Federal Rules of Criminal Procedure, was, as the Court says, resolved in Brown v. United States, 359 U. S. 41. That was six years ago. Since then this Court has made no changes in Rule 42 (a) or 42 (b). But today Brown is overturned, and the question it “resolved” is now answered in the opposite way.
The particular question at issue here is of limited importance. But in this area the Court’s duty is important, involving as it does the responsibility for clear and consistent guidance to the federal judiciary in the application of ground rules of our own making. We are not faithful to that duty, I think, when we overturn a settled construction of those rules for no better reasons than those the Court has offered in this case.
The limited scope of the question at issue is made clear by the present record. A grand jury in the Southern District of New York was investigating alleged violations of the Communications Act of 1934. The petitioner appeared before this grand jury pursuant to a subpoena. He refused to answer a number of questions about an interstate telephone call upon the ground of possible self-incrimination. .The petitioner was then granted immunity from any possible self-incrimination under § 409 (1) of the Communications Act. Only after giving the petitioner and his lawyer full opportunity to be heard did the District Judge rule that the petitioner was clothed with complete constitutional immunity from self-incrimination, and only then did he direct the petitioner to answer the grand jury’s questions. The petitioner returned to the grand jury room and again refused to answer the questions, this time in direct and deliberate disobedience of the District Judge’s order.
It is common ground, I suppose, that the petitioner was then and there in contempt of court. Since the petitioner’s refusal to obey the judge’s order did not occur within the sight and hearing of the judge, a contempt proceeding could then have been initiated only under Rule 42 (b). Such a proceeding would have been fully consonant with our decision in Brown, and a judge “more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course.” 359 U. S., at 50. In such a proceeding all that would have been required to prove the contempt would have been the testimony of the grand jury stenographer, and the judge could then have imposed sentence. Such a procedure is often followed.
Instead, however, the District Judge in this case followed the alternative procedure approved in Brown. He made one last effort to aid the grand jury in its investigation and gave the petitioner a final chance to purge himself of contempt. The petitioner and his lawyer appeared before the judge in open court. After the petitioner was sworn as a witness, the judge propounded the same questions which the petitioner had refused to answer before the grand jury. The petitioner again refused to answer. At the conclusion of the questioning the judge asked, “Does anybody want to say anything further?” The only response from the petitioner’s counsel, then or later, was a brief renewal of his attack upon the purpose of the grand jury investigation and the scope of the immunity which had been conferred upon the petitioner — legal questions which the judge had, after a complete hearing, fully determined before he had ordered the petitioner to answer the grand jury’s questions in the first place.
The procedure followed by the District Court in this case was in precise conformity with Rule 42 (a) and with long-settled and consistently followed practice. It is a procedure which, in this context, is at least as fair as a Rule 42 (b) proceeding. The petitioner, represented by counsel, was accorded an additional chance to purge himself of contempt; he and his counsel were accorded full opportunity to offer any explanation they might have had in extenuation of the contempt — to inform the “sentencing judge of all the facts.” And finally, there is no reason to assume that a sentence imposed for obduracy before a grand jury is likely to be more severe in a Rule 42 (a) proceeding than one imposed after a proceeding under Rule 42 (b). Indeed, the recent Rule 42 (b) cases in the Southern District of New York referred to by the Court indicate the contrary. A sentence for contempt is reviewable on appeal in either case, and there is nothing to suggest that in the exercise of this reviewing power an appellate court will have any more information to go on in the one case than in the other.
For these reasons I would affirm the judgment of the Court of Appeals.
“The Court: Anything further ?
“Mr. Maloney: No, your Honor.
“I think the record speaks for itself, and I would ask your Honor to find this witness in contempt of court under Rule 42 (a) of the Federal Rules of Criminal Procedure.
“Mr. Polakoff: Your Honor, if this is a contempt proceeding I respectfully request an adjournment. I want to have the minutes and I want to have an opportunity to discuss them and consider them with my client and to look up the law.
“I further request, your Honor, a hearing where I will be permitted to call witnesses, perhaps a grand juror or two or more; perhaps the places the phone calls allegedly were made as indicated by the assistant, to prove to your Honor that there could be no possible violation of the Communications Act.
“I have not been told what tariff has been violated; no law has been cited or rule or regulation to your Honor or to me, and that requires research.
“I also would request that the contempt hearing be held in public.
“The Court: Your request is denied. This is a contempt committed in open court, and I adjudge the defendant guilt}' of a criminal contempt rule under Rule 42 (a).”
And See Nye v. United States, 313 U. S. 33, 52-53; In re Michael, 326 U. S. 224, 227; Cammer v. United States, 350 U. S. 399, 404.
Rule 42 (a) was described by the Advisory Committee as “substantially a restatement of existing law. Ex parte Terry, 128 U. S. 289; Cooke v. United States . . . .” We have confirmed this on more than one occasion, e. g., Offutt v. United States, 348 U. S. 11, 13-14; Brown v. United States, supra, at 51.
Chief Justice Taft said in Cooke v. United States, supra, at 537:
“Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.”
In more than one instance in the Southern District of New York, from which this case comes, witnesses cited for testimonial contempt before the grand jury were given hearings under Rule 42 (b). E. g., United States v. Castaldi, 338 F. 2d 883; United States v. Tramunti, 343 F. 2d 548; United States v. Shillitani, 345 F. 2d 290; United States v. Pappadio, 346 F. 2d 5. There is no indication that this procedure impeded the functioning of the grand jury.
Brown v. United States was reaffirmed and followed in Levine v. United States, 362 U. S. 610.
The proposed amendments to Rules of Criminal Procedure for the United States District Courts, approved on September 22-23, 1965, by the Judicial Conference of the United States, make no changes in Rule 42 (a) or Rule 42 (b).
No argumentation or factual data are contained in the Court’s opinion today which were not fully revealed in the dissenting opinion in Brown, 359 U. S., at 53-63, passim, and considered by the Court there. Nor is it suggested that the Brown rule has proved to be unclear or difficult of application. The considerations attending the overruling of Brown are quite unlike those involved in the overruling that occurred in Swift & Co., Inc. v. Wickham, ante, p. 111, where the Court changed a procedural rule which it found unworkable in actual practice.
48 Stat. 1070 and 1100, 47 U. S. C. §§ 203 (c) and 501 (1964 ed.), and 18 U. S. C. § 1952 (1964 ed.).
48 Stat. 1096, 47 U. S. C. §409 (l) (1964 ed.).
The prevailing opinion today says, “The real contempt, if such there was, was contempt before the grand jury . . . .” But a grand jury is without power itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify, if, after appearing, he refuses to do so.
“When upon his return to the grand jury room the petitioner again refused to answer the grand jury’s questions, now in direct disobedience of the court’s order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42 (b). See Carlson v. United States, 209 F. 2d 209, 216 (C. A. 1st Cir.).” 359 U. S., at 50.
See cases cited in note 5 of the Court’s opinion, ante, p. 167.
The record shows that the court was “opened by proclamation.”
Before imposing sentence, the judge gave petitioner and his counsel still another opportunity to offer any explanation they might have of the petitioner’s obduracy:
“The Court: I have already made my position perfectly clear, but I will say it again: I have directed you to answer these questions before the grand jury, and I have directed you to answer them here. It is my ruling that you cannot be prosecuted for any answer that you give under the circumstances of this case. Do you still refuse, Mr. Harris?
“The Witness: I respectfully refuse to answer on the grounds it would tend to incriminate me.
“The Court: Anything further?”
. See, in addition to Brown v. United States, 359 U. S. 41, and Levine v. United States, 362 U. S. 610: Rogers v. United States, 340 U. S. 367; Wilson v. United States, 221 U. S. 361, 369; Hale v. Henkel, 201 U. S. 43, 46; United States v. Curcio, 234 F. 2d 470, 473 (C. A. 2d Cir.), rev'd on other grounds, 354 U. S. 118 (1957); Lopiparo v. United States, 216 F. 2d 87 (C. A. 8th Cir.); United States v. Weinberg, 65 F. 2d 394, 396 (C. A. 2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook 467 (N. Y. 1874); People ex rel. Hackley v. Kelly, 24 N.Y. 74, 79-80 (1861); In re Harris, 4
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_trialpro
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Byron T. WEEKS, Guardian ad Litem of Valerie Weeks, a minor, Plaintiff-Appellee, v. LATTER-DAY SAINTS HOSPITAL, a corporation, Defendant-Appellant.
No. 164-69.
United States Court of Appeals Tenth Circuit.
Dec. 4, 1969.
Albert R. Bowen, Salt Lake City, Utah (Marvin J. Bertoch, Salt Lake City, Utah, with him on the brief) for appellant.
C. Keith Rooker, Salt Lake City, Utah (Dale A. Kimball, Salt Lake City, Utah, and Fred J. Hahn, Idaho Falls, Idaho, with him on the brief) for appellee.
Before PHILLIPS, Senior Circuit Judge, BREITENSTEIN, and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
Appellee Valerie Weeks, through her guardian ad litem commenced an action against appellant L.D.S. Hospital in the Federal District Court in Utah. Appellee sought damages for body burns caused by the alleged negligence of the hospital. The trial court at the close of the evidence directed a verdict against the hospital on the issue of liability and submitted the case to the jury for the determination of damages. The jury was instructed on damages and returned a verdict in the amount of $44,000.00. The hospital appealed the judgment and verdict.
The appeal presents four issues for determination: (a) Should the trial court have directed a verdict on the issue of liability? (b) Was the verdict excessive in the light of the evidence? (e) Should the trial court have admitted two regulations relating to the responsibility of care and maintenance of hospital equipment? (d) Were the instructions concerning damages erroneous statements of the law?
Valerie, an infant two years old, entered appellant hospital for surgery to correct a congenital defect in the blood vessels of the heart. The day following her admission the surgery was performed.
Dr. Hruska, an anesthesiologist on the hospital staff but not an employee, prepared the infant for surgery and administered the anesthetic. Dr. Hruska used an Aquamatic K-Thermia machine to control the infant’s temperature during the operation.
The machine was purchased by the hospital and kept on the premises for use in the anesthetic department and on other occasions when the doctors in charge of patients ordered its use.
The machine contains a reservoir of fluid which may be heated or cooled to provide circulating fluid for a rubber mattress which is placed under the patient. Corrugated indentations contained in the mattress evidence the channels or tubes through which the thermally controlled fluid circulates. A pillow slip was used to cover the mattress upon which appellee was placed. The temperature of the circulating fluid is set manually by control knobs which indicate maximum and minimum temperature extremes. Dr. Hruska set the extremes at 40°F minimum and 102°F or 103°F maximum. The machine is also provided with a thermistor probe which is a temperature sensing device connected to the machine by an electric cord. This probe is inserted into the body of the patient and indicates, by means of a thermometer, the body temperature of the patient.
In controlling the temperature of a patient the machine may be operated manually or set for automatic control. Prior to the operation Dr. Hruska observed the functioning of the machine for approximately ten minutes. He then set the machine on automatic control for the operation.
The operation lasted approximately two hours. When the operation had been in progress for approximately one and one half hours another doctor entered the operating room to observe the course of the operation. He became entangled in the cord leading from the thermal reservoir of the machine to the electrical heat sensing device in the appellee’s body. The jack on the cord was pulled from the machine and its plastic case shattered on the floor. Within four minutes Dr. Hruska turned the machine off and the operation proceeded to its conclusion. The temperature control knobs on the reservoir remained at the initial settings throughout the operation.
At the conclusion of the operation when the appellee was being lifted from the operating table to her bed, alternate areas of redness and pallor were observed along her right side, chest and hip which had been the portion of her body resting upon the thermal mattress attached to the machine. Corrugations, identical with the ones on the mattress, were evidenced on the infant’s side.
Within a short time a specialist in plastic surgery was called and treated the burns. Within five days the infant was released from appellant hospital and returned to her home in Idaho Falls, Idaho, where she came under the treatment of another plastic surgeon.
This action followed with the result above indicated.
The appellant hospital contends the trial court erred in directing a verdict on the issue of liability.
The discretion of the trial court in directing a verdict in this case is tested by federal law. Christopherson v. Humphrey, 366 F.2d 323 (10th Cir. 1966); Gutierrez v. Union Pacific R. R. Co„ 372 F.2d 121 (10th Cir. 1966 ).
In considering a motion to direct a verdict the trial court should view the evidence in the light most favorable to the party against whom the motion is made. Kirkendoll v. Neustrom, 379 F.2d 694 (10th Cir. 1967). The appellate court reviewing the action must apply the same rule. Gulf Ins. Co. v. Kolob Corp., 404 F.2d 115 (10th Cir. 1968).
A trial court may direct a verdict where the evidence is conflicting but conclusive. Gutierrez, supra. “Although a scintilla of evidence is not sufficient to justify submitting a case to the jury, a verdict may not be directed unless the evidence points all one way and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion is made.” Christopherson, supra 366 F.2d at 326. Unless reasonable fair-minded persons could form different conclusions of the facts, a motion for directed verdict should be granted. Miller v. Brazel, 300 F.2d 283 (10th Cir. 1962).
In testing the evidence and the facts relative to the negligence, here charged, it is evident from the dialogue in the record the trial court was aided by the doctrine of res ipsa loquitur. “The doctrine of res ipsa loquitur springs from the very practical process of drawing logical conclusions from circumstantial evidence.” Joseph v. W. H. Groves L.D.S. Hospital, 10 Utah 2d 94, 348 P.2d 935, 936 (1960). Where there is sufficient evidentiary foundation, the doctrine should be applied. Talbot v. Dr. W. H. Groves L.D.S. Hospital, Inc., 21 Utah 2d 73, 440 P.2d 872 (1968).
The dialogue between court and counsel indicates an understanding that the K-Thermia machine was owned by and under the control of appellant hospital. Although appellant attempts to shift the burden of responsibility for defects in the machine to the anesthesiologists who are not the exclusive users of the machine, no evidence was offered which would tend to indicate the anesthesiologists were electronic experts capable of detecting electronic malfunctions in the machine. Appellant offers no evidence that the defect in the machine was patent, in fact, appellant offers no evidence concerning the cause of the injury to rebut the inference of negligence which shifted to them under the theory of res ipsa loquitur.
The testimony of the appellee’s experts was to the effect that appellee could not have been so severely burned unless the circulating fluid in the reservoir had a temperature somewhere in the neighborhood of 115°F. The experts further testified that the burn could not have been caused during the three or four minute interval between the time the cord was accidentally pulled from the machine and the time the machine was turned off. To the contrary the experts testified a much longer period of increased thermal capacity would be required to cause the burn.
The appellee, of tender years, was unconscious and had the right to rely upon the hospital to furnish a properly functioning device to aid the operative procedures. There was no testimony establishing that the accidental pulling of the cord from the machine increased the risk of harm. See Hillyard v. Utah By-Products Co., 1 Utah 2d 143, 263 P.2d 287 (1953).
The trial court noted that appellee was severely burned while unconscious and that, but for the fact the machine was not properly working, the burn would not have occurred.
Opportunity was given appellant to reopen the case and rebut the foregoing inferences arising from the facts. The inferences were not rebutted and the court properly concluded the evidence was all one way and that fair reasonable minded men could not conclude otherwise. The motion for a verdict determining liability was properly granted.
Appellant next contends the jury verdict of $44,000 was excessive. “Due to its acknowledged prerogatives, its advantaged position, and the desirability of safeguarding the integrity of the jury system, the courts are and should be reluctant to interfere with a jury verdict and will not do so as long as there is any reasonable basis in the evidence to justify it.” Brunson v. Strong, 17 Utah 2d 364, 412 P.2d 451, 453 (1966). A review of the record reveals sufficient evidence to justify the award made. Accordingly, we cannot interfere with the jury’s determination.
Appellant contends that the trial court should have admitted into evidence two rules relative to the administration of the hospital.
The excised rules were offered as well as testimony concerning their contents. The court denied the admission.
The rules are:
“Duties of the Chief of the Department of Anesthesiology will be: * * (e) General supervision of the procurement and maintenance of equipment and the procurement of supplies.”
General supervision is further defined :
“8. All equipment, supplies, drugs, etc. will be purchased, provided and maintained up-to-date and in good condition by the hospital. A suitable person will be employed by the hospital to be in charge of the maintenance of all equipment and the requisition of all anesthesia supplies. While employed by the hospital administration, this individual will serve under the direction of the Chief of the Department of Anesthesiology.”
The Chief of Anesthesiology testified that although he noted a slight variance in the thermal capacity as recorded on the machine on a prior occasion, he notified no one nor did he believe he was responsible for the maintenance.
The individual responsible for the maintenance as described in section 8 above was never identified; on the contrary, everyone disclaimed responsibility.
The testimony was to the effect that the regulations were subject to seasonal revision and no one knew whether or not they had been revised. Only the two provisions sought to be admitted were shown to be in effect at the time of the injury. No showing could be made that the remaining departmental regulations were in effect at that time. Accordingly, they could not be admitted into evidence.
The admission of the two rules was objected to on the ground that they would be misleading when taken out of context of the entire regulation. The trial court refused to admit the rules on this basis.
“[I]t is generally conceded that the trial court in the exercise of its discretion is more competent to judge the exigencies of the particular case. The discretion of the trial court, when exercised within normal limits should not be disturbed.” Brigham Young Univ. v. Lilly-White, 118 F.2d 836, 841 (10th Cir.), cert, denied, 314 U.S. 638, 62 S.Ct. 73, 86 L.Ed. 512 (1941).
It is also important to note that a patent ambiguity exists between the two offered rules in that the first rule purports to place the burden of the maintenance of equipment on the Chief of Anesthesiology, while the second rule apparently places the same burden on the hospital. In view of the foregoing facts, we cannot say the court improperly exercised its discretion.
The efforts to get the contents of the writing above set out into evidence by oral testimony is proscribed by the best evidence rule. Allen v. W. H. O. Alfalfa Milling Co., 272 F.2d 98 (10th Cir. 1959). The trial court properly refused the evidence.
The final issue raised by appellant relates to the damage instructions given the jury by the trial court.
The only issue submitted to the jury was the damages to be ascertained.
It is contended that the court erred in instructing the jury: “The plaintiff alleges in his complaint that, by reason of her injuries * * * she has sustained special and general damages in the sum of one hundred thousand dollars.” It is contended the reference to special damages is error because none were offered or proven. The court, however, immediately following the foregoing instructed: “The allegations in the complaint are not evidence. They reflect the claim that the plaintiff makes.”
The court then instructed the jury that it could find damages “for any pain, mental anxiety which you find from the evidence in the case that she is reasonably certain to suffer as she grows older and in the future for the same cause, including the need for future psychiatric care or other medical attention.” The professional testimony of the medics and the psychiatrist specialist established the elements defined in the foregoing instruction. Accordingly, the instruction conformed to the evidence.
Instructions must be considered as a whole. Allers v. Bohmker, 199 F.2d 790 (7th Cir. 1952); See Burlington Transp. Co. v. Stoltz, 191 F.2d 915 (10th Cir. 1951).
An examination of the instructions as a whole in relation to the evidence. contained in the record directs us to conclude the instructions were not in error.
Affirmed.
. This circuit has defined the discretion of the trial court in directing a verdict in Derr v. Safeway Stores, 404 F.2d 634 (10th Cir. 1969) ; Gulf Ins. Co. v. Kolob Corp., 404 F.2d 115 (10th Cir. 1968) ; Codding v. Armour Co., 404 F.2d 1 (10th Cir. 1968).
. Utah considers the doctrine a rule of evidence. Williamson v. Salt Lake & O. Ry. Co., 52 Utah 84, 172 P. 680, L.R.A.1918F, 588 (1918).
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the 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.
W. E. CROSS, trading as Virginia Tours and Gray Line of Richmond, Appellee, v. UNITED STATES of America, Appellant.
No. 8709.
United States Court of Appeals Fourth Circuit.
Argued Oct. 10, 1962.
Decided Dec. 13, 1962.
Michael I. Smith, Atty., Dept. of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept. of Justice, Claude V. Spratley, Jr., U. S. Atty., and Granville R. Patrick, Asst. U. S. Atty., on brief), for appellant.
Charles L. Reed, Richmond, Va. (John W. Edmonds, III, and Tucker, Mays, Moore & Reed, Richmond, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and WINTER, District Judge.
ALBERT V. BRYAN, Circuit Judge.
The Federal 10% impost on transportation fares, the District Court has concluded, was not assessable on the amounts paid the Gray Line of Richmond, Virginia, for its bus tours in sightseeing and visiting the City’s historic and other points of interest. Therefore, the Government is ordered to refund the “penalty” exacted by the tax statute and paid under protest by Gray Line for its failure to collect from the passengers and remit to the Government the excise claimed for 1957 and 1958. The United States appeals and, we hold, successfully.
Ground for his determination was found by the District Judge in these assertions of Gray Line:
1. While tour tickets were $3.00 for an adult and $1.50 for a child, the taxpayer’s books fairly show that no more than 60<j: of either was allocable to transportation, the remainder being for non-transportation or tour services, and no tax is levied on fares of 60^5 and less.
2. In any case, the failure to collect the tax was not willful, the statutory prerequisite to liability for the penalty.
Gray Line of Richmond is a proprietorship of W. E. Cross, taxpayer-appellee here. In a related enterprise he trades as Virginia Tours. Buses and accompanying drivers as needed are rented by Gray Line from Virginia Tours. Either a 7-passenger Volkswagen or a 29-pas-senger Ford bus is engaged, as the number of tourists demands. For the Volkswagen Gray Line pays 20}! per mile and for the Ford 40}!. There are two trips daily, one in the morning, the other in the afternoon. Besides the individual tickets a group ticket is sold at a somewhat lower rate, but this difference is not significant in the case.
The tour is 10% miles; with travel to and from the garage it is 12 miles. En route the driver lectures and points out places of interest. Four stops are made, three historical sites and one at an important industry. The occupants of the bus are taken through the plant by hostesses it provides, while the driver and his bus wait. At the other attractions the driver is the guide. The whole trip occupies approximately 2% hours, during an hour of which the bus is in motion.
Prior to 1957 and since 1958 Gray Line has paid the toll out of the price of the ticket, reducing the price so that the flat rates of $3.00 and $1.50 remained constant. For 1957 and 1958 taxpayer Cross, as proprietor of Gray Line, entered each adult fare on his books as 60}! for transportation and $2.40 for tour service, and a corresponding breakdown was made of the child’s fare, 30^ to transportation and $1.20 to tour service.
Preliminarily the Government urges that “the sum of the services performed by the taxpayer for his passengers constituted ‘taxable transportation’ ” within the meaning of the tax statute, and therefore the fare was not subject to division between transportation and non-transportation phases of the trip, citing White House Sightseeing Corp. v. United States, 300 F.2d 449 (Ct.C1.1962); Armour & Co. v. United States, 169 F.Supp. 521, 144 Ct.Cl. 697, cert. denied, 361 U. S. 821, 80 S.Ct. 67, 4 L.Ed.2d 66 (1959). To the contrary, the taxpayer urges that the primary and overtopping purpose of the tour was sightseeing, or that at the most the Government could look only to such part of each fare as was allocable to transportation cost, citing Smith v. United States, 110 F.Supp. 892 (N.D.Fla. 1953); Treas.Reg. §§ 42.4261-2(d) and 42.4261-8 (f) post.
However, we need not resolve this dispute. Even if the fare is divisible between transportation and tour service,, as the taxpayer maintains, still he cannot prevail. Decisive of this case, as the Government next insists, is that the burden was the taxpayer’s to show also, and with precision, the correctness of his; divorcement of the two costs, and this he did not do. Reinecke v. Spalding, 280 U.S. 227, 232-233, 50 S.Ct. 96, 74 L.Ed. 385 (1930); United States v. Pfister, 205 F.2d 538, 542 (8 Cir. 1953); Lightsey v. Commissioner, 63 F.2d 254, 255 (4 Cir. 1933).
While the statute does not deal with segregation of the constituents of a fare, speaking directly to the problem are Treasury Regulations on Excise Taxes-(1954 Code):
“SEC. 42.4261-2 Rate and Application to Tax. — * * * *«-*** *
“(d) Where a payment covers-charges for nontransportation services as well as for transportation of a person, such as charges for meals,, hotel accommodations, etc., the-charges for the nontransportation services may be excluded in computing the tax payable with respect to such payment, provided such charges are separable and are shoion in the exact amounts thereof in the records pertaining to the transportation charge. If the charges for nontransportation services are not separable from the charge for transportation of the person, the tax must be computed upon the full amount of the payment.
“SEC. 42.4261-8 Examples of Payments not Subject to Tax. — In addition to a payment specifically exempt the following are examples of payments not subject to tax:
*«*•»**
“(f) Miscellaneous charges.— Where the charge is separable from the payment for the transportation of a person and is shown in the exact amount thereof on the records pertaining to the transportation payment, the tax on the transportation of persons does not apply to the following and similar charges:
# # S #
“(4) Charges for admissions, guides, meals, hotel accommodations, and other nontransportation services, for example, where such items are included in a lump sum payment for an all-expense tour.
“(5) Charges in connection with the charter of a land, water, or air conveyance for the transportation of persons, such as for parking, icing, sanitation, ‘layover’ or ‘waiting time’, movement of equipment in deadhead service, dockage, wharfage, etc.” [Emphasis added.]
The basis of our denial of plaintiff’s suit, to repeat, is the absence of a showing in his records of the “exact amounts * * * pertaining to transportation”. The inexactness of his transportation cost figure is evinced in the taxpayer’s method of reckoning it. He testified that the 60$ and 30$ allocations were justified on “the mileage rate * * * charged per charter, the size of the bus, the number of passengers to be accommodated plus the fact that other companies operate at certain rates and [I figured] fixed cost and arrived from that”. By “per charter” he emphasizes, he means that the allocation by Gray Line is greater than the amount charged to other persons for the same equipment. He demonstrates the latter argument as follows:
In 1957, according to his books, 170 trips were made by the Volkswagen. At 12 miles per trip the total mileage would be 2040, and at 20$ per mile this would amount to $408. The same year 368 trips were made by the Ford bus. Multiplied by 12 that would mean an aggregate of 4416 miles, and at 40$ per mile would produce $1766.40. The grand total would be $2174.40. But upon the basis-of 60$ per adult and 30$ per child the transportation costs allocable for 1957 would be a greater sum, to-wit, $2646.00. Like contrasts exist for 1958. Taxpayer notes also that transportation to the four tour points by ordinary transit bus would cost only 45$ per passenger.
Against these arguments, however, the uncontroverted evidence is that the overall transportation cost allocated by Gray Line on its books in 1957 is $4183.80 which is only about a half of the $7917.40 Gray Line paid to Virginia Tours in that year for buses and drivers. In 1958 the ratio of the same items is $3127.50 to $7967.60. Taxpayer accounts for the excess of the rental paid for buses and drivers in this way: the larger figure included driver-guide service and bus rental during the hour and a half in which the bus was not in motion. But this explanation will not bear scrutiny. First, the evidence is that the taxpayer-proprietor did not incur extra cost for drivers during the stop-periods and the drivers were not paid extra for guide-work. Secondly, no amount is proved to establish the figure charged for the stand-by time of the bus, and, further, taxpayer has said throughout that only mileage was used for tax purposes.
Finally, the total expenses of operation of Gray Line for 1957 and 1958 appear on the taxpayer’s books in the following amounts:
1957
Amount paid to Virginia Tours
for lease of buses and drivers .....................$ 7,917.40
Advertising................ 1,912.79
Telephone ................. 370.69
Licenses................... 450.00
Office Supplies ............. 101.02
Convention expenses ........ 100.00
Commissions............... 2,159.53
Total .................$13,011.43
1958
Amount paid to Virginia Tours for lease of buses and drivers .................$ 7,967.60
Advertising................ 1,628.26
Telephone ................. 454.97
Licenses................... 250.00
Office Supplies ............. 251.91
Commissions............... 1,551.40
Total .................$12,104.14
No explanation is attempted of the failure to include in the cost of transportation the items of advertising and those following. It thus reasonably appears that the actual cost of transportation in 1957 and 1958 could well have been far more than the 600 and 300 apportionment made by the taxpayer for excise tax purposes. At least neither the vague exposition of the apportionment by the taxpayer nor his book figures show a compliance with the regulation’s requirement that the transportation charges when separable and separated be “shown in the exact amounts thereof in the records pertaining to the transportation charge.” See White House Sightseeing Corp. v. United States, supra, 300 F.2d 449 (Ct.Cl.1962); Loew’s, Inc. v. United States, 99 F.Supp. 100 (S.D.Cal. 1951).
Furthermore, exemptions exampled in the Treasury Regulations already quoted do not save taxpayer. True, they allow deduction of charges for “guides” and “waiting time” in charter hires, but both of these exceptions are contingent upon charges being “shown in the exact amount thereof on the records pertaining to the transportation payment”.
The “penalty” for failure of the taxpayer to collect the excise is not, as the term generally implies, a forfeiture or amercement. Actually, the statute uses the word to describe “the total amount of the tax * * * not collected, * * * ” . It is not a super-added sum. Only when the carrier “willfully fails” to obey the levying statute is the penalty assessed. The District Judge’s definition of “willfully” is well-phrased and accurate: “One who acts intentionally, conscientiously and voluntarily, acts wilfully.” Bloom v. United States, 272 F.2d 215, 223 (9 Cir. 1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). But cf. Gray Line Co. v. Granquist, 237 F.2d 390, 395 (9 Cir. 1956), cert. denied, 353 U.S. 911, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957). In previous years, as already noted, taxpayer Cross had recognized the excise. He was led to renounce further acknowledgment by a casual conversation with an unidentified lawyer in Florida. Before denying the obligation, he obtained an opinion from the Internal Revenue Service. It advised him of the duty to collect.
Taxpayer’s adoption of a different course, while by no means morally culpable, was deliberate. He preferred to take his chances in litigation. Though all in good faith, nonetheless he thereby “willfully” failed to follow the statute. He does not escape the penalty.
The judgment in review will be reversed and the action dismissed.
Reversed with final judgment.
. Sections 4261(a) and (d), 4262(a), 4263 (a), 4291 and 6672 I.R.C.1954 (as amended by §§ 1(a) and 4(b), 3, 2 and 4(c), Act of July 25, 1956, 70 Stat. 644), 26 U.S.C. §§ 4261, 4262, 4263, 4291 and 6672 (1958 ed.).
. Section 4263 supra note 1,
. § 6672, 26 U.S.C. § 6672 (1958 ed).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc1sect
|
2000
|
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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the GARFIELD HEIGHTS CITY SCHOOL DISTRICT and James A. Harper, Superintendent, Defendants-Appellees.
No. 77-3012.
United States Court of Appeals, Sixth Circuit.
Aug. 7, 1978.
Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Edward H. Levi, Atty. Gen. of U. S., Judith E. Wolf, Appellate Sect., Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
John F. Lewis, John T. Meredith, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants-appellees.
ORDER
Before EDWARDS, ENGEL and MERRITT, Circuit Judges.
ORDER
The issue presented by this appeal is whether the Attorney General has the authority to bring pattern or practice equal employment suits under Title VII of the 1964 Civil Rights Act against public employers in the absence of a referral of the case by the Equal Employment Opportunity Commission to the Attorney General for the institution of suit.
Prior to the 1972 Civil Rights Act amendment, the Attorney General had independent authority to bring equal employment cases against private employers under Title VII of the 1964 Civil Rights Act without a referral from the EEOC. Prior to the 1972 amendments, neither the Attorney General nor the EEOC had authority over public employers. The 1972 Civil Rights Amendment transferred much of the Attorney General's authority under Title VII to the EEOC and conditioned the institution of pattern or practice cases against private employers on a referral from the EEOC. At the same time the 1972 amendments gave the EEOC investigatory and conciliation authority in connection with Title VII equal employment cases involving public or governmental employers.
The 1972 amendments are unclear and ambiguous with respect to the question whether the Attorney General obtained independent pattern or practice authority under Title VII against public employers while losing such authority in the case of private employers.
We conclude that this question of statutory interpretation should be resolved against the position of the Attorney General that he has independent pattern or practice authority against public employers in the absence of a referral from the EEOC for the reasons set out by District Judge Thomas in his Memorandum Opinion filed October 4, 1976, 435 F.Supp. 949 (1976) and for the reasons set out in the Opinion of the three judge District Court in the case of United States v. State of South Carolina, 445 F.Supp. 1094, 1110-11 (D.So.Car.1977). This conclusion is buttressed by the action of the Supreme Court in summarily affirming on appeal the decision of the three judge District Court in South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978). While the question is not entirely free from doubt, we believe that the Supreme Court necessarily affirmed the conclusion of the three judge District Court in South Carolina that the Attorney General’s former independent pattern or practice authority under Title VII of the 1964 Civil Rights Act, including his new authority to bring such suits against public employers granted by the 1972 amendments thereto, did not survive the 1972 amendments and that referral by the EEOC to the Attorney General is necessary prior to the institution of such suits.
Accordingly, the judgment of the District Court is hereby affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
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.
UNITED STATES ex rel. HINTOPOULOS et ux. v. SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 205.
Argued March 4, 1957.
Decided March 25, 1957.
Jay Nicholas Long argued the cause and filed a brief for petitioners.
Maurice A. Roberts argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Olney, John F. Davis and Isabelle Cappello.
Mr. Justice Harlan
delivered the opinion of the Court.
This is a habeas corpus proceeding to test the validity of an order of the Board of Immigration Appeals denying petitioners’ request for suspension of deportation.
Petitioners are husband and wife, both aliens. Prior to 1951 both worked as seamen on foreign vessels. In July 1951 the wife lawfully entered the United States as a crew member of a ship in a United States port. Being pregnant, she sought medical advice; subsequently she decided in the interest of her health to stay ashore. A month later, on the next occasion his ship arrived in the United States, her husband joined her; he also failed to leave on the expiration of his limited lawful stay. In November 1951 their child was born; the child is, of course, an American citizen by birth. In January 1952 petitioners voluntarily disclosed their illegal presence to the Immigration Service and applied for suspension of deportation under § 19 (c) of the Immigration Act of 1917, which provides, in part:
“In the case of any alien . . . who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may . . . suspend deportation of such alien if he is not ineligible for naturalization ... if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien . ...”
Deportation proceedings were instituted in May 1952 and a hearing was held. On the undisputed facts both aliens were found deportable. As to the issue of suspension of deportation, the Hearing Officer, while finding petitioners eligible for such relief, denied the request, stating as follows:
“Both respondents have applied for suspension of deportation on the ground of the economic detriment that would befall their minor son in the event they were deported. . . . Both disclaim having a criminal record anywhere and both allege that they have been persons of good moral character. Evidence of record would tend to corroborate their testimony in this respect. Their only income is from the employment of the male respondent on two jobs . . . . Their joint assets consist of savings in the sum of about $500 and their furniture and other personal property which they value at $1500. While it would seem that their son . . . would suffer economically if his parents should be deported, it is not believed that as a matter of administrative discretion the respondents’ applications for suspension of deportation should be granted. They have been in the United States for a period of less than one year. They have no relatives in this country other than each other and their son. To grant both this form of relief upon the accident of birth in the United States of their son would be to deprive others, who are patiently awaiting visas under their already oversubscribed quotas. It is noted also that neither respondent reported his and her presence in the United States at any time until January, 1952 when they filed applications for suspension of deportation just two months after the birth of their child. . . .”
The Board of Immigration Appeals heard petitioners’ appeal, and on March 18, 1954, upheld the Hearing Officer’s recommendation and denied suspension of deportation. The Board stated:
“It is obvious that the American citizen infant child is dependent upon the alien parents for economic support, care and maintenance. Documentary and other evidence establish good moral character for the requisite period. The aliens have no connection with subversive groups.
“As stated above, we have, in the instant case, a family consisting of two alien parents illegally residing in the United States and one American citizen child, age about two and one-half years. These respondents have been in the United States for a period of less than three years. Both arrived in this country as seamen. They have no other dependents or close family ties here. The record indicates that the male respondent may be able to obtain work as a Greek seaman and earn about $85 monthly.
“Notwithstanding the fact that . . . the deportation of these respondents would result in a serious economic detriment to an American citizen infant child, the granting or withholding of maximum discretionary relief depends on the factors and merits in each individual case, and is a matter of administrative discretion. We have carefully examined the facts and circumstances in the instant case and we find that the granting of the maximum relief is not warranted by the record in the case. . . .”
Petitioners thereupon moved for reconsideration. On May 5, 1954, the Board denied the motion, stating:
"Counsel’s motion sets forth no matters of which we were unaware at the time our previous decision was rendered. It is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244 (a) of the Immigration and Nationality Act [of 1952] as well as the Congressional comment at the time this provision was enacted. [] We indicated in our previous order that the deportation of the respondents would result in a serious economic detriment to their citizen minor child, and we do not question that the respondents have established the statutory requirements for suspension of deportation ....
“Upon our further review of the cases of the two respondents,, we adhere to our previous decision that suspension of deportation should be denied as a matter of administrative discretion . . . .”
Taken into custody for deportation, petitioners instituted the present habeas corpus proceeding, alleging that the Board abused its discretion in denying their application for suspension of deportation. The District Court dismissed the writ, 133 F. Supp. 433, and the Court of Appeals, one judge dissenting, affirmed, 233 F. 2d 705. We granted certiorari. 352 U. S. 819.
We do not think that there was error in these proceedings. It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.
Nor can we say that it was abuse of discretion to withhold relief in this case. The reasons relied on by the Hearing Officer and the Board — mainly the fact that petitioners had established no roots or ties in this country— were neither capricious nor arbitrary.
Petitioners urge that the Board applied an improper standard in exercising its discretion when, in its opinion on rehearing, it took into account the congressional policy-underlying the Immigration and Nationality Act of 1952, the latter being concededly inapplicable to this case. We cannot agree with this contention. The second opinion makes clear that the Board still considered petitioners eligible for suspension under the 1917 Act and denied relief solely as a matter of discretion. And we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy as manifested by the 1952 Act. Section 19 (c) does not state what standards are to guide the Attorney General in the exercise of his discretion. Surely it is not unreasonable for him to take cognizance of present-day conditions and congressional attitudes, any more than it would be arbitrary for a judge, in sentencing a criminal, to refuse to suspend sentence because contemporary opinion, as exemplified in recent statutes, has increased in rigour as to the offense involved. This conclusion is fortified by the fact that § 19 (c) provides for close congressional supervision over suspensions of deportation. In every case where suspension for more than six months is granted a report must be submitted to Congress, and if thereafter Congress does not pass a concurrent resolution approving the suspension of deportation, the alien must then be deported. In other words, every such suspension must be approved by Congress, and yet petitioners would have us hold that the Attorney General may not take into account the current policies of Congress in exercising his discretion. This we cannot do.
There being no error, the judgment is affirmed.
Affirmed.
MR. Justice Whittaker took no part in the consideration or decision of this case.
Under certain conditions alien crewmen are permitted to enter the United States for periods not exceeding 29 days. See 8 U. S. C. §§ 1281-1287.
8 U. S. C. (1946 ed., Supp. V) § 155 (c).
Section 244 of the 1952 Act, 8 U. S. C. § 1254 (a), provides, in pertinent part: “As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation ... in the case of an alien who—
“(5) . . . has been physically present in the United States for a continuous period of not less than ten years . . . and proves that during all of such period he has been and is a person of good moral character ; has not been served with a final order of deportation . . . and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence.”
A report of the Senate Judiciary Committee on this provision states: “The bill accordingly establishes a policy that the administrative remedy should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable. Hardship or even unusual hardship to the alien or to his spouse, parent, or child is not sufficient to justify suspension of deportation. . . S. Rep. No. 1137, 82d Cong., 2d Sess. 25. (Footnote not in original.)
United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489; United States ex rel. Adel v. Shaughnessy, 183 F. 2d 371. Cf. Jay v. Boyd, 351 U. S. 345.
Petitioners would clearly be ineligible for suspension under the 1952 Act. See n. 3, supra.
The statute provides: “If the deportation of any alien is suspended under the provisions of this subsection for more than six months, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. These reports shall be submitted on the 1st and 15th day of each calendar month in which Congress is in session. If during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, the Congress passes a concurrent resolution stating in substance that it favors the suspension of such deportation, the Attorney General shall cancel deportation proceedings. If prior to the close of the session of the Congress next following the session at which a ease is reported, the Congress does not pass such a concurrent resolution, the Attorney General shall thereupon deport such alien in the manner provided by law. ...” 8 U. S. C. (1946 ed., Supp. V) § 155 (c).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
THE SOUTHERN CROSS. THE PAN AMERICA. THE WESTERN WORLD.
No. 242.
Circuit Court of Appeals, Second Circuit.
June 9, 1941.
John J. Bennett, Jr., Atty. Gen. of New York (Henry Epstein, Sol. Gen., and W. Gerard Ryan and Francis R. Curran, Ass’t Atlys. Gen., of counsel) for Frieda S. Miller as Industrial Commissioner, appellant.
Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (William E. Collins, Sp. Asst, to U. S. Atty., of New York City, of counsel), for Roscoe H. Ilupper, as receiver, appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
SWAN, Circuit Judge.
Suits in admiralty were filed by the United States to foreclose preferred mortgages held by it upon the steamships Southern Cross, Pan America and Western World. By orders duly entered in said suits, Roscoe H. Hupper, the appellee, was appointed receiver to operate said vessels pendente lite “solely for the account of the libellant.” For the purpose of such operation the receiver maintained an office in New York City and employed therein four or more employees whose services were performed entirely on land. The State of New York acting through its Industrial Commissioner, the appellant, presented claims to the receiver for unemployment insurance taxes due to the New York State Unemployment Insurance Fund pursuant to Article 18 of the New York Labor Law. Such claims were based on the total payroll of the receiver’s office employees, exclusive of seamen working on said vessels. The receiver refused to pay said taxes and brought on a motion to disallow the claims on the ground that he was exempt from such taxation as an instrumentality of the United States. From an order granting the receiver’s motion the State of New York by its Industrial Commissioner has appealed.
By virtue of federal statutes any receiver appointed by a court of the United States is subject to the same tax liability as the owner would have been had he continued in possession and operation of the enterprise. 28 U.S.C.A. §§ 124, 124a; see Palmer v. Webster & Atlas Nat. Bank, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. —; Boteler v. Ingels, 308 U.S. 57, 61, 60 S.Ct. 29, 84 L.Ed. 78. Concededly, an “ordinary” receiver appointed in litigation between private parties and operating these vessels would have to pay the taxes in dispute, but the appellee claims immunity because he was appointed in order to effectuate the national public interest in a continuation of the service in which the vessels were engaged, and only after the United States Maritime Commission had guaranteed to the court payment of the contemplated losses which their operation would entail. These facts, it is urged, make the appellee as receiver, an instrumentality of the United States and as such entitle him to exemption, either under the express provisions of the state statute or under the familiar doctrine, enunciated in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, of the constitutional immunity of federal instrumentalities from state taxation.
Section 502, subd. 3(3) (d) of the New York Labor Law, Consol. Laws, c. 31, exempts from unemployment insurance taxes “The state of New York, municipal corporations and other governmental subdivisions * * * ”. Plainly a receiver operating for the account of the United States cannot be described as a “governmental subdivision” without ascribing to those words a most strained, unnatural meaning and disregarding utterly the rule of ejusdem generis in statutory construction. The appellee contends that the word “subdivision” must be deemed synonymous with instrumentality. Assuming this should be accepted to avoid doubts as to the constitutionality of the statute as applied to the appellee, then the two branches of his argument, namely, exemption under the state law and immunity under the implied constitutional prohibition, coalesce; and the sole issue is whether he is such an instrumentality of the United States as to be immune from taxation by the state.
The federal statute, 28 U.S.C.A. § 124a, declares that “any receiver” authorized by a United States court to conduct “any business” shall be subject to all state and local taxes applicable to such business. It makes no exception in favor of receivers appointed in suits by the United States; it specifies “any business”, regardless of its nature or for whose benefit it is conducted. It might well be argued that by this statute Congress waived immunity from taxation, even if the receiver could be deemed an instrumentality of the federal government. But passing that consideration, we are convinced that he is not such an instrumentali-. ty.
When the United States came into court to foreclose its mortgage liens, it accepted the stature of an ordinary suitor. See United States v. National City Bank, 2 Cir., 83 F.2d 236, 238, 106 A.L.R. 1235, certorari denied, 299 U.S. 563, 57 S.Ct. 25, 81 L.Ed. 414. Mountain Copper Co. v. United States, 9 Cir., 142 F. 625, 629. The receiver appointed on its behalf can stand no higher than a receiver appointed in any foreclosure suit between private litigants. He is an agent of the court, not of the Maritime Commission or the United States. The fact that libellant’s request for the receivership was granted in order to promote some governmental policy respecting the merchant marine, does not convert the receiver into a governmental instrumentality. Compare Federal Compress & W. Co. v. McLean, 291 U.S. 17, 23, 54 S.Ct. 267, 78 L.Ed. 622, where it was held that the conferring of a federal license upon a corpora-tion, though to promote a governmental policy, did not constitute the licensee an instrumentality of the federal government immune from state taxation. Nor does that result follow from the fact, chiefly relied upon by the appellee, that the exaction of the taxes in suit will cast a burden on the United States Treasury by reason of the Maritime Commission’s guarantee of losses resulting from the receivership. If it did, any enterprise operated at a loss to be made good by federal subsidy could, in the same sense, be called a “governmental instrumentality”; but no one would presume to contend that a private shipowner operating under the differential subsidy authorized by 46 U.S.C.A. §§ 1171-1182 would be immune from non-discriminatory state taxation. It cannot be successfully maintained that state taxes which impose a financial burden on the United States are necessarily invalid. Thus, in United States v. Perkins, 163 U.S. 625, 16 S.Ct. 1073, 41 L.Ed. 287, it was held that a legacy to the United States was subject to a state inheritance tax, although the amount of the legacy was thereby diminished. Again, and this is a closer analogy, a surety company does not, by becoming surety on bonds required by the United States, act as a federal instrumentality so as to be exempt from a state tax on the premiums received, although it seems fairly obvious that the tax will be passed on in the form of higher premiums to be charged for the bonds. Fidelity & Deposit Co. v. Pennsylvania, 240 U.S. 319, 36 S.Ct. 298, 60 L.Ed. 664; see also Gromer v. Standard Dredging Co., 224 U.S. 362, 371, 32 S.Ct. 499, 56 L.Ed. 801. Moreover, recent Supreme Court decisions have pointed out that the implied immunity of one government and its agencies from taxation by the other should be narrowly restricted. Graves v. People of the State of New York, 306 U.S. 466, 483, 59 S.Ct. 595, 83 L.Ed. 927, 120 A.L.R. 1466 and cases cited therein.
For the foregoing reasons we conclude that the appellee is not entitled to an exemption from the taxes in suit and that the district court erred in disallowing the appellant’s claims. Order reversed.
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_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
PERSIAN GULF OUTWARD FREIGHT CONFERENCE, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents.
No. 20350.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 6, 1967.
Decided Feb. 28, 1967.
Mr. Elmer C. Maddy, New York City, with whom Mr. Ronald A. Capone, Washington, D. C., was on the brief, for petitioner. Mr. Jerome K. Tankel, Washington, D. C., also entered an appearance for petitioner.
Mr. Joseph F. Kelly, Jr., Atty., Federal Maritime Commission, of the bar of the Supreme Court of New Jersey, pro hac vice, by special leave of court, with whom Asst. Atty. Gen., Donald F. Turner, Messrs. James L. Pimper, Gen. Counsel, Robert N. Katz, Sol., Federal Maritime Commission, and Irwin A. Seibel and Richard A. Wegman, Attys., Dept, of Justice, were on the brief, for respondents. Mr. Walter H. Mayo, III, Atty., Federal Maritime Commission, also entered an appearance for respondent Federal Maritime Commission.
Before Edgerton, Senior Circuit Judge, Tamm and Robinson, Circuit Judges.
TAMM, Circuit Judge:
This case comes before this court on petition to review a final order of the Federal Maritime Commission issued and served on July 22, 1966, pursuant to the Shipping Act of 1916, c. 451, 39 Stat. 728, as amended, 46 U.S.C. § 801 et seq. The present controversy arises as an outgrowth of activities which were previously considered by this court in Persian Gulf Outward Freight Conference v. Federal Maritime Commission, 124 U.S.App.D.C. 63, 361 F.2d 80 (1966). In that case we affirmed the Commission’s order of approval of rate making agreement No. 8900, establishing a second rate making conference in the same trade in which the present petitioner competes. Prior to the establishment of the “8900” conference, the only conference in that trade was composed of both American flag and foreign flag ships engaged in trade between Atlantic and Gulf ports of the United States and ports in the Persian Gulf and waters adjacent thereto. Its authority to set rates derived from Agreement No. 7700, approved May 28, 1946. However, in 1959, the foreign flag carriers withdrew from the conference and sought approval for their own rate making agreement (No. 8900). The defection of the foreign flag carriers came about because:
“an independent entered the same area and transported large quantities of automobiles at rates below those then charged by the carriers in the petitioner Conference. Since petitioner would not reduce its rates to meet this competition the carriers now in Agreement No. 8900 withdrew. After a severe rate war, and in the effort to gain rate stability, they formed this new Conference with the independent carrier.” Id. at 81.
I.
In an effort to meet the competitive threat posed by the - new conference, the petitioner conference filed with the Commission a revision of its tariff providing two rates on some 500 items, one rate to apply if the cargo were carried on American flag vessels, and a second, lower rate if the cargo were carried on foreign flag vessels. The two American steamship lines which make up the 7700 conference have chartered some foreign flag vessels to carry at the foreign flag rate and have also, in one case, transferred owned foreign flag vessels from other trades to the Persian Gulf trade. As noted, petitioner filed its dual rate proposal as a revision of its tariff and not as an agreement or modification of an agreement subject to Commission approval pursuant to the requirements of Section 15 of the Shipping Act.
Subsequent to the filing of the tariff revisions, an order to show cause issued from the Commission to petitioner, directing it to show why the tariff “revisions” should not be declared unlawful and ordered stricken from the tariff. In the order to show cause the Commission stated that “this proceeding shall be limited to the submission of memoranda of law [and] oral argument.”
The petitioner conference submitted a memorandum of law but protested that the Commission was not authorized to take action in this matter until it had held a full evidentiary hearing under Sections 15, 22 and 23 of the Shipping Act, as amended, 46 U.S.C. §§ 814, 821, and 822; Sections 5 and 7 of the Administrative Procedure Act, 5 U.S.C. §§ 1004, 1006; and the Commission’s own Rules of Practice and Procedure, 46 C.F.R. § 502.142. Additionally, the conference pointed out that it had filed its rates pursuant to its approved Section 15 Agreement (No. 7700), which stated in Article 1:
“This agreement covers the establishment and maintenance of agreed rates, charges and practices for or in connection with transportation of cargo by members of this Conference.”
It further pointed out that a full eviden-tiary hearing would show that the rates set by the tariff revision were nothing new, having been used in this trade and an adjacent one as well as in the North Atlantic trade before the war. Counsel for the Commission filed a memorandum of law in opposition to that of petitioner, and an oral argument was held before the full Commission.
By a report and order of July 22, 1966, the Commission found that the rates contained in the conference’s challenged tariff were not authorized by the conference agreement, ordered the conference to cease and desist from carrying cargo at such rates prior to approval of the rate structure under Section 15, and further ordered that the rates in question should be stricken from the conference’s tariff.
II.
Petitioner attacks the decision of the Maritime Commission on several bases: It challenges the power of the Commission to issue a cease and desist order without granting the petitioner a full evidentiary hearing on the factual issues it has raised and alleges that the Commission has violated the provisions of the Shipping Act, the Administrative Procedure Act, and its own rules by failing to accord petitioner such an evidentiary hearing. Petitioner argues that Section 15 specifically states that it is inapplicable to tariff rates agreed upon by approved conferences, and contends that the Commission’s decision is in error that the rates set by the conference here were in violation of Section 15.
Counsel for the Commission contends that petitioner received an evidentiary hearing by virtue of its filing a memorandum of law and it oral argument before the Commission and that such hearing satisfied all of petitioner’s statutory and constitutional rights to a hearing, since there were no disputed issues of fact and the question before the Commission was one of law. Since the Commission’s finding that petitioner’s dual-level rate agreement was not covered by any Commission approved rate making agreement was a final determination, counsel argues such determination may be enforced through a cease and desist order. Finally, counsel argues that the Commission’s determination that the rate structure did not fall within petitioner’s basic conference agreement is supported by law and that the Commission properly concluded that petitioner’s rate system was an unfiled and unapproved rate agreement which violated Section 15 of the Act.
III.
Commission power to issue cease and desist orders: Petitioner urges that the Commission has arrogated to itself power which Congress has repeatedly denied to it. Specifically, it notes that the Commission has asked the Congress in the years 1961, 1962, 1963 and 1965 for the power to issue cease and desist orders before full evidentiary hearings (see, e. g., H.R.Rep.No.498, 87th Cong., 1st Sess., p. 22 (1961); Annual Reports of the Federal Maritime Commission, 1962, 1963; Hearings before the Sub-Committee on Federal Procurement and Regulation of the Joint Economic Committee, 89th Cong., 1st Sess., pp. 384-85 (1965)), and that Congress has just as often refused to grant respondent this power. The case of Trans-Pacific Freight Conference of Japan, et al. v. Federal Maritime Commission & U.S.A., 112 U.S.App.D.C. 290, 302 F.2d 875 (1962), is also cited by petitioner as judicial authority for the proposition that the Commission does not have this power.
In Trans-Pacific, supra, the cease and desist order was issued by the Commission as a result of a complaint to the Board by a member of a conference that it was being discriminated against and injured by actions of the conference. The member’s complaint was made pursuant to Section 22 of the Shipping Act. However, pending the holding of hearings on this complaint, the Commission issued an order to the conference to show cause why it should not be ordered to cease and desist from the practices complained of, pending completion of the hearings under Section 22. The Board subsequently issued the cease and desist order, and the conference appealed to this court. After holding that the order of the Commission was final and reviewable, this court found that the Commission lacked power to issue such a cease and desist order pending final determination of the member’s Section 22 complaint. 302 F.2d, at 878-879. We held that Section 22 required that a violation of the Act be found before a cease and desist order could issue and that there was no Section 15 question involved because the action enjoined was not an “agreement” or modification thereof within the meaning of those terms under Section 15. We concluded that neither Section 15 nor 22 supported the pendente lite cease and desist order issued by the Commission and that the legislative history of the Commission’s attempt to acquire this power conclusively demonstrated that Congress had not acceded to the Commission’s importunities.
In Trans-Pacific, however, we specifically noted that we were not deciding the question of whether the Commission had the power to issue a cease and desist order prohibiting the parties from carrying out an agreement that had not, but should have, been filed with the Commission for Section 15 approval. 302 F.2d, at 879, n. 8. The Commission’s action in Trans-Pacific itself was directed to an action of the conference which was undertaken pursuant to the terms of the approved agreement. The question in that case was whether the conference’s action violated the approved agreement.
In the instant case, the situation is different. Here the Commission is alleging that the dual-level tariff changes by the conference are of such a magnitude as to constitute a “new” Section 15 agreement which has not been filed with or approved by the Commission. Thus, the cease and desist order here speaks not to the enjoining of a violation of an approved agreement, but rather to the taking of action the nature of which requires that it be approved by the Commission as a Section 15 agreement.
The Commission supports its action by reference to American Export & Is-brandtsen Lines v. Federal Maritime Commission, 334 F.2d 185 (9th Cir. 1964). In that case, the Ninth Circuit upheld the issuance of a cease and desist order by the Commission in a situation closely analogous to that present here. There, the Commission issued an order directing the Pacific Coast European Conference to show cause why a port equalization system, filed as an amendment to the general rules section of the conference freight tariff, should not be declared unlawful and stricken from the tariff. The Commission limited the proceeding before it to the submission of affidavits of fact and memoranda of law. (No affidavits of fact were, however, filed.) The Commission found that the amendment to the freight tariff was not embraced' within the conference’s basic tariff agreement and, consequently, was an unfiled agreement in violation of Section 15. The Ninth Circuit approved the hearing accorded the petitioner and the action of the Commission in issuing the cease and desist order.
In addition to relying on Isbrandtsen, supra, to support its power to issue a cease and desist order after hearing and finding that conference action constituted a violation of Section 15, the Commission noted in its opinion in this case that:
“the power of this Commission to issue cease and desist orders preventing the carrying out of unapproved agreements is a necessary corollary to the requirement that such agreements obtain approval before they may be carried out [and this power] has been recognized by the courts. [Footnote 15. See, e. g., Trans Pacific Frgt. Conf. of Japan v. Federal Maritime Com’n., 314 F.2d 928, 935-36 (9th Cir. 1963), upholding the Commission’s issuance of a cease and desist order against the carrying out of modification of neutral body system without prior Commission approval.]”
We agree with the Commission that it is authorized to issue a cease and desist order after hearing to enjoin actions of a conference which are undertaken pursuant to an agreement, the nature of which requires it to be filed under Section 15. The Trans-Pacific case (supra, p. 338), and the legislative history relied upon by petitioner herein are not apposite. Those authorities speak only to a situation where the Commission attempts to issue a cease and desist order to enjoin pendente lite a violation of an approved Section 15 agreement.
Of* course, we are not unaware that the line between action taken in violation of an approved Section 15 agreement and action constituting a new unfiled Section 15 agreement is seldom a clear and distinct one, and most often such line, if it exists at all, is shrouded by a vast penumbra of doubt. We believe, however, that the Commission is the properly constituted body to scrutinize the conference action and to determine initially upon which side of the line the conference action falls. A Commission determination that the conference action falls within or without the approved agreement must be given due deference by a reviewing court. See Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).
The Commission must, of course, carefully determine whether the conference action falls within the statutory exception to Section 15 created by Congress in amending that section, Pub. L. 87-346, 75 Stat. 762, 764, which exception provides that:
“tariff rates, fares, and charges, and classifications, rules and regulations explanatory thereof * * * agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without prior approval * *
This exception must be juxtaposed with the remainder of Section 15, the literal language of which could arguably be held to read the exception right out of Section 15. Congress has both given and taken away from the Commission in the enacting and amending of Section 15, and it is not entirely clear where the giving begins and the taking leaves off. The Commission must make a reasoned determination in each case, taking into account the practicalities of the marketplace and the decisional law on the question from the courts and Commission. Because of the difficulties attending precise discernment of the particular nature of each conference action, we believe the Commission should be as liberal as is possible, consistent with orderly administration, in granting a conference the opportunity to demonstrate initially that the subject action is embraced within the existing agreement.
The question remaining in this case is whether the hearing accorded petitioner satisfied the statutory requirements and, if so, whether the Commission’s determination that the dual-level system constituted an unfiled Section 15 agreement is supported by law.
IV.
Sufficiency of hearing: Counsel for Commission concedes that a hearing was required here since this is an adjudication. It is contended, however, that this requirement was met, since there are no disputed questions of fact and petitioner was afforded an opportunity to submit a memorandum of law and was granted oral argument before the Commission. Petitioner argues that there are issues of fact here because it has alleged that it can prove that the dual-level system it has employed has been previously utilized in the trade and that these issues can be resolved only by a full evidentiary hearing as required by the provisions of Section 7(c) of the Administrative Procedure Act. Petitioner points to the fact that in the order to show cause, no provision was made for the filing of affidavits of fact and that this is in contradistinction to consistent Commission practice, which has been to allow the parties to file such affidavits of fact. Respondent replies that affidavits of fact were not required here because the Commission had before it only the narrow question of whether the language of conference agreement No. 7700 was broad enough to encompass petitioner’s dual-level system and that this was a question of law requiring only a scrutiny of the system and an interpretation of the agreement.
The question of what type hearing is required in an adjudicatory proceeding has traditionally been a vexing one for administrative agencies and courts alike. Davis, Administrative Law Treatise, Ch. 7 (1958 ed.). While it is true that Section 7(c) of the Administrative Procedure Act speaks in terms of a requirement of a trial-type evidentiary hearing, such an evidentiary hearing has not necessarily been required where the question involved has been essentially one of law. The rule was well stated in Producers Livestock Marketing Association v. United States, et al., 241 F.2d 192, 196 (10th Cir., 1957), aff’d sub mom., Denver Union Stockyard Company v. Producers Livestock Marketing Ass’n, 356 U.S. 282, 78 S.Ct. 738, 2 L.Ed.2d 771 (1958), wherein the court stated:
“it is fundamental to the law that the submission of evidence is not required to characterize ‘a full hearing’ where such evidence is immaterial to the issue to be decided. In construing a similar provision of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., the Supreme Court has defined a full hearing as one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law of the step asked to be taken. Akron, C. & Y. Ry. Co. v. United States, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605. Where no genuine or material issue of fact is presented the court or administrative body may pass upon the issues of law after according the parties the right of argument. This was done in the instant case and constitutes a ‘full hearing’ for consideration of the limited contention made by the petitioner in its complaint and by its election not to submit evidence.”
In the Isbrandtsen case, supra, the Ninth Circuit approved the previously delineated Commission action taken there and stated:
“In these circumstances, an evidentiary hearing is not required. Petitioners were given the opportunity to present legal memorandum, and the opportunity of oral argument. In the context of this case, they were entitled to no more.” 334 F.2d, at 194.
While it is true that the show cause order in Isbrandtsen specifically provided that affidavits of fact should be filed, that none were filed, and that the decision could be made there as a matter of law, and that the opposite tack was charted by the Commission here, we do not believe this factor sufficiently distinguishes the two cases. Here petitioner was afforded an opportunity at oral argument to denominate the facts in controversy and to explain their relevance and materiality. Moreover, no one has ever disputed the facts alleged by the petitioner. The Commission, rather, as we read its decision, concluded that even if such facts were true, they were insufficient to demonstrate that the dual-level system came within Agreement No. 7700. Further, petitioner did not allege that the dual-level system had ever been utilized previously pursuant to its conference agreement, which was the most pertinent fact relevant to determination of the question.
We believe, therefore, that in spite of the fact that the Commission failed to afford petitioner an opportunity to file affidavits of fact, the petitioner was afforded an opportunity to demonstrate what facts it felt were material to the issue before the Commission. The Commission could properly have concluded that these facts were both undisputed and irrelevant to its decision and that the question ultimately determined by the Commission was one of law, which it could properly decide without providing petitioner a full trial-type evidentiary hearing.
y.
Requirement that the dual-level system be submitted for approval as a Section 15 agreement: The Commission determined that the two-level rates contained in petitioner’s tariffs are not in accordance with Agreement No. 7700. In so concluding, the Commission referenced five areas of commercial practice in the shipping industry where it has required separate Section 15 approval. It found that petitioner’s “two-level system here involved comes within all five of them. No mention is made in the basic agreement of a system of rates based upon vessel flag; * *
The Commission concluded that petitioner’s tariff authority under Article I of Agreement No. 7700 encompassed rate making authority only and did not extend to more basic and fundamental changes in the methodology of rate making.
We have reviewed the Commission’s conclusions in this regard and find that they are in conformance with both court and Commission decisional law. The interpretation placed upon petitioner’s activities by the Commission, and its reading of the basic agreement involved is a tenable one. We therefore affirm the Commission’s decision. We desire to stress, however, that we are concerned only with the question of whether the dual-level system requires Section 15 approval. We intimate no opinion as to whether the system should be approved or disapproved, since this question rests initially with the Commission.
Affirmed.
. The order was issued in the Commission’s Docket No. 66-27, The Persian Gulf Outward Freight Conference (Agreement No. If 00) — Establishment of es Rate Structure Providing for Higher Rate Levels for Service via Ameriean-Flag Vessels versus Foreign-Flag Vessels.
. Section 15 provides in relevant part:
“[That] Every common carrier by water, or other person subject to this Act, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this Act, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term “agreement” in this section includes understandings, conferences, and other arrangement. * * * ”
. Section 7(c) of the Administrative Procedure Act, 5 U.S.C. 1006(c) provides in relevant part:
“Every party shall have the right to present his ease or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.”
. Even if the Commission believes that there are no issues of fact in a case, we believe that it would be better advised to be consistent in allowing parties an opportunity to file affidavits of fact in every case. Certainly much of the controversy in this case would have been foreshortened had petitioner had such opportunity. Moreover, such procedure would afford appellate courts a better record against which to evaluate the contentions of the parties and the conclusions of the Commission.
. “Separate Section 15 approval has been required by the Commission and its predecessors of arrangements (1) introducing an entirely new scheme of rate combination and discrimination not embodied in the basic agreement (the dual rate contract) ; (2) representing a new course of conduct (prohibition of brokerage on a particular shipment); (3) providing new means of regulating and controlling competition (port equalization system); (4) not limited to the pure regulation of intraconference competition; or (5) constituting an activity by the nature and manner of effectuation of which cannot be ascertained by a mere reading of the basic agreement.” (Footnotes omitted.)
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_counsel2
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E
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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
UNITED STATES of America, Appellee, v. Robert E. BRADLEY, Defendant, Appellant.
No. 90-1578.
United States Court of Appeals, First Circuit.
Heard Oct. 3, 1990.
Decided Oct. 24, 1990.
James St. Clair with whom Hale & Dorr, William C. Knowles, Susanne Folsom, and Verrill & Dana were on brief, for defendant, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., were on brief, for the U.S.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and ATKINS , Senior District Judge.
Of the Southern District of Florida, sitting by designation.
SELYA, Circuit Judge.
Defendant-appellant Robert E. Bradley questions the district court’s application of the sentencing guidelines. Notwithstanding the elegance with which Bradley’s arguments are advanced by able counsel, we find the appeal lacking in substance.
How The Sentence Eventuated
In October 1989, Bradley attracted the attention of an intergovernmental drug enforcement task force. Undercover agents managed to gain his confidence and purchased 3.4 grams of cocaine from him. Five days later, the agents initiated negotiations to acquire a kilogram. While these negotiations were ongoing, they made several smaller purchases from Bradley. Although Bradley agreed to sell the kilogram, he was arrested before it was produced.
A federal grand jury returned a six count indictment charging that, on five separate dates between October 27, 1989 and November 28, 1989, appellant distributed cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). The sixth count charged appellant with carrying a firearm during and in relation to the commission of drug trafficking crimes, thereby violating 18 U.S.C. § 924(c)(1) (1988). Appellant entered guilty pleas to all counts.
In due course, the presentence investigation report was prepared. The probation officer considered defendant’s objections to the report and issued an addendum. The district court held a sentencing hearing to resolve the remaining objections, made a series of findings, and proceeded to calculate the guideline sentencing range (GSR). See generally United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining method of computation under federal sentencing guidelines), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989) (similar). Although we will trace certain details of that computation in greater detail infra, it is enough for introductory purposes to note that the court grouped counts 1-5 pursuant to U.S. S.G. § 3D1.2(d); set the base offense level at 26 on the theory that defendant’s overall conduct involved 1.814 kilograms of cocaine, see U.S.S.G. § 2D1.1(c)(9) (Drug Quantity Table) (establishing base offense level at 26 where includable conduct implicates “500 G but less than 2 KG of cocaine”); and determined the GSR for counts 1 through 5, combined, to be 70-87 months, see U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (offense level 26; criminal history category II).
The court imposed a sentence within, but at the very zenith of, the GSR: 87 months in prison, plus a term of supervised release. This appeal followed.
The Issues
Although appellant offers many arguments in his brief on appeal, the array boils down to two principal remonstrances. First, he contends that the court below erred in attributing amounts of cocaine to him, thus exaggerating his base offense level. Second, he urges us to find that the court impermissibly withheld a two level reduction for acceptance of responsibility. We will examine these contentions in sequence.
Before reaching the first issue, however, we believe that we should narrow it. The district court’s computation of the GSR rested upon its finding that Bradley’s relevant criminal conduct involved at least 500 grams of cocaine. See U.S.S.G. § 2D 1.1(c)(9) (Drug Quantity Table). It is undisputed that the five consummated transactions in which Bradley gave or sold contraband to the undercover agents involved 102.1 grams of cocaine. The section 2D1.1(c)(9) threshold was crossed when the court counted (1) the evanescent kilogram of cocaine which Bradley agreed to sell to the agents but never delivered, and (2) 714 grams of cocaine which the court found, from Bradley’s own testimony at the sentencing hearing, had previously been sold by him to others as “part of the same course of conduct or common scheme or plan as the offense of conviction,” although not charged in the indictment. See U.S. S.G. § lB1.3(a)(2).
Appellant’s counsel forthrightly conceded at oral argument that the 102.1 grams was properly counted and that he could prevail on appeal only by persuading us that both the kilogram and the 714 grams were wrongly included in the calculation. Inasmuch as Level 26 is triggered by any quantity of 500 grams or more, see U.S.S.G. § 2Dl.l(c)(9) (Drug Quantity Table), either of the other amounts, when added to the admitted 102.1 grams, would pull the trigger. Hence, the base offense level was correctly calculated so long as one or the other of the add-ons was appropriately included.
In light of this concession, our task is effectively halved. Since we find that the lower court’s inclusion of the negotiated kilogram was irreproachable, see infra, we can safely eschew consideration of whether defendant’s antecedent drug dealings totalled 714 grams or involved the same course of conduct as the counts of conviction. After all, when correction of a finding would not change the applicable offense level or affect the sentencing range, any error therein would necessarily be harmless. Accord United States v. Sciarrino, 884 F.2d 95, 98 (3d Cir.), cert. denied, — U.S. -, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989).
The Missing Kilogram
In this type of ease, a key datum in constructing defendant’s sentence is the quantity of narcotics attributable to him for sentencing purposes, a datum bounded initially by the sum of the charged conduct to which the defendant pleads plus his “relevant” uncharged conduct. See U.S.S.G. § lB1.3(a)(2). Put another way, “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or ... common scheme or plan as the count of conviction.” U.S. S.G. § lB1.3(a)(2) comment, (backg’d). We painstakingly explained the operation of this principle in United States v. Blanco, 888 F.2d 907, 908-11 (1st Cir.1989), and will not rehearse that discussion here. Suffice to say that every court to consider the issue, including this one, has concluded that an amount of drugs which a defendant negotiates to sell may be considered as relevant conduct for base offense level purposes even if the drugs are never produced. See, e.g., United States v. Alston, 895 F.2d 1362, 1371-72 (11th Cir.1990); United States v. Garcia, 889 F.2d 1454, 1456 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); Blanco, 888 F.2d at 909; United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989); see also United States v. ValleSanchez, 912 F.2d 424, 426 (10th Cir.1990) (guidelines “permit inclusion of amounts which a defendant agrees to sell but ... does not deliver”) (dicta).
One pillar upon which these rulings rest has been sculpted by the Sentencing Commission, which wrote:
If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation that amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.
U.S.S.G. § 2D1.4, comment, (note 1). This line of reasoning has consistently been applied not just to persons convicted of conspiracy or attempt, but to persons found guilty of substantive narcotics offenses. See, e.g., Garcia, 889 F.2d at 1456-57; United States v. White, 888 F.2d 490, 497 (7th Cir.1989); Blanco, 888 F.2d at 908-09. Thus, our inquiry reduces to the supportability of the district court’s finding that Bradley fully intended to produce, and was reasonably capable of producing, the missing kilogram.
To be sure, the answer is not entirely one-sided. There are points in defendant’s favor: the kilogram never surfaced; there is no evidence that Bradley previously handled single transactions of such a large size; some of the negotiations may have taken place in an atmosphere permeated by drugs and alcohol; and defendant testified that the kilogram was a figment of his imagination and the promise to deliver it born of bravado and braggadocio. Yet the points in the other direction seem at least as convincing. The agents testified: that approximately two weeks after their initial introduction, Bradley told them he would— and could — sell “any amount [of cocaine] at any time ... provided you pass my security check;” that when they broached the subject of buying a kilogram, Bradley immediately quoted a price and an availability date; that Bradley thereafter negotiated in earnest, upping the price tag from $28,000 to $32,000 in the course of the cotillion; that Bradley threatened to shoot one of the agents between the eyes if he notified the police when the kilogram was delivered (and, brandishing a semiautomatic machine pistol, graphically demonstrated how he would carry out the threat); and that Bradley groused about the heightened risks of selling a kilogram as opposed to peddling fractional ounces.
Moreover, when the agents first met Bradley at a party, they overheard him tell two friends that the cocaine being provided for the gathering had cost $28,000 per kilogram — the exact figure which he subsequently quoted to the agents. Perhaps most damning of all, when Bradley jacked up the price of the kilogram in midstream, he gave the agents a slip of paper written in his own hand, which read: “The price on the key is $32,000 it’s here — that’s a yes or no with zero discussion.” When the agents inquired what “it’s here” meant, appellant responded that he could deliver the contraband within the hour.
We think that we have gone far enough to give the reader a flavor of what transpired between prospective seller and prospective buyer. The government had the burden of demonstrating by a fair preponderance that uncharged amounts of drugs used in selecting the base offense level were properly included. In weighing the facts the sentencing court could evaluate virtually any dependable information, see U.S.S.G. § 6A1.3 (sentencing court may consider all pertinent information which has “sufficient indicia of reliability to support its probable accuracy”), including the agents’ recollections. As to the missing kilogram, the prosecution’s burden was carried handsomely.
The district court made specific findings, articulating its reasons for believing that Bradley both intended, and had the capacity, to deliver the kilogram. The court considered Bradley’s account of the transaction and explicitly rejected it, finding implausible that Bradley would have played so dangerous a game other than with serious purpose. Such credibility determinations and interpretations of the true meaning of subsidiary facts are uniquely within the province of the sentencing judge. See, e.g., United States v. Jimenez-Otero, 898 F.2d 813, 814-15 (1st Cir.1990). And the collocation of attendant circumstances neatly accommodates the court’s rationale.
On appeal, the sentencing court's finding that drugs other than those specified in the indictment existed and formed part of the same course of conduct is entitled to considerable deference. See Diaz-Villafane, 874 F.2d at 48; Wright, 873 F.2d at 443-44; see also 18 U.S.C. § 3742(e) (1985 & Supp.1990). Absent mistake of law — and there has been none here — we review such conclusions only for clear error. United States v. Mocciola, 891 F.2d 13, 16 (1st Cir.1989). We will not disturb supported findings unless our scrutiny of the record convinces us that a grave mistake was made. We cannot find such a mistake appertaining to computation of Bradley’s base offense level. As we have heretofore written, “where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990); accord Jimenez-Otero, 898 F.2d at 815 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)).
Acceptance of Responsibility
Appellant also contends that the court below miscalculated the GSR because it failed to shrink his offense level to reflect acceptance of responsibility. Of course, the defendant must carry the burden of proving his entitlement to a downward adjustment in the offense level. United States v. Ocasio, 914 F.2d 330, 337-38 (1st Cir.1990); United States v. Urrego-Linares, 879 F.2d 1234, 1238-40 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989). Moreover, “[bjecause the sentencing judge has the unique opportunity of observing the defendant, hearing his allocution, and evaluating acceptance of responsibility in a live context against the backdrop of the case as a whole, his determination is entitled to great respect.” United States v. Royer, 895 F.2d 28, 29 (1st Cir.1990); see generally 18 U.S.C. § 3742(e) (1985 & Supp.1990). Thus, the district court’s decision to withhold such a reduction will be reversed only for clear error. Royer, 895 F.2d at 29; United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir.1989) (per curiam).
In this instance, we have no occasion to linger. While Bradley pled guilty to the charges, that did not entitle him to a sentencing discount as a matter of right. See United States v. Scott, 915 F.2d 774, 776 (1st Cir.1990); Royer, 895 F.2d at 29-30. Rather, “[tjhe inquiry into acceptance of responsibility is necessarily factbound” and “[cjredibility and demeanor play a crucial role in determining whether a person is genuinely contrite.” Royer, 895 F.2d at 30. Bradley’s guilty plea was, therefore, but one integer in an elaborate calculus.
Here, the record belies appellant’s assertion that the trial court lacked a sufficient foundation to withhold the discretionary two level reduction. The court made a specific finding, amply supported by the facts and by plausible inferences therefrom, that appellant, to the bitter end, was “engaged ... in the process of minimizing his responsibility and culpability.” The court found that Bradley lied at the sentencing hearing about his intent and capacity to deliver the kilogram of cocaine, see supra pp. 604-606, about many of his statements to the agents, and about his use of firearms. In fine, the district court had a surfeit of valid reasons for denying the credit in this case. Acceptance of responsibility, in the final analysis, “necessitates candor and authentic remorse — not merely a pat recital of the vocabulary of contrition.” Royer, 895 F.2d at 30.
Conclusion
We need go no further. Inasmuch as the GSR was based upon findings that cannot in good conscience be characterized as clearly erroneous, and the sentence appealed from was within, albeit at the high end of, the applicable guideline range, the judgment of conviction and defendant’s sentence must be
Affirmed.
. This grouping of multiple counts was advantageous to Bradley and he does not question it on appeal.
. As required by law, 18 U.S.C. § 924(c)(1), defendant received a separate 5-year jail sentence on count 6 (the weapons charge), running consecutive to the 87-month sentence. On appeal, Bradley does not contest the separate 5-year sentence.
. We acknowledge, but see no point in longiloquently addressing, appellant’s claim that the "uncharged conduct” provisions of the sentencing guidelines, and in particular U.S.S.G. § 1B1.3, violate the Due Process Clause as applied to him because, inter alia, the negotiated kilogram was never actually sold and he was never charged with the attempt. Citing United States v. Restrepo, 883 F.2d 781 (9th Cir.1989), Bradley argues that to sentence him as if the single kilogram sale had actually been completed was fundamentally unfair. Appellant’s Brief at 33-34. The short answer to appellant’s plaint is that Restrepo was withdrawn, then reversed, by the Ninth Circuit. See United States v. Restrepo, 903 F.2d 648 (9th Cir.1990). The slightly longer, but equally definitive, answer is that section 1B1.3 has been routinely upheld in the face of similar due process challenges. See, e.g., United States v. Castellanos, 904 F.2d 1490, 1492-96 (11th Cir.1990) (on petition for rehearing); United States v. Beaulieu, 900 F.2d 1537, 1540 (10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990); United States v. Strong, 891 F.2d 82, 85 (5th Cir.1989); United States v. Fox, 889 F.2d 357, 363 (1st Cir.1989); Blanco, 888 F.2d at 909-10; United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989). Though artfully fashioned, appellant’s claim is, like Talleyrand seen through Napoleon’s eyes, figuratively equivalent to a silk stocking filled with mud.
. Section 3E1.1 of the sentencing guidelines provides for a two level decrease "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.”
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
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
COMMUNIST PARTY OF THE UNITED STATES v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 48.
Argued November 17, 1955.
Decided April 30, 1956.
John J. Abt and Joseph Forer argued the cause and filed a brief for petitioner.
Solicitor General Sobeloff argued the cause for respondent. With him on the brief were Assistant Attorney General Tompkins, Harold D. Kofjsky, Philip R. Monahan and George R. Gallagher.
Briefs of amici curiae urging reversal were filed by Osmond K. Fraenkel, Thomas I. Emerson, David L. Weissman and Murray A. Gordon for the National Lawyers Guild; Edward J. Ennis for the American Civil Liberties Union; and Royal W. France for Aydelotte et al.
Herbert R. O’Conor, Julius Applebaum, William N. Bonner, Tracy E. Griffm, Clarence Manion, Paul W. Updegraff and Robert W. Upton filed a brief for the American Bar Association, as amicus curiae, urging affirmance.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This case is here to review the judgment of the Court of Appeals for the District of Columbia affirming an order of the Subversive Activities Control Board that petitioner register with the Attorney General as a “Communist-action” organization, as required by the Subversive Activities Control Act of 1950, Title I of the Internal Security Act of 1950, 64 Stat. 987. That Act sets forth a comprehensive plan for regulation of “Communist-action” organizations. Section 2 of the Act describes a world Communist movement directed from abroad and designed to overthrow the Government of the United States by any means available, including violence. Section 7 requires all Communist-action organizations to register as such with the Attorney General. If the Attorney General has reason to believe that an organization, which has not registered, is a Communist-action organization, he is required by § 13 (a) to bring a proceeding to determine that fact before the Subversive Activities Control Board, a five-man board appointed by the President with the advice and consent of the Senate and created for the purpose of holding hearings and making such determinations. Section 13 (e) lays down certain standards for judgment by the Board.
If the Board finds that an organization is a Communist-action organization, it enters an order requiring the organization to register with the Attorney General. § 13 (g). Section 14 provides the right to file a petition for review of Board action in the Court of Appeals for the District of Columbia, with opportunity for review by this Court upon certiorari. Once an organization registers or there is outstanding a final order of the Board requiring it to register, several consequences follow with respect to the organization and its members, but these need not now be detailed. See §§ 4, 5, 6, 7, 8, 10, 11, 15, 22, 25.
Proceeding under § 13 (a) of this statute, the Attorney General, on November 22, 1950, petitioned the Board for an order directing petitioner to register pursuant to § 7 of the Act. Petitioner sought unsuccessfully by numerous motions before the Board and by proceedings in the United States District Court for the District of Columbia — one case is reported at 96 F. Supp. 47 — to attack the validity of, and to abort, the hearing. The hearing began on April 23, 1951, before three members of the Board, later reduced to two, sitting as a hearing panel, and it terminated on July 1, 1952. Proposed findings of fact and briefs were filed by both parties, and oral argument was held before the hearing panel in August 1952. In October 1952 the hearing panel issued a recommended decision that the Board order petitioner to register as a Communist-action organization. Exceptions to the panel's findings were filed by both parties, and oral argument was held before the Board in January 1953. The Board filed its report, which occupies 251 pages of the record in this case, on April 20, 1953.
In its report the Board found that there existed a world Communist movement, substantially as described in § 2 of the Act, organized and directed by a foreign government. The Board detailed the history of the Communist Party of the United States and its close relation to the world Communist movement. It then set forth illustrative evidence and made findings with respect to the statutory criteria of § 13 (e) of the Act, which required the Board to consider “the extent to which” the organization met them. The Board found that the conditions set forth in each of the paragraphs were applicable to petitioner. On the basis of these findings the Board concluded that petitioner was a Communist-action organization, as defined by § 3, and ordered it to register as such with the Attorney General.
Petitioner brought this order to the Court of Appeals for the District of Columbia for review. While the case was pending, it filed a motion, supported by affidavit, for leave to adduce additional evidence pursuant to § 14 (a) of the Act. The basis of the motion was that the additional material evidence became available to the petitioner subsequent to the administrative proceeding and that this evidence would
“establish that the testimony of three of the witnesses for the Attorney General, on which [the Board] relied extensively and heavily in making findings which are of key importance to the order now under review, was false. ... In summary, this evidence will establish that Crouch, Johnson and Matu-sow, all professional informers heretofore employed by the Department of Justice as witnesses in numerous proceedings, have committed perjury, are completely untrustworthy and should be accorded no credence; that at least two of them are now being investigated for perjury by the Department of Justice, and that because their character as professional perjurors [sic] has now been conclusively and publicly demonstrated, the Attorney General has ceased to employ any of them as witnesses.”
Petitioner listed a number of witnesses whom it proposed to call to substantiate its claim and also set forth a detailed affidavit in support of its allegations.
The Government did not deny these allegations. It filed a “Memorandum in Opposition to Motion for Leave to Adduce Additional Evidence,” signed by the General Counsel to the Board and by officials of the Department of Justice. The memorandum asserted that the hearing should not be reopened for the receipt of evidence merely questioning, as it claimed, the credibility of some witnesses, but not any fact at issue, and it maintained that the findings of the Board were amply supported by evidence apart from the testimony of the three witnesses sought to be discredited. On December 23, 1954, this motion was formally denied by the Court of Appeals without opinion. In its full opinion on the merits, filed the same day, however, the Court of Appeals supported its rejection of petitioner’s motion:
“The Party attacks the credibility of the witnesses presented by the Government. In this connection it stresses that some of these witnesses . . . were under charges of false swearing. Full opportunity for cross examination of these witnesses was afforded at the hearing before the Board, and full opportunity was also afforded for the presentation of rebuttal testimony. The evaluation of credibility is primarily a matter for the trier of the facts, and a reviewing court cannot disturb that evaluation unless a manifest error has been made. Moreover the testimony of the witnesses against whom charges are said to have been made was consistent with and supported by masses of other evidence. . . .” 96 U. S. App. D. C. 66, 100, 223 F. 2d 531, 565.
The Court of Appeals affirmed the order of the Board. It sustained § 13 (e) against the contention that its standards were vague and irrational. It held that the findings of the Board had been established by a preponderance of the evidence, except that it struck, as not being supported by a preponderance of the evidence, the finding that the secret practices were undertaken for the purpose of promoting the objectives, and concealing the true nature, of petitioner; and it also struck the finding in connection with reporting to a foreign government because the record supported only a finding of reporting by Party leaders “upon occasion,” not a finding which implied a constant, systematic reporting. The court, however, found that the Board’s conclusion was supported by the basic findings which it had affirmed. With respect to petitioner’s other attacks on the constitutional validity of the statute, the court found it necessary to consider some of the so-called “sanction” sections, §§ 5, 6, 10, 11, 22, and 25, as well as § 7, the registration section. It held that they were all constitutional and therefore affirmed the order of the Board.
The challenge to the Act on which the order was based plainly raises constitutional questions appropriate for this Court’s consideration, and so we brought the case here. 349 U. S. 943. At the threshold we are, however, confronted by a particular claim that the Court of Appeals erred in refusing to return the case to the Board for consideration of the new evidence proffered by petitioner’s motion and affidavit. This non-constitutional issue must be met at the outset, because the case must be decided on a non-constitutional issue, if the record calls for it, without reaching constitutional problems. Peters v. Hobby, 349 U. S. 331.
In considering this non-constitutional issue raised by denial of petitioner’s motion, we must avoid any intimation with respect to the other issues raised by petitioner. We do not so intimate by concluding that the testimony of the three witnesses, against whom the uncontested challenge of perjury was made, was not inconsequential in relation to the issues on which the Board had to pass. No doubt a large part of the record consisted of documentary evidence. However, not only was the human testimony significant but the documentary evidence was also linked to the activities of the petitioner and to the ultimate finding of the Board by human testimony, and such testimony was in part that of these three witnesses. The facts bearing on the issue are not in controversy. The direct testimony of witness Crouch occupied 387 pages of the typewritten transcript; that of Johnson, 163 pages; and that of Matusow, 118 pages. The annotated report of the Board, in which citations to the evidence were made to illustrate the support for its findings, contained 36 references to the testimony of Crouch, 25 references to the testimony of Johnson, and 24 references to the testimony of Matusow. These references were made in support of every finding under the eight criteria of § 13 (e) and it is also not to be assumed that the evidence given by these three witnesses played no role in the Board's findings of fact even when not specifically cited. Testimony, for example, directed toward proving that the Communist Party of the United States was an agency utilized by a foreign government to undermine the loyalty of the armed forces, and to be in a position to paralyze shipping and prevent transportation of soldiers and war supplies through the Panama Canal, Hawaii, and the ports of San Francisco and New York in time of war, cannot be deemed insignificant in such a determination as that which the Board made in this proceeding.
This is a proceeding under an Act which Congress conceived necessary for “the security of the United States and to the existence of free American institutions . . . .” 64 Stat., at 989. The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U. S. 332. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.
When uncontested challenge is made that a finding of subversive design by petitioner was in part the product of three perjurious witnesses, it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the Board’s findings. If these witnesses in fact committed perjury in testifying in other cases on subject matter substantially like that of their testimony in the present proceedings, their testimony in this proceeding is inevitably discredited and the Board’s determination must duly take this fact into account. We cannot pass upon a record containing such challenged testimony. We find it necessary to dispose of the case on the grounds we do, not in order to avoid a constitutional adjudication but because the fair administration of justice requires it. Since reversal is thus demanded, however, we do not reach the constitutional issues.
The basis for challenging the testimony was not in existence when the proceedings were concluded before the Board. Petitioner should therefore be given leave to make its allegations before the Board in a proceeding under § 14 (a) of the Act. The issue on which the case must be returned to the Board lies within a narrow compass and the Board has ample scope of discretion in passing upon petitioner’s motion. The purpose of this remand, as is its reason, is to make certain that the Board bases its findings upon untainted evidence. To that end it may hold a hearing to ascertain the truth of petitioner’s allegations, and if the testimony of the three witnesses is discredited, it must not leave that testimony part of the record. Alternatively, the Board may choose to assume the truth of petitioner’s allegations and, without further hearing, expunge the testimony of these witnesses from the record. In either event, the Board must then reconsider its original determination in the light of the record as freed from the challenge that now beclouds it.
The case is reversed and remanded for proceedings in conformity with this opinion.
Reversed and remanded.
A “Communist-action” organization is defined in § 3 of the Act as:
“(a) any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title; and
“(b) any section, branch, fraction, or cell of any organization defined in subparagraph (a) of this paragraph which has not complied with the registration requirements of this title.” 64 Stat., at 989.
The Act also defines and regulates “Communist-front” organizations, but these sections of the Act are not involved in the present proceeding.
“In determining whether any organization is a ‘Communist-action organization/ the Board shall take into consideration—
“(1) the extent to which its policies are formulated and carried out and its activities performed, pursuant to directives or to effectuate the policies of the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement referred to in section 2 of this title; and
“ (2) the extent to which its views and policies do not deviate from those of such foreign government or foreign organization; and
“(3) the extent to which it receives financial or other aid, directly or indirectly, from or at the direction of such foreign government or foreign organization; and
“(4) the extent to which it sends members or representatives to any foreign country for instruction or training in the principles, policies, strategy, or tactics of such world Communist movement; and
“(5) the extent to which it reports to such foreign government or foreign organization or to its representatives; and
“(6) the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of such foreign government or foreign organization or its representatives; and
“(7) the extent to which, for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives, (i) it fails to disclose, or resists efforts to obtain information as to, its membership (by keeping membership lists in code, by instructing members to refuse to acknowledge membership, or by any other method); (ii) its members refuse to acknowledge membership therein; (iii) it fails to disclose, or resists efforts to obtain information as to, records other than membership lists; (iv) its meetings are secret; and (v) it otherwise operates on a secret basis;- and
“(8) the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to such foreign government or foreign organization.” 64 Stat., at 999-1000.
Section 14 (a) of the Act provides:
“. . .If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper. The Board may modify its findings as to the facts, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by the preponderance of the evidence shall be conclusive, and its recommendations, if any, with respect to action in the matter under consideration. . . .” 64 Stat., at 1001-1002.
Judge Bazelon dissented on the ground that the registration provision violated the Fifth Amendment's privilege against self-incrimination because it compelled the person signing it to identify himself as a Communist Party functionary and because it compelled a listing of officers and members. 96 U. S. App. D. C., at 111, 223 F. 2d, at 576.
In this connection the following statement of the Board in its report should be noted:
“In making our findings herein, we have considered and weighed all the evidence of record. In weighing [the Attorney General’s] evidence, we have considered that certain of [his] witnesses fall into the category of ‘informers’ and we have scrutinized their testimony accordingly; we have considered and resolved the inconsistencies in the testimony of certain of [the Attorney General’s] witnesses; we have considered the testimony of [the Attorney General’s] witnesses against the background of their various organizational positions and activities in the CPUSA which afforded the sources of their knowledge; and we have had the benefit of the Panel’s observation of their demeanor while testifying. Viewing these considerations in the light of the whole record, we find no basis for disregarding the substance of their testimony.”
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
STATE TAX COMMISSION OF UTAH v. PACIFIC STATES CAST IRON PIPE CO.
No. 178.
Argued March 20, 1963.
Decided April 1, 1963.
F. Burton Howard, Assistant Attorney General of Utah, argued the cause for petitioner. With him on the brief was A. Pratt Kesler, Attorney General.
C. M. Gilmour argued the cause and filed a brief for respondent.
Per Curiam.
Respondent, a Nevada corporation qualified to do business in Utah, manufactures cast-iron pipe and related items in Provo, Utah, and sells its products throughout the Western States. Prices set by respondent are for the goods delivered at a specific job site, and interstate delivery is usually made by common carrier or in respondent’s own equipment. The sales here involved occurred in a different manner. In each case the material was manufactured to meet the specifications of specific out-of-state jobs. The contract called for out-of-state shipment, and respondent set a destination price which included the going common carrier freight charges between the two points involved. But delivery was made and title passed to the purchaser at respondent’s foundry-in Provo. The purchaser then transported the pipe with its own equipment to the predetermined out-of-state destination. The common carrier tariff was credited to the purchaser.
The Utah Tax Commission imposed upon respondent a sales tax deficiency covering these sales.
The Supreme Court of Utah reversed the Tax Commission, on the grounds that the certainty of interstate shipment made the imposition of the tax on these shipments unconstitutional under the Commerce Clause. 13 Utah 2d 113, 369 P. 2d 123. We reverse its judgment on the authority of International Harvester Co. v. Department of Treasury, 322 U. S. 340, 345, which holds on facts close to those of this case that a State may levy and collect a sales tax, since the passage of title and delivery to the purchaser took place within the State.
Reversed.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_genstand
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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".
DANIEL R.R., Plaintiff-Appellant, v. STATE BOARD OF EDUCATION, et al., Defendants, El Paso Independent School District, Defendant-Appellee.
No. 88-1279.
United States Court of Appeals, Fifth Circuit.
June 12, 1989.
Reed Martin, Austin, Tex., for plaintiff-appellant.
Sam Sparks, El Paso, Tex., for defendants.
Steven L. Hughes, El Paso, Tex., for El Paso Independent School Dist.
Before THORNBERRY, GEE and POLITZ, Circuit Judges.
GEE, Circuit Judge:
Plaintiffs in this action, a handicapped boy and his parents, urge that a local school district failed to comply with the Education of the Handicapped Act. Specifically, they maintain that a school district’s refusal to place the child in a class with nonhandicapped students violates the Act. The district court disagreed and, after a careful review of the record, we affirm the district court.
I. Background
A. General
In 1975, on a finding that almost half of the handicapped children in the United States were receiving an inadequate education or none at all, Congress passed the Education of the Handicapped Act (EHA or Act). See 20 U.S.C.A. § 1400(b) (West 1988 Supp.); S.Rep. No. 168, 94th Cong., 1st Sess. 8 (1975), reprinted in 1975 U.S.Code Cong. & Admin.News 1425, 1432. Before passage of the Act, as the Supreme Court has noted, many handicapped children suffered under one of two equally ineffective approaches to their educational needs: either they were excluded entirely from public education or they were deposited in regular education classrooms with no assistance, left to fend for themselves in an environment inappropriate for their needs. Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 191, 102 S.Ct. 3034, 3043, 73 L.Ed.2d 690, 702 (1982) (citing H.R.Rep. No. 332, 94th Cong., 1st Sess. 2 (1975); S.Rep. No. 168, 94th Cong., 1st. Sess. 8 (1975) 1975 U.S.Code Cong. & Admin.News 1432). To entice state and local school officials to improve upon these inadequate methods of educating children with special needs, Congress created the EHA, having as its purpose providing handicapped children access to public education and requiring states to adopt procedures that will result in individualized consideration of and instruction for each handicapped child. Id. at 192, 102 S.Ct. at 3043, 73 L.Ed.2d at 703.
The Act is largely procedural. It mandates a “free appropriate public education” for each handicapped child and sets forth procedures designed to ensure that each child’s education meets that requirement. 20 U.S.C.A. §§ 1412(1) and 1415(a)-{e). School officials are required to determine the appropriate placement for each child and must develop an Individualized Educational Plan (IEP) that tailors the child’s education to his individual needs. The child’s parents are involved at all stages of the process. See generally § 1415(b). In addition, the Act requires that handicapped children be educated in regular education classrooms, with nonhandicapped students —as opposed to special education classrooms with handicapped students only — to the greatest extent appropriate. § 1412(5)(B). Educating a handicapped child in a regular education classroom with nonhandicapped children is familiarly known as “mainstreaming,” and the mainstreaming requirement is the source of the controversy between the parties before us today.
B. Particular
Daniel R. is a six year old boy who was enrolled, at the time this case arose, in the El Paso Independent School District (EP-ISD). A victim of Downs Syndrome, Daniel is mentally retarded and speech impaired. By September 1987, Daniel’s developmental age was between two and three years and his communication skills were slightly less than those of a two year old.
In 1985, Daniel’s parents, Mr. and Mrs. R., enrolled him in EPISD’s Early Childhood Program, a half-day program devoted entirely to special education. Daniel completed one academic year in the Early Childhood Program. Before the 1986-87 school year began, Mrs. R. requested a new placement that would provide association with nonhandicapped children. Mrs. R. wanted EPISD to place Daniel in Pre-kin-dergarten — a half-day, regular education class. Mrs. R. conferred with Joan Norton, the Pre-kindergarten instructor, proposing that Daniel attend the half-day Pre-kinder-garten class in addition to the half-day Early Childhood class. As a result, EP-ISD s Admission, Review and Dismissal (ARD) Committee met and designated the combined regular and special education program as Daniel’s placement.
This soon proved unwise, and not long into the school year Mrs. Norton began to have reservations about Daniel’s presence in her class. Daniel did not participate without constant, individual attention from the teacher or her aide, and failed to master any of the skills Mrs. Norton was trying to teach her students. Modifying the Pre-kindergarten curriculum and her teaching methods sufficiently to reach Daniel would have required Mrs. Norton to modify the curriculum almost beyond recognition. In November 1986, the ARD Committee met again, concluded that Pre-kindergarten was inappropriate for Daniel, and decided to change Daniel’s placement. Under the new placement, Daniel would attend only the special education, Early Childhood class; would eat lunch in the school cafeteria, with nonhandicapped children, three days a week if his mother was present to supervise him; and would have contact with nonhandicapped students during recess. Believing that the ARD had improperly shut the door to regular education for Daniel, Mr. and Mrs. R. exercised their right to a review of the ARD Committee’s decision.
As the EHA requires, Mr. and Mrs. R. appealed to a hearing officer who upheld the ARD Committee’s decision. See § 1415(b)(2). After a hearing which consumed five days of testimony and produced over 2500 pages of transcript, the hearing officer concluded that Daniel could not participate in the Pre-kindergarten class without constant attention from the instructor because the curriculum was beyond his abilities. In addition, the hearing officer found, Daniel was receiving little educational benefit from Pre-kindergarten and was disrupting the class — not in the ordinary sense of the term, but in the sense that his needs absorbed most of the teacher’s time and diverted too much of her attention away from the rest of the class. Finally, the instructor would have to downgrade 90 to 100 percent of the Pre-kinder-garten curriculum to bring it to a level that Daniel could master. Thus, the hearing officer concluded, the regular education, Pre-kindergarten class was not the appropriate placement for Daniel.
Dissatisfied with the hearing officer’s decision, Mr. and Mrs. R. proceeded to the next level of review by filing this action in the district court. See § 1415(e). Although the EHA permits the parties to supplement the administrative record, Daniel’s representatives declined to do so; and the court conducted its de novo review on the basis of the administrative record alone. The district court decided the case on cross motions for summary judgment. Relying primarily on Daniel’s inability to receive an educational benefit in regular education, the district court affirmed the hearing officer’s decision.
Mr. and Mrs. R. again appeal, but before we turn to the merits of the appeal we must pause to consider an issue that neither of the parties raised but which we must consider on our own initiative.
II. Mootness
Two years passed while this case wound its way through the course of administrative and judicial review procedures. Several events that occurred during these two years might have rendered the case moot. First, the placement and IEP at issue today set forth Daniel's educational plan for the 1986-87 school year, one long past. Indeed, counsel informed us at oral argument that EPISD had reevaluated Daniel in May 1988, formulating a new IEP for the 1988-89 school year as a result. The placement and IEP upon which Daniel bases his claim have been or will, at the close of this litigation, be superseded. Second, we may hope that Daniel’s development has not entirely stagnated while these proceedings have been pending, although the record does not contain the results of the May 1988 evaluation. We therefore cannot know how much Daniel has developed over the past two years, nor can we divine whether Daniel’s development has rendered Pre-kindergarten any more or less appropriate for him now than it was when EPISD reconsidered his placement. It may well be that neither Pre-kin-dergarten, nor Early Childhood, nor any mix of the two would be appropriate for Daniel at this time. Third, EPISD informed us at oral argument that Daniel is no longer enrolled in the Texas public school system. Dissatisfied with EPISD’s 1988 evaluation and its 1988-89 IEP, Daniels’ parents chose to send Daniel to a private school, where he remained as of the time of oral argument. Although neither of the parties raised the issue, these events force us to pause momentarily to consider whether the case continues to present a live case or controversy.
A case may circumvent the mootness doctrine if the conduct about which the plaintiff originally complained is “capable of repetition, yet evading review.” Honig v. Doe, 484 U.S. 305, -, 108 S.Ct. 592, 600, 98 L.Ed.2d 686, 703 (1988) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)); Valley Construction Co. v. Marsh, 714 F.2d 26, 28 (5th Cir.1983) (quoting Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). Because there is a reasonable expectation that the conduct giving rise to this suit will recur every school year, yet evade review during the nine-month academic term, we conclude that the case is not moot.
Conduct is capable of repetition if there is a reasonable expectation or a demonstrated probability that the same controversy will recur. Honig, 484 U.S. at -& n. 7, 108 S.Ct. at 603 & n. 7, 98 L.Ed.2d at 704 & n. 7 (citations omitted); Valley Construction Co., 714 F.2d at 28. The conduct about which Daniel originally complained is EPISD’s refusal to “mainstream” him. EPISD is unwilling to mainstream a child who cannot enjoy an academic benefit in regular education. Daniel’s parents insist that EPISD must mainstream Daniel even if he cannot thrive academically in regular education. According to Mr. and Mrs. R. EPISD should mainstream Daniel solely to provide him with the company of nonhandi-capped students. Each side of this controversy steadfastly adheres to its perception of the EHA’s mainstreaming requirement. Given the parties’ irreconcilable views on the issue, whether and to what extent to mainstream Daniel will be an issue every time EPISD prepares a new placement or IEP or proposes to change an existing one. The parties have a reasonable expectation of confronting this controversy every year that Daniel is eligible for public education.
Neither the expiration of the 1986-87 IEP, nor Daniel’s development over the past two years, nor the new IEP change our conclusion. Certainly, the controversy whether the 1986-87 placement and IEP comply with the EHA’s mainstreaming requirement is not likely to recur. The primary controversy, however, is the extent of EPISD’s mainstreaming obligation, a controversy that is reasonably likely to recur as Daniel develops and as EPISD prepares placements and IEPs for each new school year. Nor does Mr. and Mrs. R.’s recent decision to remove Daniel from the EPISD system render the case moot. Although Daniel no longer attends public school, he remains a citizen of the State of Texas and, thus, remains entitled to a free appropriate public education in the state. Given Daniel’s continued eligibility for public educational services under the EHA, the mainstreaming controversy remains capable of repetition. See Honig, 484 U.S. at - -, 108 S.Ct. at 602-03, 98 L.Ed.2d at 703-04.
This recurring controversy will evade review during the effective period of each IEP. A placement and an IEP cover an academic year, a nine month period. The Supreme Court has observed that administrative and judicial review of an IEP is “ponderous” and usually will not be complete until a year after the IEP has expired. School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts, 471 U.S. 359, 370, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385, 395 (1985); see Rowley, 458 U.S. at 186 n. 9, 102 S.Ct. at 3041 n. 9, 73 L.Ed.2d at 699 n. 9 (noting that judicial and administrative review of an IEP “invariably” takes, more than nine months.). In Rowley, the Court held that the controversy was capable of repetition yet evading review even though the IEP should have expired two years before the case reached the court. Rowley, 458 U.S. at 186 n. 9, 102 S.Ct. at 3041 n. 9, 73 L.Ed.2d at 699 n. 9. Here, Daniel exhausted his state administrative remedies and, then, filed suit in the district court. The ponderous administrative and judicial review did, as the Court predicted, outlive Daniel’s placement and IEP, allowing them to evade review. As the case presents a live controversy, we turn to the merits of Daniel’s appeal.
III. Procedural Violations
At the heart of the EHA lie detailed procedural provisions, processes designed to guarantee that each handicapped student’s education is tailored to his unique needs and abilities. The EHA, and the regulations promulgated pursuant to it, contain procedures for determining whether the appropriate placement is regular or special education, for preparing an IEP once the child is placed, for changing the placement or the IEP, and for removing the child from regular education. 20 U.S.C.A. §§ 1412 and 1415; 34 C.F.R. §§ 300.300— 300.576 (1986). The Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. Rather, “the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decisionmaking.” Jackson v. Franklin County School Board, 806 F.2d 623, 630 (5th Cir.1986). Indeed, a violation of the EHA’s procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education and, thus, has violated the Act. Id. at 629; Hall v. Vance County Board of Education, 774 F.2d 629, 635 (4th Cir.1985). Daniel raises five claims of procedural error, each without merit.
First, Daniel contends that EPISD failed to give proper notice of a proposed change in his IEP, an assertion that misconstrues the nature of EPISD’s proposed action. The regulations that implement the EHA require school officials to give written notice before “propos[ing] to ... change the identification, evaluation or educational placement of the child ...” 34 C.F.R. § 300.504(a)(1) (1986). The regulations also prescribe the content of the notice: it must include “a description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options the agency considered and the reasons why those options were rejected.” Id. § 300.505(a)(1). Daniel complains that EPISD did not provide notice that it proposed to change his IEP and that the notice which EPISD did provide stated that it would not change the IEP. Although Daniel’s description of the notice is accurate, his conclusion that the notice does not conform to the EHA’s regulations is incorrect.
The notice that EPISD sent to Daniel’s parents apprised them of the precise action which EPISD proposed to take: a change in Daniel’s placement. Daniel’s placement was a mixed regular and special education program, with time allocated approximately equally between the two environments. Daniel’s IEP, in contrast, outlined his needs and goals for the academic year; simply, it was a list of what EPISD and Daniel's parents hoped Daniel would achieve. EPISD did not propose merely to alter Daniel’s IEP, scaling back its expectations or altering its objectives for Daniel’s progress. Instead, EPISD proposed the more drastic step of removing Daniel from the regular education class, thus changing his placement. The notice that EPISD provided accurately informed Mr. and Mrs. R. of EPISD’s proposal. EPISD sent Mrs. R. its form “Notice of Admission, Review and Dismissal (ARD) Committee Meeting.” On the notice form, EPISD indicated that it would review Daniel’s progress, that it would “consider the appropriate educational placement,” and that the options it was considering included a regular classroom and a self-contained classroom. Thus, EP-ISD’s notice adequately warned Mr. and Mrs. R. that the appropriate placement for their son was at issue and that EPISD was considering placing Daniel in a self-contained classroom.
EPISD did indicate, as Daniel contends, that it was not considering a change in Daniel’s IEP. EPISD’s explanation of its plans did not, however, mislead Mr. and Mrs. R. or fail to give notice of EPISD’s proposal. EPISD did not propose to change Daniel’s IEP. Indeed, an indication on the notice form that EPISD proposed to alter the IEP could have been misleading. As the notice form accurately notified Mr. and Mrs. R. of the proposed change in placement, we find no procedural defect in EPISD’s notice.
Second, ignoring the events surrounding EPISD’s decision, Daniel complains that EPISD did not evaluate him before removing him from regular education. According to Daniel, school officials must reevaluate a handicapped student before removing him from regular education. See 34 C.F.R. § 104.35(a). EP-ISD’s failure to evaluate Daniel does not constitute a reason to reverse this case. In the “Stipulations and Agreements” submitted to the hearing officer, Daniel stated that he did not contest EPISD’s current evaluation. Furthermore, Daniel’s parents refused to consent to a new evaluation because they felt it was not necessary. When a student and his parents agree with the school’s current evaluation and refuse a new evaluation, they can scarcely be heard to complain of a procedural violation based upon the school’s failure to conduct a new evaluation.
Third, Daniel asserts that EPISD failed to provide a continuum of educational services. The EHA’s regulations require school officials to “insure that a continuum of alternative placements is available to meet the needs of handicapped children for special education and related services.” 34 C.P.R. § 300.551(a). The continuum must include alternative placements and supplementary services in conjunction with regular class placement. Id. § 300.551(b). In its effort to find the appropriate placement for Daniel, EPISD experimented with a variety of alternative placements and supplementary services. First, EPISD attempted a mixed placement that allocated Daniel’s time equally between regular and special education. The regular education instructor attempted to modify and supplement the regular education curriculum to meet Daniel’s needs. When EPISD concluded that Daniel was not thriving in this environment, it proposed a different combination of educational experiences. Under the new plan, Daniel would spend all of his academic time in special education but would mix with nonhandicapped children during lunch and recess. EPISD has provided a continuum of alternative placements and has demonstrated an admirable willingness to experiment with and to adjust Daniel’s placement to arrive at the appropriate mix of educational environments.
Fourth, Daniel maintains that EP-ISD removed him from the regular classroom for disciplinary reasons but failed to follow the EHA’s procedure for removals based on disciplinary problems. Again, Daniel has misconstrued the events leading to this appeal. The hearing officer found that
[wjhile there is no evidence that Daniel’s behavior in Pre-kindergarten is disruptive in the ordinary sense of the term, it is obvious that the amount of attention he requires is, nevertheless, disruptive by so absorbing the efforts and energy of the staff as to impair the quality of the entire program for the other children.
This finding in no way reflects a disciplinary problem. Thus, EPISD’s decision to remove Daniel from regular education did not trigger the EHA’s disciplinary procedures.
Finally, Daniel suggests that EP-ISD did not follow the EHA’s procedure for removing a child from regular education. The EHA provides that a child shall be removed from a regular classroom only if education in the regular classroom, with the use of supplementary aids and services, cannot be achieved satisfactorily. § 1412(5)(B). According to Daniel, EPISD never attempted to use any supplementary aids and services in Pre-kindergarten and, thus, cannot demonstrate that education in the regular classroom cannot be achieved satisfactorily. Daniel misunderstands the nature of this issue; it relates to the substantive question whether and to what extent Daniel should be mainstreamed, not to the procedural requirements of the EHA. Moreover, even if this were a procedural question, EPISD met the requirement of providing supplementary aids and services. The record indicates that the Pre-kinder-garten teacher made genuine efforts to modify and supplement her teaching program to reach Daniel. Unfortunately, even with the teacher’s assistance, Daniel could not thrive in regular education. As we find no merit to Daniel’s claims of procedural error, we turn to his substantive claims.
IV. Substantive Violations
A. Mainstreaming Under the EHA
The cornerstone of the EHA is the “free appropriate public education.” As a condition of receiving federal funds, states must have “in effect a policy that assures all handicapped children the right to a free appropriate public education.” § 1412(1). The Act defines a free appropriate public education in broad, general terms without dictating substantive educational policy or mandating specific educational methods. In Rowley, the Supreme Court fleshed out the Act’s skeletal definition of its principal term: “a ‘free appropriate public education’ consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.” Rowley, 458 U.S. at 188-89, 102 S.Ct. at 3042, 73 L.Ed.2d at 701. The Court’s interpretation of the Act’s language does not, however, add substance to the Act’s vague terms; instruction specially designed to meet each student’s unique needs is as imprecise a directive as the language actually found in the Act.
The imprecise nature of the EHA’s mandate does not reflect legislative omission. Rather, it reflects two deliberate legislative decisions. Congress chose to leave the selection of educational policy and methods where they traditionally have resided— with state and local school officials. Rowley, 458 U.S. at 207, 102 S.Ct. at 3051, 73 L.Ed.2d at 712-13. In addition, Congress’s goal was to bring handicapped children into the public school system and to provide them with an education tailored to meet their particular needs. Id. at 189, 102 S.Ct. at 3042, 73 L.Ed.2d at 701. Such needs span the spectrum of mental and physical handicaps, with no two children necessarily suffering the same condition or requiring the same services or education. Id. at 189, 102 S.Ct. at 3042, 73 L.Ed.2d at 701. Schools must retain significant flexibility in educational planning if they truly are to address each child’s needs. A congressional mandate that dictates the substance of educational programs, policies and methods would deprive school officials of the flexibility so important to their tasks. Ultimately, the Act mandates an education for each handicapped child that is responsive to his needs, but leaves the substance and the details of that education to state and local school officials.
In contrast to the EHA’s vague mandate for a free appropriate public education lies one very specific directive prescribing the educational environment for handicapped children. Each state must establish
procedures to assure that, to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped, and that special education, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
§ 1412(5)(B). With this provision, Congress created a strong preference in favor of mainstreaming. Lachman v. Illinois State Board of Education, 852 F.2d 290, 295 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988); A.W. v. Northwest R-1 School District, 813 F.2d 158, 162 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 144, 98 L.Ed.2d 100 (1987); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983).
By creating a statutory preference for mainstreaming, Congress also created a tension between two provisions of the Act. School districts must both seek to mainstream handicapped children and, at the same time, must tailor each child's educational placement and program to his special needs. §§ 1412(1) and (5)(B). Regular classes, however, will not provide an education that accounts for each child’s particular needs in every case. The nature or severity of some children's handicaps is such that only special education can address their needs. For these children, mainstreaming does not provide an education designed to meet their unique needs and, thus, does not provide a free appropriate public education. As a result, we cannot evaluate in the abstract whether a challenged placement meets the EHA’s mainstreaming requirement. “Rather, that laudable policy objective must be weighed in tandem with the Act’s principal goal of ensuring that the public schools provide handicapped children with a free appropriate public education.” Lachman, 852 F.2d at 299; Wilson v. Marana Unified School District, 735 F.2d 1178, 1183 (9th Cir.1984) (citations omitted).
Although Congress preferred education in the regular education environment, it also recognized that regular education is not a suitable setting for educating many handicapped children. Rowley, 458 U.S. at 181 n. 4, 102 S.Ct. at 3038 n. 4, 73 L.Ed.2d at 696 n. 4; Lachman, 852 F.2d at 295. Thus, the EHA allows school officials to remove a handicapped child from regular education or to provide special education if they cannot educate the child satisfactorily in the regular classroom. § 1412(5)(B). Even when school officials can mainstream the child, they need not provide for an exclusively mainstreamed environment; the Act requires school officials to mainstream each child only to the maximum extent appropriate. Id. In short, the Act’s mandate for a free appropriate public education qualifies and limits its mandate for education in the regular classroom. Schools must provide a free appropriate public education and must do so, to the maximum extent appropriate, in regular education classrooms. But when education in a regular classroom cannot meet the handicapped child’s unique needs, the presumption in favor of mainstreaming is overcome and the school need not place the child in regular education. See Lachman, 852 F.2d at 295; A.W, 813 F.2d at 163; Roncker, 700 F.2d at 1063. The Act does not, however, provide any substantive standards for striking the proper balance between its requirement for mainstreaming and its mandate for a free appropriate public education.
B. Determining Compliance With the Mainstreaming Requirement
Determining the contours of the mainstreaming requirement is a question of first impression for us. In the seminal interpretation of the EHA, the Supreme Court posited a two-part test for determining whether a school has provided a free appropriate public education: “First, has the State complied with the procedures set forth in the Act. And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051, 73 L.Ed.2d at 712 (footnotes omitted). Despite the attractive ease of this two part inquiry, it is not the appropriate tool for determining whether a school district has met its mainstreaming obligations. In Rowley, the handicapped student was placed in a regular education class; the EHA’s mainstreaming requirement was not an issue presented for the Court’s consideration. Indeed, the Court carefully limited its decision to the facts before it, noting that it was not establishing a single test that would determine “the adequacy of educational benefits conferred upon all children covered by the Act.” Id. at 202, 102 S.Ct. at 3049, 73 L.Ed.2d at 709. Faced with the same issue we face today, both the Sixth and the Eighth Circuit concluded that the Rowley test was not intended to decide mainstreaming issues. A.W., 813 F.2d at 163; Roncker, 700 F.2d at 1063. Moreover, both Circuits noted that the Rowley Court’s analysis is ill suited for evaluating compliance with the mainstreaming requirement. A.W., 813 F.2d at 163; Roncker, 700 F.2d at 1062. As the Eighth Circuit explained, the Rowley test assumes that the state has met all of the requirements of the Act, including the mainstreaming requirement. A.W., 813 F.2d at 163 n. 7 (citations omitted). The Rowley test thus assumes the answer to the question presented in a mainstreaming case. Given the Rowley Court’s express limitation on its own opinion, we must agree with the Sixth and Eighth Circuits that the Rowley test does not advance our inquiry when the question presented is whether the Act’s mainstreaming requirement has been met.
Although we have not yet developed a standard for evaluating mainstreaming questions, we decline to adopt the approach that other circuits have taken. In Roncker, visiting the same question which we address today, the Sixth Circuit devised its own test to determine when and to what extent a handicapped child must be mainstreamed. According to the Roncker court,
[t]he proper inquiry is whether a proposed placement is appropriate under the Act.... In a case where the segregated facility is considered superior, the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under the Act.
Roncker, 700 F.2d at 1068 (citation and footnote omitted); accord, A.W., 813 F.2d at 163. We respectfully decline to follow the Sixth Circuit’s analysis. Certainly, the Roncker test accounts for factors that are important in any mainstreaming case. We believe, however, that the test necessitates too intrusive an inquiry into the educational policy choices that Congress deliberately left to state and local school officials. Whether a particular service feasibly can be provided in a regular or special education setting is an administrative determination that state and local school officials are far better qualified and situated than are we to make. Moreover, the test makes little reference to the language of the EHA. Yet, as we shall see, we believe that the language of the Act itself provides a workable test for determining whether a state has complied with the Act’s mainstreaming requirement.
Nor do we find the district court’s approach to the issue the proper tool for analyzing the mainstreaming obligation. Relying primarily on whether Daniel could receive an educational benefit from regular education, the district court held that the special education class was the appropriate placement for Daniel. According to the court, “some children, even aided by supplemental aids and services in a regular education classroom, will never receive an educational benefit that approximates the level of skill and comprehension acquisition of nonhandicapped children.” In these cases, regular education does not provide the child an appropriate education and the presumption in favor of mainstreaming is overcome. As no aspect of the Pre-kinder-garten curriculum was within Daniel’s reach, EPISD was not required to mainstream him. Given the nature and severity of Daniel’s handicap at the time EPISD placed him, we agree with the district
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
ISBRANDTSEN COMPANY, INC. v. JOHNSON.
No. 493.
Argued April 23, 1952.
Decided June 9, 1952.
Mark D. Alspach argued the cause for petitioner. With him on the brief was Thomas E. Byrne, Jr.
William M. Alper argued the cause for respondent. With him on the brief were Abraham E. Freedman and Charles Lakatos.
Mr. Justice Burton
delivered the opinion of the Court.
The question before us arises in an admiralty proceeding by a seaman against his employer to recover wages earned on a merchant vessel of United States registry. The question is whether the employer may set off against the seaman’s wages its expenditures for the medical care and hospitalization of another member of the crew necessitated by injuries inflicted on him by the seaman, without justification, during the voyage on which the wages were earned. For the reasons hereafter stated we hold that it may not do so.
In 1948, respondent, Johnson, was employed by petitioner, Isbrandtsen Company, Inc., as a messman on a foreign voyage of a vessel of United States registry, chartered by petitioner. On April 21, while the vessel was on its course in the Pacific, Johnson, without justification, stabbed Brandon, another member of the crew. He injured Brandon so severely that petitioner found it necessary to divert its vessel from its course in order to hospitalize Brandon on the Island of Tonga. Johnson makes no claim for wages earned after April 21. However, when discharged in Philadelphia, May 31, 1948, Johnson claimed $439.27 as earned wages due him above all deductions, without making allowance for any expenditures made by petitioner for the care or hospitalization of Brandon. When petitioner refused to pay Johnson anything, he filed a libel and complaint in the United States District Court to recover the balance due on his earned wages, plus interest, transportation to Seattle (his port of signing on) and double wages for each day of unlawful delay in the payment of the sum due. Petitioner set up a counterclaim of $2,500, later reduced to $1,691.55, for expenses and losses caused it by Johnson’s attack on Brandon. It contended also that the nature of this defense demonstrated the existence of sufficient statutory cause for its delay in making payment.
The District Court disallowed petitioner’s counterclaim and entered judgment for respondent’s earned wages and transportation allowance, plus interest and costs. It disallowed respondent’s claim for double wages. 91 F. Supp. 872. Petitioner appealed but the Court of Appeals affirmed. 190 F. 2d 991. We granted certiorari because the decision below presents an important question of maritime law not heretofore determined by this Court. 342 U. S. 940.
Petitioner cites several early lower court decisions which allowed a set-off against a seaman’s suit for wages. These were largely rendered before the Shipping Commissioners Act of 1872 or rendered later without discussion of that or subsequent legislation. We are convinced, however, that the legislation passed by Congress for the protection of seamen, beginning in 1872, has now covered this field. Petitioner’s set-off is not prescribed, recognized or permitted by such legislation. So far as that legislation goes, such a set-off is not available as a defense against a seaman’s claim for earned wages. R. S. § 4547, 30 Stat. 756, 46 U. S. C. § 604. On the other hand, the absence of such authorization for the employer to set off such a counterclaim does not preclude it from seeking to collect the claim otherwise.
For the purposes of this case, we may assume that petitioner owed Brandon the legal duty to provide him with the medical care and hospitalization which it provided and also owed him the duty to divert its vessel from its course to secure his hospitalization at Tonga. Aguilar v. Standard Oil Co., 318 U. S. 724, 730, 732-736. See Cortes v. Baltimore Insular Line, 287 U. S. 367, 375; Alpha S. S. Corp. v. Cain, 281 U. S. 642; Jamison v. Encarnacion, 281 U. S. 635. Also, we may assume, without deciding, that respondent owed petitioner an obligation to reimburse petitioner for the expense which he thus thrust upon it by his unjustified attack upon a fellow seaman.
Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U. S. 724, 727-735, and notes. “Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U. S. 239, 246. “[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a 'ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U. S. 155, 162; Cortes v. Baltimore Insular Line, 287 U. S. 367, 375, 377; Wilder v. Inter-Island Navigation Co., 211 U. S. 239, 246-248; Patterson v. Bark Eudora, 190 U. S. 169; Brady v. Daly, 175 U. S. 148, 155-157. “The ancient characterization of seamen as ‘wards of admiralty’ is even more accurate now than it was formerly.” Robertson v. Baldwin, 165 U. S. 275, 287; Harden v. Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law so as to improve the lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U. S. 635, 640; Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 437, 440. The direction of the current of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when it relates to the general character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U. S. 724, 728-729.
In the specific area of a seaman’s right to collect his earned wages promptly upon discharge, § 61 of the Shipping Commissioners Act provided that “no wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; . . . .” 17 Stat. 276, R. S. § 4536, 38 Stat. 1169, 46 U. S. C. § 601. The full force of this became evident when this Court, in 1908, interpreted “attachment” and “arrestment” to mean that the Act prohibits the seizure of a seaman’s earned wages even by levying execution against them to collect valid judgments. Wilder v. Inter-Island Navigation Co., 211 U. S. 239; see 1 Norris, The Law of Seamen (1951), 347-350.
Congressional legislation now touches nearly every phase of a seaman’s life. It concerns itself with his personal safety, comfort and health in many ways not necessary to review here. It deals specifically with his shipping articles and the payment to him of his wages. It insures generally a partial payment to him of his wages at each port where his vessel loads or delivers cargo. It insures the payment to him of the balance of those wages upon completion of his voyage or shortly after his discharge. It deals explicitly with the final payment of wages. It describes “forfeitures” which lawfully may be deducted from a seaman’s wages “for the benefit of the master or owner by whom the wages are payable.” These provisions for the return of wages to the employer are remedial, rather than penal, in their nature. See Crawford, The Construction of Statutes (1940), 106.
In keeping with the spirit of such legislation and the need for clear rules governing the computation of the balance due each seaman upon his discharge, it is reasonable to hold that only such deductions and set-offs for derelictions in the performance of his duties shall be allowed against his wages as are recognized in the statutes. Other claims against him may be valid but their collection must be sought through other means. The appropriateness of this solution is emphasized in the case of un-liquidated counterclaims. Petitioner’s unliquidated claim was first estimated at $2,500. It now has been fixed at $1,691.55. The factors making up such a claim are largely within the control and knowledge of the employer alone and it easily could wipe out every cent of a seaman’s earned wages.
There is little substance to the suggestion that the expenses at issue can be brought within the statutorily recognized “forfeitures.” Assuming that Johnson’s attack amounted to a breach of general discipline, it hardly amounted to “willful disobedience to any lawful command at sea . . . .” R. S. § 4596, Fourth. Assuming that it caused expense to petitioner, it hardly amounted to “willfully damaging the vessel . . . or . . . any of the stores or cargo . . . .” R. S. § 4596, Seventh.
From this, we conclude that Congress has preempted the area relating to deductions and set-offs based upon derelictions of duty as against a seaman’s claim to his wages. Congress has gone so far in expressly listing such deductions and set-offs that it is a fair inference that those not listed may not be made. It thus remains for the courts to determine only what are the deductions or set-offs for derelictions of duty that are listed by Congress, rather than to determine which of the deductions or set-offs once known to the general maritime law Congress has failed to exclude. Congress, in effect, has excluded all of them except those which it has listed affirmatively.
Accordingly, the judgment is
Affirmed.
Mr. Justice Jackson dissents.
Under R. S. § 4529, as amended, 30 Stat. 756, 38 Stat. 1164, 46 U. S. C. § 596. See note 7, infra.
The latter sum is the stipulated amount of petitioner’s expenditures for hospitalization, medical care, repatriation and subsistence of Brandon, plus petitioner’s expenses for the diversion of its vessel to Tonga, including pilotage, manifests, harbor dues, fuel consumed and food for the crew.
See Collie v. Fergusson, 281 U. S. 52.
For the Shipping Commissioners Act, see 17 Stat. 262 et seq., Tit. LIII, R. S. §§ 4501-4612, 46 U. S. C., c. 18, §§ 541-713. The Act of July 20, 1790, 1 Stat. 131, in effect prior to 1872, was a limited forerunner of the expansive remedial legislation that followed. It did not attempt to cover the field to an extent comparable to that done by the later legislation. Accordingly, decisions rendered before 1872, recognizing an employer’s right of recoupment against seamen’s wages under general maritime law, are not authoritative guides today. The early cases are reviewed in 1 Norris, The Law of Seamen (1951), 378-391.
That appraisal was reaffirmed in Cortes v. Baltimore Insular Line, 287 U. S. 367, 377. Current testimony is added by the following statement:
“In my dealings with seamen, a class with whom I come in frequent contact, I find that they are perhaps better educated and better dressed than their fellows of a century ago, but, in general, as improvident and prone to the extremes of trust and suspicion as their forebears who ranged the seas, but withal a likeable lot.” 1 Norris, The Law of Seamen (1951), Preface.
In harbors of the United States this applies even to seamen on foreign vessels. R. S. § 4530, 30 Stat. 756, 38 Stat. 1165, 41 Stat. 1006, 46 U. S. C. § 597. Except as expressly provided by statute, no seaman may be paid in advance or may give up to others his personal right to his wages or his remedies for their recovery. 23 Stat. 55-56, 30 Stat. 763-764, 33 Stat. 308, 38 Stat. 1168-1169, 41 Stat. 1006, 53 Stat. 794, 64 Stat. 1081, 1239, 46 U. S. C. § 599, and 46 U. S. C. (Supp. IV) § 599 (b) (g); R. S. § 4535, 46 U. S. C. § 600. His wages are not subject to attachment or arrestment except for limited provisions for the support of a wife or minor children; allotments to relatives are restricted. R. S. § 4536, 17 Stat. 276, 38 Stat. 1169, 46 U. S. C. § 601. Payments in foreign ports are safeguarded through United States Consuls. R. S. §§ 4580, 4581, 4583, 23 Stat. 54-55, 30 Stat. 759, 38 Stat. 1185, 46 U. S. C. §§ 682, 683, 685.
“Sec. 4529. The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court; but this section shall not apply to masters or owners of any vessel the seamen of which are entitled to share in the profits of the cruise or voyage.” R. S. § 4529, as amended, 38 Stat. 1164-1165, 46 U. S. C. § 596.
“Sec. 4596. Whenever any seaman who has been lawfully engaged or any apprentice to the sea service commits any of the following offenses, he shall be punished as follows:
“First. For desertion, by forfeiture of all or any part of the clothes or effects he leaves on board and of all or any part of the wages or emoluments which he has then earned.
“Second. For neglecting or refusing without reasonable cause to join his vessel or to proceed to sea in his vessel, or for absence without leave at any time within twenty-four hours of the vessel’s sailing from any port, either at the commencement or during the progress of the voyage, or for absence at any time without leave and without sufficient reason from his vessel and from his duty, not amounting to desertion, by forfeiture from his wages of not more than two days’ pay or sufficient to defray any expenses which shall have been properly incurred in hiring a substitute.
“Third. For quitting the vessel without leave, after her arrival at the port of her delivery and before she is placed in security, by forfeiture from his wages of not more than one month’s pay.
“Fourth. For willful disobedience to any lawful command at sea, by being, at the option of the master, placed in irons until such disobedience shall cease, and upon arrival in port by forfeiture from his wages of not more than four days’ pay, or, at the discretion of the court, by imprisonment for not more than one month.
“Fifth. For continued willful disobedience to lawful command or continued willful neglect of duty at sea, by being, at the option of the master, placed in irons, on bread and water, with full rations every fifth day, until such disobedience shall cease, and upon arrival in port by forfeiture, for every twenty-four hours’ continuance of such disobedience or neglect, of a sum of not more than twelve days’ pay, or by imprisonment for not more than three months, at the discretion of the court.
“Sixth. For assaulting any master, mate, pilot, engineer, or staff officer, by imprisonment for not more than two years.
“Seventh. For willfully damaging the vessel, or embezzling or willfully damaging any of the stores or cargo, by forfeiture out of his wages of a sum equal in amount to the loss thereby sustained, and also, at the discretion of the court, by imprisonment for not more than twelve months.
“Eighth. For any act of smuggling for which he is convicted and whereby loss or damage is occasioned to the master or owner, he shall be liable to pay such master or owner such a sum as is sufficient to reimburse the master or owner for such loss or damage, and the whole or any part of his wages may be retained in satisfaction or on account of such liability, and he shall be liable to imprisonment for a period of not more than twelve months.” R. S. § 4596, as amended, 38 Stat. 1166, 53 Stat. 1147, 46 U. S. C. § 701.
Special provision is made for forfeitures incident to desertion. They are to be applied “in the first instance, in payment of the expenses occasioned by such desertion, to the master or owner of the vessel from which the desertion has taken place The balance is to be paid by the master or owner to a government official to be disposed of in the same manner as in the case of a deceased seaman. “In all other cases of forfeiture of wages, the forfeiture shall be for the benefit of the master or owner by whom the wages are payable.” R. S. § 4604, 46 U. S. C. § 706.
Certain expenses unjustifiably forced upon his employer by a seaman are expressly made chargeable against his earned wages: Unjustified inspections of seaworthiness of the vessel, R. S. § 4562, 46 U. S. C. § 659; unjustified surveys of provisions and water, R. S. § 4566, as amended, 30 Stat. 758, 46 U. S. C. § 663; part of cost of securing conviction of seaman for offenses committed on the voyage, R. S. § 4605, 46 U. S. C. § 707.
“The above sections [46 U. S. C. §§ 596, 597, 600, 601, 682, 683 and 685] look towards payment to the seaman by his employer, at the termination of the employment, of all of his earned wages, without any deductions except those' which are expressly authorized by statute.
"While it is the general rule that a seaman discharged in a foreign port is entitled to receive his wages ‘without any deduction whatever’ of claims against him whether of his employer or of third parties, there are exceptions recognized by the maritime law and now embodied in statutes.” Shilman v. United States, 164 F. 2d 649, 650-651; and see Chambers v. Moore McCormack Lines, 182 F. 2d 747; Eldridge v. Isbrandtsen Co., 89 F. Supp. 718. Cf. Oldfield v. The Arthur P. Fairfield, 176 F. 2d 429.
See note 8, supra.
See note 8, supra. Johnson’s attack also was not an assault on “any master, mate, pilot, engineer, or staff officer” of the vessel. R. S. § 4596, Sixth, note 8, supra. Such an assault may lead to imprisonment of the offender but it entails no “forfeiture.” If no “forfeiture” may be set off against a seaman’s wages for expenses resulting to his employer from his assault upon a superior officer, there is little basis to imply congressional approval of a set-off against his wages to cover expenses resulting from his assault upon a fellow member of the crew not his superior.
For comparable reasons, petitioner’s counterclaim may not be set off against the allowance made to respondent for transportation to his port of signing on. That allowance is proportionately as important to him and to his welfare as is the balance due him for earned wages.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
CALCASIEU CHEMICAL CORPORATION, a corporation, and Sears, Roebuck & Company, a corporation, Plaintiffs-Appellants, v. CANAL BARGE COMPANY, Inc., a corporation, the BARGE NBC 924, its tackle, apparel, etc., and the M/V REBAJANE, her engines, tackle, apparel, etc., Defendants-Appellees.
No. 16899.
United States Court of Appeals Seventh Circuit.
Jan. 3, 1969.
Rehearing Denied Jan. 23, 1969.
William K. Johnson, Warren C. Ingersoll, John E. Corkery, Chicago, Ill., for plaintiffs-appellants; Lord, Bissell & Brook, Chicago, Ill., of counsel.
Harvey Wienke, Robert D. Barnes, Chicago, Ill., for defendants-appellees; McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel.
Before CASTLE, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges.
CASTLE, Chief Judge.
On July 6, 1966, plaintiff, Sears, Roebuck and Company (Sears), entered into a charter party or contract of affreightment with defendant, Canal Barge Company, Inc., (Canal), for the transportation by barge of a quantity of ethylene glycol (antifreeze) from Lake Charles, Louisiana, to Berwyn, Illinois. Canal picked up the cargo from plaintiff, Cal-casieu Chemical Corporation, which had sold it to Sears, and transported it to the prescribed destination. Upon arrival at Berwyn, the portion of the cargo carried in one compartment of the barge was found to have been contaminated by 16% water, allegedly due to a negligently leaky cement patch in the barge’s hull.
Plaintiffs brought this admiralty action to recover damages arising out of the cargo’s contamination. After answering, Canal moved for and was granted summary judgment on the ground that the charter had been breached by Sears, in that the latter had failed to obtain insurance for the joint account of itself and Canal on the cargo, as the charter required. In plaintiffs’ words, “This appeal is taken to reverse the court’s order granting that judgment on the ground, inter alia, that a genuine issue of material fact remain to be tried.”
One of the printed clauses in the charter provided:
“Neither the tug, tow, master nor owner shall be liable for any loss of, or damage to, or delay in the delivery thereof, however, arising or resulting, even if caused by negligence or unseaworthiness. Deviation by the owner shall not be a breach of this contract. Insurance against all risks shall be carried by the Charterer on the cargo, and on any craft of Charterer, for the Owner’s and Charterer’s joint account. No underwriter on cargo or on Charterer’s craft shall have any claim, by subrogation, loan receipt or otherwise, against the tug, tow, master or Owner, for any loss paid, regardless of the nature or circumstances thereof, and Charterer’s policies on cargo and on Charterer’s craft shall be claused accordingly.”
A further, typewritten clause appearing in the charter provides:
“Special Conditions
“Barge is to be tendered suitable to load ethylene glycol. Any cleaning at Owner’s expense. All inspection fees for account of the Charterer.”
Plaintiffs’ main contention is that the above clause constitutes an express warranty of seaworthiness, a condition precedent, which was not met. At least, plaintiffs claim, the meaning of the clause is ambiguous and requires for its interpretation a finding of the parties’ intent. Therefore, plaintiffs argue, a question of material fact is presented —namely, the intent of the parties — and summary judgment was improper.
Defendants, on the other hand, contend that the special condition was clearly intended by the parties to have the limited application of obligating Canal to tender barges whose tanks were sufficiently clean to be suitable to load the cargo, and to pay for all cleaning expenses. Moreover, defendants argue that regardless of the meaning of this provision, the clause requiring Sears to acquire insurance for the joint account of Sears and Canal was unquestionably breached by Sears’ obtaining insurance solely for its own account, and therefore as a matter of law, plaintiffs are precluded from recovery.
We believe the District Court properly granted defendants’ motion for summary judgment on the basis of Sears’ breach of the insurance clause. Since there is no doubt as to the intention of the parties in agreeing to that clause, there was no issue of material fact presented, the resolution of which could have changed the outcome of the litigation.
Regarding the “Special Conditions” clause relied upon by plaintiffs, we fail to see how the breach of that clause by Canal, if in fact such a breach occurred, would affect the holding rendered below. Even if there is an ambiguity which raised a question of fact, and even if that question could be resolved in favor of plaintiffs — i. e., that Canal breached an obligation to tender a seaworthy craft — plaintiffs are still precluded from recovery as a matter of law since it was Sears’ obligation to insure both itself and Canal against all loss and Sears failed to meet that obligation. As the lower court concluded, “It is clear that had Sears obtained insurance on behalf of itself and Canal covering any Cargo damage, as required by the Charter Party, none of the parties to the instant controversy would have borne the loss of the damaged cargo.” Thus, it was Sears’ own breach of the charter which occasioned its loss, and it is therefore precluded from recovering that loss from defendant. To hold defendants responsible would be manifestly unfair since Canal “might [itself] have insured against the loss, even though occasioned by [its] own negligence.” Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 189, 146, 39 S.Ct. 53, 54, 63 L.Ed. 170 (1918).
The case of T.N. No. 73, 1939 A.M.C. 673 (S.D.N.Y.1939), cited by defendants, is factually quite similar to the instant case. The shipper in that case also breached a contract requirement to insure the cargo for the account of the carrier, but contended that since the contract contained an express warranty of seaworthiness, the insurance clause was not intended to cover losses due to unseaworthiness. In holding that the carrier was not liable to the shipper for the value of the cargo, allegedly lost due to the unseaworthiness of the carrier’s craft, Judge Leibell issued a thorough, well-reasoned opinion. The following language of that opinion, of which we approve, is particularly appropriate to the instant case:
“In the case at bar * * * the claimant [shipper] was under an obligation to the petitioner [carrier] to take out insurance on the cargo. This was not a mere ‘benefit of insurance’ clause. Claimant was contractually obligated to effect insurance for the account of the petitioner. This was part of the consideration moving from the claimant and, in all likelihood, it had an effect on the freight rate.
******
“ * * * The contract provision as to insurance in this case is stronger and affords greater protection to the barge owner than the ordinary benefit of insurance clause.
“Claimant argues that the result of this interpretation of the insurance clause would be to nullify the express warranty of seaworthiness contained in the same contract of carriage. I do not see it that way. If the charterer, the claimant herein, had lived up to its obligations under the insurance clause, it would not thereby lose the benefit of the personal warranty of seaworthiness. That warranty would still be in effect and in the event of a loss to the cargo, resulting from the unseaworthiness of the barge, claimant could hold both the petitioner and the barge. See [Luckenbach v. (W. J.) McCahan Sugar Refining Co., 248 U.S. 139 (39 S.Ct. 53) (1918); Pendleton v. Benner Line, 246 U.S. 353 (38 S.Ct. 330, 62 L.Ed. 770) (1918)].
******
“There is another aspect to this issue that should not be over-looked. To add by implication to the broad and general language of the insurance clause, an exception of losses resulting from the unseaworthiness of the barge, would leave the barge owner without insurance that he otherwise might have obtained, a result that would be manifestly unfair. The barge owner had the right to assume that the insurance clause in the contract of carriage meant just what it said, without any implied exceptions. The cargo owner (claimant) has only itself to blame if it failed in its obligation to effect insurance for the account of the barge owner (petitioner).
******
“As we have seen, the [carrier] could have taken out insurance on its own account which would cover cargo losses due to unseaworthiness. In fact, •having warranted the seaworthiness of the barges to the claimant, it would seem that insurance covering such a contingency would be the kind most desired by the petitioner. I am of the opinion the aforementioned insurance clause of the contract of carriage was intended to cover any losses the carrier (petitioner) could have insured against, including cargo losses due to unseaworthiness. Since claimant (or its predecessor) contracted to obtain such insurance and did not do so, I am of the opinion that petitioner should be granted exoneration from liability.” 1939 A.M.C. at 689-691.
While we are aware that a 1939 District Court decision from another circuit is not binding upon this Court, we believe the above holdings are a correct view of the law as applied to an almost identical factual situation as the instant case. Moreover, plaintiffs have cited no cases differing with T.N. No. 73, nor can we discover any.
Since the foregoing discussion disposes of the case, we find plaintiffs’ other contentions to be irrelevant. We therefore deem it unnecessary in this opinion to discuss the same. In addition, since the validity of the insurance clause was not challenged in the District Court, we will not consider this issue for the first time on appeal. Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond Du Lac, 297 F.2d 583, 587, 93 A.L.R.2d 1378 (7th Cir. 1961); United States v. County of Iowa, 295 F.2d 257, 259 (7th Cir. 1961).
The judgment below is, therefore, affirmed.
Affirmed.
. T.N. No. 73 was affirmed on different grounds — burden of proof — by the Court of Appeals, sub nom., Commercial Molasses Corp. v. New York Tank Barge Corp., 114 F.2d 248 (2nd Cir. 1940), and by the Supreme Court, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941). Neither reviewing court found it necessary to discuss the insurance clause and its effects. The District Court opinion in T.N. No. 73 was cited with approval in Hercules Powder Co. v. Commercial Transport Corp., 270 F.Supp. 676, 681 (N.D.Ill., E.D.1967).
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_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
James Malcolm TUGGLE, Jr., Petitioner-Appellee, v. William SEABOLD, Warden, and David L. Armstrong, Attorney General, Respondents-Appellants.
No. 86-5172.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 22, 1986.
Decided Nov. 24, 1986.
C. McGehee Isaacs (argued), Asst. Public Advocate, Frankfort, Ky., for petitioner-ap-pellee.
David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., Gerald Henry (argued), for respondents-appellants.
Before LIVELY, Chief Judge, MERRITT, Circuit Judge, TIMBERS, Senior Circuit Judge.
The Honorable William H. Timbers, Senior Judge, United States Court of Appeals for the Second Circuit, sitting by designation.
LIVELY, Chief Judge.
The district court granted a writ of habe-as corpus to the petitioner, Tuggle, and the respondents appeal. Accepting the report and recommendations of the magistrate, the district judge concluded that the proceedings under which Tuggle was convicted of knowingly receiving stolen property denied Tuggle his constitutional right to due process of law. The due process violation consisted of questioning Tuggle at trial about his postarrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
I.
Sometime during the night of January 1-2, 1982 Leonard Burke and his fiancee were shot to death in Burke’s home in Hopkinsville, Kentucky, and the house was set on fire. Burke was a professional gambler who wore expensive jewelry and carried large sums of cash. The jewelry was missing when the bodies were discovered and only $500-600 was found in the house. Suspicion seems to have settled on Tuggle early in the investigation. Tuggle was a casual laborer who had a felony record for burglary. He had worked as “door keeper” at Burke’s gambling hall above a pool room for approximately one month, but was laid off or discharged by Burke on December 30, 1981.
The police could not locate Tuggle early in the day on January 2, 1982. However, late that afternoon Tuggle went to the Hopkinsville police station and was interviewed. He was not taken into custody at that time. Tuggle signed a consent for the police to search his automobile, but refused to tell the police where he had been the previous night. The police interrogated Tuggle several times later in January, but he continued to refuse to discuss his whereabouts on the night of the crimes.
On February 19, 1982, after some previous arrangements through an informer named Doug DeRose, Tuggle delivered some of Burke’s jewelry to an undercover police officer in exchange for $10,000. This transaction was monitored and tape recorded by other officers who immediately moved in and arrested Tuggle. One of the officers testified that he told Tuggle that he was under arrest and advised him of his “rights.” Tuggle was indicted on two charges of murder, two charges of burglary and one charge of arson. In a subsequent indictment he was charged with knowingly receiving stolen property. All charges were tried together.
Tuggle elected to testify at trial. On direct examination Tuggle’s attorney asked about his trip to the police station on January 2. Tuggle testified that he went to the police station because his father and a friend told him the police were looking for him. He consented to a search of his car, but testified that when questioned concerning his whereabouts the night before, “I didn’t have anything to say to them.” Tug-gle explained that he was still on parole from his previous convictions and that he had violated conditions of parole by going to Tennessee the night of January 1-2. When Tuggle’s attorney asked about other interrogations prior to his arrest, Tuggle stated that he never told the police, or anyone else where he had been, because to have told would have revealed a parole violation, and he had no concrete alibi.
Tuggle testified extensively about his contacts with DeRose in the days immediately preceding his arrest. He said that DeRose had Burke’s jewelry in his possession and frightened Tuggle into helping him dispose of it. Tuggle testified that when DeRose showed him the jewelry on February 17 he recognized it as Burke’s. He admitted handling the jewelry at the informer’s home, but denied having it in his possession between February 17th and 19th. DeRose testified that Tuggle had the jewelry in his possession on February 17 when he showed it to DeRose and boasted of its value. Having already agreed to cooperate with the police, DeRose made the proposal to sell the jewelry to the undercover officer posing as his uncle. Tuggle’s version of the events was that DeRose kept the jewelry until the night of February 19 when he placed it in an automobile and directed Tuggle where to find it for delivery to his “uncle.” Tuggle’s attorney did not ask him on direct examination whether he made any statement at the time of his arrest or thereafter.
On cross-examination the prosecutor asked Tuggle why he did not tell the police, or anyone else, where he had been on the night of the murders. Tuggle gave the same answer he had given on direct examination. The prosecutor then started questioning Tuggle about the events of February 17-19. Defense counsel objected reminding the court that Tuggle was arrested on February 19. The trial court ruled that the questions still related to Tuggle’s prearrest silence and overruled the objection. This ruling was correct since no questions had been asked at that point which related to the period after Tuggle’s arrest. The prosecutor then asked, referring to Tuggle’s version of the events leading up to his arrest, “In the past five months that you have been in custody, you have not told this to any law enforcement official or any member of the general public?” Without objection, Tuggle answered that he had told his attorney, but not any law enforcement official. Tuggle was also asked why he had not just explained to the police at the time of his arrest “what had taken place.” Again, there was no objection, and Tuggle replied that he was intoxicated, upset and “in shock” immediately after his arrest.
In closing argument Tuggle’s attorney talked about his client’s prearrest silence and reminded the jury of Tuggle’s reasons for not revealing his whereabouts. The attorney did not mention Tuggle’s postar-rest silence. However, in arguing for the Commonwealth, the prosecutor did comment. Referring to Tuggle’s struggles with the arresting officers while being taken to jail, the prosecutor asked:
Did that sound like the actions or the reactions of a man who had been set up, who was innocent, or does it sound like the reactions of a man who is guilty, who thought he’d gotten away with something and realized he’d gotten caught and got mad? Did he tell the police right then what had gone on?
II.
The jury acquitted Tuggle of all the charges except that of knowingly receiving stolen property and fixed his punishment at five years in prison. He was also found, in a bifurcated hearing, to be a persistent felony offender and this resulted in an enhanced sentence. The Supreme Court of Kentucky affirmed the conviction in an unpublished opinion, and this habeas corpus action followed.
On appeal from the order granting habe-as relief the warden and Attorney General (the Commonwealth) make several procedural arguments in addition to the contention that the district court erred in its application of Doyle v. Ohio to the facts of this case.
The Commonwealth argues, first, that Tuggle failed to exhaust his available state remedies, a requirement of 28 U.S.C. § 2254(b) for granting a writ of habeas corpus to a person in state custody. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Tuggle filed a petition for rehearing in the Supreme Court of Kentucky in which he reargued only one of five issues contained in his brief on direct appeal. The finding that there had been no Doyle violation was not discussed. The Commonwealth asserts that Tuggle thereby abandoned the claim that he was denied due process when questioned about his postarrest silence, and that he was barred from raising that issue in these habeas corpus proceedings.
The second issue raised by the Commonwealth on appeal is that habeas relief may not be granted because the Supreme Court of Kentucky decided Tuggle’s appeal on independent and adequate state procedural grounds. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Tuggle's retained counsel objected to the prosecutor’s questions to Tuggle about his prearrest silence concerning his whereabouts on January 1-2, but did not object to the questions about his failure, following his arrest, to tell his version of how Burke’s jewelry came into his possession. Kentucky has a contemporaneous objection rule. Kentucky Rules of Criminal Procedure (RCr) 9.22; Turner v. Commonwealth, 460 S.W.2d 345 (Ky.1970).
The third procedural issue rests on the Commonwealth's contention that the district court failed to consider the matter de novo following objections to the magistrate’s report, in that the district court did not “articulate” specific responses to the objections.
Finally, the Commonwealth maintains that the holding of the district court on the substantive Doyle claim is erroneous, or, in the alternative, that any error in this regard was harmless.
III.
We reject each of the procedural arguments of the Commonwealth.
A.
There is no requirement that a litigant petition for rehearing after an appellate court issues a final decision. The rule governing petitions for rehearing in the Supreme Court and Court of Appeals of Kentucky, Civil Rule (CR) 76.32(1)(a), provides that “[a] party adversely affected by an opinion of the Supreme Court or the Court of Appeals in an appealed case may petition the Court for (i) a rehearing....” (Emphasis added). The Supreme Court of Kentucky has rejected an argument that is analogous to the one made by the Commonwealth. In disposing of an argument that a person convicted in Kentucky must seek discretionary review in the Supreme Court or the Court of Appeals from a trial court’s denial of relief under a state postconviction proceeding in order to preserve his right to pursue federal habeas relief, the Supreme Court stated, “The decision of the Court of Appeals denying the RCr 11.42 was final state action, without a useless motion for discretionary review.” Freeman v. Commonwealth, 697 S.W.2d 133, 134 (Ky.1985). The same reasoning applies to discretionary review of the final decision of the Supreme Court; nothing further is required in order to preserve the right to seek federal habeas relief. Tuggle argued the Doyle issue fully in his brief to the Supreme Court and, as we discuss, infra, the court ruled on the issue in its opinion.
In Coleman v. Maxwell, 351 F.2d 285 (6th Cir.1965), the district court dismissed a habeas corpus petition for failure to exhaust state remedies. The petitioner had appealed his conviction to the Ohio Court of Appeals, where it was affirmed. Thereafter, the petitioner took an appeal to the Supreme Court of Ohio on the same grounds, and that court dismissed the appeal. In reversing the district court’s dismissal of the petition, this court stated:
It is clear to this court that once an issue of asserted federal constitutional violation has been presented to the highest state court in the state concerned, that the doctrine of exhaustion of remedies does not require futile repetitive presentation to such court by repeated attempts through a variety of motions.
Id. at 286 (citation omitted). We paraphrased Coleman v. Maxwell in Duke v. Wingo, 386 F.2d 304, 306 (6th Cir.1967):
Once an issue of asserted constitutional violation has been presented to the State’s highest court, the doctrine of exhaustion of remedies does not require future repetitive presentations to such court by additional attempts through a variety of successive motions.
See also Jones v. Foltz, 646 F.2d 1172 (6th Cir.1981); Hill v. Anderson, 492 F.Supp. 930 (E.D.Mich.1980).
The exhaustion requirement is satisfied when a petitioner has “fairly presented” the substance of each federal claim to the state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.1984). There can be no doubt that this requirement was met in the present case with respect to the Doyle claim.
B.
The state court record does not support the Commonwealth’s contention that the Supreme Court of Kentucky decided Tuggle’s appeal on his counsel’s failure to object to the prosecutor’s questions about Tuggle’s postarrest silence. The opinion of the Kentucky Court addressed the issue as follows:
The appellant on direct-examination first introduced evidence of his post-arrest silence. He was not prejudiced by cross-examination concerning the failure to offer a defense. Tuggle opened the door to the entire subject. One who first introduces evidence pertinent to a field of inquiry that is not competent or relevant to the issue cannot complain if his adversary is allowed to avail himself of such an opening. Richardson, Kentucky Law of Evidence § 11.9 (1973).
In these circumstances, there was no violation of the principles of Doyle v. Ohio, 426 U.S. 610, 90 [96] S.Ct. 2240, 49 L.Ed.2d 91 (1976).
If the Supreme Court of Kentucky had affirmed Tuggle’s conviction because of a procedural default consisting of failure to object to a question or response, our task would be a different one. However, the Kentucky Court did not mention the contemporaneous objection rule in its opinion. Where a state court chooses not to rely on a state procedural default in a criminal appeal but decides the merits of the case, a federal habeas court does not reach the “cause” and “prejudice” inquiry of Wainwright v. Sykes. Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981).
While the Supreme Court of Kentucky referred to a state rule of evidence as a basis for finding no Doyle violation, nevertheless, it appears to have considered and decided the merits of the claim. To the extent that the reference in the opinion to a Kentucky evidentiary rule might be construed ás a decision of the Doyle claim on the basis of independent and adequate state grounds, we are constrained to hold that the record does not support the conclusion that Tuggle’s attorney opened the door to inquiry about his postarrest silence. The defense attorney clearly first raised the matter of Tuggle’s refusal to tell anyone during the prearrest period of his whereabouts on January 1-2, but only the prosecutor questioned Tuggle about his silence following the arrest. The statement to the contrary in the state court's opinion is not fairly supported by the record. 28 U.S.C. § 2254(d)(8).
C.
When a district judge refers a habeas corpus petition to a magistrate for hearing and recommendations for disposition, and a party files timely objections to the proposed findings and recommendations, a judge of the referring court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (1982).
The district judge in the present case states in an amended order and judgment:
This matter having been considered by U.S. Magistrate W. David King; it appearing that the magistrate has filed his report and that the petitioner has filed his objections to magistrate’s report; the court having considered de novo those portions of the magistrate’s report to which objection is made by the petitioner; the court has determined that there appears to be no factual disputes which would warrant a hearing; and the court having determined that the magistrate’s report should be accepted in whole and the findings of fact and conclusions of law be fully incorporated by reference herein.
The Commonwealth argues that the district court failed to comply with § 636(b)(1) because it did not “articulate” its reasons for overruling the objections. No authority is cited for this assertion, and we know of none. When circumstances demonstrate that a district court has not conducted the required de novo review, the case must be remanded for compliance with the statute. See Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) (record disclosed that transcripts of proceedings before the magistrate had not been filed when district court overruled objections based on evidentiary issues). However, that is not the situation here. The statement of the district court in this case satisfies us that the requirement of a de novo review was met. See United States v. Larson, 760 F.2d 852, 857 (8th Cir.), cert. denied, — U.S. -, 106 S.Ct. 143, 88 L.Ed.2d 119 (1985) (statement in order that district judge made de novo review of record and all objections to magistrate’s findings and recommendations was sufficient.) No further articulation was required.
IV.
It is not a violation of due process for a prosecutor to ask a criminal defendant about prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). In overruling Tuggle’s objections to the prosecutor’s questions about his prearrest silence the state trial judge made the distinction between the two situations and exhibited a clear understanding of the Doyle rule. The trial judge had no opportunity to rule on the prosecutor’s questions about Tuggle’s postarrest silence because there was no objection. Nevertheless, this matter was not first raised by the defendant, and the prosecutor’s questions and comments about Tuggle’s postarrest silence violated Doyle.
This court held in Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985), that a Doyle error may be harmless. The test for harmless constitutional error is whether a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The district court did not consider whether the error in this case was harmless, although the record appears to sustain the Commonwealth’s claim that this issue was preserved for habeas review.
If Tuggle had been convicted of murder, burglary, or arson, there is little doubt that the error could not have been harmless. There was no direct evidence placing Tug-gle in or near the Burke home after nightfall on January 1, 1982, and his possession of the jewelry was the only evidence linking him to those crimes. His response to this circumstantial evidence was that he was coerced into helping a man whom he feared dispose of the jewelry that was already in that person’s possession. The questions and comments of the prosecutor were intended to convey to the jury that this explanation was a recent fabrication, and thus remove doubt that Tuggle acquired the jewelry as part of a more serious crime sortie.
The charge on which Tuggle was convicted, knowingly receiving stolen goods, stands on a somewhat different footing. There was direct evidence of the most damning type with respect to this charge. In fact, Tuggle admitted all elements of the offense. Kentucky Revised Statutes (KRS) 514.110 defines the offense as follows:
A person is guilty of receiving stolen property when he receives, retains or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.
Tuggle testified that he recognized the jewelry as the property of Burke when it was shown to him and knew it was stolen, that he received it from his former partner in crime and that he disposed of it by delivering it to the undercover officer in exchange for $10,000. His defense was that Doug DeRose tricked him into handling the jewelry and then coerced him into making the delivery.
During the trial no one concentrated on the relatively minor offense of receiving stolen goods. Naturally enough, their concern was with the more serious charges. It seems likely that the jury found the link between the jewelry and the murders too tenuous to serve as the sole evidence of guilt of two capital offenses and the other serious felonies. The jurors could have reached the conclusion that the Commonwealth did not prove guilt of those charges beyond a reasonable doubt without accepting Tuggle’s explanation of how he happened to be in possession of the jewelry. DeRose was a convicted felon and he and Tuggle had engaged in joint criminal activities previously, including “fencing” stolen property. The evidence of coercion was weak and totally unsubstantiated. Under these circumstances, the facts as disclosed in testimony of several witnesses and a taped recording of the transaction, not the prosecutor’s questions and comments, may have resulted in Tuggle’s conviction.
This is a matter to be considered in the first instance by the district court. The judgment of the district court is vacated and the case is remanded to determine whether the constitutional error disclosed by this record was harmless beyond a reasonable doubt.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appfiduc
|
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 "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.
In re HALFERTY et al. BRADEN v. BUCYRUS-ERIE CO.
No. 8245.
Circuit Court of Appeals, Seventh Circuit.
June 26, 1943.
L. H. Jonas and Ralph E. Suddes, both of Centraba, 111., for appellant.
Roger S. Hoar, of South Milwaukee, Wis., for appellee.
Before SPARKS, KERNER, and MIN-TON, Circuit Judges.
SPARKS, Circuit Judge.
The question presented is whether the written instrument in issue is a conditional sales contract, or a chattel mortgage given as security for the payment of all or part of the account involved.
On January 6, 1941, the debtors accepted in writing a written proposal from appellee to sell to them an oil well drilling machine called a spudder. The purchase price of the spudder was $4,500, payable $1,125 cash, and the balance in fifteen monthly installments. The only controversy presented involves the following clause of the contract: “Conditions: Title to the machinery shall remain in us until the purchase price (including any modifications or extensions, and whether evidenced by notes or otherwise) and all other sums which may be or become due from you to us (our emphasis), which you hereby agree to pay when due, shall have been fully paid in cash.” The contract was never recorded as a chattel mortgage as required under Illinois Revised Statutes 1941, Chapter 95, sections 4 and 4a.
The contract further contained the following language: “If default be made by you in the payment of any installment when due, or in the performance of any of your agreements herein, or if a petition in bankruptcy, reorganization, composition, or insolvency be filed by or against you, then all deferred payments, and all notes and renewal notes given therefor, shall become immediately due and payable on demand; and all expenses of collection incurred by us, including attorney fees, shall be on you; and at our option, we may take possession of and remove the machine with your full co-operation, and all payments previously made shall be considered as liquidated damages and rental.”
On January 30, 1942, the debtors petitioned for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq., and subsequently were adjudicated bankrupts.
Appellee seasonably filed an intervening petition in the bankruptcy proceeding before the Referee, setting forth a copy of the contract, and alleging that there was still due on the purchase price of the spudder the sum of $2,025 with interest thereon from the date of the contract. It was further alleged that there was other indebtedness due and owing by the debtors to them, most of which was for repairs on the spudder, and the remainder was for repairs on a different machine. Appellee demanded immediate delivery of the spudder or the payment of the unpaid balance of the entire accounts with accrued interest. The trustee had previously'sold the spudder for $2,300.
The Referee in effect held that the instrument constituted a conditional sales contract and not a chattel mortgage, and he recommended a payment by the trustee to appellee of $2,262.97 in full of all demands of appellee. The District Court approved the Referee’s report, and from that decree this appeal is prosecuted.
Appellant contends that the contract here involved is, in effect, a chattel mortgage, which is invalid as to the trustee because it was not recorded. This argument is based upon negative conclusions drawn from what appellant states to be a definition of a conditional sales contract by the Supreme Court of Illinois in Gilbert v. National Cash Register Company, 176 Ill. 288, 294, 52 N.E. 22, 25. That court said: “It seems to be settled by the weight of authority that ‘where, by the written contract of the parties it is expressly provided that the title to the property shall remain in the vendor until the purchase money is fully paid, and there is no reservation of a lien, the transaction is a conditional sale and not a mortgage.’ ”
Assuming the quoted language to be an exclusive definition of a conditional sale, appellant concludes that unless the language of the instrument provides that the title of the thing sold shall pass to the purchaser immediately on the payment of the purchase price, then and in that event, the instrument cannot be' considered as a conditional sale. That is a non sequitur of the language quoted.
Immediately following the quotation referred to the court said:
“It is often difficult to determine whether a particular transaction constitutes a mortgage or a conditional sale. Ordinarily the question is to be determined by showing what the intention of the parties was in reference to the matter; and when it is doubtful whether the transaction is a mortgage or a conditional sale, the courts are inclined to solve the doubt in favor of its being a mortgage. * * * But the cases seem to hold, that there is no doubt as to the character of the instrument when, by its terms, personal property is delivered by the owner to another with the requirement that the title shall remain in the owner until the payment of the purchase price. In such case the transaction is uniformly held to be a conditional sale, and not a mortgage.”
It is clear that what appellant claims to be an exclusive definition of a conditional sale by the Supreme Court of Illinois is not and was not intended as such.
However, appellant argues that under such definition the instant contract is defective as a conditional sale in that it does not • provide that the title of the spudder shall pass to the purchaser on payment of the agreed price of it, but such transfer is deferred until further recited conditions are performed which in no way are connected with the sale of the spudder. He does not contend that the contract before us would not be a valid conditional sale if the words “and all other sums which may be or become due from you to us” were eliminated. In other words, he asserts that by the inclusion of those words, what would otherwise be a valid conditional sale is converted into a chattel mortgage. If this were true, it would constitute a lien upon property in favor of the appellee if recorded, but not having been recorded it would be invalid as against other creditors even as a mortgage.
We think there can be no doubt that both parties to this contract intended the instrument to be a conditional sale and not a mortgage, and the only question before us is whether they altered that intention by the insertion of the words above quoted.
To meet appellant’s contention appellee relies upon'the Uniform Sales Act of the State of Illinois, which was adopted by its Legislature in 1915. Chapter 121%, Ill.R.S., section 20 reads:
“Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer * * *.”
Section 74 of the same chapter is as follows :
“This act shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the laws of those states which enact it.”
This Act has been adopted by many states of the Union in order that there may be uniformity of the laws on this subject within the boundaries of the states adopting it. In the interpretation of similar uniform laws, the decisions of other jurisdictions on such points as have not been decided by the courts of the forum, are not merely persuasive, but are as binding as would be a decision of the highest court of the forum. This rule has in effect been adopted, with respect to uniform sales, by section 74 of the Illinois Act, which we have quoted. See also Sherer-Gillelt Co. v. Long, 318 Ill. 432, 149 N.E. 225.
Some states have subsequently enacted the Uniform Conditional Sales Act which in effect limits the scope of section 20 of the Uniform Sales Act, by requiring some form of public recordation of the contract. The purpose of such enactment is to protect those dealing with the possessor of personal property against secret trusts or claims of those having no connection with the possession and no apparent connection with the title. New Dells Lumber Company v. Pfiffner, 216 Wis. 638, 258 N.W. 375.
In all jurisdictions, where litigated, such contracts as the one now in issue have been construed to be conditional sale contracts rather than mortgages, and effective to postpone the transfer of title, regardless of whether the action was based on the Uniform Sales Act, or the Uniform Conditional Sales Act, or both, or neither, or regardless of whether there were one or more valid conditions precedent. See Faisst v. Waldo, 57 Ark. 270, 21 S.W. 436; Augusta Cooperage Company v. Parham, 139 Ark. 605, 213 S.W. 737; Brown v. Woods Motor Co., 239 Ky. 312, 39 S.W.2d 507; Hammans Co. v. Fricker, 184 Ark. 1193, 42 S.W.2d 1001; Municipal Corporation v. Canole, 342 Mo. 1170, 119 S.W.2d 820; Baring v. Galpin, 57 Conn. 352, 18 A. 266, 5 L.R.A. 300; Union Company v. Thompson, 98 Wash. 119, 167 P. 95; Studebaker Co. v. Witcher, 44 Nev. 442, 195 P. 334; Giligian v. New England Truck Co., 265 Mass. 51, 163 N.E. 651; Dunlop v. Mercer, 8 Cir., 156 F. 545; In re Craig Lumber Co., 9 Cir., 269 F. 755; In re Gelatt & Son, D.C., 24 F.2d 215; Webster Corp. v. Continental Bank, 3 Cir., 66 F.2d 558; Continental Bank v. Webster Corp., D.C., 4 F.Supp. 337.
Appellant relies on Dunn v. Archer, 150 Tenn. 440, 265 S.W. 678, and Bucyrus-Erie Co. v. Casey, 3 Cir., 61 F.2d 473, as supporting a contrary doctrine. In the Dunn case, the court held that the contract was not a conditional sale of personal property because the property involved was not personal property as defined and contemplated by the Statute of Tennessee. In the Bucyrus case, the court held the contract to be one of conditional sale, but held that under the Pennsylvania Act the words “any other condition” meant any other condition incident to the sale, and did not include as a condition precedent the payment of an open account not related to the sale. Later, however, in Webster Corp. v. Continental Bank, supra, the same court affirmed the decision of the District Court and recognized as a valid condition precedent the paying of a real estate mortgage separate and distinct from the purchase price, which was not at all involved as a precedent condition. Those facts are not set forth in the opinion of the Circuit Court of Appeals, but are fully set forth in the opinion of the District Court. The Circuit Court, however, held that the contract constituted a valid conditional sale and was not defeated because it contained other conditions unrelated to the sale of the property involved. In the Bucyrus case, supra, the court merely eliminated what it regarded as an invalid condition, and enforced all conditions which were incident to the sale.
Before the adoption of the Illinois Uniform Sales Act, conditional sales in that State were void as against third parties, although they were valid between the parties. However, since the enactment, and its construction under Sherer-Gillett Co. v. Long, supra, all contracts within the scope of section 20 are valid against third parties without recording. This is the last legislative enactment on this subject in that State.
The language of section 20 is clear and unambiguous. It states that the seller may reserve the right of possession or property in the goods until certain con ditions have been fulfilled, and it further states that the right of possession or property may be reserved by the seller notwithstanding the delivery of the goods to the buyer. It- is clear from this language that the seller may impose as many conditions as he desires. He is not confined solely to the condition of payment of the purchase price, nor in fact at all unless the contract so states, for that condition is not specifically mentioned in the section. It must be borne in mind that the title to the property proposed to be sold is in the.seller, and he can determine for himself upon what conditions he'will transfer it, and if the buyer agrees to those conditions they must all be fulfilled before a transfer can be enforced. Appellant contends that under the Illinois law there can be only one condition imposed, and that it must be certain. The language of the section does not warrant this conclusion. The plural word “conditions” is used and there is nothing in the contract to indicate any uncertainty. To be sure, the amount due under the contract would no doubt vary from day to day but the amount due at any time is not uncertain, for it could be easily ascertained, and the law regards that as certain which can be made certain.
Since the enactment by Illinois of the Uniform Sales Act, its courts have not had occasion to pass upon the validity of a plurality of precedent conditions in a conditional sale as specifically authorized by section 20 of that Act. They have frequently, however, specifically and clearly drawn the distinctions between a conditional sale of personal property and a chattel mortgage. Maxcy-Barton Co. v. Glen Corporation, 355 Ill. 228, 189 N.E. 326, 95 A.L.R. 321; Southern Co. v. Peoples Bank, 332 Ill. 362, 163 N.E. 659, 61 A.L.R. 273; Gilbert v. National Cash Register Co., 176 Ill. 288, 52 N.E. 22; Citizens Bank v. Senesac, 267 Ill.App. 288. These rulings, and many other analogous ones, unquestionably warrant us in holding the instrument in issue to be a conditional sale and not a chattel mortgage. Just why there may not be a plurality of precedent conditions to such a contract is not apparent. The only reason suggested is that it would be against public policy. Illinois, however, declared its public policy in this respect when.its Legislature enacted the Uniform Sales Act, and we think our interpretation conforms to that policy. This it can change at any time, but thus far it has failed to do so. Other states, by subsequent enactment, have expressed a public policy different from that contained in section 20, and by that act they have, inferentially at least, construed section 20 as we are now construing it in that they sought relief therefrom by such enactment.
Appellant further contends that section 75 of this Act renders section 20 inapplicable to the contract. It recites that the provisions of the Act relating to contracts- to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security. We think this contention is without merit. It is clear to us that no such intention was manifested by the contract.
The decree of the District Court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
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.
CANTOR, dba SELDEN DRUGS CO. v. DETROIT EDISON CO.
No. 75-122.
Argued January 14, 1976
Decided July 6, 1976
Burton I. Weinstein argued the cause for petitioner. With him on the briefs were Robert A. Holstein, Michael L. Sklar, and David L. Nelson.
George D. Rey craft argued the cause for respondent. With him on the brief were Donald I. Baker, Leon S. Cohan, and Dean J. Landau.
Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Kauper, Barry Grossman, and Carl D. Lawson.
Howard J. Trienens argued the cause for Michigan Bell Telephone Co. et al. as amici curiae urging affirmance. With him on the brief were Theodore N. Miller and C. John Buresh.
Sumner J. Katz filed a brief for the National Association of Regulatory Utility Commissioners as amicus curiae urging affirmance.
Mr. Justice Stevens
delivered the opinion of the Court.
In Parker v. Brown, 317 U. S. 341, the Court held that the Sherman Act was not violated by state action displacing competition in the marketing of raisins. In this case we must decide whether the Parker rationale immunizes private action which has been approved by a State and which must be continued while the state approval remains effective.
The Michigan Public Service Commission pervasively regulates the distribution of electricity within the State and also has given its approval to a marketing practice which has a substantial impact on the otherwise unregulated business of distributing electric light bulbs. Assuming, arguendo, that the approved practice has unreasonably restrained trade in the light-bulb market, the District Court and the Court of Appeals held, on the authority of Parker, that the Commission’s approval exempted the practice from the federal antitrust laws. Because we questioned the applicability of Parker to this situation, we granted certiorari, 423 U. S. 821. We now reverse.
Petitioner, a retail druggist selling light bulbs, claims that respondent is using its monopoly power in the distribution of electricity to restrain competition in the sale of bulbs in violation of the Sherman Act. Discovery and argument in connection with defendant’s motion for summary judgment were limited by stipulation to the issue raised by the Commission’s approval of respondent’s light-bulb-exchange program. We state only the facts pertinent to that issue and assume, without opining, that without such approval an antitrust violation would exist. To the extent that the facts are disputed, we must resolve doubts in favor of the petitioner since summary judgment was entered against him. We first describe respondent’s “lamp exchange program,” we next discuss the holding in Parker v. Brown, and then we consider whether that holding should be extended to cover this case. Finally, we comment briefly on additional authorities on which respondent relies.
I
Respondent, the Detroit Edison Co., distributes electricity and electric light bulbs to about five million people in southeastern Michigan. In this marketing area, respondent is the sole supplier of electricity, and supplies consumers with almost 50% of the standard-size light bulbs they use most frequently. Customers are billed for the electricity they consume, but pay no separate charge for light bulbs. Respondent’s rates, including the omission of any separate charge for bulbs, have been approved by the Michigan Public Service Commission, and may not be changed without the Commission’s approval. Respondent must, therefore, continue its lamp-exchange program until it files a new tariff and that new tariff is approved by the Commission.
Respondent, or a predecessor, has been following the practice of providing limited amounts of light bulbs to its customers without additional charge since 1886. In 1909 the State of Michigan began regulation of electric utilities. In 1916 the Michigan Public Service Commission first approved a tariff filed by respondent setting forth the lamp-supply program. Thereafter, the Commission’s approval of respondent’s tariffs has included implicit approval of the lamp-exchange program. In 1964 the Commission also approved respondent’s decision to eliminate the program for large commercial customers. The elimination of the service for such customers became effective as part of a general rate reduction for those customers.
In 1972 respondent provided its residential customers with 18,564,381 bulbs at a cost of $2,835,000. In its accounting to the Michigan Public Service Commission, respondent included this amount as a portion of its cost of providing service to its customers. Respondent’s accounting records reflect no direct profit as a result of the distribution of bulbs. The purpose of the program, according to respondent’s executives, is to increase the consumption of electricity. The effect of the program, according to petitioner, is to foreclose competition in a substantial segment of the light-bulb market.
The distribution of electricity in Michigan is pervasively regulated by the Michigan Public Service Commission. A Michigan statute vests the Commission with “complete power and jurisdiction to regulate all public utilities in the state . . . .” The statute confers express power on the Commission “to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities.” Respondent advises us that the heart of the Commission’s function is to regulate the “ 'furnishing ... [of] electricity for the production of light, heat or power ....’”
The distribution of electric light bulbs in Michigan is unregulated. The statute creating the Commission contains no direct reference to light bulbs. Nor, as far as we have been advised, does any other Michigan statute authorize the regulation of that business. Neither the Michigan Legislature, nor the Commission, has ever made any specific investigation of the desirability of a lamp-exchange program or of its possible effect on competition in the light-bulb market. Other utilities regulated by the Michigan Public Service Commission do not follow the practice of providing bulbs to their customers at no additional charge. The Commission’s approval of respondent’s decision to maintain such a program does not, therefore, implement any statewide policy relating to light bulbs. We infer that the State’s policy is neutral on the question whether a utility should, or should not, have such a program.
Although there is no statute, Commission rule, or policy which would prevent respondent from abandoning the program merely by filing a new tariff providing for a proper adjustment in its rates, it is nevertheless apparent that while the existing tariff remains in effect, respondent may not abandon the program without violating a Commission order, and therefore without violating state law. It has, therefore, been permitted by the Commission to carry out the program, and also is required to continue to do so until an appropriate filing has been made and has received the approval of the Commission.
Petitioner has not named any public official as a party to this litigation and has made no claim that any representative of the State of Michigan has acted unlawfully.
II
In Parker v. Brown the Court considered whether the Sherman Act applied to state action. The way the Sherman Act question was presented and argued in that case sheds significant light on the character of the state-action concept embraced by the Parker holding.
The plaintiff, Brown, was a producer and packer of raisins; the defendants were the California Director of Agriculture and other public officials charged by California statute with responsibility for administering a program for the marketing of the 1940 crop of raisins. The express purpose of the program was to restrict competition among the growers and maintain prices in the distribution of raisins to packers. Nevertheless, in the District Court, Brown did not argue that the defendants had violated the Sherman Act. He sought an injunction against the enforcement of the program on the theory that it interfered with his constitutional right to engage in interstate commerce. Because he was attacking the constitutionality of a California statute and regulations having statewide applicability, a three-judge District Court was convened. With one judge dissenting, the District Court held that the program violated the Commerce Clause and granted injunctive relief.
The defendant state officials took a direct appeal to this Court. Probable jurisdiction was noted on April 6, 1942, and the Court heard oral argument on the Commerce Clause issue on May 5, 1942. In the meantime, on April 27, 1942, the Court held that the State of Georgia is a “person” within the meaning of § 7 of the Sherman Act and therefore entitled to maintain an action for treble damages. Georgia v. Evans, 316 U. S. 159.
Presumably because the Court was then concerned with the relationship between the sovereign States and the antitrust laws, it immediately set Parker v. Brown for reargument and, on its own motion, requested the Solicitor General of the United States to file a brief as amicus curiae and directed the parties to discuss the question whether the California statute was rendered invalid by the Sherman Act.
In his supplemental brief the Attorney General of California advanced three arguments against using the Sherman Act as a basis for upholding the injunction entered by the District Court. He contended (1) that even though a State is a “person” entitled to maintain a treble-damage action as a plaintiff, Congress never intended to subject a sovereign State to the provisions of the Sherman Act; (2) that the California program did not, in any event, violate the federal statute; and (3) that since no evidence or argument pertaining to the Sherman Act had been offered or considered in the District Court, the injunction should not be sustained on an antitrust theory.
In his brief for the United States as amicus curiae, the Solicitor General did not take issue with the appellants' first argument. He contended that the California program was inconsistent with the policy of the Sherman Act, but expressly disclaimed any argument that the State of California or its officials had violated federal law. Later in his brief the Solicitor General drew an important distinction between economic action taken by the State itself and private action taken pursuant to a state statute permitting or requiring individuals to engage in conduct prohibited by the Sherman Act. The Solicitor General contended that the private conduct would clearly be illegal but recognized that a different problem existed with respect to the State itself. It was the latter problem that was presented in the Parker case.
This Court set aside the injunction entered by the District Court. In the portion of his opinion for the Court discussing the Sherman Act issue, Mr. Chief Justice Stone addressed only the first of the three arguments advanced by the California Attorney General. The Court held that even though comparable programs organized by private persons would be illegal, the action taken by state officials pursuant to express legislative command did not violate the Sherman Act.
This narrow holding made it unnecessary for the Court to agree or to disagree with the Solicitor General’s view that a state statute permitting or requiring private conduct prohibited by federal law “would clearly be void.” The Court’s narrow holding also avoided any question about the applicability of the antitrust laws to private action taken under color of state law.
Unquestionably the term “state action” may be used broadly to encompass individual action supported to some extent by state law or custom. Such a broad use of the term, which is familiar in civil rights litigation, is not, however, what Mr. Chief Justice Stone described in his Parker opinion. He carefully selected language which plainly limited the Court’s holding to official action taken by state officials.
In this case, unlike Parker, the only defendant is a private utility. No public officials or agencies are named as parties and there is no claim that any state action violated the antitrust laws. Conversely, in Parker there was no claim that any private citizen or company had violated the law. The only Sherman Act issue decided was whether the sovereign State itself, which had been held to be a person within the meaning of § 7 of the statute, was also subject to its prohibitions. Since the case now before us does not call into question the legality of any act of the State of Michigan or any of its officials or agents, it is not controlled by the Parker decision.
Ill
In this case we are asked to hold that, private conduct required by state law is exempt fromthe ShermarTWct. Two quite different reasons might support such a rule. First, if a private citizen has done nothing~mbfe than obey the command of his state sovereign, it would be unjust to conclude that he has thereby offended federal law. Second, if the State is already,regula.ting^an area of the economy, it is arguable that Congress did not intend to superimpose the antitrust laws as an additional, and perhaps conflicting, regulatory mechanism. We consider these two reasons separately.
We may assume, arguendo, that it would be unacoeptable ever to impose statutory liability^ on a party who had done nothing more than obey a state command'. Such an assumption would" not decide this case, if, indeed, it would decide any actual case. For typically cases of this kind involve a blend of private and public decisionmaking. The Court has already decided that state authorization, approval. encouragement. or participation in restrictive private conduct confers no antitrust immunity. And in Schwegmann Bros. v. Calvert Corp., 341 U. S. 384, the Court invalidated the plaintiff’s entire resale price maintenance program even though it was effective throughout the State only because the Louisiana statute imposed a direct restraint on retailers who had not signed fair trade agreements.
In each of these cases the initiation and enforcement of the program under attack involved a mixture of private and public decisionmaking. In each case, notwithstanding the state participation in the decision, the private party exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision.
The case before us also discloses a program which is the product of a decision in which both the respondent and the Commission participated. Respondent could not maintain the lamp-exchange program without the approval of the Commission, and now may not abandon it without such approval. Nevertheless, there can be no doubt that the option to have, or not to have, such a program is primarily respondent’s, not the Commission’s. Indeed, respondent initiated the program years before the regulatory agency was even created. There is nothing unjust in a conclusion that respondent’s participation in the decision is sufficiently significant to require that its conduct implementing the decision, like comparable conduct by unregulated businesses, conform to applicable federal law. Accordingly, even though there may be cases in which the State’s participation in a decision is so dominant that it would be unfair to hold a private party responsible for his conduct in implementing it, this record discloses no such unfairness.
Apart from the question of fairness to the individual who must conform not only to state regulation but to the federal antitrust laws as well, we must consider whether Congress intended to superimpose antitrust standards on conduct already being regulated under a different standard. Amici curiae forcefully contend that the competitive standard imposed by antitrust legislation is fundamentally inconsistent with the "public interest” standard widely enforced by regulatory agencies, and that the essential teaching of Parker v. Brown is that the federal antitrust laws should not be applied in areas of the economy pervasively regulated by state agencies.
There are at least three reasons why this argument is unacceptable. First, merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy inconsistent standards; second, even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subordinated to the State's; and finally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs.
Unquestionably there are examples of economic regulation in which the very purpose of the government control is to avoid the consequences of unrestrained competition. Agricultural marketing programs, such as that involved in Parker, were of that character. But all economic regulation does not necessarily suppress competition. On the contrary, public utility regulation typically assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation. There is no logical inconsistency between requiring such a firm to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy. Thus, Michigan’s regulation of respondent’s distribution of electricity poses no necessary conflict with a federal requirement that respondent’s activities in competitive markets satisfy antitrust standards.
The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws. Therefore, assuming that there are situations in which the existence of state regulation should give rise to an implied exemption, the standards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation.
The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory Act work, “and even then only to the minimum extent necessary.”
The application of that standard to this case inexorably requires rejection of respondent's claim. For Michigan's regulatory scheme does not conflict with federal antitrust policy and, conversely, if the federal antitrust laws should be construed to outlaw respondent’s light-bulb-exchange program, there is no reason to believe that Michigan’s regulation of its electric utilities will no longer be able to function effectively. Regardless of the outcome of this case, Michigan’s interest in regulating its utilities’ distribution of electricity will be almost entirely unimpaired.
We conclude that neither Michigan’s approval of the tariff filed by respondent, nor the fact that the lamp-exchange program may not be terminated until a new tariff is filed, is a sufficient basis for implying an exemption from the federal antitrust laws for that program.
IV
The dissenting opinion voices the legitimate concern that violation of the antitrust laws by regulated companies may give rise to “massive treble damage liabilities.” This is an oft-repeated criticism of the inevitably imprecise language of the Sherman Act and of the consequent difficulty in predicting with certainty its application to various specific fact situations. The far-reaching value of this basic part of our law, however, has enabled it to withstand such criticism in the past.
The concern about treble-damage liability has arguable relevance to this case in two ways. If the hazard of violating the antitrust laws were enhanced by the fact of regulation, or if a regulated company had engaged in anticompetitive conduct in reliance on a justified understanding that such conduct was immune from the antitrust laws, a concern with the punitive aspects of the treble-damage remedy would be appropriate. But neither of those circumstances is present in this case.
When regulation merely takes the form of approval of a tariff proposed by the company, it surely has not increased the company’s risk of violating the law. The respondent utility maintained its lamp-exchange program both before and after it was regulated. The approval of the program by the Michigan Commission provided the company with an arguable defense to the antitrust charge, but did not increase its exposure to liability.
Nor can the utility fairly claim that it was led to believe that its conduct was exempt from the federal antitrust laws. A claim of immunity or exemption is in the nature of an affirmative defense to conduct which is otherwise assumed to be unlawful. This Court has never sustained a claim that otherwise unlawful private conduct is exempt from the antitrust laws because it was permitted or required by state law.
In the Court’s most recent consideration of this subject, it described the defendant’s claim with pointed precision as “this so-called state-action exemption.” Goldfarb v. Virginia State Bar, 421 U. S. 773, 788. The Court then explained that the question whether the anti-competitive activity had been required by the State acting as sovereign was the “threshold inquiry” in determining whether it was state action of the type the Sherman Act was not meant to-proscribe. Certainly that careful use of language could not have been read as a guarantee that compliance with any state requirement would automatically confer federal antitrust immunity.
The dissenting opinion in this case makes much of the obvious fact that Parker v. Brown implicitly held that California’s raisin-marketing program was not a violation of the Sherman Act. That is, of course, perfectly true. But the only way the legality of any program may be tested under the Sherman Act is by determining whether the persons who administer it have acted lawfully. The federal statute proscribes the conduct of persons, not programs, and the narrow holding in Parker concerned only the legality of the conduct of the state officials charged by law with the responsibility for administering California’s program. What sort of charge might have been made against the various private persons who engaged in a variety of different activities implementing that program is unknown and unknowable because no such charges were made. Even if the state program had been held unlawful, such a holding would not necessarily have supported a claim that private individuals who had merely conformed their conduct to an invalid program had thereby violated the Sherman Act. Unless and until a court answered that question, there would be no occasion to consider an affirmative defense of immunity or exemption.
Nor could respondent justifiably rely on either the holding in Eastern R. Conf. v. Noerr Motors, 365 U. S. 127, or the reference in that opinion to Parker. The holding in Noerr was that the concerted activities of the railroad defendants in opposing legislation favorable to the plaintiff motor carriers was not prohibited by the Sherman Act. The case did not involve any question of either liability or exemption for private action taken in compliance with state law.
Moreover, nothing in the Noerr opinion implies that the mere fact that a state regulatory agency may approve a proposal included in a tariff, and thereby require that the proposal be implemented until a revised tariff is filed and approved, is a sufficient reason for conferring antitrust immunity on the proposed conduct. The passage quoted in the dissent, post, at 622, sets up an assumed dichotomy between a restraint imposed by governmental action, as contrasted with one imposed by private action, and then cites United States v. Rock Royal Co-op., 307 U. S. 533, and Parker for the conclusion that the former does not violate the Sherman Act. That passing reference to Parker sheds no light on the significance of state action which amounts to little more than approval of a private proposal. It surely does not qualify the categorical statement in Parker that “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” 317 U. S., at 351. Yet the dissent would allow every state agency to grant precisely that immunity by merely including a direction to engage in the proposed conduct in an approval order.
Mr. Justice Stewart’s separate opinion possesses a virtue which ours does not. It announces a simple rule that can easily be applied in any case in which a state regulatory agency approves a proposal and orders a regulated company to comply with it. No matter what the impact of the proposal on interstate commerce, and no matter how peripheral or casual the State’s interests may be in permitting it to go into effect, the state act would confer immunity from treble-damages liability. Such a rule is supported by the wholesome interest in simplicity in the regulation of a complex economy. In our judgment, however, that interest is heavily outweighed by the fact that such a rule may give a host of state regulatory agencies broad power to grant exemptions from an important federal law for reasons wholly unrelated either to federal policy or even to any necessary significant state interest. Although it is tempting to try to fashion a rule which would govern the decision of the liability issue and the damages issue in all future cases presenting state-action issues, we believe the Court should adhere to its settled policy of giving concrete meaning to the general language of the Sherman Act by a process of case-by-case adjudication of specific controversies.
Since the District Court has not yet addressed the question whether the complaint alleged a violation of the antitrust laws, the case is remanded for a determination of that question and for such other proceedings as may be appropriate.
Reversed and remanded.
Parts II and IY of this opinion are joined only by Mr. Justice BrenNAN, Mr. Justice White, and Mr. Justice Marshall.
392 F. Supp. 1110 (ED Mich. 1974).
513 F. 2d 630 (CA6 1975).
Petitioner’s complaint asserts that respondent’s light-bulb-exchange program violates § 2 of the Sherman Act, 15 U. S. C. § 2, and § 3 of the Clayton Act, 15 U. S. C. § 14. In his brief in this Court, petitioner has also argued that the program constitutes unlawful tying violative of § 1 of the Sherman Act. The complaint seeks treble damages and an injunction permanently enjoining respondent from requiring the purchase of bulbs in connection with the sale of electrical energy. The complaint purports to be filed on behalf of all persons similarly situated, but the record contains no indication that the plaintiff moved for a class determination pursuant to Fed. Rule Civ. Proe. 23 (c).
Respondent does not distribute fluorescent lights or high-intensity discharge lamps; if bulbs of those types were included, respondent’s share of the market would only be about 23%.
Under respondent’s practice, new residential customers are provided with bulbs in “such quantities as may be needed” for all of their permanent fixtures; thereafter, respondent replaces residential customers’ burned out light bulbs in proportion to their estimated use of electricity for lighting. The customer incurs no direct charge for such bulbs at the time they are furnished to him, but normally turns in any bumed-out bulbs to obtain a new supply.
See Mich. Comp. Laws §§ 460.551, 460.559 (1970).
Apparently many commercial customers use relatively large quantities of fluorescent fighting and therefore have less interest in the bulb-exchange program.
Of this amount, $2,363,328 was paid to the three principal manufacturers of bulbs from whom respondent made its purchases; the other $471,672 represented costs incurred in the use of respondent’s personnel and facilities in carrying out the program.
According to respondent the effect of the program is to save consumers about $3 million a year, since the bulbs they now receive at a cost of $2,835,000 would cost them about $6 million in the retail market.
Mich. Comp. Laws § 460.6 (1970).
See Brief for Respondent 11; Mich. Comp. Laws §460.501 (1970).
“The California Agricultural Prorate Act authorizes the establishment, through action of state officials, of programs for the marketing of agricultural commodities produced in the state, so as to restrict competition among the growers and maintain prices in the distribution of their commodities to packers. The declared purpose of the Act is to ‘conserve the agricultural wealth of the State’ and to ‘prevent economic waste in the marketing of agricultural products’ of the state.” 317 U. S., at 346.
“The declared objective of the California Act is to prevent excessive supplies of agricultural commodities from ‘adversely affecting’ the market, and although the statute speaks in terms of ‘economic stability’ and ‘agricultural waste’ rather than of price, the evident purpose and effect of the regulation is to 'conserve agricultural wealth of the state’ by raising and maintaining prices, but ‘without permitting unreasonable profits to producers.’ § 10.” Id., at 355.
Title 28 U. S. C. § 2281 has been consistently read by this Court as authorizing a three-judge court only when the state statute which is sought to be enjoined is of a general and statewide application. Moody v. Flowers, 387 U. S. 97, 101.
Article I, § 8, cl. 3, of the United States Constitution provides:
“Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”
The Court also asked the parties to consider whether the Agricultural Adjustment Act, as amended, or any other Act of Congress, invalidated the California program. The supplemental briefs noted that the California program had been adopted with the collaboration of officials of the United States Department of Agriculture, and had been aided by loans from the Commodity Credit Corporation recommended by the Secretary of Agriculture. These facts were emphasized in portions of Mr. Chief Justice Stone’s opinion discussing the Agricultural Adjustment Act and the Commerce Clause, see 317 U. S., at 357, 358-359, 368, but were not mentioned in connection with the Court’s discussion of the Sherman Act.
The first order entered in the Supreme Court Journal on Monday, May 11, 1942, provided:
“No. 1040. W. B. Parker, Director of Agriculture, et al., appellants, v. Porter L. Brown. This cause is restored to the docket for reargument on October 12 next. In their briefs and on the oral argument counsel for the parties are requested to discuss the questions whether the state statute involved is rendered' invalid by the action of Congress in passing the Sherman Act, the Agricultural Adjustment Act as amended, or any other Act of Congress. The Solicitor General is requested to file a brief as amicus curiae and, if he so desires, to participate in the oral argument.” Journal, O. T. 1941, p. 252.
The Honorable Earl Warren, later Chief Justice of the United States.
In the index to his supplemental brief, the California Attorney General outlined his discussion of the Sherman Act in these words:
“The Sherman Anti-Trust law and the California raisin program . 35
“1. Is a state subject to the Sherman Act?. 35
"2. Does the state seasonal program for raisins violate the provisions of the Sherman Act?. 48
“(a) The Sherman Act is circumscribed by the rule of reason . 53
“ (b) Federal legislation as exempting state program from anti-trust laws.'. 60
“3. May the California raisin program be enjoined in the present action?. 64”
At p. 59 of its brief, the Government stated:
“The Sherman Act does not in terms define its scope in so far as it applies to the activities of state governments. But nothing in the Act precludes its application to programs sponsored by the states. Sections 1 and 2 prohibit unlawful conduct by 'persons/ and the word 'person/ as defined in Section 7, in some connections at least, may include a state. Georgia v. Evans, 316 U. S. 159.
“But the question we face here is not whether California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute.”
At p. 63 of its brief, the Government stated:
“A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation.”
“But it is plain that the prorate program here was never intended to operate by force of individual agreement or combina^ tion. It derived its authority and its efficacy from the legislative command of the state and was not intended to operate or become effective without that command. We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.
“The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state.
“There is no suggestion of a purpose to restrain state action in the Act’s legislative history. The sponsor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only ‘business combinations.’ 21 Cong, Rec. 2562, 2457; see also [id.,] at 2459, 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corporations, abundantly appears from its législative history.
“The state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit. Olsen v. Smith, 195 U. S. 332, 344-[3]45; cf. Lowenstein v. Evans, 69 F. 908, 910.” 317 U. S., at 350-352.
See n. 15, supra.
See Monroe v. Pape, 365 U. S. 167, 172-187; Adickes v. Kress & Co., 398 U. S. 144, 188-234 (BreNNAN, J., concurring in part and dissenting in part).
In his three-page discussion of the Sherman Act issue in Parker v. Brown, Mr. Chief Justice Stone made 13 references to the fact that state action was involved. Each time his language was carefully chosen to apply only to official action, as opposed to private action approved, supported, or even directed by the State. Thus, his references were to (1) “the legislative command of the state,” and (2) “a state or its officers or agents from activities directed by its legislature,” 317 U. S., at 350; and to (3) “a state’s control over its officers and agents,” (4) “the state as such,” (5) “state action or official action directed by a state,” and (6) “state action,” id., at 351; and to (7) “the state command to the Commission and to the program committee,” (8) “state action,” (9) “the state which has created the 'machinery for establishing the prorate pro-gam,” (10) “it is the state, acting through the Commission, which adopts the program . . . ,” (11) “[t]he state itself exercises its legislative authority,” (12) “[t]he state in adopting and enforcing the prorate program . . . ,” and finally (13) “as sovereign, imposed the restraint as an act of government
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_source
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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 forum that heard this case immediately before the case came to the court of appeals.
The HISPANIC SOCIETY OF the NEW YORK CITY POLICE DEPARTMENT INC., Luis A. Salgado, William Morales, Manuel Torres, Valentin Neves, Jr., Individually and on behalf of all those similarly situated, the Guardians Association of the Police Department of the City of New York Inc., Gregory S. Williams, Robert McNair, Timothy Pearson, Individually and on behalf of all those similarly situated, Plaintiffs-Appellees, v. The NEW YORK CITY POLICE DEPARTMENT, Department of Personnel of the City of New York and the City of New York, Defendants-Appellees, Robert Hyman, Dennis Gallagher, Thomas Biscione, Timothy McCarthy, David Kondrup, Thomas Cody, Anthony Tesu, James Latuda, Richard Milla, Emerald Society of the Police Dept. of the City of New York Inc., Columbia Association of the Police Dept. of the City of New York Inc., Shomrim Society of the New York City Police Department Inc., St. Paul Society of the New York City Police Department Inc., Steuben Association of the Police Dept. of the City of New York Inc., Francis Shields, Michael Ward, Helene Rinaldi, Ferdinand Guerra and Peter Mahon, as President of Sergeants Benevolent Association and Sergeants Benevolent Association, Defendants-Intervenors-Appellees, v. Wayne COSTELLO, John Lanigan, Barbara Pichler, Christopher Matejov, Alan Fisher, Ron Mazone, Thomas Collins, Thomas McManus, William Lucas, Mary Donnelly, Gennaro J. Aiello, Anthony M. Lombardo, John Galvin, Phillip McNer-ney, James Muranelli, Richard Wojno, Guliano Schiozzi, Thomas E. Quinn, Dennis Casavillo, Charles Hart, David Veraja, John Houston, Patrick Castoro, James Collins, Lawrence Praino, Michael Siedel, Richard Frick, James Healy, Frank Gaetani, James Lien, Mark Eisenberg, William Moen, Wilson Padilla, Evelyn Marino, Arthur J. Rotella, Thomas Ruskin, John Russo, Patrick Russo, Barney Ryan, Thomas J. Ryan, Michael Ryder, Warren Sam, John Sassano, Mel Schwartz, Herbert Seigal, James Smith, Ann Sowinski, William Spisak, Stanley Tatar, Dennis Terminello, Jill Tomczak, Charles Tora-no, Catherine Volpe, Walter P. Voss, Robert Wagner, William J. Zazeckie, Thomas Moss, Theodore McHugh, Joseph Nicolo-si, Kenneth Otten, Louis Pioli, Tadgh D. McNamee, Terrance McCabe, David Pan-etta, Christopher Haggerty, James G. Schneider, Thomas P. Kelly, Florence Ci-affone, Kevin Sweeney, Howard Allen, Gary Berman, Steven Cairo, Joseph Concannon, Michael Conolly, Maurice Devito, Arthur Flynn, Raymond Gallagher, Kevin Grassing, James C. Kelly, Kevin Kubick, Robert B. Langer, Henry Mahncke, John Marcone, John Mazzoc-chi, Patrick McGinnis, Sergio Mikulus, Kenneth Nilsen, Alan R. Ostoits, Henry Palayo, Anthony Reitano, Robert A. Sow-inski, Joseph Torragrosa, Richard Severi, Rubin Rivera, Alan May, Marc Wolf, William Saunier, Anthony P. Contento, Dominick Petrucelli, Frederick Termini, Kevin Ryan, Morton Adler, Richard J. Ang-ley, Robert Als, Albert Ascolese, Pompeo J. Basile, Lawrence G. Blumenthal, Kevin Boshell, Keith Brinkmann, Daniel Buckley, John J. Carney, Joseph Casella, Harvey Charym, Robert Chille, Gerald Chirico, John Connolly, Frank Corselli, Gary Davis, Edmond J. Decio, Alexander A. DeFrancis, Nicholas Dimuro, James Do-nohue, William Erdogan, Nathan Fishman, Philip Franchina, Calire Gallagher, Carl Gandolfo, John P. Gerrish, Daniel Graser, Ronald V. Greco, Geoffrey Hart, John Holze, Richard Hoover, Robert Iovi-no, John Johnson, Craig Judge, Kevin Kaufman, Kieran Kelly, Daniel Kelly, Timothy Kelly, Patrick J. Kenny, Kevin Kirby, Fran Kripinski, Francis X. La-velle, Anthony Longhitano, James Luon-go, Dennis McCabe, John J. McCann, Kevin L. McDonald, Thomas McDonald, Stanley Meltzer, Ralph Marchitelli, Evelyn Mooney, George Moran, James Mor-eink, Kevin Mullen, Michael D. Nemoy-ten, Daniel P. O’Neill, Joseph Oppromala, Frank R. Paganucci, Edmund Pederson, Joseph Picarello, Ronald Polis, Gerald Pope, Alan Prescott, Robert Pyetel, Ronald W. Rodman, William Romano, John E. Rivers, George S. Reynolds, Samuel P. Reiver, Eileen Regan, Angelo Graniero, Robert Edwards, Thomas J. Gulotta, Ricky Carpen, Kevin Keenan, David Chong, William Dwyer, Edward Harvey, Benjamin Conforto, Anthony Pauline, Gary M. Katz, George J. Meyer, Barry Goldblatt, Robert Tobuck, James Martin, Frank Mandile, Mary Maruffi, James O’Reilly, Gilbert Eaton, Thomas Kennedy, Ellen Hale, Daniel Boylan, Richard Miltenberg, Kevin O’Keefe, Robin Birn-baum, Frank Forte, Michael Pasuale, Martin Roddini, Anthony Celano, Charles Martin, Salvatore Buscemi, Robert Ahern, Stephen Broady, Chris Athanaso-polos, Billie Rivera, Michael Demarfio, Karen Robino, Raymond Mardiney, John Holub, John Toledo, John Wynne, Michael Fiscina, Robert Spitzer, Kenneth Roberts, Richard E. Lagrua, Victor Galante, Brendan Dolan, Fred Schwartz, Robert Mulligan, Walter O’Keefe, Brian O’Reilly, Kevin Fitzpatrick, James Morris, Richard Baebler, Michael McGarvey, Michael Arcardi, Joseph Averso, Angela Amato, Gennaro Aiello, Frank Bergstol, Joseph Balnck, Joseph Brousseau, Joseph Buffolino, William Buryk, Nicholas Bul-zomi, Ronald Bradley, Douglas Brandt, Christopher Buckley, Ronald Betterly, Edward Brajczewski, Nicholas Battista, Diane Broccoli, Darryl Berger, Domenick Canale, Paul Calandro, Thomas Callahan, Roland Capuano, Robert Clancy, William Casey, Martin Connolly, Louis Curcuru-to, A.P. Casano, James Curry, Francis Cush, Michael Campbell, Daniel Collins, Guy Castellano, William Coyne, James Ciaccia, James Christopher, Jr., Timothy Connolly, Robert Dean, Raymond Du-fresne, Brian Dailey, Douglas Brandt, Norman Donoghue, William Dunphy, John English, Mark Eisenberg, Harvey Feit, Dennis Emperor, John Feeney, Todd Fisher, Andrew Foppiano, Stephen Fajfer, John Fitzgerald, Vincent Giam-musso, Richard Gwillym, Harvey Grape, Vincent Giantasio, Fr. Michael Glasser, John Geary, Joseph Giacoppo, Michael Giacoppi, Henry Gross, John Gurtowski, Karl Garbrielsen, Brien Hogan, Thomas Hatch, Thomas Iacopelli, Geoffry Jahn, David Kaiser, Michael Kelly, Stephen Kurz, Edward Kulesa, Richard Kleiner, George Koehler, Daniel Kornblum, John Kloepping, Arthur Kaplan, William Kinz-ler, Nicholas Limoncelli, Robert Lynch, Christine Legrottaglie, Edith Linn, Anthony Lombardo, James Mood, Thomas Moss, John Melillo, Thomas McGovern, Michael R. McGovern, William McNamara, Edward Paroulek, Arthur Peaslee, Roy Popple, Robert Peters, Robert Peyer, Frank Panareese, Joseph Pastorino, Harold Robinson, Robert Renolds, Connie Phelan, Michael Pasquale, Edward Scola-vino, John Scolaro, Donald Skuza, Edward Solomonik, Ronald Shindel, Andrew Sovia, Edward Smith, Jerry Salzman, Joseph Stabile, William Seyc-hell, Michael Trimis, Robert Tarigo, Robert Toohey, Gari Tibaldi, Louis Vingelli, Bernard Wahlen, Jerry Wojcik, Robert Willmarth, Theodore Wess, John Yuknes, John Murphy, Joseph K. Monahan, Warren Molino, Randall Mayer, Peter Malva-sio, Robert Napolitano, John Nickels, Stephen Epstein, Louis Greco, Appellants.
No. 220, Docket 86-7507.
United States Court of Appeals, Second Circuit.
Argued Oct. 16, 1986.
Decided Dec. 8, 1986.
Ronald Podolsky, New York City, for appellants.
Kenneth Kimberling, New York City (Linda Flores, Puerto Rican Legal Defense & Education Fund, Inc., New York City, of counsel), for plaintiffs-appellees Hispanic Society.
Robert David Goodstein, Goodstein and West, New Rochelle, N.Y., of counsel, for plaintiffs-appellees Guardians Ass’n.
Frederick A.O. Schwarz, Jr., Corp. Counsel, June A. Witterschein, Elizabeth Dvor-kin, New York City, of counsel, for defendants-appellees.
Richard K. Walker, Bishop, Lieberman, Cook, Purcell & Reynolds, Washington, D.C., of counsel, for defendants-inter-venors-appellees.
Before FEINBERG, Chief Judge, and WINTER and MAHONEY, Circuit Judges.
WINTER, Circuit Judge:
This appeal is from an order approving the settlement of a classwide claim of employment discrimination. It was argued at the same time as a companion case, Marino v. Ortiz, 806 F.2d 1144 (2d Cir.1986), which has also been decided this day. The underlying action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 et seq. (1982), challenged a sergeants’ examination administered by defendant-appellee New York City Police Department (“NYCPD”). The plaintiffs alleged that the examination had a disparate impact upon black and Hispanic candidates for promotion to the position of sergeant. The settlement approved by the district court called for the successive promotion of blacks and Hispanics who had taken the examination until the alleged disparate impact was eliminated. The appellants, who challenge the settlement as a violation of the fourteenth amendment, are said to be police officers who did not score high enough to be eligible for promotion but did as well or better than the blacks and Hispanics who have been promoted pursuant to the consent decree. Because the appellants are not parties to this litigation, we dismiss their appeal.
BACKGROUND
During June 1983 and April 1984, the NYCPD administered Civil Service Examination No. 2548 to 11,899 candidates for promotion to the rank of sergeant. After scoring the exam, the NYCPD set a cut-off point that produced a list of 1,041 police officers eligible for promotion. The racial/ethnic composition of the group taking the exam was 79.0% white, 12.3% black, and 8.7% Hispanic; the breakdown of the eligible list derived from the test scores was 93.47% white, 2.31% black, and 4.23% Hispanic.
In late 1984, the Hispanic Society, representing Hispanic police officers, and the Guardians Association, representing black officers, filed separate actions in the Southern District against NYCPD and various city officials, alleging employment discrimination in violation of Title VII and other provisions. The complaints alleged that the examination had a disparate impact on black and Hispanic applicants and was not job related. Three groups were permitted to intervene in both cases as codefendants: the Sergeants Benevolent Association (“SBA”), representing over 500 officers on the eligible list who had obtained provisional appointments as sergeants; the Sergeants Eligibles Association (“SEA”), representing officers who were on the eligible list but had not received provisional appointments; and various white ethnic societies and other individual officers (the “Schneider Intervenors”). On June 14, 1985, the district court certified plaintiffs in Hispanic Society as representatives of a class of all Hispanic candidates who had taken Examination No. 2548, pursuant to Fed.R.Civ.P. 239(a) and (b)(2).
After discovery, the parties began several months of settlement negotiations. A proposed settlement agreed to by the plaintiffs, the defendants, SEA, and SBA was submitted to the district court on February 7, 1986. The settlement provided that at least 1,000 police officers on the eligible list would be promoted to sergeant. Black and Hispanic police candidates not on the list were to be added until the racial/ethnic composition of the group of newly promoted sergeants was approximately the same as the racial/ethnic composition of the group of candidates taking the test. Additional black and Hispanic officers would be promoted in rank order on the basis of their raw scores on the technical knowledge portion of the exam.
The settlement also proposed consolidation of the Hispanic Society and Guardians Association actions and the certification of three additional classes: (1) the plaintiffs in Guardians Association as representatives of a class of all black candidates who had taken the examination; (2) SBA as the representative of a class of all officers on the eligible list who had been provisionally appointed to the rank of sergeant; and (3) SEA as the representative of all other officers on the eligible list.
The settlement was conditionally approved on February 7, 1986, and a hearing was scheduled for April 17, 1986. Notice of the proposed settlement and the hearing date was sent to all plaintiffs and inter-venors, and posted in all precinct stations. The Schneider Intervenors, who had not signed the proposed agreement, were the only parties to the action to oppose the settlement.
Objections were also filed by officers who were not on the original eligible list but who claimed to have received scores equal to or higher than the black and Hispanic officers to be promoted pursuant to the settlement. The same counsel who represents the appellants in the instant case was allowed to speak at the hearing and argued that the proposed settlement violated the rights of such officers to equal protection of the laws. He filed a “Request for Modification” on behalf of his clients seeking to have the consent decree modified to provide that they be put on the eligible list and promoted.
Judge Carter approved the settlement on June 16, 1986, specifically rejecting the argument made by appellants’ counsel. Hispanic Society of the New York City Police Dep’t v. New York City Police Dep’t, 40 Empl.Prac.Dec. (CCH) ¶ 36,385, at 43,654-55 (S.D.N.Y.1986). The Schneider Intervenors filed notices of appeal. Approximately 350 other officers (a considerably larger group than filed objections), also filed notices of appeal. The Schneider Intervenors withdrew their appeal, however, leaving the appeal of the 350 officers as the only remaining challenge to the settlement of the case.
DISCUSSION
Appellants, the 350 officers, argue that the settlement agreement violates the fourteenth amendment because it requires the promotion of minorities over nonminorities who achieved the same or better scores on the sergeants’ examination. We cannot consider this argument on the merits, however. Because appellants never moved to intervene in these proceedings, they are not parties to this litigation, and their appeal must be dismissed.
As a general rule, only a party of record in a lawsuit has standing to appeal from a judgment of the district court. United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 607, 61 L.Ed. 1222 (1917); Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir.1983); United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir.1962). Parties of record include the original parties and those who have become parties by intervention, substitution, or third-party practice. 9 J. Moore, Moore’s Federal Practice ¶ 203.06, at 3-20 (1986).
There are exceptions to this general rule, but none is relevant to the present matter. The primary exception is when the nonparty has an interest that is affected by the trial court’s judgment. E. g., Martin-Trigona v. Shiff, 702 F.2d at 385-86 (permitting nonparty trustee to appeal from order granting debtor’s habeas corpus petition against bankruptcy judge.) See also United States v. LTV Corp., 746 F.2d 51, 53-54 & nn.5-6 (D.C.Cir.1984); 9 Moore’s Federal Practice ¶ 203.06, at 3-23. In this case, appellants were not on the original eligible list, they have no right to promotion under state law, and they do not allege that the examination discriminated against them. Even if the settlement were invalidated, therefore, they would not be entitled to promotion. Accordingly, they cannot appeal from the settlement as non-parties with an interest in the order below.
Appellants claim to have standing as parties, and to that end point to a “Definition” in the settlement agreement. That definition states:
The “New York City defendants” shall mean and refer to the City of New York, the New York City Police Department, the New York City Department of Personnel, and all officers, employees or agents, whether elected or appointed, of the City of New York, but not including the Hispanic Society plaintiffs, the Guardians Association plaintiffs, the in-tervenor-defendants or any individuals or groups represented by the Hispanic Society plaintiffs, the Guardians Association plaintiffs, or intervenor-defendants.
Appellants assert that they fall within this definition because they are police officers employed by the City of New York. However, the definitions in the settlement, by their very terms, delineate the parties to the agreement, not the parties to the litigation. For example, the settlement defines “intervenor-defendants” to mean the SBA and the SEA. By appellants’ logic, the Schneider Intervenors would be divested of party status because they are not included in that definition. Yet, the Schneider Inter-venors are intervenor-defendants, and were omitted from the settlement definition because they were not signatories to the settlement. Just as the settlement cannot divest a plaintiff or defendant of party status in the litigation, it cannot confer party status on a nonparty.
Further, viewed in context, the definition of “New York City defendants” does not make appellants either parties to the settlement or parties defendant in their individual capacities. This provision of the settlement simply binds them to comply with its terms in their official capacities as employees of the defendants, and does not give them standing to raise their current objections to the settlement as violative of their individual rights.
In Bender v. Williamsport Area School District, — U.S. -, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), the Supreme Court rejected on jurisdictional grounds a similar attempt to appeal. In that case, high school students brought an action against a school district, members of the school board, and school administrators, challenging certain restrictions on the use of public school premises under the first amendment. The trial court found in favor of the plaintiffs, but granted no relief against any of the school board members in their individual capacities. When the school district decided not to appeal the adverse decision, board member Youngman decided to prosecute the appeal himself. The Supreme Court, acting sua sponte, held that because the judgment was against Youngman only in his official capacity, he had no standing to appeal in his individual capacity. Id. 106 S.Ct. at 1332 (citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985)). Moreover, Youngman’s status as a board member did not “permit him to ‘step into the shoes of the Board’ and invoke its right to appeal.” Bender, 106 S.Ct. at 1333. The Court also denied Youngman’s claim that he could prosecute the appeal based on his status as a parent, stating, “Since Mr. Youngman was not sued as a parent in the District Court, he had no right to participate in the proceedings in that court in that capacity without first filing an appropriate motion or pleading setting forth the claim or defense that he desired to assert.” Id. at 1335 (footnote omitted).
The lack of jurisdiction is even more obvious in the present case because, unlike Youngman, appellants were never parties in the district court in any capacity. They were included only in the settlement agreement, along with all other employees of the City of New York, merely to ensure that they would be bound by its terms in their official capacities. See Bender, 106 S.Ct. at 1332; Brandon, 105 S.Ct. at 877 (“The course of proceedings ... make[s] it abundantly clear that the action against [defendant] was in his official capacity and only in that capacity.”). See also Alexander v. Todman, 361 F.2d 744, 746 (3d Cir.1966) (“A person who sues or is sued in his official capacity is, in contemplation of law, regarded as a person distinct from the same person in his individual capacity and is a stranger to his rights or liabilities as an individual.”). Appellants’ argument that the settlement agreement made them parties defendant in their individual capacities is thus without merit.
Appellants also claim that filing written objections to the settlement and appearing at the hearing gave them status as parties to the litigation. The fact that appellants were permitted to object to the settlement in the district court does not make them parties, or enable them to appeal from the approval of the settlement. See United States v. LTV Corp., 746 F.2d at 53; Moten v. Bricklayers, Masons & Plasterers International Union, 543 F.2d 224, 227 (D.C.Cir.1976).
Appellants’ predicament results from their steadfast refusal to comply with the requirements for intervention set forth in Fed.R.Civ.P. 24. In dismissing the appeal in Bender, the Supreme Court emphasized the importance of this rule:
Because his status as a parent was obviously different from his official status as a member of the Board, in order to participate as a parent in the District Court litigation it was incumbent upon Mr. Youngman under Rule 24 of the Federal Rules of Civil Procedure to make “timely application” by an appropriate motion “statpng] the grounds” for intervention and “setting forth the claim or defense for which intervention is sought.” Fed. Rule Civ.Proc. 24(a), (c). No such pleading was filed in either of the courts below. It is particularly important to observe these requirements in cases in which the interest of the litigant seeking to appeal diverges from the interest of the party to the suit.
106 S.Ct. at 1335 n. 9 (emphasis added). The need for formal intervention is thus as great as the need for named plaintiffs or defendants to state a well-pleaded claim or defense. See Sanders v. John Nuveen & Co., 463 F.2d 1075, 1082 (7th Cir.) (pleading that accompanies intervention motion must satisfy Fed.R.Civ.P. 7(a) so that “all parties understand the position, claims and nature of relief sought by the prospective intervenors”), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972); 3B Moore’s Federal Practice ¶ 24.14.
The present appeal, however, is based on factual assertions that are nowhere set forth in sworn pleading. Although approximately 350 appellants are named, the record contains no affidavits or other sworn allegations describing their individual status as police officers or as candidates for sergeant. (We note that a considerably smaller number filed objections to the settlement.) Because the requirements for intervention as a party have been ignored, the people pursuing this appeal have no more standing than individuals selected at random from a telephone book. Cf. Kentucky Home Mutual Life Insurance Co. v. Duling, 190 F.2d 797, 803 (6th Cir.1951) (holding intervention petition insufficient under Rule 24(c) when it did not state cause of action against defendant but merely stated that intervenors had insurance under the group policy in question). Other individual police officers and white ethnic societies, the Schneider Inter-venors, intervened as parties and vigorously pursued their interests. We perceive no reason why appellants could not have done the same.
Consequently, appellants lack standing to prosecute this appeal, and we have no jurisdiction. We therefore dismiss the appeal. We deny appellees’ motion for sanctions under Fed.R.App.P. 38. We note, however, that any doubt as to the means by which objectors to class settlements should proceed in the future has been eliminated by this opinion.
. The case filed by the Hispanic Society was Hispanic Society v. New York City Police Dep't, No. 84-6628 (S.D.N.Y. filed Sept. 14, 1984), and the action filed by the Guardians Association was Guardians Ass'n. v. New York City Police Dep’t, No. 84-8504 (S.D.N.Y. filed Nov. 26, 1984). The two actions were consolidated in 1986 when the court approved the settlement. See infra.
. The examination had two components, a written technical knowledge test and a video job sample test. The entire exam could not be used to rank the minority candidates because video equipment had been defective at some testing locations.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_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.
SKOWHEGAN SAV. BANK et al. v. SECURITIES AND EXCHANGE COMMISSION et al.
No. 11300.
United 'States Court of Appeals District of Columbia Circuit.
Argued Oct. 27, 1952.
Decided Dec. 22, 1952.
George S. Van Schaick, Rochester, N. Y., pro hac vice, by special leave of Court, with whom Martin A. Meyer, Jr., and Harry E. Proctor, Washington, D. C., were on the brief, for petitioners.
Roger S. Foster, General Counsel, Securities and Exchange Commission, Washington, D. C., with whom Alexander Cohen, Washington, D. C., was on the brief, for respondent.
Leonard A. Pierce, Portland, Me., with whom Charles 13. Rugg, Boston, Mass., and Everett H. Maxcy, Augusta, Me., were on the brief, for intervenor.
Before CLARK, PRETTYMAN and WASHINGTON, Circuit Judges.
PRETTYMAN, Circuit Judge.
This is a petition to review two orders of the Securities and Exchange Commission.
By an agreement made in 1912 the Portland Railroad Company leased all of its property to the predecessor of the Central Maine Power Company. The lessee Power Company agreed, among other things, to pay an annual rental equivalent to interest on the debt of the Railroad plus a dividend of $5.00 per share on the Railroad’s stock,, and to deliver to the Railroad at the termination of the lease, in condition not inferior to that existing at the date of the lease, all of the property leased. By 1944 the Power Company owned approximately 36 per cent of the Railroad’s outstanding bonds and 49 per cent of its stock. In that year, pursuant to Section 11(e) of the Public Utility Holding Company Act of 1935, the Power Company filed with the Commission a plan to divest itself of the Railroad in compliance with Section 11(b) of the Act. The plan contemplated, among other things, the termination of the lease, the sale of the Railroad’s assets, the redemption of the bonds held by persons other than the Power Company, and the distribution of a liquidating dividend of $110.00' per share to all stockholders of the Railroad other than the Power Company. The Power Company was to supply the funds necessary to meet those terms. The plan was detailed and comprehensive, but in view of our disposition of the case we need not here describe-it further.
A hearing was had by the Commission on the proposed plan. Six savings banks in the State of Maine, including our present petitioners, participated in the hearing as stockholders of the Railroad. No one questioned the necessity of divestment under the Act. Their representative stated that they felt that the price of $110.00 a share was inadequate, that they did not wish to obstruct the liquidation of- the Company if liquidation was in the public interest, but that they insisted upon adequate compensation for the vested rights which they held under the lease. He further stated that his clients had no objection to the proposed treatment of the bonds. On December'19, 1944, the Commission han'ded down its findings, opinion and order, in which it found the plan to' be necessary to effectuate the provisions of the Act and fair and equitable to the persons affected. It accordingly approved the plan'.
In respect to the proposed payment to the Railroad’s stockholders, the Commission made a computation. It discounted the $5.00 per share dividend for 66 years (the then remaining life of the lease) at a 4 per cent rate, arriving at a then-present value of about $116.00 per share. It then discounted that figure on account of certain ambiguities in the lease which affected the guaranty of the dividend. It thus arrived at a figure of $110.00 per share as a fair and equitable figure.
In respect to the claimed value to the stockholders of the reversion of a going transportation system at the end of the lease, the Commission pointed out that annual net earnings forseeable in the year 2011 • (the expiration of the lease) in an amount equal to current earnings in 1911 (the execution of the lease), or even a much larger amount, had a present value of only a few cents a share. It therefore considered this reversionary right to be of insignificant value.
Having made these findings the Commission observed: “In addition it may be noted that any stockholders dissenting from the proposed plan will have a right, pursuant to Maine statute, to have their stock appraised.” In its report to the stockholders pursuant to Section 11(g) of the Act, the Commission included this statement:
“The security holders of Portland have the right under Maine laws to have their stock appraised and receive an amount for their stock based on such appraisal. Although this Commission has found the plan fair and equitable, whether or not any security holder should vote in favor of the plan or choose to exercise his rights under the appraisal statute or by other means should be determined by his independent judgment.”
Some stockholders, including petitioners, filed a bill in equity in the Supreme Judicial Court of Maine, in which they sought not an appraisal of their stock under the Maine appraisal statute but to have the entire transaction set aside. Other stockholders filed in the United States Court of Appeals for the First Circuit a petition for review of the order of the Commission under Section 24(a) of the Act, 15 U.S.C.A. § 79x(a), but that action was later dismissed on motion of those petitioners. After lengthy litigation in the Maine courts the appellate court held, upon authority of Schwabacher v. United States, that the state courts had no jurisdiction in respect of matters which the 'Commission had found fair and equitable and so had no jurisdiction to reexamine, among other things, the sum to be paid for the Railroad stock. Petition for certiorari was denied.
Thereafter, on May 1, 1950, our present petitioners sought reconsideration by the Commission of its original report and order of December 19, 1944. On November 28, 1951, the Commission handed down its decision on that petition. It considered the various contentions of the petitioners at some length and denied the petition. It then said:
“After careful consideration, we find nothing in the arguments presented, the facts alleged and the record heretofore made before us which would cause us to find that the $110 per share approved by us for the public holders of Portland’s common stock was not fair and equitable, and we are satisfied that our Order of December 19, 1944 in this matter should not be disturbed. We have examined all other contentions of petitioners contained in their brief and find them to be without merit.”
The present petition in this court is for review of the order of November 28, 1951, and also of the order of December 19, 1944.
The sixty days after entry of the 1944 order, allowed by the statute (Section 24 (a) ) for the filing of a petition for review, has of course long since expired. Petitioners argue, however, that the 1951 order reopened the matter sufficiently to give them another sixty days within which to file the petition. We think that the 1951 order cannot be so construed.
Petitioners insist that the finding of the Commission in 1944 in respect to the $110.00 payment per share was conditioned upon the right of appraisal in the Maine courts. They argue that therefore, when the Commission in 1951 affirmed the payment without the condition, it amended the 1944 order. We do not read the 1944 finding as a conditional finding. The Commission made a careful computation and specifically found $110.00 to be the fair and equitable amount to be paid the stockholders. Its reference to the Maine appraisal statute was in the nature of an advisory note. That any such right of appraisal may have been negated or placed in doubt by subsequent court decisions did not create invalidity in the finding of the fair and equitable value. In its 1951 opinion the Commission did no- more than examine with care the petitioners’ contentions of injustice in the 1944 order. As we have noted, a petition to review that order was filed in the First Circuit and then voluntarily dismissed. Petitioners had their opportunity, in due time, to- test the order in a federal court. The plan approved by the Commission in 1944 has long since been consummated, all other shareholders of the Railroad have been paid, and the business of the Railroad has ceased.
The 1944 order is not now appealable in and of itself. The petition for reconsideration, and its denial, even after extended discussion, could not serve to- enlarge the statutory period for appeal. The denial of reconsideration is not in and of itself appealable under the statute. Even if we thought we had a measure of authority in respect to review of a denial of reconsideration involving an alleged abuse of discretion, we would not exercise it in this case. The composite o-f the circumstances, the length of the elapsed time, the course followed at the critical time in regard to federal court review, the absence of applications for stay at any point, the completion of the plan, negate any such proposal; indeed petitioners seem not to claim any abuse of discretion.
The petition for review is
Dismissed.
. 49 Stat. 822, 15 U.S.C.A. § 79k(e).
. Auburn Sav. Bank v. Portland R. R. Co., 1949, 144 Me. 74, 65 A.2d 17.
. 1948, 334 U.S. 182, 68 S.Ct. 958, 92 L.Ed. 1305.
. Auburn Savings Bank v. Portland Railroad Co., 1949, 338 U.S. 831, 70 S.Ct. 74, 94 L.Ed. 506.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_treat
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Frank C. MAROLDA, Defendant-Appellant.
No. 80-1641.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 16, 1981.
Decided June 15, 1981.
Allen Ruby, Morgan, Ruby, Teter, Schofield, Franich, Bouchier & Fredkin, San Jose, Cal., for defendant-appellant.
Peter D. Isakoff, Atty., Dept, of Justice, Washington, D. C., argued for plaintiff-appellee; William C. Bryson, Atty., Dept, of Justice, Washington, D. C., on brief.
Before WRIGHT and CANBY, Circuit Judges, and TAKASUGI, District Judge.
Of the Central District of California.
EUGENE A. WRIGHT, Circuit Judge:
I
Marolda was convicted after trial by jury of embezzling from a labor union, 29 U.S.C. § 501(c). On his first appeal, he argued that: (1) the definition of the offense in instructions to the jury excluded statutory elements; (2) there was a prejudicial variance between the offense as set forth in the indictment and as defined in the instructions; and (3) the evidence was insufficient to support a conviction.
We reversed, addressing only the second issue:
We need not resolve the question of the statutory elements here because a prejudicial variance between the offense as charged in the indictment and that defined by the court’s instructions requires reversal. Should the government choose to retry Marolda, it will have to prove the offense as charged in the indictment.
United States v. Marolda, 615 F.2d 867, 870 (9th Cir. 1980).
One element found in the indictment and omitted from the instructions was that Marolda used a gasoline credit card “without benefit to [the Union].” Id. at 868 n.2. Our opinion made no mention of Marolda’s sufficiency of the evidence argument.
When the case returned to district court, Marolda moved to dismiss on double jeopardy grounds, contending there had been insufficient evidence to prove an absence of union benefit. The court denied the motion for two reasons. First, it held that, because the conviction had been reversed for . trial error but not for evidentiary insufficiency, retrial would not subject Marolda to double jeopardy. Second, there had been sufficient evidence from which the jury could have inferred an absence of union benefit.
II
Marolda argues, and the government concedes, that, if the evidence was insufficient to support a conviction at the first trial, double jeopardy bars retrial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Bodey, 607 F.2d 265 (9th Cir. 1979). The “government must present sufficient evidence the first time to get a second chance.” Id. at 268.
This is not a case in which the trial error leading to reversal may have prejudiced the prosecution. Cf. United States v. Harmon, 632 F.2d 812 (9th Cir. 1980) (per curiam) (reversal for erroneous admission of evidence). The government does not argue that additional evidence would have been presented, or that different trial strategy would have been pursued, had reversible error not been committed.
III
The law of the case is that the government had to prove lack of union benefit at the first trial. 615 F.2d at 870-72.
In testing for sufficiency of the evidence, the question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A “mere modicum” of evidence, making the existence of an element of the crime slightly more probable than it would be without the evidence, by itself is not sufficient. Id. at 320, 99 S.Ct. at 2790.
Marolda was installed as the president of a newly formed local in October 1975. There was evidence that the executive board adopted a policy of providing a fixed, monthly automobile allowance to its officers, and terminated the practice of charging purchases on credit cards.
Marolda continued to use his credit card to purchase gasoline for approximately two years. During this time, he used the card to purchase gas for his wife’s and his brother’s cars, as well as his own. On several occasions he filled two tanks of gas in one day, and in one instance filled three tanks in two days.
Executive board members testified that Marolda used his wife’s and brother’s cars on union business when his car was being repaired. They stated that he took many long trips on union business. Their testimony was not contradicted or impeached.
After reviewing the entire record, we find no direct evidence that Marolda purchased gas for non-union purposes. Nor, in light of all the evidence, could this rationally be inferred beyond a reasonable doubt. We conclude that the evidence was insufficient. The motion to dismiss should have been granted.
REVERSED.
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_usc1sect
|
302
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CITY BANK FARMERS TRUST CO. v. McGOWAN, Collector of Internal Revenue.
No. 228.
Circuit Court of Appeals, Second Circuit.
May 10, 1944.
J.'Seymour Montgomery, Jr., and Montgomery, Grace & Derby, all of New York City (Ja'mes Lloyd Derby, King, Taylor, Otheman & Swain, and Frederick P. King, and Hines, Rearick, Dorr & Hammond, and John K. Watson, and Paul Smith, all of New; York City, of counsel), for appellant.
Carlton Fox, of Washington, D. C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Se-wall Key and J. Louis Monarch, Sp. Assts. to the Atty. Gen., George L. Grobe, U. S. Atty., of Buffalo, N. Y., and Robert M. Hitchcock, Asst. U. S. Atty., of Washington, D. C., for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiff is the administrator of Helen Hall Vail, a deceased incompetent; it sued to recover the amount which it had paid to the defendant, as collector, as an estate tax levied on her estate. The judgment allowed part of the claim and denied the rest; and the plaintiff appeals from the denial. The facts were as follows. Helen Hall Vail, the intestate, was declared incompetent by the Supreme Court of New York, where she lived, in August, 1926; and the plaintiff was appointed a committee of her property. She was then a widow, over seventy years old and incurably insane. Her next of kin were a daughter and three infant children of a dead daughter who lived with their father. She owned real estate in Geneva, New York, Palm Beach, Florida, and New Jersey; and including accumulations of past income, she had personal property, of about $1,000,000. Besides, she was the life beneficiary of a trust in her favor created by her first husband, the income from which was about $300,000 a year; and her income from all sources including this was about $350,000. On October 8, 1926, her daughter petitioned the New York court to direct the plaintiff, as committee, to pay annually to certain named persons reasonable allowances out of the incompetent’s surplus income, and the court referred the petition to a referee to hear testimony. The referee found that the utmost amount necessary for the incompetent’s support, including the payment of taxes, would “fall far short of the sum of $50,000 per annum” and that there would remain “a balance of income of over $250,000,” and recommended certain allowances. The court confirmed the report and directed the plaintiff to pay to the daughter annually $50,-000, and to the guardian of the grandchildren the same amount. It also directed the plaintiff to pay $2,000 a year to a brother, $2,000 to each of three sisters, and $3,-000 to a fourth sister. On April 26, 1932, the daughter petitioned the court for an increased allowance; and this petition was referred to another referee. He heard testimony and recommended that the allowances to the daughter and to the grandchildren be increased by $25,000, and these increases should be paid retroactively. The court confirmed his report and entered an order to that effect. Under both these orders the plaintiff, as committee, paid out of surplus income the specified amounts until the death of the incompetent on December 27, 1935. The aggregate of these payments the commissioner included in the incompetent’s estate on the ground that they were made in contemplation of death under § 302(c) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 227. The district judge held that all the payments were part of the incompetent’s estate except $6,000 of the annual payments to the daughter, $6,000 of those to the grandchildren, and $500 of those to one of the sisters. His reasons for making these exceptions were that the gifts pro tanto “were motivated by the same motive which would have led the incompetent, Helen Hall Vail, to make payments in these amounts to these respective parties.” Between the year 1914 and August 1926, when the incompetent was adjudged incompetent, she had given $6,000 annually to her two daughters, and $500 annually to the sister in question.
Section 302(c) of the Revenue Act of 1926 covers “any interest -* * * of which the decedent has at any time made a transfer * * * in contemplation of * * * death.” The payments at bar were not made by the decedent, so that literally, the words do not apply. Nevertheless, the property was transferred, for the law gave the judges power to transfer it. The first question therefore is whether we should hold that the section covers such payments in case they are made “in contemplation of death,” a question which we may reserve for the moment. We are satisfied that the proper construction of the section is as though it read: “any interest * * * of which at any time a transfer has been made from the decedent in contemplation of death.” We have no doubt that if Congress had been faced with a situation like that before us, it would have included payments made by the court out of the property of an incompetent; to hold otherwise would be to frustrate the plain purpose of the section. Moreover, that once granted, the intent of the court must control in deciding whether the payments were made “in contemplation of death,” for obviously the incompetent herself could have no intent of any kind. The judges’ intent was to make such gifts as the incompetent would have made, if she had been competent, so the orders said; but that cannot have meant such gifts as she would have made, had she been not only competent, but expecting to continue competent until she died. It must have meant such gifts as she would have made, if for the moment lucid, but with the prospect of imminent incompetency before her. There can be no doubt as to this, for the judges had no evidence whatever from her past conduct for supposing that, if she had looked forward to ending her life in full possession of her faculties, she would have given away every year to her daughter, her grandchildren and her brother and sisters, more than $160,000 out of the $250,-000 which remained to her after paying her taxes and expenses. The allowances she had theretofore made did not remotely approach such figures.
Little has been added by the Supreme Court to what was said as to the phrase, “in contemplation of death,” in United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867, which remains our authoritative guide. The only other decisions of that court which can be said to throw any light upon it are Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, overruled on another point in Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368; and Colorado National Bank v. Commissioner of Internal Revenue, 305 U.S. 23, 59 S.Ct. 48, 83 L.Ed. 20, and neiiher of these professes to modify the doctrine as there laid down. Its outlines were indeed not sharp, or intended to be sharp, but some things are clear. Such a gift need not be in contemplation of imminent death; the section applies to gifts made by the young and healthy, as well as by the old and infirm. It covers “substitutes for testamentary dispositions.” If they are such “substitutes,” the test is the donor’s motive, which “must be of the sort which leads to testamentary disposition” (page 117 of 283 U.S., page 451 of 51 S.Ct., 75 L.Ed. 867). Moreover, even though they be “substitutes” and the motive he of that “sort,” the donor must not be also actuated by a “dominant” motive of some other kind, which was left vague then, and has not yet been defined. Among such motives apparently is the desire to accustom the donee to the management and responsibility of property (United States v. Wells, supra, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867), the desire to make him independent, or to keep down the donor’s surtaxes on his income (Becker v. St. Louis Trust Co., supra, 296 U.S. 48, 52, 56 S.Ct. 78, 80 L.Ed. 35), the desire to escape the possible consequences of the donor’s own speculations (Colorado National Bank v. Commissioner, supra, 305 U.S. 23, 26, 59 S.Ct. 48, 83 L.Ed. 20). Thus, if the gift be a “substitute” for a “testamentary disposition,” and if the only motive be a desire to anticipate the benefit which the donee will eventually get by such a disposition, it might seem to follow inevitably that it is made “in contemplation of death.” Yet, if that be true, every present gift, actuated by an undifferentiated desire to benefit the donee, is a gift “in contemplation of death,” if only it is made to a person to whom the donor would have left the property on his death. In that event the gift tax covers only gifts which are not “substitutes for testamentary dispositions,” and gifts, which, though they are such substitutes, are made with some “dominant” purpose of the specific character which takes a gift out of the section. Possibly that may be the law, but certainly it has not yet been clearly so declared.
We are not however confronted with that question here, because the gifts at bar were “substitutes for testamentary dispositions” in a', much more complete sense than the ordinary present gift inter vivos. First, they were made by one who could not enjoy the income during her life, but who must let it roll up and pass upon her intestacy. In Farmers’ Loan & Trust Co. v. Bowers, 2 Cir., 68 F.2d 916; Id., 2 Cir., 98 F.2d 794—“The Astor Trusts Case,”—for example, the donor had reserved to himself $150,000 annually out of the income of each trust which substantially exhausted it, so that all that he really gave to his sons was in substance remainders after his death. That was as complete a substitute for a testamentary disposition as it was possible for a gift to be and still be a gift at all. We do not forget that the gift of a remainder is not one “intended to take effect in possession or enjoyment” at the donor’s death. May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826, 67 A.L.R. 1244. Nor do we mean that a gift to a person who would receive it upon the donor’s death is inevitably a gift “in contemplation of death,” whenever the donor reserves the income to himself for life. If the donor has a specific “dominant” motive of the required kind, such a gift will be excluded. But in determining whether a gift is one “in contemplation of death” an extremely weighty consideration is that by reserving the income to himself for life, the donor has so closely assimilated the gift to a testamentary disposition. In The Astor Trusts Case, supra, that.fact was, it is true, coupled with the donor’s other, and perhaps “dominant,” motive—to escape an estate tax—but that was not among those which the court will recognize.
Moreover, the facts in the case at har are even stronger than if a sane person had reserved the income to himself and given away only a remainder to those who would in due course have received it anyway. Such a person has had power to dispose of the remainder before he makes the gift, a power of which the gift deprives him. But an incompetent has no such power, and any gift made on his behalf deprives him of nothing; he is an inert conduit of the property to his next of kin, or to his legatees, if he has made a will while sane. It is true that in the case at bar the judges were authorized to act, and did act, for the incompetent, so that the incompetent is not to be deemed jurally impotent if this vicarious power can be imputed to her. But even if it can be, that power was very limited; as we have seen, it was confined to such gifts as she would have made, had she in a lucid interval contemplated her unhappy prospect. They had the choice of letting the surplus roll up, or of disposing of it as she would have disposed of it in such an interval, and as to the bulk of it they chose the ’daughter and grandchildren as donees, who were sure to take anyway. There could be no more complete “substitution” of a gift for a “testamentary”— in this case an intestate—-“disposition” than that. Perhaps it still would not have been within the section, if the judges had made the allowances in order to set up the donees in business, or something of the. kind, but they did nothing of the sort. Indeed, upon the hearings before the referees the testamentary purpose was very frankly made plain, as the following excerpts from the remarks of counsel show. At the first hearing: “The granting of these allowances will only affect the persons who are applying for them, and they will eventually get the property upon Mrs. Vail’s death.” Again, “By granting these allowances the child and grandchildren will be simply getting now what they will eventually get in the end, with the exception of the small allowances asked for the brother and sisters of Mrs. Vail which they, the only persons interested in the estate are willing these sisters and brother should have.” At the second hearing: “It is to me, not a matter of obtaining an allowance. It seems to be the idea of distributing part of this incompetent’s property in anticipation more or less of her death.” Again, “Where it is impossible for her to use it” (the income) “* * * then the Court can make an advancement.” And in accordance with this last suggestion the order provided that, so far as the payments to the daughter and the grandchildren might prove to be unequal, any excess given to one stirps should be regarded as an advancement in the distribution of the estate on intestacy, and should be charged against that stirps.
It is true that the allowances made to the brother and the sisters were not substitutes for that disposition of the property which would otherwise have taken place; on the contrary they diverted the money from those who would otherwise receive them. And yet it seems to us that it is enough to carry them along with the allowances to the daughter and grandchildren that the property transferred was beyond any power of the donor to enjoy, as were the remainders in The Astor Trust Cases; and that it was in addition beyond her individual power of disposition. Although they were not substitutes for the inevitable devolution of the property had they not been made, they were certainly testamentary in their character, and they were actuated by a motive of the sort that leads to testamentary dispositions. With less confidence as to these, we hold that they were also gifts “in contemplation of death” within § 302(c).
Judgment affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer:
|
songer_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.
In re GRAND JURY INVESTIGATION. Appeal of NEW JERSEY STATE COMMISSION OF INVESTIGATION.
No. 80-1065.
United States Court of Appeals, Third Circuit.
Argued July 7, 1980.
Decided Sept. 19, 1980.
Michael R. Siavage, Executive Director, State of N. J., Commission of Investigation, Trenton, N. J., Joel Harvey Slomsky (argued), Philadelphia, Pa., for appellees, Rittenhouse Consulting Enterprises, Ltd. and Severance Administrators, Inc.
Peter M. Schirmer, Trenton, N. J. (argued), for appellant.
Before SEITZ, Chief Judge and ADAMS, Circuit Judge and KUNZIG, Judge.
Honorable Robert L. Kunzig, United States Court of Claims, sitting by designation.
OPINION OF THE COURT
ADAMS, Circuit Judge.
This is an appeal from the denial of a motion brought by the New Jersey State Commission of Investigation (Commission) seeking access to records of Rittenhouse Consulting Enterprises, Ltd. (Rittenhouse) and Severance Administrators, Inc. (Severance) that are in the possession of a federal grand jury. The first issue we must address is whether the district court’s order is a “final decision” reviewable under 28 U.S.C. § 1291. The second question raised by this appeal is whether the grand jury secrecy rule, F.R.Crim.P. 6(e), is applicable to the Commission’s request for disclosure of documents that are in the custody of the grand jury.
I. STATEMENT OF THE CASE
The New Jersey State Commission of Investigation, a legislative investigatory body created under N.J.S.A. 52:9M-1 et seq., is empowered to conduct inquiries in connection with the faithful execution and effective enforcement of the state’s laws. In order to carry out its duties, the Commission is endowed with the authority to subpoena witnesses and documents. N.J.S.A. 52:9M-12(c).
In the course of investigating New Jersey dental care plans, the Commission on July 27, 1979 subpoenaed the books and records of Rittenhouse and Severance for January 1, 1976 through June 30, 1979. The two companies partially complied with the subpoena by providing the Commission with records for the period January 1, 1978 to June 30, 1979. As for the remainder of the subpoenaed items, however, Rittenhouse and Severance informed the Commission that they could not comply because the records for January 1,1976 through December 31, 1977 had previously been subpoenaed by and were in the custody of a federal grand jury empanelled in the Eastern District of Pennsylvania. Because documents in the possession of a grand jury are considered records of the court, it was necessary for the Commission to move before the United States District Court for the Eastern District of Pennsylvania to obtain access to the records. Although the motion for disclosure, filed September 11,1979, was framed under F.R.Crim.P. 6(e), it averred that the documents should be made available because they were not subject to the secrecy policy of the Rules. The United States Attorney supervising the grand jury did not oppose the motion. Rittenhouse and Severance, however, objected to the request for access, and contended that the grand jury materials must be shrouded in secrecy because the request fits none of the exceptions to -the general policy of nondisclosure set forth in Rule 6(e)(2).
On December 5, 1979, the district court denied the disclosure motion on the ground that the Commission had failed to make the showing of “particular need” or “compelling necessity” required to overcome the policy of secrecy encompassed by Rule 6(e). Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959); United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958).
The Commission contends that the district judge erred in basing the denial of the motion on Rule 6(e) because the documents are not “matters occurring before the grand jury” within the meaning of the Rule. In defending the decision by the district court, Rittenhouse and Severance first challenge our jurisdiction over the appeal. They urge that the order is neither final under 28 U.S.C. § 1291 nor an appealable collateral order under the exception to § 1291 recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Appellees find support for their position in In Re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978), where the court found an order denying disclosure of grand jury material to a state investigator to be analogous to a discovery ruling, and thus interlocutory and nonappealable. On the merits, appellees argue that Rule 6(e) is indeed applicable, and that the policy of grand jury secrecy thus precludes disclosure of their records to the Commission.
II. DISCUSSION
A. Appealability
We first hold that we have jurisdiction to entertain this appeal because the district court’s order was entered in an independent, plenary proceeding that conclusively resolved the only controversy between the parties. Accordingly, it is a final order appealable under 28 U.S.C. § 1291. In Matter of Grand Jury Empanelled Feb. 14, 1978, 597 F.2d 851, 857-58 (3d Cir. 1979); Gibson v. United States, 403 F.2d 166 (D.C. Cir. 1968).
The motion for disclosure was the sole matter affecting the Commission’s rights before the district court; it was not in any way part of or connected with the grand jury proceeding. The grand jury simply happened to have possession of records also subpoenaed by the Commission, a separate authority pursuing a distinct inquiry. The Commission’s reasons for seeking access are unrelated to the substance of the grand jury’s investigation, and it has no interest in the grand jury proceedings except for the somewhat fortuitous occurrence that that body had, for a different purpose, previously acquired custody over the records that it now seeks. For these reasons, the Commission’s motion was independent of the grand jury proceedings, and it is therefore irrelevant to the finality of the order of the district court that the grand jury’s deliberations are ongoing.
Illustrative of the discrete, and thus final, nature of the district court’s order is the fact that an immediate appeal poses no danger of delaying or disrupting the grand jury proceedings. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The grand jury need not suspend its investigation while a recalcitrant witness seeks to appeal an order compelling the production of documents, for the Commission merely requests an opportunity to examine and copy the records. The Commission assures us, and there is no contradiction, that the grand jury would be without the documents for a few days only.
The finality of the order below is also evident from the lack of other avenues of review available to the Commission. The Commission does not have the option of putting itself in contempt to gain immediate review, see Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940). Moreover, and if it waits to press an appeal until the conclusion of the grand jury proceedings, its legislative mission will have long since expired, rendering the requested materials useless. See Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), where the Supreme Court held that an order denying a motion to prevent the production of documents before a grand jury was a final, appealable decision because Perlman had no other means “to avert the mischief of the order.” Espousing a flexible concept of finality, the Court indicated that the doctrine should not be used as a means of denying meaningful appellate review.
We are not persuaded by appellee’s arguments that In Re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978), controls this situation. There, a state investigator who had probed the same charges sought access to the entire proceedings of the grand jury, in order that he could assist that body. Central to the court’s finding of nonappealability was its conclusion that the disclosure motion was integral to the grand jury investigation, so that the order appealed from was undeniably issued in connection with an ongoing matter. 580 F.2d at 16-17. As we have previously discussed, the Commission’s motion here is not connected with the grand jury investigation, but rather constitutes an independent matter.
B. Applicability of F.R.Crim.P. 6(e)
In order to accept the argument of Rittenhouse and Severance that Rule 6(e) applies to forbid disclosure of the requested documents, it would be necessary to conclude that the Rule prevents disclosure, for any purpose, of documents once they are subpoenaed by a grand jury. We cannot so conclude, however, because the policy of secrecy is not absolute. United States v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), cert. denied 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1974). Rule 6(e) shields solely “matters occurring before the grand jury.” It is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process. See, e. g., United States v. Proctor & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958); United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954). The Rule is not intended “to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury.” United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). The mere fact that a particular document is reviewed by a grand jury does not convert it into a “matter occurring before the grand jury” within the meaning of 6(e). Documents such as the business records sought by the Commission here are created for purposes independent of grand jury investigations, and such records have many legitimate uses unrelated to the substance of the grand jury proceedings. See United States v. Stanford, supra, at 291.
As the Second Circuit stated in United States v. Interstate Dress Carriers, supra, while granting the request of the Interstate Commerce Commission for disclosure of a trucking company’s records in the custody of a grand jury:
[W]hen testimony or data is sought for its own sake-for its intrinsic value in the furtherance of a lawful investigation-rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury.
280 F.2d at 54. Thus, once the New Jersey Commission demonstrated a legitimate purpose flowing from its investigatory authority for subpoenaeing the records of Rittenhouse and Severance, disclosure should not have been denied simply because a grand jury had reviewed the documents in an unrelated matter. Access to the records should be refused only if it would compromise the secrecy of the grand jury. The district court erred in assuming that Rule 6(e) automatically controlled when it required the Commission to show a compelling necessity for production from the outset. “If the reasons for maintaining secrecy do not apply at all in a given situation, or apply to only an insignificant degree, the party seeking disclosure should not be required to demonstrate a large compelling need.” U.S. Industries, Inc. v. United States District Court, 345 F.2d 18 (9th Cir. 1965). In this instance, where the documents are sought for use in an investigation into a different subject than the matter before the grand jury, the party objecting to production must first prove that the policy of grand jury secrecy would be jeopardized. Otherwise, the request for access is not governed by Rule 6(e).
Because the record before us does not include the documents sought by the Commission, we must leave to the district court the task of evaluating whether disclosure would reveal “matters occurring before,” or the content of, the grand jury proceedings. If the district court specifically finds that the secrecy policy of Rule 6(e) is implicated, only then should the Commission be required to show a “particular need” or “compelling necessity” for disclosure.
III. CONCLUSION
The order of the district court will be vacated and the matter remanded for further proceedings consistent with this opinion.
. Rule 6(e), F.R.Crim.P., provides in part:
(e) Secrecy of Proceedings and Disclosure. (1) General Rule. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the Government, or any person to whom disclosure is made under paragraph (2)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of rule 6 may be punished as a contempt of court.
(2) Exceptions.
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to-
(i) an attorney for the government for use in the performance of such attorney’s duty; and
(ii) such government personnel as are deemed necessary by an attorney for the government ... in the performance of such attorney’s duty to enforce Federal criminal law.
(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made-
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
(ii) when permitted by a court at the request of the defendant, upon showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
(emphasis added).
. Although there is some question whether Rittenhouse and Severance have standing to argue against disclosure, since the government, which is the custodian of the records and protector of grand jury secrecy, had no objection to access, the parties neither raised this issue in the district court nor argued it on appeal. It is the policy of this Court to refrain from considering points not pressed by the parties unless the issue either goes to our jurisdiction or is of constitutional dimension. United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). Our jurisdiction is affected only when the standing problem in a particular case implicates the constitutional aspects of the standing doctrine, namely, whether the dispute is presented in an adversary context and in a form capable of judicial resolution. There are also prudential policy considerations that bear on the question of standing, however, which are not necessarily derived from the Constitution. See Americans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252 (3d Cir. 1980). In this case, a concrete controversy clearly is presented, and thus the standing problem involves only the prudential consideration whether appellees are the proper parties to defend the decision reached by the district court. Accordingly, following the policy set forth in Dansker, there is no occasion in the present situation to address the question of standing.
. Rittenhouse and Severance contend that the order is not conclusive because the district court indicated that it might entertain another motion by the Commission offering compelling reasons for overcoming Rule 6(e). A mere suggestion, however, that a court might reconsider an order upon a new and adequate showing does not destroy the final character of the order. FTC v. Texaco, 517 F.2d 137, 143 n.6 (D.C.Cir.1975); reh. en banc, 555 F.2d 862, 873 n.21 (D.C.Cir.1977), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), counsels us to construe orders practically, rather than technically, in determining their finality. Thus, we should not invoke the finality doctrine to encourage wasted resources by requiring parties to redo what they have already done before affording them appellate review.
. See United States v. Calandra, 455 F.2d 750 (6th Cir. 1972), where Calandra, subpoenaed to testify before a grand jury, moved (a) to suppress certain evidence, and (b) for an order insulating him from answering questions based on the evidence. The district court granted the motion, and the court of appeals proceeded to consider the government’s appeal holding that the motion was a plenary proceeding unrelated to the pending grand jury investigation.
. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), in which the Court held the denial of a grand jury witness’ motion to quash a subpoena duces tecum to be nonappealable, is thus inapplicable. In Cobbledick the Court was motivated by the need to avoid interruption and delay of the grand jury’s work from interlocutory appeals by various witnesses. Since the Commission’s motion presents no such danger, the appeal here does not implicate the policy or holding of Cobbledick.
. Letter-brief for appellant, June 6, 1980, at 4.
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:
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sc_caseorigin
|
066
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
CHEVRON OIL CO. v. HUSON
No. 70-11.
Argued October 20, 1971
Decided December 6, 1971
Lloyd C. Melancon argued the cause and filed a brief for petitioner.
Samuel C. Gainsburgh argued the cause and filed a brief for respondent.
Mr. Justice Stewart
delivered the opinion of the Court.
The respondent, Gaines Ted Huson, suffered a back injury while working on an artificial island drilling rig owned and operated by the petitioner, Chevron Oil Co., and located on the Outer Continental Shelf off the Gulf Coast of Louisiana. The injury occurred in December 1965. Allegedly, it was not until many months later that the injury was discovered to be a serious one. In January 1968 the respondent brought suit for damages against the petitioner in federal district court. The respondent’s delay in suing the petitioner ultimately brought his case to this Court.
The issue presented is whether the respondent’s action is time barred and, more particularly, whether state or federal law determines the timeliness of the action. That issue must be resolved under the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq. (hereinafter “Lands Act”), which governs injuries occurring on fixed structures on the Outer Continental Shelf. When this lawsuit was initiated, there was a line of federal court decisions interpreting the Lands Act to make general admiralty law, including the equitable doctrine of laches, applicable to personal injury suits such as the respondent’s. The petitioner did not question the timeliness of the action as a matter of laches. While pretrial discovery proceedings were still under way, however, this Court announced its decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352. That decision entirely changed the complexion of this case. For it established that the Lands Act does not make admiralty law applicable to actions such as this one. Relying on Rodrigue, the District Court held that Louisiana’s one-year limitation on personal injury actions, rather than the admiralty doctrine of laches, must govern this case. It concluded, therefore, that the respondent's action was time barred and granted summary judgment for the petitioner.
On appeal, the respondent argued that Rodrigue should not be applied retroactively to bar actions filed before the date of its announcement. But the Court of Appeals declined to reach that question. Instead, it held that the interpretation of the Lands Act in Rodrigue does not compel application of the state statute of limitations or prevent application of the admiralty doctrine of laches. It concluded that the doctrine of laches should have been applied by the District Court and, therefore, reversed that court’s judgment and remanded the case for trial. 430 F. 2d 27. We granted certiorari to consider the Court of Appeals’ construction of the Lands Act and of Rodrigue. 402 U. S. 942. We hold that the Lands Act, as interpreted in Rodrigue, requires that the state statute of limitations be applied to personal injury actions. We affirm the judgment of the Court of Appeals, however, on the ground that Rodrigue should not be invoked to require application of the Louisiana time limitation retroactively to this case.
I
The Lands Act makes the Outer Continental Shelf, including fixed structures thereon, an area of exclusive federal jurisdiction, 43 U. S. C. § 1333 (a)(1). The Act extends the laws of the United States to this area, 43 U. S. C. § 1333 (a)(1), and provides that the laws of the adjacent State shall also apply “[t]o the extent that they are applicable and not inconsistent” with applicable federal laws, 43 U. S. C. § 1333 (a)(2). To the extent that a comprehensive body of federal law is applicable under § 1333 (a)(1), state law “inconsistent” with that law would be inapplicable under § 1333 (a)(2).
In Rodrigue, we clarified the scope of application of federal law and state law under § 1333 (a) (1) and § 1333 (a)(2). By rejecting the view that comprehensive admiralty law remedies apply under § 1333 (a)(1), we ^recognized that there exists a substantial “gap” in federal law. Thus, state law remedies are not “inconsistent” with applicable federal law. Accordingly, we held that, in order to provide a remedy for wrongful death, the “gap” must be filled with the applicable body of state law under § 1333 (a)(2).
The Court of Appeals acknowledged that Rodrigue clearly establishes that the remedy for personal injury, as for wrongful death, cannot be derived from admiralty law but must be governed by the law of the adjacent State, Louisiana. But the court held that Louisiana’s time limitation on personal injury actions need not be applied with the substantive remedy. It supported this holding by reference to the terms of § 1333 (a) (2) that limit the application of state law under the Lands Act. The Louisiana time limitation, the Court of Appeals reasoned, is not “applicable” of its own force and is “inconsistent” with the admiralty doctrine of laches. The court held that, despite the holding in Rodrigue, the laches doctrine is applicable as a matter of federal common law. We must disagree.
The Court of Appeals did not suggest that state statutes of limitations are per se inapplicable under § 1333 (a)(2). Rather, it focused on the peculiar nature of the Louisiana time limitation on personal injury actions found in Art. 3536, La. Civ. Code Ann. Article 3536 provides that personal injury actions shall be “prescribed” by one year. The Court of Appeals attached much significance to the fact that Art. 3536 “prescribes,” rather than “perempts,” such actions. Under Louisiana law, “prescription,” unlike “peremption,” bars the remedy but does not formally extinguish the right to recovery. See Page v. Cameron Iron Works, 259 F. 2d 420, 422-424; Istre v. Diamond M. Drilling Co., 226 So. 2d 779, 794-795 (La. App.); Succession of Pizzillo, 223 La. 328, 335, 65 So. 2d 783, 786. This characterization has importance under principles of the conflict of laws. It has been held, as a matter of Louisiana conflicts law, that mere “prescriptive” time limitations are not binding outside their own forum. See Fidelity & Casualty Co. v. C/B Mr. Kim, 345 F. 2d 45, 50; Kozan v. Comstock, 270 F. 2d 839, 841; Istre v. Diamond M. Drilling Co., supra, at 795. Reasoning from this principle of conflicts law, the Court of Appeals concluded that the “prescriptive” limitation is not “applicable” in a federal court adjudicating a claim under the Lands Act.
We hold, however, that the “prescriptive” nature of Art. 3536 does not undercut its applicability under the Lands Act. Under § 1333 (a) (2) of the Act, “[s]tate law bec[omes] federal law federally enforced.” Rodrigue v. Aetna Casualty & Surety Co., supra, at 365. It was the intent of Congress, expressed in the Senate Committee Report, in the Conference Report, and on the floor of the Senate, that state laws be “adopted” or “enacted” as federal law. See id., at 357-358. Thus a federal court applying Louisiana law under § 1333 (a) (2) of the Lands Act is applying it as federal law — as the law of the federal forum. Since the federal court is not, then, applying the law of another forum in the usual sense, ordinary conflict of laws principles have no relevance. Article 3536 is “applicable” in federal court under the Lands Act just as it would be applicable in a Louisiana court.
The policies underlying the federal absorption of state law in the Lands Act make this result particularly obvious. As we pointed out in Rodrigue, Congress recognized that “ 'the Federal Code was never designed to be a complete body of law in and of itself’ ” and thus that a comprehensive body of state law was needed. Id., at 358, 361. Congress also recognized that the “special relationship between the men working on these artificial islands and the adjacent shore to which they commute” favored application of state law with which these men and their attorneys would be familiar. Id., at 365; see id., at 363. If Congress’ goal was to provide a comprehensive and familiar body of law, it would defeat that goal to apply only certain aspects of a state personal injury remedy in federal court. A state time limitation upon a remedy is coordinated with the substance of the remedy and is no less applicable under the Lands Act.
The application of Louisiana’s Art. 3536 is, of course, subject to the absence of “inconsistent” and applicable federal law. The Court of Appeals acknowledged that Rodrigue forecloses direct applicability of the “inconsistent” laches doctrine through admiralty law. But, by applying laches as a matter of federal common law, it sought to reintroduce the doctrine through a back door. This approach subverts the congressional intent documented in Rodrigue, id., at 359-366, that admiralty doctrines should not apply under the Lands Act.
Moreover, the Court of Appeals’ approach amounts to an inappropriate creation of federal common law. Even when a federal statute creates a wholly federal right but specifies no particular statute of limitations to govern actions under the right, the general rule is to apply the state statute of limitations for analogous types of actions. See Auto Workers v. Hoosier Corp., 383 U. S. 696; Cope v. Anderson, 331 U. S. 461; Campbell v. Haverhill, 155 U. S. 610; Note, Federal Statutes Without Limitations Provisions, 53 Col. L. Rev. 68 (1953). A special federal statute of limitations is created, as a matter of federal common law, only when the need for uniformity is particularly great or when the nature of the federal right demands a particular sort of statute of limitations. See Holmberg v. Armbrecht, 327 U. S. 392; McAllister v. Magnolia Petroleum Co., 357 U. S. 221. But, under the Lands Act, there is not even such limited freedom to create a federal statute of limitations, for Congress specified that a comprehensive body of state law should be adopted by the federal courts in the absence of existing federal law. Congress specifically rejected national uniformity and specifically provided for the application of state remedies which demand state, not federal, statutes of limitation. Thus, Congress made clear provision for filling in the “gaps” in federal law; it did not intend that federal courts fill in those “gaps” themselves by creating new federal common law.
II
Although we hold that Louisiana’s one-year statute of limitations must be applied under the Lands Act as interpreted in Rodrigue, we do not blind ourselves to the fact that this is, in relevant respect, a pre-Rodrigue case. The respondent’s injury occurred more than three years before the announcement of our decision in Rodrigue. He instituted the present lawsuit more than one year before Rodrigue. Yet, if the Louisiana statute of limitations controls in this case, his action was time barred more than two years before Rodrigue. In these circumstances, we must consider the respondent’s argument that the state statute of limitations should be given nonretro-active application under Rodrigue.
In recent years, the nonretroactive application of judicial decisions has been most conspicuously considered in the area of the criminal process. E. g., Mackey v. United States, 401 U. S. 667; Hill v. California, 401 U. S. 797; Desist v. United States, 394 U. S. 244; Linkletter v. Walker, 381 U. S. 618. But the problem is by no means limited to that area. The earliest instances of nonretro-activity in the decisions of this Court — more than a century ago — came in cases of nonconstitutional, noncriminal state law. E. g., Gelpcke v. City of Dubuque, 1 Wall. 175; Havemeyer v. Iowa County, 3 Wall. 294; Railroad Co. v. McClure, 10 Wall. 511. It was in a noncriminal case that we first held that a state court may apply its decisions prospectively. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358. And, in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases. Cipriano v. City of Houma, 395 U. S. 701; Allen v. State Board of Elections, 393 U. S. 544; Hanover Shoe v. United Shoe Machinery Corp., 392 U. S. 481; Simpson v. Union Oil Co., 377 U. S. 13; England v. State Board of Medical Examiners, 375 U. S. 411; Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371.
In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e. g., Hanover Shoe v. United Shoe Machinery Corp., supra, at 496, or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e. g., Allen v. State Board of Elections, supra, at 572. Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, supra, at 629. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, supra, at 706.
Upon consideration of each of these factors, we conclude that the Louisiana one-year statute of limitations should not be applied retroactively in the present case. Rodrigue was not only a case of first impression in this Court under the Lands Act, but it also effectively overruled a long line of decisions by the Court of Appeals for the Fifth Circuit holding that admiralty law, including the doctrine of laches, applies through the Lands Act. See, e. g., Pure Oil Co. v. Snipes, 293 F. 2d 60; Movible Offshore Co. v. Ousley, 346 F. 2d 870; Loffland Bros. Co. v. Roberts, 386 F. 2d 540. When the respondent was injured, for the next two years until he instituted his lawsuit, and for the ensuing year of pretrial proceedings, these Court of Appeals decisions represented the law governing his case. It cannot be assumed that he did or could foresee that this consistent interpretation of the Lands Act would be overturned. The most he could do was to rely on the law as it then was. “We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights.” Griffin v. Illinois, 351 U. S. 12, 26 (Frankfurter, J., concurring in judgment).
To hold that the respondent’s lawsuit is retroactively time barred would be anomalous indeed. A primary purpose underlying the absorption of state law as federal law in the Lands Act was to aid injured employees by affording them comprehensive and familiar remedies. Rodrigue v. Aetna Casualty & Surety Co., supra, at 361, 365. Yet retroactive application of the Louisiana statute of limitations to this case would deprive the respondent of any remedy whatsoever on the basis of superseding legal doctrine that was quite unforeseeable. To abruptly terminate this lawsuit that has proceeded through lengthy and, no doubt, costly discovery stages for a year would surely be inimical to the beneficent purpose of the Congress.
It would also produce the most “substantial inequitable results,” Cipriano v. City of Houma, supra, at 706, to hold that the respondent “slept on his rights” at a time when he could not have known the time limitation that the law imposed upon him. In Cipriano v. City of Houma, supra, we invoked the doctrine of nonretroactive application to protect property interests of “cities, bondholders, and others connected with municipal utilities”; and, in Allen v. State Board of Elections, supra, we invoked the doctrine to protect elections held under possibly discriminatory voting laws. Certainly, the respondent’s potential redress for his allegedly serious injury— an injury that may significantly undercut his future earning power — is entitled to similar protection. As in England v. State Board of Medical Examiners, supra, nonretroactive application here simply preserves his right to a day in court.
Both a devotion to the underlying purpose of the Lands Act’s absorption of state law and a weighing of the equities requires nonretroactive application of the state statute of limitations here. Accordingly, although holding that the opinion of the Court of Appeals reflects a misapprehension of Rodrigue, we affirm its judgment remanding this case to the trial court.
It is so ordered.
Mr. Justice Douglas.
Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352, does not, with all respect, require reversal in this case. Accordingly, I would affirm the judgment of the Court of Appeals without reaching the question of the retroactivity of Rodrigue.
Rodrigue, like the present case, arose under the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq. That Act created a federal cause of action for offshore injuries enforceable in the federal courts, but made state laws applicable. 43 U. S. C. § 1333 (a)(2).
In Rodrigue, La. Civ. Code Ann., Art. 2315 (1970) was relevant, which provides in part: “The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased . . . .”
In the present case Art. 3536 of the Code is applicable and it reads: “The following actions are also prescribed by one year:
“That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.”
The latter limitation is “prescriptive” only, i. e., that while the Louisiana remedy is barred, the right is not. Under Art. 3536, the limitation runs only to the remedy and would not be applicable in another forum applying the substantive right. Istre v. Diamond M. Drilling Co., 226 So. 2d 779, 794-799 (La. App. 1969). Respondent, therefore, argues that the federal doctrine of laches is the only limitation upon his right of recovery and that it is inapplicable where, as here, there is no prejudice to the defendant and any delay in filing the lawsuit was reasonably excusable. See, e. g., Akers v. State Marine Lines, 344 F. 2d 217.
The Louisiana courts consider the distinction between peremptive and prescriptive limitations important; and by reason of the federal statute, making Louisiana law applicable, federal courts are bound by the distinction. Richards v. United States, 369 U. S. 1. As stated in Rodrigue the federal Act “supplemented gaps in the federal law with state law through the 'adoption of State law as the law of the United States.’ ” 396 U. S., at 357.
In Rodrigue — an action for wrongful death — the right is extinguished, if the action for recovery is not brought within a year of the death. Kenney v. Trinidad Corp., 349 F. 2d 832; Mejia v. United States, 152 F. 2d 686. Under Art. 3536 — which governs here — Louisiana law holds that it i's merely a “procedural restraint which bars the remedy, but does not extinguish the right.” Fidelity & Casualty Co. v. C/B Mr. Kim, 345 F. 2d 45, 50 (CA5 1965). See also Page v. Cameron Iron Works, 259 F. 2d 420, 422 (CA5 1958); Jackson v. Continental Southern Lines, 172 F. Supp. 809 (WD Ark. 1959
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
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Answer:
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sc_authoritydecision
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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.
NEGUSIE v. HOLDER, ATTORNEY GENERAL
No. 07-499.
Argued November 5, 2008
Decided March 3, 2009
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined, post, p. 525. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined, post, p. 528. Thomas, J., filed a dissenting opinion, post, p. 538.
Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld and Dan Kahan.
Assistant Attorney General Katsas argued the cause for respondent. With him on the brief were former Solicitor General Garre, then-Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Dupree, Nicole A. Saharsky, Donald E. Keener, Keith I. McManus, and Jennifer J Keeney.
Briefs of amici curiae urging reversal were filed for Advocates for Human Rights by Benjamin Casper and Heather McElroy; for the American Jewish Congress et al. by Charles G. Moerdler, Christian Fletcher, Marc D. Stern, Jeffrey P. Sinensky, and Kara H. Stein; for the Becket Fund for Religious Liberty et al. by Eric C. Rassbach; for Human Rights First et al. by Steven H. Schulman and Patricia A. Millett; for the Office of the United Nations High Commissioner for Refugees by H. Elizabeth Dallam and Pamela Goldberg; and for Scholars of International Refugee Law by Mark C. Fleming and Deborah Anker.
Justice Kennedy
delivered the opinion of the Court.
An alien who fears persecution in his homeland and seeks refugee status in this country is barred from obtaining that relief if he has persecuted others.
“The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Immigration and Nationality Act (INA), §101, 66 Stat. 166, as added by Refugee Act of 1980, § 201(a), 94 Stat. 102-103, 8 U. S. C. § 1101(a)(42).
This so-called “persecutor bar” applies to those seeking asylum, § 1158(b)(2)(A)(i), or withholding of removal, § 1231(b)(3)(B)(i). It does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U. N. T. S. 85; 8 CFR § 1208.17(a) (2008).
In this ease the Board of Immigration Appeals (BIA) determined that the persecutor bar applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.
I
Petitioner in this Court is Daniel Girmai Negusie, a dual national of Eritrea and Ethiopia, his father having been a national of the former and his mother of the latter. Born and educated in Ethiopia, he left there for Eritrea around the age of 18 to see his mother and find employment. The year was 1994. After a few months in Eritrea, state officials took custody of petitioner and others when they were attending a movie. He was forced to perform hard labor for a month and then was conscripted into the military for a time. War broke out between Ethiopia and Eritrea in 1998, and he was conscripted again.
When petitioner refused to fight against Ethiopia, his other homeland, the Eritrean Government incarcerated him. Prison guards punished petitioner by beating him with sticks and placing him in the hot sun. He was released after two years and forced to work as a prison guard, a duty he performed on a rotating basis for about four years. It is undisputed that the prisoners he guarded were being persecuted on account of a protected ground — i. e., “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. § 1101(a)(42). Petitioner testified that he carried a gun, guarded the gate to prevent escape, and kept prisoners from taking showers and obtaining fresh air. He also guarded prisoners to make sure they stayed in the sun, which he knew was a form of punishment. He saw at least one man die after being in the sun for more than two hours. Petitioner testified that he had not shot at or directly punished any prisoner and that he helped prisoners on various occasions. Petitioner escaped from the prison and hid in a container, which was loaded on board a ship heading to the United States. Once here he applied for asylum and withholding of removal.
In a careful opinion the Immigration Judge, W. Wayne Stogner, found that petitioner’s testimony, for the most part, was credible. He concluded that petitioner assisted in persecution by working as an armed guard. The judge determined that although “there’s no evidence to establish that [petitioner] is a malicious person or that he was an aggressive person who mistreated the prisoners,. . . the very fact that he helped [the government] in the prison compound where he had reason to know that they were persecuted constitutes assisting in the persecution of others and bars [petitioner] from” obtaining asylum or withholding of removal. App. to Pet. for Cert. 16a-17a (citing, inter alia, Fedorenko, supra). The judge, however, granted deferral of removal under CAT because petitioner was likely to be tortured if returned to Eritrea.
The BIA affirmed the denial of asylum and withholding. It noted petitioner’s role as an armed guard in a facility where “prisoners were tortured and left to die out in the sun ... on account of a protected ground.” App. to Pet. for Cert. 6a. The BIA held that “[t]he fact that [petitioner] was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial.” Ibid. That is because “‘an alien’s motivation and intent are irrelevant to the issue of whether he “assisted” in persecution .... [I]t is the objective effect of an alien’s actions which is controlling.’” Ibid, (quoting Matter of Fedorenko, 19 I. & N. Dec. 57,69 (BIA 1984)). The BIA also affirmed the grant of deferral of removal under CAT.
On petition for review the Court of Appeals agreed with the BIA that whether an alien is compelled to assist in persecution is immaterial for persecutor-bar purposes. Negusie v. Gonzales, 231 Fed. Appx. 325, 326 (2007) (per curiam) (citing Fedorenko, supra, at 512, n. 34). We granted certiorari. 552 U. S. 1255 (2008).
II
Consistent with the rule in Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA. The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise.
A
JHris well settled that “principles of Chevron deference áre applicable to this statutory scheme.” INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999). Congress has charged the Attorney General with administering the INA, and a “ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U. S. C. § 1103(a)(1). Judicial deference in the immigration context is of special importance, for executive officials “exercise especially sensitive political functions that implicate questions of foreign relations.” INS v. Abudu, 485 U. S. 94, 110 (1988). The Attorney General’s decision to bar an alien who has participated in persecution “may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.” Aguirre-Aguirre, 526 U. S., at 425.
The Attorney General, in turn, has delegated to the BIA the “ ‘discretion and authority conferred upon the Attorney General by law’ ” in the course of “ ‘considering and determining cases before it.’” Ibid, (quoting 8 CFR §3.1(d)(1) (1998)). As a consequence, “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.’” Aguirre-Aguirre, supra, at 425 (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 448-449 (1987)). When the BIA has not spoken on “a matter that statutes place primarily in agency hands,” our ordinary rule is to remand to “giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise.” INS v. Orlando Ventura, 537 U. S. 12, 16-17 (2002) (per curiam).
B
The parties disagree over whether coercion or duress is relevant in determining if an alien assisted or otherwise participated in persecution. As there is substance to both contentions, we conclude that the statute has an ambiguity that the agency should address in the first instance.
Petitioner argues that the statute’s plain language makes clear that involuntary acts do not implicate the persecutor bar because “‘persecution’” presumes moral blameworthiness. Brief for Petitioner 23-28. He invokes principles of criminal culpability, concepts of international law, and the rule of lenity. Id., at 28-45. Those arguments may be persuasive in determining whether a particular agency interpretation is reasonable, but they do not demonstrate that the statute is unambiguous. Petitioner all but conceded as much at argument in this Court when he indicated that the BIA has discretion to construe the duress defense in either a narrow or a broad way. Tr. of Oral Arg. 20-24.
The Government, on the other hand, asserts that the statute does not allow petitioner’s construction. “The statutory text,” the Government says, “directly answers that question: there is no exception” for conduct that is coerced because Congress did not include one. Brief for Respondent 11. We disagree. The silence is not conclusive. The question is whether the statutory text mandates that coerced actions must be deemed assistance in persecution. On that point the statute, in its precise terms, is not explicit. Nor is this a case where it is clear that Congress had an intention on the precise question at issue. Cf. Cardoza-Fonseca, supra, at 448-449.
The Government, like the BIA and the Court of Appeals, relies on Fedorenko to provide the answer. This reliance is not without some basis, as the Court there held that voluntariness was not required with respect to another persecutor bar. 449 U. S., at 512. To the extent, however, the Government deems Fedorenko to be controlling, it is in error.
In Fedorenko, the Court interpreted the Displaced Persons Act of 1948 (DPA), 62 Stat. 1009. The DPA was enacted “to enable European refugees driven from their homelands by the [second world] war to emigrate to the United States without regard to traditional immigration quotas.” 449 U. S., at 495. Section 2(b) of the DPA provides relief to “any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization” of the United Nations (IRO Constitution). 62 Stat. 1009. The IRO Constitution, as codified by Congress, excludes any individual “who can be shown: (a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Pt. II, §2, 62 Stat. 3051-3052.
The Fedorenko Court held that “an individual’s service as a concentration camp armed guard — whether voluntary or involuntary — made him ineligible for a visa” under §2(q) of the IRO Constitution. 449 U. S., at 512. That Congress did not adopt a voluntariness requirement for §2(q), the Court noted, “is plain from comparing §2(q) with § 2(5), which excludes only those individuals who ‘voluntarily assisted the enemy forces.’ ” Ibid. The Court relied on the principle of statutory construction that “the deliberate omission of the word ‘voluntary’ from §2(o) compels the conclusion that the statute made all those who assisted in persecution of civilians ineligible for visas.” Ibid.
Fedorenko does not compel the same conclusion in the case now before us. The textual structure of the statute in Fedorenko (“voluntary” is in one subsection but not the other) is not part of the statutory framework considered here. Congress did not use the word “voluntary” in any subsection of the persecutor bar, so its omission cannot carry the same significance.
The difference between the statutory scheme in Fedorenko and the one here is confirmed when we “ ‘look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.’ ” Dada v. Mukasey, 554 U. S. 1, 16 (2008) (quoting Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991)). Both statutes were enacted to reflect principles set forth in international agreements, but the principles differ in significant respects.
As discussed, Congress enacted the DPA in 1948 as part of an international effort to address individuals who were forced to leave their homelands during and after the Second World War. Fedorenko, supra, at 495. The DPA excludes those who “voluntarily assisted the enemy forces since the outbreak of the second world war,” 62 Stat. 3052, as well as all who “assisted the enemy in persecuting civil populations of countries,” id., at 3051. The latter exclusion clause makes no reference to culpability. The exclusion of even those involved in nonculpable, involuntary assistance in Nazi persecution, as an expert testified in Fedorenko, may be “‘[because the crime against humanity that is involved in the concentration camp puts it into a different category.’ ” 449 U. S., at 511, n. 32.
The persecutor bar in this case, by contrast, was enacted as part of the Refugee Act of 1980. Unlike the DPA, which was enacted to address not just the postwar refugee problem but also the Holocaust and its horror, the Refugee Act was designed to provide a general rule for the ongoing treatment of all refugees and displaced persons. As this Court has twice recognized, “‘one of Congress’ primary purposes’ in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. 6577 (1968),” as well as the “United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28,1951), reprinted in 19 U. S. T. 6259.” Aguirre-Aguirre, 526 U. S., at 427 (quoting Cardoza-Fonseca, 480 U. S., at 436-437).
These authorities illustrate why Fedorenko, which addressed a different statute enacted for a different purpose, does not control the BIA’s interpretation of this persecutor bar. Whatever weight or relevance these various authorities may have in interpreting the statute should be considered by the agency in the first instance, and by any subsequent reviewing court, after our remand.
c
The Government argues that “if there were any ambiguity in the text, the Board’s determination that the bar contains no such exception is reasonable and thus controlling.” Brief for Respondent 11. Whether such an interpretation would be reasonable, and thus owed Chevron deference, is a legitimate question; but it is not now before us. The BIA deemed its interpretation to be mandated by Fedorenko, and that error prevented it from a full consideration of the statutory question here presented.
In denying relief in this case the BIA recited a rule that has developed in its own case law in reliance on Fedorenko: “[A]n alien’s motivation and intent are irrelevant to the issue of whether he ‘assisted’ in persecution.... [I]t is the objective effect of an alien’s actions which is controlling.” App. to Pet. for Cert. 6a. The rule is based on three earlier decisions: Matter of Laipenieks, 18 I. & N. Dec. 433 (1983); Matter of Fedorenko, 19 I. & N. Dec. 57; and Matter of Rodriguez-Majano, 19 I. & N. Dec. 811 (1988).
In Matter of Laipenieks, the BIA applied the Court’s Fedorenko analysis of the DPA to a different postwar statute, which provided for the deportation of anyone associated with the Nazis who “ordered, incited, assisted, or otherwise participated” in persecution based on a protected ground. 8 U. S. C. § 1182(a)(3)(E)(i). Finding no agency or judicial decision on point, the BIA relied on Fedorenko. It recognized that the unique structure of the Fedorenko statute was not present in § 1182(a)(3)(E)(i), but the BIA nevertheless adopted wholesale the Fedorenko rule: “[A]s in Fedorenko, ... the plain language of [§ 1182(a)(3)(E)(i)] mandates a literal interpretation, and the omission of an intent element compels the conclusion that [§ 1182(a)(3)(E)(i)] makes all those who assisted in the specific persecution deportable.” 18 I. & N. Dec., at 464 (emphasis deleted). In other words, “particular motivations or intent ... is not a relevant factor.” Ibid.
The second decision, Matter of Fedorenko, also dealt with § 1182(a)(3)(E)(i), and it involved'the same alien whose citizenship was revoked by this Court’s Fedorenko decision. This time the agency sought to deport him. Fedorenko responded by requesting suspension of deportation. He argued that, unlike the DPA’s bar on any assistance — voluntary or involuntary — in persecution, see Fedorenko, supra, at 512, the text and structure of § 1182(a)(3)(E)(i) required deportation only of those who voluntarily assisted in persecuting others. The BIA rejected that distinction, noting that it was foreclosed by Matter of Laipenieks: “It may be, as [Fedorenko] argues, that his service at Treblinka was involuntary. ... We need not resolve the issue, however, because as a matter of law [Fedorenko’s] motivations for serving as a guard at Treblinka are immaterial to the question of his deportability under” § 1182(a)(3)(E)(i). 19 I. & N. Dec., at 69-70.
Later, the BIA applied this Court’s Fedorenko rule to the persecutor bar that is at issue in the present case. In Matter of Rodriguez-Majano, the BIA granted relief because the alien’s coerced conduct as a guerrilla was not persecution based on a protected ground. 19 I. & N. Dec., at 815-816. Nevertheless, in reaching its conclusion the BIA incorporated without additional analysis the Fedorenko rule as applied in Matter of Laipenieks and reiterated in Matter of Fedorenko. 19 I. & N. Dec., at 814-815. The BIA reaffirmed that “[t]he participation or assistance of an alien in persecution need not be of his own volition to bar him from relief.” Id., at 814 (citing Fedorenko, 449 U. S. 490).
Our reading of these decisions confirms that the BIA has not exercised its interpretive authority but, instead, has determined that Fedorenko controls. This mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply the Fedorenko rule that motive and intent are irrelevant to the persecutor bar at issue in this case. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency.
Ill
Having concluded that the BIA has not yet exercised its Chevron discretion to interpret the statute in question, “ ‘ “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”’” Gonzales v. Thomas, 547 U. S. 183, 186 (2006) (per curiam) (quoting Ventura, 537 U. S., at 16, in turn quoting Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985)). This remand rule exists, in part, because “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005).
Justice Stevens would have the Court provide a definite answer to the question presented and then remand for further proceedings. That approach, however, is in tension with the “ordinary ‘remand’ rule.” Ventura, supra, at 18; see also Cajun Elec. Power Cooperative, Inc. v. FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion for the court by Silberman, J., joined by R. Ginsburg and Thomas, JJ.) (“[I]f an agency erroneously contends that Congress’ intent has been clearly expressed and has rested on that ground, we remand to require the agency to consider the question afresh in light of the ambiguity we see”). Thomas is illustrative. There, the agency had not determined whether a family may constitute a social group for the purposes of refugee status. The Ninth Circuit held that the family can constitute a protected social group and that the particular family at issue did qualify. 547 U. S., at 184-185. The Solicitor General sought review in this Court on “whether the Ninth Circuit erred in holding, in the first instance and without prior resolution of the questions by the relevant administrative agency, that members of a family can and do constitute a particular social group, within the meaning of the Act.” Id., at 185 (internal quotation marks omitted). He argued that the Ninth Circuit’s decision violated the Ventura ordinary remand rule. We agreed and summarily reversed. 547 U. S., at 184-185.
Ventura and Thomas counsel a similar result here. Because of the important differences between the statute before us and the one at issue in Fedorenko, we find it appropriate to remand to the agency for its initial determination of the statutory interpretation question and its application to this case. The agency’s interpretation of the statutory meaning of “persecution” may be explained by a more comprehensive definition, one designed to elaborate on the term in anticipation of a wide range of potential conduct; and that expanded definition in turn may be influenced by how practical, or impractical, the standard would be in terms of its application to specific cases. These matters may have relevance in determining whether its statutory interpretation is a permissible one.
As the Court said in Ventura and reiterated in Thomas, “ ‘[t]he agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.’” 547 U. S., at 186-187 (quoting Ventura, supra, at 17). If the BIA decides to adopt a standard that considers voluntariness to some degree, it may be prudent and necessary for the Immigration Judge to conduct additional factfinding based on the new standard. Those determinations are for the agency to make in the first instance.
* * *
We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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_crmproc1
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8
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Appellee, v. Tommy L. BUTLER et al., Appellants.
Nos. 73-1359, 73-1360, 73-1362 and 73-1363.
United States Court of Appeals, Tenth Circuit.
Submitted Jan. 7, 1974.
Decided April 4, 1974.
Rehearing Denied May 31, 1974.
Arthur S. Bay, of Bay, Hamilton, Re-negar & Lees, Oklahoma City, Okl., for appellant, Tommy L. Butler.
Gene Stipe, of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., for appellant, Phillip Leonard Gregg.
Paul A. Mancino, Jr., Cleveland, Ohio, for appellant, Wayne Herbert Reinke.
Mac Oyler, Oklahoma City, Okl., for appellant, Ronald James Slomkowski.
John E. Green and Susie Pritchett, Asst. U. S. Attys. (William R. Burkett, U. S. Atty., with them on the brief), for appellee.
Before SETH and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.
SETH, Circuit Judge.
The indictment originally charged twenty-three defendants in one count of conspiracy to convert Government property in violation of 18 U.S.C. § 641 and to commit depredation against Government property in violation of 18 U.S.C. § 1361, and charged various combinations of these defendants in forty additional counts alleging substantive violations of these statutes. The individual motions to sever were denied, and the consolidated trial took slightly more than one week. We have before us the appeals of four defendants.
All twenty-three persons originally indicted were military and civilian employees of the United States Air Force working at Tinker Air Force Base, Oklahoma. The military defendants were members of either the 3d Mobile Communications Group or the 1984th Telecommunications Squadron, while the defendant Gregg, a civilian, was employed in the Redistribution and Marketing (R & M) facility at Tinker. R & M is basically a storage facility and clearinghouse for obsolete or unserviceable Air Force equipment. By following appropriate procedures Air Force personnel can withdraw items of equipment from R & M for use by their units. Such equipment is often “cannibalized” to provide needed repair parts or components which are not available through normal supply channels. Equipment which cannot be reintroduced to Government use is eventually sold for salvage value to private buyers. Although R & M houses various classes of equipment, this case primarily involves radio and electronic related items.
During the period between August 1971 and January 1972, the defendants allegedly conspired to and did obtain numerous items of equipment from R & M to be converted to their own use or destroyed. Sergeant Greene; who entered a guilty plea, and Sergeant Johnson appear to have been the key figures in the operation and the persons responsible for obtaining most of the equipment. The appellant Gregg, in his capacity as a clerk at R & M, allegedly assisted the two sergeants in procuring the equipment and concealing its disposition. The remaining appellants were recipients of equipment thus obtained. In addition, the appellant Slomkowski, in concert with certain other members of the 1984th Squadron allegedly conspired to and did destroy some component parts to a teletype test unit which had originally been obtained from R & M.
Although these appeals were consolidated for purposes of argument, the number and variety of issues asserted in each necessitates their separate, individual consideration.
No. 7S-1S59 — Tommy L. Butler:
Appellant Butler was convicted under the general conspiracy count and under count 22 for having received a stolen radio in violation of 18 U.S.C. § 641. The record discloses that he was assigned to the 3d Mobile, and was a member of the same section as Sergeant Greene during a portion of the period during which the alleged conspiracy existed. Some time 'during November 1971 Sergeant Greene acquired a number of Jeep radios from R & M. After deciding that he personally could not use them, he apparently brought a number of them to the shop where he and Airman Butler worked and left them there with the understanding that anyone who wanted one could have one. Butler was apparently fairly new in the unit. Sergeant Greene, according to the record, may have indicated at the time that they were salvage and not accountable to the Air Force. Airman Butler carried one of the radios to his quarters on base, where he uncrated it, examined it briefly, recrated it, and placed it in his locker. Shortly thereafter Airman Butler was reassigned to the Philippines. Upon his departure he left the radio behind in his military locker. His roommate testified that he left no instructions as to its disposition.
Only twenty-four of the more than 1,200 pages of testimony given at trial pertain directly to Airman Butler. His involvement in the events leading to this prosecution was apparently confined to the incident described above. Nowhere in the record can we find testimony implicating him in a conspiracy. This court has often noted that the essence of the crime of conspiracy is an agreement to violate the law. Carter v. United States, 333 F.2d 354 (10th Cir.). While the agreement need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy. One cannot become a conspirator until he has entered such an agreement, and, of course, such entry can be after the conspiracy is formed, but we find no evidence that Airman Butler ever became a conspirator. Appearing as a Government witness, Sergeant Greene testified that Airman Butler, as well as other members of their section, was aware of the arrangement between himself and Sergeant Johnson for procuring equipment from R & M. Assuming this conclusion to be correct, mere knowledge or approval of or acquiescence in the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to a conspiracy. Jones v. United States, 365 F. 2d 87 (10th Cir.). There is no suggestion that Airman Butler was ever aware of any specific plan to obtain the radios from R & M, much less that he cooperated in such a plan. Rather, the clear inference is that Sergeant Greene appeared with the radios, and left them at the shop for whomever might want one as unaccountable salvage. It was not until that point that Airman Butler decided to take one to his quarters. Such an action alone simply cannot be interpreted as a decision to join a conspiracy. See United States v. Varelli, 407 F.2d 735 (7th Cir.).
We find the evidence equally insufficient to support conviction of the substantive offense of receiving stolen Government property in violation of 18 U.S.C. § 641. After taking the radio to his military quarters and examining it, Airman Butler placed it in his locker and apparently never again disturbed it. When he departed Tinker a few weeks later, it was left behind in the locker with no instructions as to its disposition. Nowhere does it appear that he attempted to remove it from the base or otherwise dispose of it to. his advantage. In the plain language of the statute, knowledge that the property is stolen and intent to convert it to one’s own use or gain are essential elements of the offense. Making the questionable assumption that Airman Butler knew that the radio had been stolen, his conduct, when viewed in the light of the other circumstances of this case, fails to carry sufficient suggestion of an intent to convert it to his own use or gain. It might even be argued, at least in a figurative sense, that the radio never left Government control.
We have evaluated the evidence, as we must, in the light most favorable to the Government and allowed it the benefit of every reasonable inference. Even so, we find the case against Airman Butler inadequate to support either conviction. We therefore reverse his conviction with instructions that the charges against him be dismissed.
No. 7S-1S60 — Phillip L. Gregg:
Although originally charged in sixteen counts of the indictment, appellant Gregg was acquitted of all but the conspiracy charge. Our review of the record fails to uncover adequate support for that conviction as well.
During the period of the alleged conspiracy, Mr. Gregg was employed as a civilian clerk at the R & M facility. He was assigned as a utilization specialist, responsible for a particular series of federal stock numbers consisting primarily of electronic communications equipment. His principal function was to process requests from various Government agencies for equipment within that series which might be in storage at R & M. While many of these requests were either by letter or the appropriate Department of Defense form, it was not unusual for Air Force personnel from the various units at Tinker to “shop” at R & M for items which their units might need or be able to use. When such an item was located Mr. Gregg, or other clerks holding similar positions, would assist the “customer” in completing the official requisition form, and then direct him to the appropriate agency to have the form approved. In most cases this would be the Depot Supply Officer, who would retain copies of the approved form for accounting purposes. The customer would then return to R & M with the approved requisition and would be issued the item. Mr. Gregg would also retain various copies of the approved requisition for R & M records and subsequent distribution. In some cases such distribution may have included the supply officer of the unit drawing the equipment. However, due to the volume of transactions at R & M, distribution of the retained copies did not always follow a consistent pattern, and reliance was placed on the Depot Supply Office to maintain accountability for the equipment after it left R & M. It appears there was also a requirement that “shoppers” from the units at Tinker have a letter of authorization from their unit on file at R & M. Again, because of the heavy volume of business, this requirement was not vigorously enforced with respect to uniformed personnel.
Although many of the transactions which Sergeants Greene and Johnson had with R & M involved Mr. Gregg, it is clear that he was not the only clerk who provided them assistance. Much of the Government’s case hinged on suggested irregularities in the handling of the documentation connected with the two sergeants’ transactions, particularly in Mr. Gregg’s failures on certain occasions to forward copies of the executed requisition forms to their unit supply officer. Mr. Gregg’s supervisor testified, however, that such failures were neither irregular nor inconsistent with R & M policy at that time. The same would have been true with respect to any failure to check Sergeant Greene’s authorization. Mr. Gregg was simply a clerk. His duties were to assist R & M customers in locating equipment which they might need and in completing the necessary paperwork. He had neither responsibility nor authority to approve requests, authorize withdrawals, or check the disposition of equipment once it left the R & M area.
The United States also stresses certain oral statements which Mr. Gregg made to the FBI agent investigating the case to the effect that Mr. Gregg suspected that some of the equipment withdrawn by the two sergeants could not be used by- their unit, and that he knew some of it was being traded to other units. Making the dubious assumption that such statements might infer knowledge of a conspiracy, they certainly fall short of demonstrating cooperation in its objectives. As previously noted, mere knowledge or approval of or acquiescence in the objects of a conspiracy are insufficient to make one a conspirator. Jones v. United States, supra. While it may have been advisable for Mr. Gregg to report his suspicions, there was no showing that he had an official responsibility to do so.
Two additional factors further disrupt this already inconclusive web of circumstantial evidence. Sergeant Greene, who was presumably the core figure in the conspiracy, testified as a prosecution witness. Yet nowhere in his more than 150 pages of testimony did he identify Mr. Gregg as a co-conspirator, or mention any manifestation of Mr. Gregg’s agreement to cooperate in an illegal enterprise. To the contrary, we find only evidence that Mr. Gregg provided ordinary service and assistance, nothing beyond that expected of him in his normal course of employment. Secondly, we find no evidence indicating motive for Mr. Gregg’s cooperation. Nowhere does it appear that he received any of the property withdrawn from R & M or any other form of compensation or benefit for his assistance. On the one occasion when Sergeant Greene asked whether he might be interested in a particular camera, Mr. Gregg rejected the offer. Were he in fact involved in any conspiracy, his services were evidently gratuitous.
As we observed with respect to Airman Butler, some manifestation of agreement to cooperate in the methods or ends of a conspiracy is essential for one to become a conspirator. Mere knowledge, even of the conspiracy itself, is insufficient. We find no evidence of Mr. Gregg’s agreement to cooperate or of his actual cooperation; insinuation is certainly not enough. Accordingly we reverse appellant Gregg’s conviction with instructions that the charge against him be dismissed.
No. 73-1363 — Ronald J. Slomkowski:
Appellant Slomkowski was originally named in the conspiracy count, in count 33 charging receipt of stolen Government property in violation of 18 U.S.C. § 641, and in count 41 charging depredation against Government property in violation of 18 U.S.C. § 1361. He was convicted of conspiracy and receipt of stolen Government property, but was acquitted of the depredation charge.
Sergeant Slomkowski is a career Air Force noncommissioned officer who had over eighteen years’ service at the time of trial. In early August 1971, he was transferred to Tinker Air Force Base and assigned as the noncommissioned officer in charge of the Teletype Maintenance Shop of the 1984th Communications Squadron. Shortly after assuming his duties Sergeant Slomkowski noted that the shop lacked certain essential equipment needed in the performance of its mission. His inquiries revealed that some of this equipment would not be available through normal supply channels for over one year. It was then that he learned of the practice of obtaining salvageable equipment and repair parts from R & M, and decided to investigate this as a possible method of meeting the needs of his shop. He obtained the names of several individuals reputedly familiar with the R & M operation, and he eventually met Sergeant Greene at R & M. At their first meeting Sergeant Greene directed Sergeant Slomkowski to certain areas of the R & M facility where he might find the type of equipment which he needed. At a later time Sergeant Greene visited the Teletype Maintenance Shop which had recently been relocated in a larger building. Sergeant Slomkowski explained his equipment needs in greater detail, and Sergeant Greene mentioned that he might have access to equipment of this type at R & M. In any event Sergeant Greene thereafter made several deliveries to the shop. The items which he brought included an industrial vacuum cleaner, an IBM typewriter, several Jeep radios, a wave form monitor, and an electronic test unit housed in a large metal cabinet.
In addition to attacking the sufficiency of the evidence, Sergeant Slomkowski alleges a number of procedural defects in the proceedings below. Should we be required to consider them, several of these procedural defects would themselves necessitate reversal. It is our conclusion, however, that there is indeed insufficient evidence to sustain either conviction, and it is on that basis that we decide this appeal.
The conspiracy count, which named all twenty-three defendants, alleged as dual purposes of the conspiracy the violations of both 18 U.S.C. §§ 641 and 1361. We of course have considered the evidence in the light most favorable to the United States. Even so we cannot find convincing evidence that Sergeant Slomkowski conspired toward either purpose. It is always difficult to evaluate evidence in a conspiracy case, and because of the secretive nature of the crime, the evidence is almost invariably circumstantial. As the Supreme Court has warned, however, caution must be taken that the conviction not be obtained “by piling inference upon inference.” Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674. That admonition, we think, has special relevance in cases such as this, where many defendants, some of whom were not even acquainted, are charged on the basis of varying degrees of participation at various times. Guilt must be determined individually and not merely by association. Our review of the evidence must therefore be especially meticulous. The evidence, when viewed in its entirety, must generate more than a mere suspicion of guilt, and where such evidence is equally consistent with both guilt and innocence the conviction cannot be sustained. Lewis v. United States, 420 F.2d 1089 (10th Cir.); Doty v. United States, 416 F.2d 887 (10th Cir.), vacated on other grounds as to defendant Epps sub nom. Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542; Brumbelow v. United States, 323 F.2d 703 (10th Cir.).
The United States sought to implicate Sergeant Slomkowski in the portion of the conspiracy directed toward converting Government property largely on the inferences to be drawn from two factors: (1) that several items which Sergeant Greene had obtained from R & M were delivered to the maintenance shop with Sergeant Slom-kowski’s knowledge and consent; and (2) that some of these items were later discovered in a search of Sergeant Slom-kowski’s quarters on the base. In addition there was also reference to a transaction involving some drafting chairs which had been obtained from R & M by one of the members of the 1984th. A number of these chairs were later found in the quarters of various individuals, including Sergeant Slomkowski, where they had evidently been repaired and restored for use as bar stools. Aside from the fact that the four stools found in Sergeant Slomkowski’s quarters had never been taken from the base or otherwise treated in a manner inconsistent with an intent eventually to return them, we find the evidence relating to the acquisition of the chairs, their condition, and their accountability to the Air Force so inconclusive as to render impossible any finding of an intended or actual conversion of Government property. Returning then to the two principal factors, we are unable to discern in the circumstances surrounding the deliveries of the equipment to Sergeant Slomkow-ski’s shop, any indication of the knowledge, intent, or agreement necessary to make him a coconspirator. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. Nowhere is there evidence of any discussion or understanding with Sergeant Greene or anyone else pertaining to illegal acquisition of property for personal use or gain. In his testimony Sergeant Greene did not identify Sergeant Slomkowski or any other member of the 1984th as having knowledge of his arrangement with Sergeant Johnson to obtain property for one another’s personal benefit. Nor did he testify to any knowledge on Sergeant Slomkowski’s part that the property was being illegally obtained or converted, nor any agreement with him to obtain or convert equipment illegally. In short, there is nothing inconsistent with Sergeant Slomkowski’s own testimony that he was merely pursuing an alternative method suggested by his superiors of acquiring property needed by his shop. We shall • discuss the circumstances surrounding the discovery of the typewriter, the wave form monitor, and four drafting chairs in Sergeant Slomkows-ki’s quarters in greater detail below. Suffice it to say at this point that those circumstances likewise fail to demonstrate cooperation in any conspiracy to convert Government property.
The second illegal objective of the alleged conspiracy was a depredation against Government property in violation of 18 U.S.C. § 1361. This portion of the charge pertains to the disposition made of certain component modules contained in an electronic test unit which Sergeant Greene delivered to the Teletype Maintenance Shop. There is considerable confusion in the record as to the actual condition of these modules when the test unit was obtained from R & M. A number of the prosecution’s witnesses testified to their apparent good condition. Such testimony, however, was based on casual, visual inspections by witnesses who were not particularly familar with the equipment. It is undisputed that the unit had been classified as electronic scrap by R & M. The requisition document described the unit simply as 200 pounds of class 5800 (scrap) having a unit value of $1.00 per pound. There was also testimony from both the commanding officer and the maintenance superintendent of the 1984th that it was the common and recognized practice with equipment thus classified, so-called “red tag” equipment, to remove any salvageable parts or components and dispose of the remnants without accountability to the Air Force. Such equipment was available for cannibalization or use in any manner which the unit saw fit. In any event there was testimony indicating that Sergeant Slomkowski had directed various individuals in his shop to remove several of the component modules from the test unit cabinet, destroy them, and place the pieces in plastic bags for distribution among various trash receptacles on base. Recognizing that such a manner of disposition appears somewhat suspicious, we nevertheless conclude, in view of the uncertainty as to the status, condition, and accountability of the unit itself, that there was not sufficient demonstration of illegal conduct. It is often observed that in order to be guilty of conspiracy, one must have at least the degree of criminal intent necessary for the commission of the substantive offense. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. We cannot say under the circumstances of this case that the United States has by substantial evidence shown either that the test unit could have been the object of criminal depredation, or that Sergeant Slom-kowski had either the knowledge that destruction of the components might be a criminal act or the intent to commit such an act. We feel the need to note one further defect in the pleading and proof of this aspect of the case. Section 1361 specifies that the damage to the property measures the degree of the offense, not the value of the property as was alleged in the indictment. In order to constitute a felony the damage must exceed $100.00. The requisition document indicated that R & M had estimated the value of the unit as scrap at $1.00 per pound for a total value of about $200.00. We find no evidence that would allow the jury to infer what the amount of damage caused by the destruction of some of the components might have been, or that such damage would have exceeded $100.00.
The conviction of the substantive offense of receiving stolen Government property was based upon the discovery, during a search of Sergeant Slomkowski’s quarters on the base, of an IBM electric typewriter, a wave form monitor, and four drafting chairs, all of which had originally been obtained from R & M. As we mentioned previously, conviction for receiving stolen Government property in violation of 18 U.S.C. § 641 requires proof that the defendant had knowledge that the property was stolen and that he intended to convert it to his own use or gain. We cannot find substantial evidence of either of these elements with respect to Sergeant Slomkowski. If indeed the property was stolen, there is no indication that Sergeant Slomkowski knew it. The testimony is entirely consistent with his belief that the property had been legitimately obtained for use by his unit. The IBM typewriter, when delivered by Sergeant Greene, was equipped with capital letters only. In order to make it serviceable for use at the shop, Sergeant Slomkowski testified that he took the typewriter to his quarters to convert the typeface during his off-duty hours. The typewriter, when discovered, was partially dismantled on a work table. Alongside it was a tool kit containing some assorted typewriter parts. Such evidence, we believe, corroborates Sergeant Slomkowski’s testimony. It certainly fails to provide a clear suggestion of an intent to convert the typewriter to his own use or gain. Similarly Sergeant Slomkowski testified that he had borrowed the wave form monitor to align his son’s stereo. When discovered, the monitor was indeed connected to some stereo components. While perhaps a conversion in a literal sense, we do not believe such a temporary use in these circumstances manifests the underlying criminal intent necessary to commit an offense under section 641. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. There is no evidence tending to show that Sergeant Slomkowski had any other purpose in mind with respect to the monitor. Finally, we have already noted the uncertainty surrounding the drafting chairs. We find no evidence that Sergeant Slomkowski believed other than that the chairs were surplus unaccountable property, or that he took them other than as an alternative to their being discarded as refuse. To this we would also add that it was not uncommon for military personnel to borrow furnishings from the Air Force for use in their quarters, such furnishings to be returned upon their departure from the base.
We are unable to conclude that the mere location of these various items in Sergeant Siomkowski’s military quarters, when considered in light of Sergeant Slomkowski’s duty assignment and the circumstances under which they were discovered, can' support a conviction for receiving stolen Government property in violation of section 641.
We again emphasize that, while we must review the evidence in the light most favorable to the prosecution, when the evidence so viewed fails to generate more than mere suspicion or insinuation of guilt, the conviction cannot be sustained. The standard of proof required in criminal cases is a cornerstone of constitutional due process. In a case such as this one, involving numerous defendants, multiple transactions, and varying degrees of participation, the task of sifting the evidence relating to each defendant becomes particularly difficult, and a special danger exists that the degree of proof required for conviction might be relaxed. We shall be particularly vigilant in such cases to see that such a relaxation does not occur and that conviction is not predicated upon suspicion. See Doty v. United States, supra. Accordingly, convictions under both counts are reversed with instructions that all charges against Sergeant Slomkowski be dismissed.
No. 73-1362 — Wayne Reinke:
Appellant Reinke was named in the conspiracy count and in Count 31 charging receipt and conversion of stolen Government property in violation of 18 U.S.C. § 641. He was convicted of both charges. In his brief Mr. Reinke alleges twenty-five grounds for reversal. Among these is the assertion that there is insufficient evidence to support the convictions. Unlike the other three appeals, however, we are not prepared to find the evidence against Mr. Reinke is inadequate. Nevertheless, we reverse his convictions on the basis of a fundamental procedural error which has tainted the proceedings against him.
As we have noted, all twenty-three original defendants were named in count 1 of the indictment charging a conspiracy to commit offenses under 18 U.S.C. §§ 641 and 1361. It has been the United States’ position both at trial and on this appeal that the numerous transactions involved in this case can be incorporated into one conspiracy to which all twenty-three defendants were parties. The evidence does not support that position. If indeed the various transactions can be correlated at all, it is in no fewer than three distinct possible conspiracies.
By his own testimony Sergeant Greene indicated that he and Sergeant Johnson had an understanding between themselves relating to the acquisition of property from R & M for one another’s personal use. According to Sergeant Greene, most of the members of his section of the 3d Mobile were aware of this understanding. Whether they were parties to it is questionable. In any event Sergeants Greene and Johnson were responsible for obtaining the majority of the items from R & M which figure in this action. They evidently kept many of these items for themselves. Others, which they could not use, were taken either to the 3d Mobile or the Teletype Maintenance Shop of the 1984th, where some of them eventually came into the possession of various other defendants. Some of these defendants participated in only one such transaction. With the exception of Sergeants Greene and Johnson, none of the 3d Mobile defendants apparently had any significant contact with defendants from the 1984th. Nevertheless, in view of the understanding between Sergeants Greene and Johnson, we will consider the transactions in which they participated as arguably related in one possible conspiracy.
The second possible conspiracy focuses on the destruction of the component modules in the test unit which had been delivered to the 1984th. We have already commented on the considerable uncertainty as to the status, condition, and accountability of the unit. Those issues aside, however, were the unit a possible target of criminal depredation and had Sergeant Slomkowski and the other members of the 1984th conspired toward such an objective, we would still find it impossible to merge such a conspiracy with the supposed conspiracy involving Sergeants Greene and Johnson. The decision to dispose of the modules was evidently not made until after the unit had been in the 1984th shop for some time. It is unlikely that most of the 3d Mobile defendants knew of the existence of the unit. It is inconceivable that they planned or anticipated its destruction. The mere fact that Sergeant Greene had obtained the unit from R & M and delivered it to the 1984th is simply too tenuous a thread to link its eventual destruction with the other transactions under consideration.
Finally, there are the events pertaining to the drafting chairs. We have noted the uncertainty enshrouding this incident. At most, however, it appears that the chairs were obtained from R & M by Sergeant Lopez, a member of the 1984th, and distributed through him to various other members of that unit. Other than their common source no link was established between the acquisition of the chairs and the acquisition of the other items with which we are concerned. Indeed, it appears that not even Sergeant Greene knew of this transaction.
We are thus confronted with a situation in which one general conspiracy has been alleged, while the evidence can support the existence of no fewer than three. Although some of the parties may have been involved in more than one of these combinations, no one such combination embraced the objectives of the others. Such a variance between the indictment and the evidence poses problems on at least two levels. Initially, of course, it requires a determination whether more than harmless error has resulted. We must conclude that it has. The factors which necessitate this conclusion were exhaustively discussed by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. We need not elaborate on them here. We add only that the rationale of that case is made more forceful here by the presence of distinctly different purposes in at least two of the possible conspiracies. In Kotteakos the various conspiracies, although involving different defendants, followed similar patterns and had as their objectives the violation of the same statute. Here, however, two of the supposed conspiracies were directed at obtaining and converting Government property, while the third was aimed at destroying Government property. Thus the burden on a defendant whose participation was limited to one of the conversion conspiracies, and yet who must defend himself against charges of conspiring also to commit depredation, becomes even more oppressive.
Having concluded that the variance is material, an appropriate remedy must now be considered. Two alternatives exist. The first would be the use of an instruction alerting the jurors to the possibility of multiple conspiracies and admonishing them to separate and distinguish such conspiracies and the defendants involved therein. Such an instruction was held appropriate by the Seventh Circuit in the case of United States v. Varelli, 407 F.2d 735 (7th Cir.), in a situation where joinder of defendants and offenses was otherwise proper. The second alternative is the severance of the various conspiracies and the defendants allegedly involved therein for separate trial. This was the procedure held necessary in the Kotteakos case. The point at which an instruction no longer provides adequate protection and a severance must be granted is incapable of precise location. It must be determined in light of the facts of the particular case and with reference to the established rules otherwise governing joinder and severance.
Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in the same indictment “if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 14, on the other hand, provides generally that severance or other appropriate relief may be granted if it appears that a defendant or the Government is prejudiced by joinder of either defendants or offenses. Ordinarily, severance is a form of relief resting within the sound discretion of the trial court, and unless abused that discretion will not be questioned on appeal. See, for example, Baker v. United States, 329 F.2d 786 (10th Cir.), cert, denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56. However, when joinder of either defendants or offenses causes the actual or threatened deprivation of a fair trial, severance is no longer discretionary. As the Supreme Court observed in Kotteakos:
“ . . . Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass. Wholly different is it with those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group.
“Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials. About them we dare not become careless or complacent when that fashion has become rampant over the earth.”
We conclude, as did the Supreme Court, that here “toleration went too far.” The United States has attempted to merge what, if anything, should be at least three separate, distinct conspiracies into one. Twenty-three defendants were named in the indictment. Different combinations of these defendants were involved in nearly every transaction which figured in the trial. Many of the defendants did not know one another prior to trial. Some of the members of the 3d Mobile may have assisted Sergeant Greene in obtaining and converting Government property from R & M. It is impossible, however, upon the evidence presented at trial, to link any of them with the destruction of an electronic test unit by members of another organization located elsewhere on the base. Sergeant Greene, himself, testified that he had not known of the destruction of the unit. There is no evidence that appellant Reinke ever knew the unit existed. Yet because Mr. Reinke may have shared mutual acquaintances with those who collaborated in the destruction of the unit, he was forced to acquit himself of their actions. One can only guess whether he was also forced to share their guilt. We can envision circumstances where what has been alleged as one conspiracy is disclosed at trial to be several repetitive conspiracies in which there is substantial identity of parties and method. The possible conspiracy concentrating on Sergeants Greene and Johnson may prove to be an example. In such circumstances a curative instruction may well bridge the gap between pleading and proof. Such is not the case here. Mr. Reinke, whose participation was limited to his association with Sergeant Greene and the other members of the 3d Mobile, should have been tried only on the charges arising from that association. The possibility that the issue of his guilt was confused with the guilt of other defendants involved in unrelated transactions at different times and in different places is too great. His convictions must therefore be reversed, and the case is remanded for a new trial.
Because of the possibility that appellant Reinke will again be tried on some of these charges, we shall also comment on some matters pertaining to the use as evidence of certain statements which he made to Government investigators and certain items which were discovered in his home during the investigation. The Government contends that the statements and the items were obtained with Mr. Reinke’s voluntary consent after having been advised of his rights. The Government agent involved testified during the trial that such was the case. If accepted, that testimony would appear to furnish a satisfactory basis for findings of voluntariness and knowing waiver. We defer ruling on the matter, however, and leave resolution of these factual issues to any future proceedings. In addition, it appears that the advice of rights form which Mr. Reinke signed on March 30, 1971, may be defective under the decision in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir.), although we have some question whether Mr. Reinke was in custody at that time. See also our decision in Sul-lins v.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? 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.
Robert H. KANE, Appellant, v. Margaret HECKLER, Secretary of Department of Health and Human Services.
No. 85-3119.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Oct. 16, 1985.
Decided Nov. 12, 1985.
Martin Singer, McArdle, Caroselli, Spagnolli & Beachler, Pittsburgh, Pa., for appellant.
Beverly Dennis, III, Regional Atty., William M. Reinhart, Supervisory Asst. Regional Atty., Deborah Fitzgerald, Asst. Regional Atty., Office of General Counsel, Dept, of Health & Human Services, J. Alan Johnson, U.S. Atty., Albert W. Schollaert, Asst. U.S. Atty., W.D. of Pa., Pittsburgh, Pa., for appellee.
Before ADAMS, Acting Chief Judge, and HUNTER, Circuit Judge, and STERN, District Judge.
Hon. Herbert J. Stern, United States District Court for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
ADAMS, Acting Chief Judge.
This appeal from a denial of disability benefits focuses primarily on the importance of a claimant’s age in the determination whether he can perform substantial gainful activity and therefore is not disabled within the meaning of the Social Security Act. The Social Security Administration (SSA) employs guidelines on disability determinations that consider age as well as other factors; the agency classifies persons between the ages of 45 and 64 in five-year categories. Because the age of the claimant in this proceeding was close to the border between two categories, and because SSA did not consider its own regulation that provides for flexibility in such a situation, the matter will be remanded for further proceedings.
I.
The claimant, Robert H. Kane, was born on February 17, 1925, and his insured status expired on December 31, 1979, 48 days before his 55th birthday. He maintains that he was disabled as of 1979, largely because of shrapnel wounds suffered during World War II. In 1979, he complained of weakness and pain in the neck and shoulder, degenerative arthritis of the cervical spine, other musculoskeletal impairments, and cardiovascular disease.
Kane’s original application for Title II benefits was denied in 1976. He filed a second application in 1982 that is at issue in this appeal. At his hearing before an Administrative Law Judge (AU) on September 26, 1983, Kane testified that he last worked at his job as a furniture salesman in January 1975. He has a 10th grade education. He wears a sling on his left arm, and claims that a tremor in his right hand makes writing difficult. In his testimony, Kane reported pain in his legs, and that as a result he cannot walk more than two blocks without resting. These various ailments cause him to sleep fitfully, he asserts, and prevent him from sitting for long periods of time. He declared that he does only minor household chores, can lift no more than ten pounds, but can drive a car.
The AU ruled that Kane was not disabled within the meaning of the Act, and denied the application for benefits. The Appeals Council affirmed. Kane then challenged the final ruling of the Secretary in a complaint filed in district court. The district court entered summary judgment for the Secretary, and Kane brought this appeal.
II.
Kane did not seek judicial review of the first administrative decision, which became final on September 30, 1976, and SSA argues that because Kane has not alleged any different facts in his latest application the prior decision is res judicata.
However, SSA did not raise this argument either in the administrative proceedings or in the district court. Res judicata is an affirmative defense, Davis v. United States Steel Supply, 688 F.2d 166, 170 (3d Cir.1982) (in banc), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983); Fed.R.Civ.Proc. § 8(c), and such a defense may not be presented on appeal if not pleaded in the district court. 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, Jurisdiction § 4405, at 34-35 (1981); Crowder v. Lash, 687 F.2d 996, 1008 (7th Cir.1982); Exxon Corp. v. Texas Motor Exchange of Houston, 628 F.2d 500, 507 n. 3 (5th Cir.1980).
Even if the issue had been properly presented to this Court, res judicata is not appropriate in this case. Kane’s circumstances changed between 1976 and 1979; most notably, he grew older at a time in life when age plays an increasingly significant role in disability determinations. In fact, the AU in 1983, who also did not address res judicata, disagreed with the earlier decision. He determined, in contrast to the 1976 ruling, that Kane could not return to his former job.
Moreover, this Court held recently that where the administrative process does not address an earlier decision, but instead reviews the entire record in the new proceeding and reaches a decision on the merits, the agency has effectively reopened the prior claims and waived application of res judicata. Purter v. Heckler, 771 F.2d 682, 695 (3d Cir.1985). Res judicata therefore does not constitute a bar to Kane’s claims.
III.
A.
The AU found initially that in 1979 Kane suffered from a severe musculoskeletal impairment and could not return to his former job as a furniture salesman. These findings established the claimant’s prima facie case of disability, and shifted to the Secretary the burden of demonstrating that Kane is unable, “considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy____” 42 U.S.C. § 423(d)(2)(A) (1982); Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979).
To perform the inquiry into residual work abilities that is required by the statute, the Secretary has promulgated medical-vocational guidelines. See 20 C.F.R., Pt. 404, Subpt. P, Apps. 1-2 (1985). These guidelines direct that certain impairments are so severe that claimants who suffer from them are considered disabled. See id. at App. 1. If these strict requirements are not met, the factfinder must apply the rules in Appendix 2, known as “the grids.” These rules take into consideration the claimant’s physical abilities, age, education, and work experience, and direct a finding of disability or lack of disability depending on the combination of these factors.
The AU, as required, applied the grids in Kane’s case. He found that Kane remains capable of performing “light work,” has a limited education, and was 54 years old at the time he last met the earnings requirements. Rule 202.10 requires a finding of not disabled for such a claimant, whether or not his prior work skills are transferable.
B.
In applying the grids and noting Kane’s age as 54, despite the fact that Kane’s insured status expired only 48 days before his 55th birthday, the AU failed to consider 20 C.F.R. § 404.1563(a) (1985). That regulation lists the age categories used on the grids, but adds: “we will not apply these age categories mechanically in a borderline situation.” Because the AU did not address this relevant regulation; and because proper application of the regulation may change the result in this case, the matter must be remanded to the Secretary for further consideration. See Coulter v. Weinberger, 527 F.2d 224, 230 (3d Cir.1975).
The choice of an age category had a decisive impact on the disability determination. If Kane were placed in the “advanced age” category (55 and over), and assuming that the light work and limited education determinations are correct, Kane could be found disabled if his skills were not transferable. Rule 202.02. The AU made no finding on transferability of skills, because of his determination that Kane belonged in the lower age category.
In a brief opinion, the district court held that § 404.1563(a) did not apply here. It stated: “we believe a borderline situation refers to a case where all of the factors ... considered together, do not compel a clear cut finding concerning disability. This is not such a case.” Even if this interpretation of the regulation were correct, there is not substantial evidence in the record justifying the district court’s conclusion. Notably, no factfinder has determined the transferability of Kane’s skills, and thus it is not known whether this is a “clear cut” case or not.
More important, the district court’s interpretation contravenes the plain language of the regulation, the views of its drafters, and the holdings of the several courts to consider the meaning of the provision. In its comments accompanying promulgation of a predecessor rule to § 404.1563, SSA wrote: “SSA practice over the years, in fact, has been in agreement with the comment that the passage of a few days or months before the attainment of a certain age should not preclude a favorable disability determination.” 43 Fed.Reg. 55349, 55359 (1978). SSA reaffirmed this position in adopting the decision in Fogg v. Schweiker, 673 F.2d 1296 (10th Cir.1981); see SSR 82-46C, at 217 (cum. ed. 1982).
The few courts to address a mechanical application of the age categories in a borderline situation have remanded the cases to SSA for more individualized determinations. Chester v. Heckler, 610 F.Supp. 533, 534-35 (S.D.Fla.1985) (claimant’s 50th birthday was 30 days after expiration of insured status); Ford v. Heckler, 572 F.Supp. 992, 994 (E.D.N.C.1983) (claimant was two months away from 45th birthday when AU decided and 15 days shy when Appeals Council ruled); Hilliard v. Schweiker, 563 F.Supp. 99, 101-02 (D.Mont.1983) (ALJ ruled 88 days before claimant’s 55th birthday).
The plain meaning of § 404.1563(a) is that where the claimant’s age falls within, in the Secretary’s words, a “few months” of the starting date of an age category the grids should not be employed mechanically. There is an assumption inherent in the grids that persons within those categories have certain capabilities, but in a “borderline situation” this assumption becomes unreliable and a more individualized determination is necessary. “[I]t must be kept in mind that the grids do not govern — and indeed were not intended to govern — all disability cases.” Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir.1982) (emphasis in original), cert. denied, 461 U.S. 911, 103 S.Ct. 1889, 77 L.E.2d 280 (1983).
In Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), the Supreme Court upheld the medical-vocational guidelines against an assertion that the rules were arbitrary and capricious, and inconsistent with the Act’s assurance of individual consideration. But in so doing, it relied on the guarantee that “[i]f an individual’s capabilities are not described accurately by a rule, the regulations make clear that the individual’s particular limitations must be considered.” 461 U.S. at 462 n. 5, 103 S.Ct. at 1955 n. 5; see also id. at 467, 103 S.Ct. at 1957.
Additionally, the regulations declare that the administrative law judge will not apply the age categories “mechanically in a borderline situation,” 20 CFR § 404.-1563(a) (1982), and recognize that some claimants may possess limitations that are not factored into the guidelines, see app. 2, § 200.00(e). Thus, the regulations provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately.
461 U.S. at 462 n. 5, 103 S.Ct. at 1955 n. 5.
In sum, courts recognize that the grids provide useful standards and allow for consistent, less complex decision-making. But judicial approval of these standards is premised on the assurance that SSA will not employ them to produce arbitrary results in individual cases. Where a Procrustean application of the grids results in a case that, but for the passage of a few days, would be decided differently, such an application would appear to be inappropriate. Section 404.1563(a) therefore serves an important purpose in the regulatory scheme, and AUs should adhere to its clear language.
The proper course on remand is informed by the Secretary’s own regulations. In her introduction to the grids, she declares:
[W]e do not apply these rules if one of the findings of fact about the person’s vocational factors and residual functional capacity is not the same as the corresponding criterion of a rule. In these instances, we give full consideration to all relevant facts in accordance with the definitions and discussions under vocational considerations.
20 C.F.R. § 404.1569 (1985). According to the regulatory description of the age factor, the important difference between those of advanced age and those closely approaching advanced age is that the age of persons in the former category “significantly affects a person’s ability to do substantial gainful activity,” while the age of those in the latter category merely “seriously affect[s their] ability to adjust to a significant number of jobs in the national economy.” Id. at § 404.1563(c), (d). The AU must consider which of these rules better described Kane’s abilities on December 31, 1979, given the claimant’s actual age and circumstances on that date. The AU may then use the grids primarily as a guide in making the disability determination. Id. at Pt. 404, Subpt. P, App. 2, § 200.00(d).
C.
Kane raises several other issues on this appeal.
He argues that the AU erred in deciding that he was capable of “light work,” which requires a “good deal” of walking and standing, pushing and pulling of arm and leg controls, and lifting no more than 20 pounds, with frequent lifting of 10 pounds. 20 C.F.R. § 404.1567(b) (1985). If Kane’s testimony is credited, he is incapable of such work. His treating physician, Dr. Louis Katz, concurs; he wrote on October 2, 1975 that Kane “is only capable of doing light work and limited to several hours a day due to his musculoskeletal problems.” In a letter dated November 16, 1982, Dr. Katz said Kane’s condition was unchanged: “It is my opinion that this patient is still unemployable and will remain unemployable in the future.” Id. at 247.
The AU determined that Kane could do light work, stating without explanation that he relied particularly on a physical examination performed on December 14, 1981. But this examination was a onetime consultation that preceded Kane’s admission to the hospital on that date for angiograms and a subsequent operation during which a right carotid endarterectomy was performed. Notably, the doctor did not express any view on how Kane’s musculoskeletal impairments affected his work ability. Such a record is not substantial evidence of no disability when presented against the clear opinion of a treating physician. Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979). On remand, the ALJ should reexamine his decision and explain more fully his reasons for crediting this single physical examination and ignoring the statements of the claimant and of the treating physician.
Next, Kane insists that the AU improperly failed to consider his claim of disabling pain. Kane’s wounds would appear to provide objective medical evidence of a condition that could reasonably produce pain. Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir.1984) (per curiam). Consequently, the AU also should discuss that issue on remand.
Finally, Kane notes that the AU should have considered the importance of a Veterans Administration determination that he is disabled. Such a determination by another government agency is entitled to substantial weight. Lewis v. Califano, 616 F.2d 73, 76 (3d Cir.1980). This proposition, too, should be addressed on remand.
IV.
The judgment of the district court will be vacated and the matter remanded for further proceedings in accordance with this opinion.
. To receive disability insurance benefits pursuant to Title II of the Social Security Act, a claimant must show that he was insured under the program at the time of onset of his disability. De Nafo v. Finch, 436 F.2d 737, 739 (3d Cir.1971); 20 C.F.R. § 404.320(b)(2) (1985).
. See 20 C.F.R. § 404.1567(b) (1985).
. A person who ended schooling between the 7th and 11th grades has a “limited education.” 20 C.F.R. § 404.1564(b)(3) (1985).
. The categories are "close to retirement age (60-64),” "advanced age (55 or over),” “approaching advanced age (50-54),” "younger individual age 45-49,” and "younger individual age 18-44.” 20 C.F.R. § 404.1563(c), (d) (1985); 20 C.F.R., Pt. 404, Subpt. P, App. 2, Table No. 1 (1985).
. The individual consideration of a claimant’s characteristics, and use of the grids only as a guide in such situations, is most familiar where claimants assert nonexertional impairments. See 20 C.F.R., Pt. 404, Subpt. P, App. 2, § 200.-00(e) (1985); Burnam v. Schweiker, 682 F.2d 456, 458 (3d Cir.1982).
. Dr. Katz’ definition of light work, along with his observation on the limitation on hours in Kane’s workday, is much more restrictive than SSA’s.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_usc1
|
29
|
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.
Adeline M. BRUNO v. W.B. SAUNDERS COMPANY and CBS Educational and Professional Publishing, a division of CBS, Inc., Appellants.
No. 88-1895.
United States Court of Appeals, Third Circuit.
Argued April 17, 1989.
Decided Aug. 14, 1989.
Rehearing and Rehearing In Banc Denied Sept. 8, 1989.
John J. McAleese, Jr. (argued), John H. Widman, McAleese, McGoldrick & Susanin, P.C., King of Prussia, Pa., for appellants.
Geoffrey P. Gompers (argued), Philadelphia, Pa., for appellee.
Before SEITZ, SLOVITER and GREENBERG, Circuit Judges.
Since the date of the argument in this case, Judge Seitz has taken senior status.
OPINION OF THE COURT
SEITZ, Circuit Judge.
The appeal in this Age Discrimination in Employment (ADEA) action, 29 U.S.C. § 621, et seq., follows a jury verdict against the defendants W.B. Saunders Company (Saunders) and CBS Educational and Professional Publishing (CEPP) in the amount of $850,000. After the verdict, the district court, which had jurisdiction under 28 U.S.C. § 1331, denied the defendants’ motion for judgment n.o.v. or in the alternative for a new trial. This court has appellate jurisdiction under 28 U.S.C. § 1291.
I.
In relating the background of this case, we rely on uncontradicted testimony, except where noted. Adeline Bruno, the plaintiff in this case, was employed by W.B. Saunders Company from 1974 until May 1986. Saunders is a publisher of medical textbooks and medical periodicals, or “clinics.” During the entire time relevant to this case, W.B. Saunders was a wholly owned subsidiary of CEPP.
Prior to the events out of which this litigation arose, Bruno was Director of Saunders’ Central Order Processing Department. This position was described in Saunders’ internal nomenclature as a “level 9” position. As Director of Central Order Processing, Bruno earned $44,350 annually as of December 1984.
In early 1984, Saunders announced plans to eliminate the Central Order Processing Department. One consequence of this would ultimately be the elimination of Bruno’s job. Bruno was at the time forty-six years old.
Later that year, while Bruno was still working in her Central Order Processing job, the Manager of the Clinics Fulfillment Department at Saunders was transferred, and his job became open. Anthony Degu-tis, then Director of Budgets and Planning at Saunders, was given responsibility for finding a replacement. Within the Saunders hierarchy, the title “Manager” was a step below that of “Director,” the title then held by Bruno. The newly open position was classified by Saunders as a “level 8” position. Bruno applied for the job.
The Clinics Fulfillment Department processes (“fulfills”) orders for Saunders’ clinics. From 1977 until it was computerized in 1980, the Clinics Fulfillment Department had been under the direction of Bruno in her capacity as Director of Central Order Processing. Degutis testified that his original belief was that Bruno “would best fill this position.” Indeed, Degutis was informed by two CEPP executives in New York to whom Bruno had indirectly reported, Richard Bates and William Wright, that Bruno was the obvious successor to. the Clinics Fulfillment position.
At the interviews conducted by Degutis, Beverly Dietrich, one of the ten candidates for the position, was treated differently from the others. Dietrich, who was then 36, was taken out by Degutis for a ninety minute lunch at an upscale restaurant near Saunders’ office in Philadelphia. None of the other candidates was taken to a restaurant. Bruno was interviewed for approximately twenty minutes in a vacant office in the Saunders building.
Degutis testified that Dietrich “was not at the time we started the interview process[,] in my mind[,] qualified” for the Clinics Fulfillment position. At the time of the interviews for the job of Manager of Clinics Fulfillment, Dietrich was a Supervisor of Systems Analysis in the Clinics Fulfillment Department. Within the Saunders hierarchy, “Supervisors” are below “Managers.” Dietrich’s particular job was classified as a “level 3” position. Dietrich had been with Saunders three years, and had worked on the computerization of the Clinics Fulfillment Department. At the time of her interview, Dietrich was earning an annual salary of $19,773.
Dietrich’s previous work experience — beginning several years before she began working at Saunders — had been as Assistant Manager and then Manager of the Arena Stage, a theater in Washington, D.C. In that position she was responsible for a staff of 15 to 20 people. She was paid on an hourly basis. Her more recent work experience prior to joining Saunders had been as a sales clerk at Bamberger’s Department Store and as a front office manager at a grocery store.
Two months before formally filling the position, Degutis made Dietrich temporary head of the Clinics Fulfillment Department. While Dietrich was at the time the senior of the three Supervisors in the Department, Bruno testified that Degutis told her that Dietrich had been given this job because “I know how everybody felt about Beverly so I wanted to give her a chance to prove herself.” Degutis testified that this interim appointment was not intended to be a testing period for Dietrich.
Ultimately, Degutis chose Dietrich to fill the post permanently. Although the job had been posted as a “level 8” position, it was given initially to Dietrich as a “level 7.” Dietrich was raised from a level 3 to a level 8 in two steps primarily because Saunders management felt that her salary increase would otherwise have been too great for one person to receive at one time. Six months after her installment as Manager of Clinics Fulfillment, Dietrich's annual salary was $29,000. Following Dietrich’s selection, Bruno filed an Equal Employment Opportunity Commission (EEOC) charge alleging discrimination on the basis of age.
Several months after she was passed over for the Clinics Fulfillment position, and while she was still working at Saunders, Bruno was offered a job as Manager of Inventory Planning and Control in the Bellmawr, New Jersey warehouse facility Saunders shared with other CEPP subsidiaries. Bruno first accepted the job, but changed her mind four weeks later, before the job commenced. Bruno testified that she was told by a CEPP executive that a condition of her employment in that position was that she not proceed with her age discrimination claim.
Bruno was laid off by Saunders in May 1986. After her termination, Bruno continued to receive pay for four months. Seven months after her severance pay ended, Bruno accepted a job at the Provident National Bank for an annual salary of $18,000 plus benefits.
Bruno brought this action in the district court under the ADEA. After trial, the jury found the defendants liable for “willful” age discrimination in their failure to give Bruno the Manager of Clinics Fulfillment job, and awarded liquidated damages as provided for by the statute. See 29 U.S.C. § 626(b). The jury verdict in favor of Bruno included $160,000 denominated “lost wages and benefits” and $700,000 denominated “front pay.” The parties agree that half of each of these amounts represents liquidated damages.
On appeal, the defendants present a litany of alleged errors.
II.
The defendants’ first challenge to the judgment in the district court is that the evidence was insufficient to support the verdict. To win on such a challenge, the defendants must show that the record “is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.” Simone v. Golden Nugget Hotel, 844 F.2d 1031, 1038 (3d Cir.1988) (citation omitted).
Under the now familiar analytical framework that has been established for analyzing ADEA claims, the plaintiff first bears the burden of establishing a prima facie case. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the plaintiff meets this burden, it raises an inference of unlawful discrimination. The burden of production then shifts to the defendant, who can dispel the inference of discrimination by articulating a “legitimate, non-discriminatory reason” for its employment action. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. If the defendant succeeds in this, the burden then returns to the plaintiff, who retains the ultimate burden of persuasion. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. To win his case, the plaintiff must “prove by a preponderance of the evidence that the proffered reasons were not the employer’s true reasons.” Sorba v. Pennsylvania Drilling Company, 821 F.2d 200, 202 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).
Saunders and CEPP argue that the evidence was insufficient to support the verdict because it was not adequate to raise an inference of age discrimination at the pri-ma facie case stage. They also argue that the evidence is insufficient to support a jury finding that their articulated, non-discriminatory reason for the employment decision in this case is mere pretext.
A.
The defendants first challenge the sufficiency of the evidence to raise an inference of age discrimination at the prima facie case stage. Of course, after a case has been tried to a jury on the merits, “it is unnecessary for the appellate court to decide whether a prima facie case had, in fact, been established.” Blum v. Witco, 829 F.2d 367, 372 n. 2 (3d Cir.1987). “Where the defendant has done everything that would be required of him if the plaintiff had made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). Rather, the appellate court must consider the ultimate issue: whether the plaintiff proved by a preponderance of the evidence that age was a determinative factor in the employer’s hiring decision. Blum, 829 F.2d at 372 n. 2. “The issue of whether plaintiff established a prima facie case is subsumed on appeal into whether the plaintiff has sustained his or her ultimate burden,” Dreyer v. Arco Chem. Co., 801 F.2d 651, 654 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).
We will therefore treat the defendants’ first contention as an argument that the evidence is insufficient to support the verdict. The defendants’ contention in essence is that the evidence of a ten-year difference in age between Bruno, who was 46 at the time she applied for the Clinics Fulfillment job, and Dietrich, who was then 36, is insufficient to support an inference of age discrimination essential to plaintiff’s case. Put another way, the defendants argue that the evidence could not support an ultimate conclusion that their employment action was discriminatory because it is insufficient to allow any inference that Bruno’s age was a determining factor.
We disagree. Congress has defined the protected class to include only those people between forty and seventy years of age. 29 U.S.C. § 631(a). Where the plaintiff is a member of the protected class and the successful candidate is not, the precise difference in age between the plaintiff and the successful candidate is not decisive, at least in a case such as this where the difference is not so small as to make an inference of discrimination absurd.
Contrary to the defendants’ suggestion, this conclusion is not inconsistent with Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield we held that the difference in age between a 65-year old and a 42-year old was “sufficient” to make out one of the elements of a prima facie case necessary to raise an inference of age discrimination at that stage of the litigation. Maxfield, however, presented a situation where the plaintiff and the successful job applicant were both within the protected class. In that context we found it necessary to examine the magnitude of the age difference in order to determine whether it would support an inference of discrimination.
This case presents the more common type of discrimination case where the plaintiff is within the protected class and the person ultimately chosen for the job is not. In title VII cases of race or sex discrimination, from which our method of analyzing age discrimination claims has been transplanted, this would be enough to support an inference of discrimination. See, e.g., Jackson v. University of Pittsburgh, 826 F.2d 230, 233 (3d Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988) (title VII race discrimination case) (where plaintiff is within protected class, one element of prima facie case made out simply by showing that persons treated more favorably were not within the protected class). So it is in actions under the ADEA. Maxfield did not disturb the settled rule that more favorable treatment for those not within the protected class will support an inference of age discrimination. See, e.g., Massarsky v. General Motors, 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983) (to make out prima facie case, plaintiff “need only show that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably”). We conclude therefore that the evidence here was sufficient to support an inference of age discrimination.
B.
“[Ojnce the defendant has produced admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus ... plaintiffs ultimate burden of persuasion includes the requirement to show that the defendant’s proffered reason is a pretext for discrimination.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). In their second, more narrow, challenge to the sufficiency of the evidence to support the verdict, the defendants argue that even if the evidence of the difference in age between Bruno and Dietrich was sufficient to support an inference of discrimination, there was insufficient evidence to support a conclusion that the defendants’ proffered reason was a pretext.
The defendants here did articulate a legitimate, non-discriminatory motive for failing to hire Bruno for the Clinics Fulfillment job. The defendants state that Bruno was not selected because it was Degutis’s perception that her interest in the job was half-hearted. They also contend that Dietrich was selected over Bruno based on her performance as acting head of the Clinics Fulfillment Department during the two months that preceded her actual hire to fill the Manager of Clinics Fulfillment position. Before the district court, Degutis testified additionally that among the reasons he selected Dietrich were her “enthusiasm” and the fact that she was the “most qualified” candidate. The defendants do not rely on these explanations in this appeal.
There is a variety of evidence that tends to rebut the defendants’ articulated reasons for their employment action. As to Bruno’s interest in the job, Bruno testified that she spoke to Degutis often about the job during the time between her interview and the time the position was ultimately filled, and that, indeed, at one point he said to her “Addie, quit pushing.” Both Degu-tis himself and Richard Bates, then CEPP’s Vice-President for Fulfillment Services, testified that, subsequent to Bruno’s interview with Degutis, Bates told Degutis that Bruno wanted the job. Degutis also testified that Bruno mentioned the job to him— albeit offhandedly — more than once during the period when he was selecting among the candidates for the position.
As to Dietrich’s performance during the interim period when she was acting head of Clinics Fulfillment, there was testimony in the district court by others employed by Saunders during that time — the Director of Management Information Systems, and the Manager of Computer Operations — that Dietrich did not show ability, at least in some aspects of the job. The evidence in its totality meets the minimum threshold necessary to support a conclusion that the defendants’ proffered reasons were a pretext.
The law is clear that a plaintiff can win an age discrimination action without direct evidence specifically relating to age by proving that the reason for the unfavorable treatment put forward by the employer is a pretext. Chipollini, 814 F.2d at 898. The message of Chipollini is not, however, that anyone who suffers an adverse employment decision can win a discrimination suit. The message is that Justice Rehnquist’s words for the Supreme Court will be taken seriously: “when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s action, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). This framework places a premium on truthfulness by the defendant. If a “legitimate, non-discriminatory” reason articulated by a defendant faced with a prima facie case of discrimination is not the true reason for a failure to hire, the court may infer that the actual reason was impermissible.
III.
The defendants next argue that the district court erred in the admission of evidence and they ask for a new trial. In this Circuit, review of rulings on relevance is plenary. See Brobst v. Columbus Services, 824 F.2d 271, 274 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988). Other evidentiary questions are reviewed for abuse of discretion.
A.
The defendants challenge the statistical evidence Bruno presented. In particular, they attack studies done by plaintiff’s expert that compare whether Saunders employees over forty years of age received transfers or promotions in proportion to the percentage of all Saunders employees over forty. The defendants argue that these studies are irrelevant because they did not account for the minimum objective qualifications of the jobs into which transfer or promotion was possible. The Supreme Court has held that “[njormally, failure to include variables will affect the analysis’ probativeness, not its admissibility.” Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3008, 92 L.Ed.2d 315 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part). It has also noted that “[tjhere may, of course, be some regressions so incomplete as to be inadmissible as irrelevant.” Id. at 400 n. 10, 106 S.Ct. at 3009 n. 10.
Unlike the main cases cited by the defendants, this is not a class action disparate impact or disparate treatment case. See Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985) (disparate impact); Valentino v. United States Postal Service, 674 F.2d 56 (D.C.Cir.1982) (disparate treatment). In such cases, statistical evidence that does not account for minimum objective qualifications may not “measure disparities among comparably qualified workers, rather than disparities in qualifications.” Segar, 738 F.2d at 1274. Of course, even in such cases, the requirement that statistical evidence account for minimum qualifications is not a “hard and fast rule.” Id. Still, as a general matter, in class actions — “where liability depends on a challenge to systemic employment practices[,] courts have required finely tuned statistical evidence.” Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985).
By contrast, in individual disparate treatment cases such as this, statistical evidence, which “may be helpful, though ordinarily not dispositive,” id. at 710, need not be so finely tuned. In individual disparate treatment cases such as this, a general rule requiring that all statistical evidence account for minimum objective qualifications would not be broadly useful. Rather, “the usefulness of statistics will depend primarily upon their relevance to the specific decision affecting the individual plaintiff.” B. Schlei and P. Grossman, Employment Discrimination Law 1316 (2d ed. 1983). See International Bhd. of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396 (1977) (the usefulness of statistics “depends on all the surrounding facts and circumstances”).
The statistical evidence in this case is being used to bolster the plaintiff’s case that the defendants’ articulated reason for an individual employment decision is a pretext. Even though it does not account for the minimum objective qualifications of the positions into which transfer or promotion was possible, we conclude that the studies are “relevant.” That is, as evidence they meet the requirement of Federal Rule of Evidence 401 that they “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Compare McDonnell-Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825 (defendant’s policy and practice with respect to employment of protected class relevant to showing of pretext).
The studies are significantly less probative than they would be if they took account of the minimum qualifications of the jobs into which promotion or transfer occurred. However, the district court’s conclusion that they are more probative than prejudicial was within the limits of the permissible exercise of that court’s sound discretion.
B.
The defendants also challenge the plaintiff’s statistical studies because they compare new hires to the age of existing employees — without taking account of the correlation between age and normal corporate advancement — and because along with “individual termination decisions” they consider terminations resulting from Saunders’ decision to close its printing plant. The plaintiff contends that these objections were waived because they were not specifically made in the district court. While the defendants did not object to this evidence at the time of introduction, they did challenge it in their motion in limine.
While normally an objection to the admission of evidence must be raised at trial to be preserved, this court will sometimes permit evidentiary question to be preserved by a motion in limine. See American Home Assurance Co. v. Sunshine Supermarket, 753 F.2d 321 (3d Cir.1985). A determination that the objections were preserved by a motion in limine requires an evaluation of the extent of the briefing on the motion in limine, and the definitiveness of the district court’s ruling on the motion. The pretrial motion will suffice only if we con-elude that requiring an objection at trial “would have been in the nature of a formal exception.” Id. at 324-25.
In this case, the defendants’ brief in support of its motion in limine specifically raised the evidentiary issues the defendants now wish to present before this court. However, the defendants have not pointed to any place in the record where their motion was ruled on by the district court. Without a definitive ruling against the defendants, there could be no reliance factor in this case. Consequently, the defendants, in failing to object to these studies at trial, have failed to preserve this issue for appellate review.
C.
The defendants also challenge the admission of evidence that Degutis and Dietrich, the woman he finally chose for the Clinics Fulfillment position, were seen together frequently. They argue that no reasonable inference of age discrimination can be drawn from this evidence. After an examination of the record, we conclude that, even if this evidence was not admissible, there was no reversible error.
IV.
A.
The defendants also seek a new trial on the basis of alleged error in the district court’s instruction to the jury that “[wjhere economic savings are directly related to an employee’s age, however, it is a violation of the [ADEA] not to hire an older employee for those reasons.... [I]f you believe that the economic savings to the company were an age related factor which induced the defendants to hire Beverly Dietrich for economic reasons rather than an older employee such as Adeline Bruno, then Adeline Bruno is still entitled to prevail on her claim.”
In the district court, at the end of the jury charge, the defendants challenged this instruction only on the ground that there was insufficient evidence to support it. The defendants renew this contention before this court.
We find the defendants’ challenge without merit. While there may not be any evidence that there was a correlation between age and salary across the board at Saunders, there certainly was evidence that there was a financial saving involved in hiring the younger Dietrich over the older Bruno. In addition, there was testimony of another employee who was not chosen for the Clinics Fulfillment job, Ann Marie Mar-tino, that CBS (of which CEPP is a division) was trying to reduce its number of longer-term employees in order to reduce its costs. Because the defendants’ contention is without merit, the district court’s refusal to grant a new trial on this ground was not an abuse of discretion.
B.
We also find without merit the defendants’ contention that a new trial is required because the district judge instructed the jury on the circumstantial order of proof developed in the McDonnell-Douglas line of cases. Even assuming that submission to the jury of the question whether the plaintiff made out a prima facie case is error, we do not believe the instructions here could have confused and misled the jury such that the defendants would be prejudiced. At worst, the jury instructions — which, taken as a whole, fairly and adequately described the shifting burdens of production and persuasion— presented the plaintiff with an additional obstacle, the possibility that the jury would find for the defendants on the basis that the plaintiff failed to make out a prima facie case. Therefore there again was no abuse of discretion when the district court declined to grant a new trial on this ground.
C.
The defendants’ most confusing allegation involves a so-called missing witness, CEPP executive William Wright. Bruno testified at trial that Wright told her “off the record” that if he had been her, he would have pursued an age discrimination claim. She testified that he also told her “if you ever repeat that, I’ll deny it.” While defendants’ counsel said in his opening statement that he would call Wright to testify, Wright was not called. Although there was no evidence concerning Wright’s availability, the district judge gave the jury a standard “missing witness” instruction charging them to decide whether Wright was reasonably available only to the defendant or equally available to both parties in ascertaining whether to draw an adverse inference from the defendants’ failure to call him.
While the jury deliberated, the judge — at the suggestion of defendants’ counsel — took the highly unusual step of taking Wright’s testimony by telephone from New York. The purpose of this call was apparently to get testimony concerning Wright’s availability. Wright testified that Bruno saw him and spoke to him during one morning of the trial when he was in the courtroom. Wright also testified — in response to a question from the judge— that he had not made the statement attributed to him by Bruno. The judge granted the defendants’ motion to admit this testimony. However, by this time, the jury had reached a verdict for Bruno.
Nonetheless, the district judge permitted the jury to hear the testimony of Bruno and her counsel that neither one of them had knowledge that Wright was in the courtroom during the trial. The judge then had a tape recording of Wright’s telephone testimony played to the jury. The judge permitted an additional summation by each side, then sent the jury back to deliberate further with an interrogatory asking whether this evidence would cause them to change their verdict. Eight minutes later, the jury returned with the answer “No.”
The defendants challenge the propriety of giving a missing witness instruction, and argue that the instruction given by the district judge was in error. The plaintiff contends that there was evidence sufficient to permit a conclusion that Wright wás peculiarly within the defendants’ power to produce. She also argues that any error was cured by the post-verdict proceedings in the district court which presented evidence to the jury on the question of Wright’s availability to the parties.
The parties miss the significance of the introduction of Wright’s testimony. Wright testified not merely on his availability, but on the issue on which the inference adverse to the defendant was permitted to be drawn. Thus, the judge’s post-verdict interrogatory to the jury did not merely ask them to reconsider Wright’s availability to the parties, it asked them to reconsider their verdict in light of Wright’s testimony favorable to the defendants that he had not told Bruno that she was right to pursue her age discrimination charge. Thus, the “missing witness” is no longer missing and any taint that might have been caused by the allegedly improper charge was cured by his testimony and the district judge’s post-verdict interrogatory.
V.
The defendants next argue that there was insufficient evidence to permit the jury to find that Bruno satisfied her duty to minimize her damages. They, assert that Bruno’s rejection of the job she was eventually offered as Manager, Inventory Planning and Control at the Bellmawr, New Jersey warehouse facility constituted a rejection of an unconditional offer of a “substantially equivalent” job. The defendants contend that this forfeits her right to monetary relief for any period subsequent to that rejection.
In Ford Motor Co. v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 3066, 73 L.Ed.2d 721 (1982), the Supreme Court held that an employment discrimination plaintiffs duty to minimize his damages includes a requirement that he accept a “substantially equivalent” job offered by the defendant. If the plaintiff fails to accept such a job, the accrual of back pay liability by the defendant employer will be tolled. The Supreme Court, however, also recognized in Ford Motor Co. that the plaintiffs obligation in this regard was not absolute. “The claimant’s obligation to minimize damages in order to retain his right to compensation does not require him to settle his claim against the employer, in whole or in part. Thus an applicant or discharged employee is not required to accept a job offered by the employer on the condition that his claims against the employer be compromised.” Ford Motor Co., 458 U.S. at 232 n. 18, 102 S.Ct. at 3066 n. 18.
The jury here found by special interrogatory that the job Bruno was eventually offered as Manager, Inventory Planning and Control at the Bellmawr, New Jersey warehouse facility was “superior or substantially equivalent” to the Clinics Fulfillment position that Bruno was denied. A second interrogatory asked whether “the plaintiff act[ed] as a reasonable person under the circumstances would have acted when she rejected the offer of the Bell-mawr job.” We understand this interrogatory to address the question whether the offer of the Bellmawr job was conditioned on Bruno dropping her age discrimination claim. The jury answered in the affirmative. The defendants now argue that the evidence was insufficient to support the jury’s conclusion.
Even assuming this contention was not waived, an examination of the record reveals that the defendants’ position is without merit. Bruno testified that Richard Bates, then Vice-President of Fulfillment Services at CEPP in New York, told her “that it would be expected of me to drop my [EEOC] claim if I accepted [the Bell-mawr job] ... and I took that to mean that — that you better do it or they’re gonna find a way to get rid of you.” She also testified that this conversation made her feel that “They’re gonna get you over in a job that you can’t do and they’re gonna find an excuse to get rid of you.”
Bruno testified that she felt her fear was supported by her discussion with Bates: “I even said to Rick, ‘Suppose I try it. Will you put in writing that if it doesn’t work out and I can still be let go and have my same severance that I would have had in February?’ And he said, ‘Well, I don’t think we can do that.’ And then I thought right then and there: Well ... they really are not offering this to me as a way to help me; they’re just trying to help themselves. They want me to drop my claim.”
This evidence is sufficient to permit the jury’s award notwithstanding the substantial equivalence of the Bellmawr job with the Clinics Fulfillment position for which Bruno originally applied.
The defendants rely on the fact that Bates’s superior, William Wright, subsequently wrote Bruno a note, at a time when she could still have taken the job, saying “[t]he Bellmawr job offer is not, and never was, conditional on dropping your claim. If it was, the condition would necessarily have been stated in writing ... I do not understand how your perception of this matter evolved.”
The defendants argue that this memo renders irrational any inference that the Bellmawr job was conditioned on Bruno dropping her EEOC charge. This evidence, however, merely presents a question of credibility. Notwithstanding the memo, the record contains sufficient evidence to support the jury’s conclusion.
The defendants also point out that Bruno testified in a deposition that after receiving Wright’s memo, “I understood that I could accept the job and still pursue the claim if I wanted to.” In context, the jury was entitled to read this simply as a statement of Bruno’s belief that any such condition was contrary to law. Bruno’s testimony does not alter the fact that there is sufficient evidence to support a conclusion by the jury that the Bellmawr job was conditioned on Bruno’s claim being compromised.
VI.
The defendants finally challenge the district court’s award of liquidated damages. The ADEA provides that “liquidated damages shall be payable only in cases of willful violations.” 29 U.S.C. § 626(b). A finding of willfulness in an individual disparate treatment case requires
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_caseorigin
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094
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
OHIO MUNICIPAL JUDGES ASSN. et al. v. DAVIS et al.
No. 72-1010.
Decided March 26, 1973
Per Curiam.
The motion of American Civil Liberties Union of Ohio, Inc., for leave to file a brief, as amicus curiae, is granted.
On the ground that it was beyond its authority to grant the primary relief sought, the United States District Court dismissed appellants’ suit which alleged that Art. IV, § 6 (B), of the Ohio Constitution denied equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The judgment is affirmed, but on the ground that appellants’ constitutional challenge to Art. IV, § 6 (B), was without merit.
So ordered.
Question: What is the court in which the case originated?
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_weightev
|
C
|
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".
In re GRANADA APARTMENTS, Inc. CITY NAT. BANK & TRUST CO. OF CHICAGO v. GRANADA APARTMENTS HOTEL CORPORATION.
No. 8761.
Circuit Court of Appeals, Seventh Circuit.
June 6, 1946.
As Amended on Denial of Rehearing July 17, 1946.
Vincent O’Brien and Defrees, Fiske, O’Brien & Thomson, all of Chicago, Ill. (John Merrill Baker, of Chicago, Ill., of counsel), for appellant.
Henry L. Kohn, Edward P. Morse, and I. E. Ferguson, all of Chicago, Ill., for appellee.
Before SPARKS, Circuit Judge, and LINDLEY, District Judge;
SPARKS, Circuit Judge.
This action, by City National Bank and Trust Company of Chicago, referred to hereafter as claimant, is based on a claim made by it as successor Trustee under a trust indenture from the debtor to Chicago Trust Company, as trustee, on September 1, 1928, and duly recorded on October 1, 1928, on behalf of such successor trustee, and of the holders of bonds and interest coupons appertaining thereto, issued and outstanding under the indenture. The Chicago Trust Company, the Central Republic Bank and Trust Company, and eventually the claimant, were successively trustees under this first mortgage trust deed, securing the first mortgage bond issue above referred to, on the Granada Hotel, which was the property of the debtor.
Default in the payment of these bonds occurred prior to August 7, 1933, and on that date a foreclosure suit was begun in the Superior Court of Cook County, Illinois, by the Chicago Trust Company, the then trustee. The decree of sale by the Superior Court was entered December 18, 1936, finding there was due claimant certain prior lien items, consisting of its trustees’ and attorneys’ fees and certain costs, all incurred in connection with the foreclosure proceedings. During the pendency of the State court foreclosure proceeding, claimant was operating the property not as a receiver or Court officer, but as trustee in possession under the terms of its mortgage indenture.
The petition under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, was filed April 23, 1937, and approved as properly filed on May 17, 1937, at which time claimant, as trustee in possession, by order of the Bankruptcy Court, turned over the property to the trastee in bankruptcy. During the foreclosure proceedings, a bondholders’ committee was organized, which consisted of certain officers of claimant. It tendered a plan of reorganization which was approved on July 15, 1937, and carried into effect. On June 23, 1937, claimant filed a proof of claim in the Referee’s office, and on September 14, 1937, it was filed in the clerk’s office of the Bankruptcy Court. It is referred to as Claim No. 9, paragraph 5 of .which relates to fees of claimant as trustee under the mortgage and the trustee’s attorney fees, and court reporter charges as fixed and allowed in the foreclosure decree. The various items of such alleged indebtedness, as set forth in paragraph 5 of the claim are:
Fees for services as successor trustee .................... $ 2,560.
Solicitor’s fees, less those not rendered at date of decree.... 8,250.
Court reporter’s and stenographer’s fees................. 39.90
$10,849.90
On July 8, 1937, the trustee filed general objections to the claim on the ground that it was informal, lacked the original documents and was unfounded and lacking in merit.
On August 30, 1937, claimant filed in the bankruptcy proceeding a report of its operation of the property, as trustee during its incumbency as such. It disclosed the balance on hand which it had theretofore been directed by the bankruptcy court to deliver to the bankruptcy trustee, and asked that court’s approval of the account.
To this report and petition, Woods, the bankruptcy trustee, on September 9, 1937, filed what he terms an enlargement of his objections filed on July 8, 1937, together with a counterclaim under which he sought to surcharge and falsify certain items in claimant’s account as trustee in possession, and to recover moneys alleged to be due from it.
The remainder of this pleading is divided into three separate headings: (1) “Facts to Sustain Denial of Claims Made Herein by City National, Its Committee and Its Counsel”; (2) “Additional Facts to Sustain Counterclaim by Debtor Estate” ; and (3) “Suggestions Against Account and Report by City National and Its Counsel Filed August 30, 1937 in This Court.”
Under the first heading Woods alleged that the decree of the Superior Court of Cook County is void because claimant and its counsel have sought to serve conflicting interests, and that Granada Hotel Corporation was dissolved more than two years before the complaint to foreclose was filed. He further alleged that as claimant was in possession of the property as owner, it cannot charge for its services or those of its counsel.
Under the second heading, Woods alleged that claimant’s management lacked reasonable skill and diligence; that the incinerator was not kept in repair; that the auxiliary pump of the refrigeration system was left out of repair and that such system was thereby damaged; that needed repairs were not made, nor were tenants sought for vacant lobby space, and that taxes should have been paid to prevent accruing penalties.
Under the third heading objection was made to specific items charged as expense in claimant’s account as trustee in possession, such as payment of a receiver’s certificate, payment on a furniture contract, and the Master’s fee and expenses incurred in Harris v. Tuttle, a prior bankruptcy proceeding.
By such surcharges and counterclaim, the trustee in bankruptcy sought judgment against claimant for $100,000 which he asked to have trebled under the statutes of Gloucester and Marlborough, which he alleged were a part of the common law of Illinois, and which provide that a trustee who commits waste in the administration of an estate is liable for thrice the resulting damage.
On September 18, 1937, claimant answered the counterclaim, denying its guilt of the alleged acta of malfeasance and misfeasance.
The sume firm of attorneys which now represent claimant also represented it at all times herein referred to, including the foreclosure of the mortgage in the State Court, and it also represented the bondholders’ committee.
On account of the services rendered in connection with the plan of reorganization which was approved, two petitions for administrative allowances were filed in the bankruptcy court. The first was that of the bondholders’ committee. It asked only for reimbursement of its out-of-pocket expenses incurred by it for the use of the personnel and facilities of claimant. The second petition was by the attorneys for the bondholders’ committee for fees for representing the Committee in the 77B proceedings. Both claims were filed on September 14, 1937.
Of the various issues thus raised, the district judge retained and heard evidence on the court trustee’s counterclaim and claimant’s answer thereto, and that relating to the surcharging and falsifying of claimant’s account as trustee in possession.
The petitions of the bondholders’ committee and i¿s attorney for expenses and services in connection with the plan, and also the claim of City National and the objections of Woods, trustee, to paragraph 5 thereof, were referred to a special master to take and report the evidence without findings of fact or conclusions of law.
The District Court, in its special findings of fact, expressly stated that its trial of the issues formed by the cross-complaint and claimant’s answer thereto constituted a plenary submission. It said: “City National Bondholders Committee and their counsel by pleadings filed, agreements made and evidence offered before the Judge in open court, have all consented to and conducted here a plenary litigation. They have asked the Court to decide a plenary accounting in equity. Upon this record * * * respondents * * * cannot be permitted to say that the proceedings were or are summary. These proceedings are plenary * *
The District Court consolidated for hearing the evidence taken before the referee on the fee and expense petitions of the Committee and its counsel on claimant’s claim, with the evidence taken before the court on the court trustee’s objections to claimant’s account and report as trustee in possession and on the court trustee’s counterclaim and claimant’s answer thereto. On May 2, 1939, the District Court entered its findings of fact and conclusions of law thereon. Because of the inter-relation and conflicting interests of claimant, the bondholders’ committee, and the firm of attorneys acting for both, the court found that the fee petition of the Committee and the fee petition of the firm of attorneys for the Committee for administrative allowance, as well as paragraph 5 of claimant’s claim, based on the foreclosure decree, should be disallowed and dismissed for want of equity. It further found and concluded that the allegations of the court trustee’s answer and counterclaim were fully established by the evidence, and that the specific amounts named therein, with interest from the several respective dates therein were due to Debtor, from claimant, in an approximate total of $100,000. It further found that justice would best be served by merely setting off opposing claims and contentions and leaving the parties to the accounting where they were, with no cash recovery to be allowed the court trustee. On the same day, a decree was entered in accordance with the court’s findings and conclusions.
On June 1, 1939, claimant, the Committee, and its attorneys filed a notice of appeal from those portions of the decree which disallowed paragraph 5 of claim 9, and which denied the petitions of the Committee and its attorneys for administrative allowances on account of the services performed and expenses incurred in the 77B proceeding, and which found that the Court Trustee had sustained his objections to claimant’s account and his counterclaim. That appeal was docketed here as 7060. In view of our decision in Cowan v. Dickinson Co., 7 Cir., 104 F.2d 771, the same parties filed in this court a petition for leave to appeal from part of the District Court’s decree disallowing paragraph 5 of claim 9, and disallowing the petitions of the Committee and its attorneys for administrative allowances. That appeal was docketed here as 6986. In it a short record was filed, and on appellant’s motion, this court consolidated the two appeals for argument and directed that the transcripts of record be consolidated and stand as a single transcript of record in both appeals. The parties were permitted to file a single brief with respect to both appeals. On June 10, 1939, the Court Trustee filed a notice of appeal from that part of the District Court’s decree which denied him a money judgment against claimant on the court’s finding that the trustee’s suggestion for surcharging and falsifying claimant’s account and the counterclaim were sustained by substantial evidence. That appeal was docketed here as 7061. In that case the trustee filed his praecipe for additional record in which he specified a few items not included in the record of 7060, but he did not include any of the evidence relating to his attempted surcharge of claimant’s account.
This court on November 27, 1939, entered an order in 7061 directing that the transcript of evidence contained in the consolidated records in Causes Nos. 6986 and 7060 be incorporated in the record in the Court Trustee’s appeal, 7061, but that the transcript of evidence need not be printed but could be referred to by the parties. That order further directed that the appeals be heard on the same date.
Upon hearing, this court held that the District Court’s finding that approximately $100,000 was due from claimant, was not supported by the evidence, and it affirmed that portion of the decree by which the lower court refused to enter a money judgment against it. This court further held that the evidence did not warrant the District Court’s finding that the inter-relation of claimant, as Trustee, and the Committee and the attorneys was entered into for the purpose or with the result of keeping the property in court for the benefit of the Indenture Trustee or the Committee, or for any other fraudulent purpose, and that paragraph 5 of claim 9 and the fee petitions should have been allowed.
The Court Trustee applied for two writs of certiorari to the United States Supreme Court. In one he sought a reversal of the holding of this court that he was not entitled to an affirmative money judgment. This petition for certiorari was denied. Woods v. City National Bank & Trust Co., 311 U.S. 676, 61 S.Ct. 43, 85 L.Ed. 435. In the other petition for certiorari, the Court Trustee sought to reverse the holding of this court that paragraph 5 of claim 9 should be allowed and that the petitions for administrative allowances should also be allowed. This petition was granted. 311 U.S. 629, 61 S.Ct. 39, 85 L.Ed. 400.
The basic question before the Supreme Court in that case concerned “the power of the District Court in proceedings under Ch. X of the Chandler Act * * * to disallow claims for compensation and reimbursement on the grounds that the claimants were serving dual or conflicting interests.” 312 U.S. 262, 61 S.Ct. 493, 494, 85 L.Ed. 820. The Supreme Court held that the findings of the District Court that the claimants represented conflicting interests were amply supported by the evidence and should be denied compensation, and it reversed this court on its rulings to the contrary. Those claims were for services alleged to have been rendered by claimants with respect to the preparation, the acceptance and the carrying out of the plan of reorganization, together with paragraph 5 of claim 9 which sets forth the claims allowed by the State Court in the foreclosure proceedings, hereinbefore mentioned. The Court further said that they agreed “that on this record recovery on the counterclaim would not be warranted,” and that, “The other points raised by petitioner are so plainly without merit that they do not warrant mention.” The Court further held that under the Act, such of the expenditures of the indenture trustee, the Committee and its counsel, as benefited the estate should be allowed by the District Court. In this respect the Court said: “Thus where taxes have been paid, needful repairs or additions to the property have been made, or the like, equity does not permit the estate to retain those benefits without paying for them. Such classification of expenses, at times difficult, rests in the sound discretion of the bankruptcy court. The District Court drew no such distinction but proceeded on the theory that reimbursement for all expenses must be denied. But it is not apparent that all of them fall within the prohibited category.” The cause was remanded to the District Court for further proceedings in conformity with the opinion.
Subsequently, on May 12, 1941, claimant, as indenture trustee, filed its petition with the District Court to recover out of the trust estate, then under the jurisdiction of that court, all expenses and charges including those of its counsel, reasonably and necessarily incurred in the defense against the Court Trustee’s counterclaim, which were successfully defended on appeal in this court and the Supreme Court by claimant. The petition was addressed to the court as a court of equity, and was not drawn under any provisions of the bankruptcy law.
We are first confronted with debtor’s contention that this appeal should be dismissed because not prosecuted by leave to appeal but only by notice of appeal. It relies upon 11 U.S.C.A. §§ 642, 650; Dickinson Industrial Site, Inc. v. Cowan, 309 U. S. 382, 60 S.Ct. 595, 84 L.Ed. 819; In re Country Club Building Corporation, 7 Cir., 128 F.2d 36; and analogous Illinois cases.
We are convinced that the claim here in issue is not a claim within the meaning of the Bankruptcy Act, nor is it a petition for an allowance of compensation or reimbursement within the meaning of sections 642, 650 or 656. It is elemental that a trustee is entitled to reimbursement out of the trust estate for its expenses, including attorneys’ fees, in successfully defending against a debtor’s attempt to surcharge or falsify the trustee’s account or to obtain a money judgment against it for acts of misfeasance or malfeasance. The issues on the» cross complaint were tried separately in a plenary proceeding, and appealed separately, as a matter of right, and we think correctly so.
However, if it be conceded that this appeal, to be effective, should have been by permission of this court, such defect is not a jurisdictional one in the sense that it deprives this court of power to allow the appeal, and we now allow it. This appeal was perfected within the time required by either method, and the scope of the review is in no manner affected. See Reconstruction Finance Corporation v. Prudence Securities Advisory Group, 311 U.S. 579, 61 S.Ct. 331, 85 L.Ed. 364.
The issues raised by the counterclaim and answer had no connection with the preparation, adoption or the carrying out of the plan of reorganization, and either party to those issues was rightfully entitled to a plenary hearing before another court of competent jurisdiction, or they could by agreement or acquiescence try those issues in a plenary hearing before Judge Barnes, sitting as a court of equity. They chose the latter and that court warned the parties in no uncertain terms that neither party would be heard to say thereafter that it was not a plenary hearing.
This claim for expenses in defending against and defeating the counterclaim of the Court Trustee was filed and tried after the decision in Woods v. City National Bank & Trust Co., supra. It must be remembered that in the latter case the only issues presented involved the services and expenses of claimant, the Bondholders’ Committee and the attorneys of both, with relation to the formation, approval and carrying out of • the plan of reorganization. The Supreme Court disallowed those claims but said that any out-of-pocket expenses incurred by them which benefited the estate should be allowed and paid by the estate, and that no such claim which did not benefit the estate should be allowed.
• [5] It is this expression of the Supreme Court which constitutes the basis of this controversy. In other words the debtor claims that because claimant’s expense in successfully defending itself against the counterclaim for $300,000 was not beneficial to the estate, it cannot be allowed under the Supreme Court’s ruling in the Woods case. We do not so interpret that opinion. It does not expressly say so, nor was the Court there dealing with this kind of a claim. It was there dealing with claims alleged to be beneficial to the estate, and the Court merely held that claims for out-of-pocket expense in such cases must be proved to be beneficial to the estate. Here, the counterclaim was directed against claimant, not against the debtor or the Bondholders’ Committee, for the Court Trustee was prosecuting the case for their benefit. Under such circumstances claimant had a right to defend its liability and its honor. It did so successfully and nothing was recovered on the cross complaint. The basic question involved in the appeal to the Supreme Court concerned the power of the District Court in proceedings under Chapter X of the Chandler Act, 11 U.S. C.A. § 501 et seq., to disallow the claims of the indenture trustee, the Bondholders’ Committee, and the counsel for both, for compensation and reimbursement on the grounds that the claimants were serving dual or conflicting interests. As to the other points raised by the Court Trustee, which included those raised by his counterclaim, the Court said they were “so plainly without merit that they do not warrant mention.” Yet debtor’s counsel urges that claimant cannot recover for his out-of-pocket expenses, including a reasonable attorney fee, occasioned by its successful defense against the counterclaims, merely because the debtor was completely unsuccessful in the result of that issue.
The Special Master found, and the District Court approved the finding, that the attorney fee of $15,000 for defending against the counterclaim was reasonable, and that claimant’s items of out-of-pocket expense, except an item of title expense for $1135.30, which has been paid, were proper items of allowance. Under broad equitable principles those findings are certainly sound. Patterson v. Northern Trust Co., 286 Ill., 564, 122 N.E. 55; Waterman v. Alden, 144 Ill. 90, 32 N.E. 972; Scott on Trusts, Vol. 2, sec. 188.4; Perry on Trusts (7th Ed.), sec. 894; Bogert on Trusts, Vol. 4, § 805.
The fact that the issues on the counterclaims were tried before the bankruptcy court, at a plenary hearing, with the knowledge and consent of the parties, did not alter the character of that proceeding. It remained a suit in equity and was governed by equity rules. In re Rockford Produce and Sales Co., 7 Cir., 275 F. 811; Board of Trade of Chicago v. Johnson, 7 Cir., 283 F. 374. In defending against the counterclaim, claimant was not engaged in maintaining its claim 9, nor the fee petitions of the Bondholders’ Committee and its counsel. It was merely engaged in defending itself against a plenary action for damages, and under the well-recognized general rule, it was entitled to reimbursement of its expense so incurred.
Appellee recognizes this general rule, but it contends that the ruling in Woods v. City Bank Co., supra, constitutes an exception thereto. For the reasons above stated we think that that ruling does not create an exception to the general rule, and that so much of the claim as found by the Special Master and approved by the District Court to be proper allowances to claimant for expenses in its defense to the counterclaim should be paid out of the assets of the estate. Likewise there should be an allowance out of those assets for the attorney’s fee of claimant’s attorneys, which both the Special Master and the District Judge found to be reasonable for the services rendered by them in its defense to the counterclaim.
However, the Master found that if the court concluded that claimant was entitled to recover its costs incurred in defending itself against the counterclaim and surcharge, then only. 35% of the attorneys’ fees should be allowed because, “ * * * under approval and order of this Court, the property subject to reorganization was sold in the year 1942, and the return to-holders of certificates of beneficial interest approximated 35% of their capital investment with no interest from the year 1928.”’
That this property was ever sold is not supported by any evidence in this record. The facts as stipulated are in substance as. follows: 5357 shares of Granada Participation Certificates were issued under the-trust agreement by the trustees of the property reorganized in this proceeding. On-March 13, 1941, 3572.78 shares’were owned or controlled by a group represented by Fred E. Law, who is one of the parties to-this proceeding. On that date, Law offered on behalf of this group to purchase all outstanding shares of the Participation Certificates, or capital stock, as the unit certificates were referred' to in Law’s letter of that date. Thereafter, the trustees were-authorized by the District Court to sell all! of the outstanding shares of capital stock of Granada at a price of $35 a share for each share represented by outstanding Participation Certificates. At that time the number of outstanding shares was 1759.48, of which 53.74 had no beneficial owner and had been issued in excess of the requirements for the reorganization. Thus the total outstanding shares including those held by the Law group were 5303.26. On July 9, 1941, the Trustees sold and delivered to Fred E. Law, at a price of $35 per share, all the capital stock of Granada Apartments Hotel Corporation numbering 1759.48 shares.
This certainly did not constitute a sale of the entire property, however, if it did, no authority has been cited to us, and we have found none, which in such event would authorize a deduction from the reasonable value of claimant’s attorneys’ fees for services rendered for claimant in its defense against the Trustees’ counterclaim which Mr. Law and his associates were greatly interested in sustaining.
The order approving the Master’s report is reversed and the cause is ordered remanded to the District Court with instructions to enter an order directing the Granada Apartments Hotel Corporation to pay to City National Bank and Trust Company of Chicago the amounts prayed for in its petition, after deducting the title expense in the sum of $1135.30 which has been paid to Gty National, and decreeing that City National has a lien on the property of Granada Apartments Hotel Corporation for the payment thereof. In all other respects the District Court’s ruling approving the Master’s report is affirmed.
This cause was argued before Evans and Sparks, Circuit Judges, and Lindley, District Judge, on April 17, 1946. On the same day we held consultation on the case and agreed that it should be decided as it is here written. On April 30, 1946, Judge Evans became seriously and dangerously ill and has since been confined in the hospital. He is unable at this time to be consulted on business matters. Under these circumstances the opinion is announced as a majority one.
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:
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songer_initiate
|
A
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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.
Manuel CERVANTES, Appellant, v. Harold A. COX, Warden, New Mexico State Penitentiary, Appellee.
No. 8192.
United States Court of Appeals Tenth Circuit.
Sept. 15, 1965.
John W. Carey, Denver, Colo., for appellant.
L. D. Harris, Sp. Asst. Atty. Gen. (Boston E. Witt, Atty. Gen., on the brief), for appellee.
Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
LEWIS, Circuit Judge.
This appeal is taken from an order of the District Court for the District of New Mexico denying appellant’s petition for a writ of habeas corpus. Appellant, a Mexican national, was originally charged with first degree murder and is presently serving a sentence imposed by the New Mexico state court after acceptance of a plea of guilty to second degree murder. He alleges that he was denied several federal constitutional rights in the state court proceedings, each such claim springing from the contention that he could not and did not understandingly communicate with his appointed counsel because of the existence of a language barrier.
Although we have no doubt that under extreme circumstances the inability of an accused to communicate with his counsel may deny to him the right to effective representation and actually result in the entry of a plea without understanding we do not find the case at bar to be of such nature. There is no constitutional right, as such, requiring the assistance of a court-appointed interpreter to supplement the right to counsel. Nor is there a duty to an accused to furnish counsel who can communicate freely with the accused in his native tongue. The existence of a language barrier between counsel and client is merely one circumstance probing the questions of whether the accused has been adequately represented by counsel and has voluntarily and knowingly entered his plea.
Here, the trial court, rejecting the credibility of appellant’s present testimony, found as a fact that appellant had a sufficient knowledge of the English language to be completely aware of all of the proceedings in the state court. The finding is amply supported by the transcript of the state arraignment where the following occurred, all in the English language:
“THE COURT: Are you prepared to enter a plea at this time?
MR. CERVANTES: I would like to find out what is the charge before I plea.
THE COURT: Well, the Court’s been informed by Mr. Durrett, one of your attorneys, and Mr. Wilkinson is the other one, and the Assistant District Attorney that you wanted to enter a plea to a charge of murder in the second degree. Now, is that correct?
MR. CERVANTES: I do.
THE COURT: Very well, Mr. Garza, do you want to make a motion?
******
THE COURT: Now are you prepared to enter a plea at this time ?
MR. CERVANTES: Yes:
THE COURT: The Court has appointed two attorneys to represent you, and they have asked that they have time to consult with you, and I presume they have. Are you satisfied with their representation?
THE WITNESS: Yes.
THE COURT: Do you know of any reason why this Court should not sentence you at this time ?
MR. CERVANTES: No, I don’t think so.
THE COURT: And you want to enter a plea of guilty to a charge of murder in the second degree, is that correct ?
MR. CERVANTES: Yes.
THE COURT: Do you have anything to say before the Court passes sentence ?
MR. CERVANTES: No, sir.”
Appellant’s independent inquiry as to the charge to which he was to plead indicates an understanding that it was to be a reduced charge and that he had the ability to communicate both with the court and with his counsel.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
WALSH, dba TOM WALSH & CO. v. SCHLECHT et al., TRUSTEES
No. 75-906.
Argued November 1, 1976
Decided January 18, 1977
Carl R. Neil argued the cause and filed briefs for petitioner.
Paul T. Bailey argued the cause for respondents. With him on the brief was George Kaujmann.
Briefs of amici curiae were filed by Steven R. Semler for Huico, Inc.; and by Richard M. Stanislaw for the Mechanical Contractor Associations of Washington.
Mr. Justice Brennan
delivered the opinion of the Court.
The question presented by this case is whether the provision of a collective-bargaining agreement between petitioner, a general contractor, and the Oregon State Council of Carpenters, requiring that petitioner pay contributions to certain trust funds with respect to hours of carpentry work performed by employees of a nonsignatory subcontractor, violated §302 (a)(1) of the Labor Management Relations (Taft-Hartley) Act, 29 U. S. C. § 186 (a)(1). That section generally prohibits agreements of employers to pay money to any representative of their employees. Sections 302 (c) (5) and (6), however, exempt from this general proscription written agreements to pay money to trust funds jointly created and administered by trustees representing employer associations and the union for the purpose of providing medical or hospital care, pensions, pooled vacations for employees of signatory employers, or to defray the costs of apprenticeship or other training programs.
Petitioner constructed a federally subsidized low-income apartment project in Salem, Ore. A collective-bargaining agreement between petitioner and the Oregon State Council of Carpenters required petitioner to pay contributions to five employer-union trust funds jointly created by the carpenters’ union and multiemployer general contractors associations, and jointly administered by respondents, trustees designated in equal numbers by the employers and union. The trusts are, respectively, the Health and Welfare Trust Fund, the Pension Trust Fund, the Vacation Savings Trust Fund, the Apprenticeship and Training Trust Fund, and the Construction Industry Advancement Fund (CIAF). Only signatory employers may contribute to the funds; and no carpenter employee of a nonsignatory employer is entitled to benefits in the Health and Welfare, Pension, and Vacation Savings Funds, the three funds that provide benefits for carpenter employees. Contributions were payable at the aggregate rate of 96 cents per hour of carpentry work done at the project.
Petitioner subcontracted the framing work on the project to Lloyd Jackson, a framing specialist, who was a nonsignatory employer and whose employees were therefore not eligible for trust fund benefits. In such cases petitioner had the option under a “subcontractor’s clause,” Art. IV of the collective-bargaining agreement, of requiring “such subcontractor to be bound to all the provisions of this Agreement,” or of maintaining “daily records of the subcontractors employees jobsite hours and be liable for payment of these employees [sic] . . . [trust fund] contributions in accordance with this Agreement.” Petitioner did neither. He did not require that the subcontractor “be bound” to the agreement and the subcontractor made no contributions to the funds. Instead the subcontractor paid directly to his carpenter employees, as fringe benefits, 96 cents per hour in addition to their wages at union scale, thus paying out the same aggregate of wages and fringe benefits paid by signatory employers in the form of wages to their employees and contributions to the trust funds.
Nor did petitioner maintain daily records of and pay contributions to the trust funds with respect to the hours of carpentry work performed on the project by the subcontractor’s carpenter employees. Therefore, after completion of the project, respondent trustees brought this action in the Circuit Court of Multnomah County, Ore., to enforce the provision of Art. IV. Grounded upon petitioner’s agreement to “be liable for payment of these [the subcontractor’s] employees [sic] . . . [trust fund] contributions . . . ,” the complaint sought, inter alia, an accounting of the hours of carpentry work performed by the subcontractor’s employees on the project, and a judgment for the amount of such work at 96 cents per hour. Petitioner’s principal defense was that the subcontractor’s clause violated § 302 (a)(1). The Circuit Court sustained respondents’ demurrer to that defense. The Circuit Court held, however, that it would be “inequitable” to require contributions to the Health and Welfare, Pension, and Vacation Savings Funds because they would in effect amount “to double fringe benefits” with respect to the subcontractor’s employees. It therefore ordered an accounting limited to contributions to the Apprenticeship and CIAF trusts that did “not accrue benefits directly to the workmen.” The Supreme Court of Oregon affirmed the judgment insofar as it sustained the demurrer to petitioner’s defense based on § 302 (a)(1) but, construing the subcontractor’s clause as giving all the “funds . . . equal standing under the terms of the contract . . . ,” reversed the judgment insofar as it limited the accounting to the Apprenticeship and CIAF trusts. 273 Ore. 221, 225-226, 540 P. 2d 1011, 1013-1014 (1975). We granted certiorari, 424 U. S. 942 (1976). We affirm.
I
The parties agree that the determinative question for decision is that of the proper construction of the subcontractor’s clause: whether that clause binds petitioner to make contributions to the trust funds “on behalf of’’ or “for the benefit of” the subcontractor’s employees, so that they may participate in the benefits provided carpenters by the funds. Thus interpreted, the clause would violate § 302 (a)(1) because the subcontractor is not a signatory to the • collective-bargaining agreement and his employees are therefore ineligible for trust fund benefits based on carpentry work performed for him. On the other hand, if the clause merely obligates petitioner to pay contributions to the funds measured by the hours of carpentry work performed at the project by the subcontractor’s employees, the benefits being payable only to carpenters employed by petitioner and other signatory employers, then the clause is authorized by the exceptions to the general prohibition of § 302 (a) enacted in §§ 302 (c)(5) and (6).
Before turning to the question of the meaning of the clause we must address a threshold question — whether federal or state law principles of contract construction, if they differ, are to be applied. Plainly federal law principles apply. Although the Oregon courts were not foreclosed from entertaining- this suit merely because petitioner’s defense invoked §302 (a)(1) of the Taft-Hartley Act, Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), we have proceeded “upon the hypothesis that state courts would apply federal law in exercising [such] jurisdiction” and that “incompatible doctrines of local law must give way to-principles of federal labor law.” Teamsters v. Lucas Flour Co., 369 U. S. 95, 102 (1962) (citations omitted). Application of federal law is necessary to avoid the “possibility that individual contract terms might have different meanings under state and federal law . . . id., at 103.
The Oregon courts did not specify in this case whether federal or state principles of contract construction guided their concurring conclusions that the subcontractor’s clause was not to be read as violating § 302 (a)(1). We shall therefore assume that federal principles were applied. In any event, if in fact state rules of contract interpretation were employed, federal rules would require agreement with the Oregon courts’ construction. Since a general rule of construction presumes the legality and enforceability of contracts, 6A A. Corbin, Contracts §§ 1499, 1533 (1962), ambiguously worded contracts should not be interpreted to render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable. The subcontractor’s clause although inartfully worded, lends itself to a construction that ties signatory employer contributions to the trust funds as measured both by hours worked by his own employees and hours worked by his nonsignatory subcontractor’s employees, and, so construed, Art. IV does not violate § 302 (a)(1).
Petitioner argues that the Oregon Supreme Court’s opinion reads the clause as requiring petitioner to make payments “on behalf of” Jackson’s employees in order that they may participate in the benefits of the trusts. This reading, he contends, is implicit in the following passage from the State Supreme Court’s opinion:
“In this case the requirement of such a written contract was satisfied in that defendant had a written contract with the union which required that he make contributions to the trust funds for his own employees and also specifically provided that in the event he engaged a subcontractor to do any work covered by the agreement he would be liable for payments into the various trust funds for the employees of such a subcontractor.” 273 Ore., at 229, 540 P. 2d, at 1015 (emphasis added).
Read in isolation, this somewhat ambiguous passage might appear to support petitioner’s argument. In the context of the entire opinion, however, particularly its reliance upon lower federal court decisions upholding the legality of payments measured in whole or in part by wages paid to employees ineligible to receive benefits, it becomes clear that the Oregon Supreme Court read the subcontractor’s clause as an agreement by petitioner to make contributions to the funds measured by the hours of carpentry work performed by the subcontractor’s employees, not “on behalf of” or “for the benefit of” the nonsignatory contractor’s ineligible employees, but solely for the benefit of the employees of petitioner and other signatory employers. This conclusion follows, we think, from the Oregon Supreme Court’s treatment of Moglia v. Geoghegan, 403 F. 2d 110 (CA2 1968), and Kreindler v. Clarise Sportswear Co., 184 F. Supp. 182 (SDNY 1960). In rejecting petitioner’s argument that § 302 (a) (1) prohibits an employer from making any contributions except for the benefit of his own and other signatory employers’ employees, the court characterized language in Moglia, cited by petitioner in support of this construction, as “not necessary to . . . decision in that case, in which there was no written agreement, and it is not binding upon this court in this case.” 273 Ore., at 229 n. 4, 540 P. 2d, at 1015 n. 4. Rather, the Oregon Supreme Court relied on Kreindler, also involving payments to a trust fund for employees of a nonunion contractor, where the contention was rejected that an employer’s contributions measured by the hours worked of another employer’s employees violated §302 (a)(1). The court quoted extensively from the Kreindler opinion’s reasoning in concluding that payments might be legal even though measured by hours worked by employees of another employer. The court stated flatly: “We agree with [the] statement” from Kreindler that “‘[t]he fact that the employees of Clarise’s contractors cannot share in the payments based on their payrolls which Clarise has agreed to make does not give Clarise the right to avoid its agreement as illegal.’ ” 273 Ore., at 230, 640 P. 2d, at 1015. Accord, Budget Dress Corp. v. Joint Board of Waistmakers’ Union, 198 F. Supp. 4 (SDNY 1961), aff’d, 299 F. 2d 936 (CA2 1962); Minkoff v. Scranton Frocks, Inc., 181 F. Supp. 542 (SDNY), aff’d, 279 F. 2d 115 (CA2 1960); Greenstein v. National Skirt & Sportswear Assn., 178 F. Supp. 681 (SDNY 1959).
We agree that enforcement of the subcontractor’s clause, as so construed by the Oregon Supreme Court to require petitioner to make contributions measured by the hours worked by his subcontractor’s employees, not only is consistent with the wording of §§302 (c)(5) and (6) but also does no disservice to the congressional purpose in enacting § 302 to combat “corruption of collective bargaining through bribery of employee representatives by employers, . . . extortion by employee representatives, and . . . the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control.” Arroyo v. United States, 359 U. S. 419, 425-426 (1959).
II
Petitioner also advances an argument, apparently not made in the Oregon courts, that the subcontractor’s clause “frustrates” the objectives of the Davis-Bacon Act, 40 U. S. C. § 276a, by increasing his labor costs over the minimum required by that Act. However, the Davis-Bacon Act “was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects.” United States v. Binghamton Constr. Co., 347 U. S. 171, 176-177 (1954). That objective is clearly not “frustrated” when contractual arrangements between employers and their employees result in higher compensation and benefits than the floor established by the Act.
Affirmed.
Section 302 of the Labor Management Relations Act, 1947, 61 Stat. 157, as amended, 29 U. S. C. § 186, provides in pertinent part:
“(a) It shall be unlawful for any employer or association of employers .. . to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
“(1) to any representative of any of his employees who are employed in an industry affecting commerce;
“(c) The provisions of this section shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families, and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents) : Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance tO' provide any of the foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer . . . ; (6) with respect to money or other thing of value paid by any employer to a trust fund 'established by such representative for the purpose of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs: Provided, That the requirements of clause (B) of the proviso to clause (5) of this subsection shall apply to such trust funds . . . .”
Petitioner conceded that the trustees will not accept contributions from nonsignatory employers. App. 53. The five trust funds involved in this case expressly limit participation in benefits to employees of signatory employers and petitioner makes no claim that the subcontractors’ employees received benefits from the funds.
Article IV of the Carpenters Master Labor Agreement between general contractors associations and the Oregon State and Southwest Washington District Councils of the United Brotherhood of Carpenters and Joiners of America, with which petitioner by memorandum agreement agreed to comply, provides as follows:
“If an employer, bound by this Agreement, contracts or subcontracts, any work covered by this Agreement to be done at the job site of the construction, alteration or repair of a building, structure or other work to any person or proprietor who is not signatory to this Agreement, the employer shall require such subcontractor to be bound to all the provisions of this Agreement, or such employer shall maintain daily records of the subcontractors employees job site hours and be liable for payment of these employees wages, travel, Health-Welfare and Dental, Pension, Vacation, Apprenticeship and CIAF contributions in accordance with this Agreement.” (Emphasis added.)
Agreements with the Department of Housing and Urban Development required employers participating in the Salem project to pay their employees according to the prevailing wage scale, as defined in the Davis-Bacon Act, 40 U. S. C. § 276a. Under the Act, fringe benefits may be paid either to the workmen directly or to union-employer trusts for the benefit of the workmen. The Act applies to all construction contracts to which the United States is a party.
Moglia had been employed for 28 years by a single employer whose payments into the trust fund had been illegal because he was not a party to a written agreement as required by §302 (c)(5)(B). 403 F. 2d, at 114. The Court of Appeals for the Second Circuit concluded that Moglia was not eligible to receive benefits because he had never been an employee of an employer lawfully contributing to the fund.
A provision of the controlling collective-bargaining agreement required Clarise, as a member of a multiple-employer bargaining association, to make payments to the union’s health and welfare and retirement funds based both upon Clarise’s own payrolls and upon the payrolls of the contractors who manufactured Clarise’s product. The employees of Clarise’s contractors were not eligible to receive benefits from the funds.
The agreement establishing the CIAF trust provides for exclusive employer administration and that fund is therefore outside the coverage of § 302.
Our decision that the subcontractor’s clause does not violate § 302 makes it unnecessary to address petitioner’s argument that § 302 (c) (6) should be read to incorporate the “exclusive benefit” requirement of §302 (c) (5).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_casetyp1_4-3
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "due process".
Herbert L. FENSTER, Appellant, v. Harold BROWN, Secretary of Defense, et al.
No. 78-2169.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 26, 1979.
Decided Dec. 18, 1979.
Robert L. Ackerly, Washington, D. C., with whom Mitchell H. Segal, Washington, D. C., was on the brief, for appellant. Lane L. McVey, Washington, D. C., also entered an appearance for appellant.
Barbara L. Herwig, Atty., Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees. Linda M. Cole, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellees.
Before J. EDWARD LUMBARD, Senior Circuit Judge for the Second Circuit, and TAMM and MIKVA, Circuit Judges.
Opinion for the court filed • by TAMM, Circuit Judge.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
TAMM, Circuit Judge:
Appellant, after “substantially prevailing” in litigation seeking the release of federal documents, sought an award of attorneys’ fees under section 552(a)(4XE) of the Freedom of Information Act (FOIA). United States District Judge George L. Hart, Jr., denied the request, prompting this appeal. Believing that Judge Hart properly exercised his discretion in denying the award, we affirm.
I.
Gilbert Cuneo (now deceased) and Herbert Fenster, partners in a Washington law firm that specializes in government contract law, filed this suit against then Secretary of Defense Robert S. McNamara in 1967 seeking disclosure of the Defense Contract Audit Manual, a manual used by the Defense Contract Audit Agency (DCAA) to aid inspectors who audit government contracts. See Cuneo v. Laird, 338 F.Supp. 504 (D.D.C.1972), remanded sub nom. Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). After resisting disclosure for eight years, the Government finally released the manual to the public while this case was pending in the district court. Appellant, having “substantially prevailed” within the meaning of section 552(a)(4)(E), filed a request for attorneys’ fees. The district court denied the request because the attorneys were acting in propria persona, and therefore outside section 552(a)(4)(E). Cuneo v. Schlesinger, No. 1826-67 (D.D.C. Sept. 15, 1975) (Order Denying Attorneys’ Fees). This court reversed the district court’s determination, Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 553 F.2d 1360 (D.C.Cir.1977), and remanded the case to the district court to consider the relevant criteria and exercise its discretion in ruling on an award of fees. Id. at 1367. On remand, Judge Hart considered these criteria and declined to award fees. Cuneo v. Brown, No. 1826-67 (D.D.C. Aug. 7, 1978) (Order Denying Attorneys’ Fees). Appellant Fenster challenges that ruling as an abuse of discretion.
II.
In 1974, Congress amended the Freedom of Information Act to authorize attorneys’ fees for complainants who “substantially prevailed” in litigation under the Act. Freedom of Information Act Amendments of 1974, Pub.L. No. 93-502, § 1(b)(2), 88 Stat. 1561 (codified at 5 U.S.C. § 552(a)(4)(E) (1976)). The Senate Report accompanying this legislation noted the importance of this new provision:
[it is] crucial to effectuating the original congressional intent that judicial review be available to reverse agency refusals to adhere strictly to the Act’s mandates. Too often the barriers presented by court costs and attorneys’ fees are insurmountable for the average person requesting information, allowing the government to escape compliance with the law.
S.Rep. No. 854, 93d Cong., 2d Sess. 17 (1974) [hereinafter cited as Senate Report], reprinted in House Comm, on Gov’t Operations & Senate Comm, on the Judiciary, 94th Cong., 1st Sess., Legislative History of the Freedom of Information Act Amend-merits of 1974, pt. 1, at 169 (Joint Comm. Print 1975) [hereinafter cited as Legislative History].
Congress, in authorizing the award of attorneys’ fees, left to the traditional equitable discretion of the courts the decision whether such fees are appropriate in any given disclosure case. When this case was previously before this court in Cuneo v. Rumsfeld, we stated:
It is clear from the legislative history that Congress did not intend the award of attorney fees to be automatic. Instead, the trial court must weigh the facts of each case against the criteria of the existing body of law on the award of attorney fees and then exercise its discretion in determining whether an award is appropriate.
180 U.S.App.D.C. at 191, 553 F.2d at 1367 (footnotes omitted). Noting that it is “better to have that discretion exercised by the court which has been most intimately connected with the case,” id. at 192, 553 F.2d at 1368, this court remanded the case for Judge Hart to rule on the attorneys’ fees. The court mentioned four criteria for the district court to consider in deciding whether to make an award: “(1) the benefit to the public, if any, derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding of the records had a reasonable basis in law.” Id. at 188, 553 F.2d at 1364 (footnote omitted). See Senate Report 19, reprinted in Legislative History 171 In addition, this court in Rumsfeld specifically suggested that the district court examine the commercial interest of the appellant’s law firm in the disclosure of the manual. 180 U.S.App.D.C. at 192-93, 553 F.2d at 1367-68.
On remand, Judge Hart found that the public benefit from disclosure was “minimal,” the commercial benefit to appellant “enormous,” and the government’s original withholding of the manual justified by “a reasonable basis in law.” He therefore denied the request for fees. Cuneo v. Brown, No. 1826-67 (D.D.C. Aug. 7, 1978) (Order Denying Motion for Attorneys’ Fees). In making this decision, Judge Hart properly exercised the discretion permitted under section 552(a)(4)(E). As a review of the four suggested criteria reveals, he carefully weighed the circumstances of this suit against these criteria in deciding that the appellant did not deserve to be awarded fees.
Two of the four criteria are closely related in this case: the commercial benefit to the complainant and the nature of the complainant’s interest in the record soüght. When a complainant seeks disclosure of information for commercial benefit, an award of fees is generally inappropriate:
[Tjhere will seldom be an award of attorneys’ fees when the suit is to advance the private commercial interests of the corn-plainant. In these cases there is usually no need to award attorneys’ fees to insure that the action will be brought. The private self-interest motive of, and often pecuniary benefit to, the complainant will be sufficient to insure the vindication of the rights given in the FOIA.
Senate Report 19, reprinted in Legislative History 171. In remanding this case for the district court to exercise its discretion respecting an award of fees, this court expressed concern over the appellant’s commercial interest in disclosure of the manual:
One important factor which the trial court should take into consideration is whether the action was brought to advance the private commercial interest of the complainant. Section 552(a)(4)(E) was not intended to compensate FOIA complainants who have a private commercial interest in disclosure which is sufficient incentive to pursue their claim through the courts. The facts of this case suggest that a private incentive was present. Appellant vigorously litigated this suit for seven years with full knowledge that the FOIA did not provide for the award of attorney fees. Apparently [appellant] thought that the time his firm would have to invest in the suit was worth the gamble that the Manual would be obtained. . . . The FOIA was fundamentally designed to inform the public and not to benefit private litigants. If the potential for private commercial benefit was sufficient incentive to encourage [the appellant] to pursue his FOIA claim, the policy objectives of section 552(a)(4)(E) would be met and it would not be improper for the trial court to deny his request for attorney fees.
Cuneo v. Rumsfeld, 180 U.S.App.D.C. at 191-192, 553 F.2d at 1367-68 (emphasis in original) (footnotes and citations omitted). Fenster has admitted his firm’s commercial interest in the information that he sought to have disclosed:
[Appellant’s] clients and [appellant] annually participate in extensive negotiation and litigation with Defendants’ agents, who specifically represent the DCAA. In these dealings, which involve tens of millions of dollars, Defendants’ agents rely on provisions of the Defense Contract Audit Manual . . . . [Appellant] is seriously impaired in his counseling, negotiation, and litigation services by the unavailability of the manual, and is further unable to insure the fair treatment of his clients in such proceedings.
Affidavit of Herbert L. Fenster, Cuneo v. Laird, No. 1826-67, at 7 (D.D.C., subscribed July 26, 1971). It is evident that Cuneo and Fenster originally brought this suit to obtain information that would help their firm counsel clients. Moreover, the firm knew that if it succeeded in obtaining the disclosure of the audit manual, that fact might well induce contractors with problems involving the DCAA to bring their business to the firm, although the manual would become equally available to other counsel. On these facts, “the private self-interest motive of, and . . . pecuniary benefit to, the complainant [is] sufficient to insure the vindication of the rights given in the FOIA.” Senate Report 19, reprinted in Legislative History 171.
Judge Hart also found the government had a “reasonable basis in law” for its opposition to disclosure. Although Fenster contends to the contrary, this court has already resolved this question in Rumsfeld:
To satisfy the “reasonable basis in law” requirement it is not necessary for the court to find that the information the government chose to withhold was in fact exempt. What is required is a showing that the government had a reasonable basis in law for concluding that the information in issue was exempt and that it had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.
In this ease the government has satisfied the reasonable basis requirement. At one stage in this litigation the district court had found that parts of the Manual were exempt. This confirms that the government had at least a reasonable basis for concluding the withholding to be proper.
Id. at 189-190, 553 F.2d at 1365-66 (emphasis added) (footnotes and citations omitted). In light of the fact that at the time the Government withheld disclosure the state of the law with respect to the disclosure of documents like the manual was a matter of genuine uncertainty, reflected in the reversal of the district court by this court in Rumsfeld, it is clear to us that a “reasonable basis” for the Government’s position existed at the time.
The final relevant criterion involves the public benefit from disclosure of government materials. Judge Hart relied expressly on the small volume of public sales of the manual after its release in finding little public benefit from disclosure. The release of any government document benefits the public by increasing citizens’ knowledge of their government. Congress did not have this sort of broadly defined benefit in mind, however, in enacting section 552(a)(4)(E). The legislative history indicates that the “public benefit” criterion “speaks for an award [of attorneys’ fees] where the complainant’s victory is likely to add to the fund of information that citizens may use in making vital political choices.” Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978). In this case, knowledge of the contents of the manual primarily helps government contractors with audits of their performance by the government. Thus, the manual basically furthers a private commercial, and not the general public, interest. This finding of little public benefit from disclosure of the manual is supported by the record.
III.
Having weighed all the criteria, see Nationwide Building Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 559 F.2d 704 (D.C.Cir.1977), Judge Hart properly exercised his discretion under section 552(a)(4)(E) in refusing appellant’s request for attorneys’ fees. Appellant succeeded in his original goal of obtaining release of the manual. That is compensation enough. The judgment is
Affirmed.
. Section 552(a)(4)(E) states:
The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
5 U.S.C. § 552(a)(4)(E) (1976).
. Gilbert Cuneo died during the pendency of this suit. Herbert Fenster is the sole appellant.
. The court also found that section 552(a)(4)(E), an addition under the Freedom of Information Act Amendments of 1974, Pub.L. No. 93-502, 88 Stat. 1561, did not apply to suits filed before the provision’s effective date of February 19, 1975. On appeal, this court disagreed, finding that “the law at the time the action is terminated, and not the law in force at the time of commencement” of an action, controls the award of attorneys’ fees. Cuneo v. Rumsfeld, 180 U.S.App.D.C. 184, 191, 553 F.2d 1360, 1367 (D.C.Cir.1977).
. The Senate Report listed these four criteria and then stated:
Under the first criterion a court would ordinarily award fees, for example, where a newsman was seeking information to be used in a publication or a public interest group was seeking information to further a project benefitting the general public, but it would not award fees if a business was using the FOIA to obtain data relating to a competitor or as a substitute for discovery in private litigation with the government.
Under the second criterion a court would usually allow recovery of fees where the complainant was indigent or a nonprofit public interest group versus [sic] but would not if it was a large corporate interest (or a representative of such an interest). For the purposes of applying this criterion, news interests should not be considered commercial interests.
Under the third criterion a court would generally award fees if the complainant’s interest in the information sought was scholarly or journalistic or public-interest oriented, but would not do so if his interest was of a frivolous or purely commercial nature.
Finally, under the fourth criterion a court would not award fees where the government’s withholding had a colorable basis in law but would ordinarily award them if the withholding appeared to be merely to avoid embarrassment or to frustrate the requester. Whether the case involved a return to court by the same complainant seeking the same or similar documents a second time should be considered by the court under this criterion.
It should be noted that the criteria . are intended to provide guidance and direction — not airtight standards — for courts to use in determining awards of fees.
S.Rep. No. 854, 93d Cong., 2d Sess. 19 (1974), reprinted in House Comm, on Gov’t Operations & Senate Comm, on the Judiciary, 94th Cong., 1st Sess., Legislative History of the Freedom of Information Act Amendments of 1974, pt. 1, at 171 (Joint Comm. Print 1975) [hereinafter cited as Legislative History],
These criteria were expressly stated in S. 2543, 93d Cong., 2d Sess. (1974), as passed by the Senate. House and Senate conferees, however, dropped specific mention of the criteria from the final bill. The Conference Report stated: By eliminating these criteria, the conferees do not intend to make the award of attorney fees automatic or to preclude the courts, in exercising their discretion as to awarding such fees, to take into consideration such criteria. Instead, the conferees believe that because the existing body of law on the award of attorney fees recognizes such factors, a statement of the criteria may be too delimiting and is unnecessary.
H.R.Rep. No. 1380, 93d Cong., 2d Sess. 10 (1974), reprinted in Legislative History 227. Courts have, in fact, used these suggested criteria in judging requests for attorneys’ fees. See, e. g., Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978); Kaye v. Burns, 411 F.Supp. 897, 903-05 (S.D.N.Y.1976). See also Nationwide Bldg. Maintenance, Inc. v. Sampson, 182 U.S.App.D.C. 83, 559 F.2d 704 (D.C.Cir.1977); Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976).
Question: What is the specific issue in the case within the general category of "due process"?
A. denial of fair hearing or notice - government employees (includes claims of terminated government workers)
B. denial of hearing or notice in non-employment context
C. taking clause (i.e., denial of due process under the "taking" clause of the 5th or 14th Amendments)
D. freedom of information act and other claims of rights of access (includes all cases involving dispute over requests for information even if it does not involve the freedom of information act)
E. other due process issues
Answer:
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songer_appnatpr
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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 "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.
The ELM CITY BROADCASTING CORPORATION, Petitioner, v. UNITED STATES of America, and Federal Communications Commission, Respondents, The WAVZ Broadcasting Corporation, Intervenor. The ELM CITY BROADCASTING CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, The WAVZ Broadcasting Corporation, Intervenor.
Nos. 12542, 13002.
United States Court of Appeals District of Columbia Circuit.
Argued April 5, 1956.
Decided June 14, 1956.
Petition for Rehearing Denied Sept. 18, 1956.
Mr. Ben C. Fisher, Washington, D. C., with whom Mr. John P. Southmayd, Washington, D. C., was on the brief, for Elm City Broadcasting Corp.
Mr. Richard A. Solomon, Asst. Gen. Counsel, Federal Communications Commission, with whom Messrs. Warren E. Baker, Gen. Counsel, Federal Communications Commission, John J. O’Malley, Jr., Counsel, Federal Communications Commission, and Daniel M. Friedman, Atty., Dept, of Justice, were on the brief, for United States and F. C. C. Messrs. J. Smith Henley, Asst. Gen. Counsel, Federal Communications Commission, and Charles H. Weston, Atty., Dept, of Justice, also entered appearances for respondents.
Mr. Leo Rosen, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. William P. Bernton, Washington, D. C., was on the brief, for intervenor.
Before EDGERTON, Chief Judge, and WILBUR K. MILLER and BAZELON, Circuit Judges.
WILBUR K. MILLER, Circuit Judge.
These two cases pose the same basic question: has the Federal Communications Commission the authority, in a proceeding under § 309(b) of the Communications Act of 1934, as amended, to deny a petition for intervention seasonably filed by an undoubted party in interest? In the first case, No. 12,542, the would-be intervenor asked review of the denial of intervention before the Commission had reached a final decision on the merits, thus giving rise to the threshold question whether or not the order complained of was interlocutory and therefore reviewable only in connection with an appeal under § 402(b) from the Commission’s final action. In the second ease, No. 13,002, the would-be intervenor appeals from a final order which granted a construction permit to a competitor and also appeals from the earlier denial of intervention.
Had the first case come on for consideration alone, we should have been required to determine whether the order complained of was reviewable before we could have reached the basic question as to the Commission’s authority to deny a party in interest the right to intervene. In the second case, which was filed before the first was ripe for consideration, the basic question is squarely presented and may be reached immediately. For this reason, the first case, No. 12,542, will be dismissed because its preliminary question of reviewability has become moot. We express no opinion as to that question but proceed to consider the second case, No. 13,002.
We summarize the facts. In 1953 Key Broadcasting System and Edward J. Fitzgerald filed applications for construction permits for new standard broadcast stations to operate on 1300 kc at Bay Shore, New York, and Riverhead, New York, respectively. In the same year WAVZ Broadcasting Corporation, which is the intervenor here, applied for a construction permit to change its station WAVZ at New Haven, Connecticut, from 1260 kc daytime only to 1300 kc unlimited hours. Pursuant to the requirement of § 309(b) the three applicants were notified by the Commission February 18, 1954, that a hearing would be necessary; and because it appeared that one or more of their proposals might cause electrical interference to two stations in New Jersey, one in New York City, and one in Michigan, the Commission also notified their licensees of the nature and pendency of the three applications and' the necessity for a comparative hearing thereon. As § 309(b) requires that such notice be given to all known parties in interest, i.t may be assumed the Commission then knew of none other.
April 28, 1954, the Commission designated the three mutually exclusive ap-. plications for hearing in a consolidated proceeding; and, as § 309(b) requires that all parties in interest be permitted to participate, the licensees of the three stations in New York and New Jersey which might suffer electrical interference were made parties. Before the hearing, which began November 19,1954, - Fitzgerald dismissed his application without prejudice, leaving Key and WAVZ as contending applicants.
More than ten days before the date fixed for the hearing, two petitions for intervention based on economic injury, were filed by licensees who had not been notified by the Commission, presumably because it had not known they were parties in interest. The first of these was by a licensee at Bay Shore, New York,’ which alleged it would suffer competition if Key were authorized to construct a station at that place; this petitioner was allowed to intervene. The second petition for intervention was that of Elm City Broadcasting Corporation, petitioner and appellant in the two cases before us, which owns and operates three stations (standard, FM and television) in New Haven, Connecticut, all authorized to operate unlimited hours.
Elm City claimed to be a party in interest, and so entitled to intervene, because of the economic injury it would suffer if the Commission should au- , . ' ■ f thorize the proposed change in the operation of WAVZ, already its competitor in New Haven. The petitioner set forth in some detail the issues on which it proposed. to introduce evidence. . .
Elm City’s petition for intervention was denied November 19, 1954, with. Commissioner Hennock dissenting from the order. The Commission did not base the denial upon a finding that Elm City was not a party in interest — it made no such finding — but rested its order entirely upon the following recital :
“It Further Appearing, That the statement, of matters to be proved is conjectural and speculative and otherwise insufficient in that it does not adequately state the nature of the facts it proposes to develop at the hearing and that the petition is therefore fatally defective and should be denied. * * * ”
With Elm City thus excluded from participation, the hearing began November 19, 1954, and proceeded to conclusion on December 21, 1954.
January 17, 1955, Elm City filed with us a petition for review, under § 402(a) of the Act of the order of the previous. November 19 which denied it intervention. This is the first case, No. 12,542. The Commission released its final decision November. 7, 1955, denying the application of Key Broadcasting System and granting that of WAVZ. Elm City appealed December 7, 1955, under § 402 (b) of the Act from the final decision of the Commission and from the-order denying its petition to intervene. This, is case No. 13,002. ' ' '
In refusing, for the reason recited in its order, to permit Elm, City to intervene, the Commission relied upon § 1.388 (b) of its Rules, which - provides with respect to certain would-be intervenors, including those who allege economic injury:
“(b) Any other person desiring to participate in the hearing may file a petition to intervene, The petition must set forth the interest qf the petitioner in the proceedings, must show how such person’s participation will assist the Commission in the determination of the issues in question, and must be accompanied by the affidavit of a person with knowledge as to the facts set forth in the petition. The Commission in its discretion may grant or deny such petition or may permit intervention by such person limited to particular issues or to a particular stage of the proceeding.”
When it was first promulgated, this provision of the Rules was not inconsistent with the governing statute, for § 309 of the Act was then silent as to intervention and merely provided that where the Commission could not find, on ex parte consideration, that the grant of an application would serve the public interest, “it shall notify the applicant thereof, shall fix and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe.” 48 Stat. 1085. But in 1952 Congress amended § 309 and as part of a new subsection (b) provided that:
“ * * * The parties in interest, if any, who are not notified by the Commission of its action with respect to a particular application may acquire the status ox a party to the proceeding thereon by filing a petition for intervention showing the basis for their interest at any time not less than ten days prior to the date of hearing. Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate * *
Thus, under the statute as now constituted, a party in interest who has not already been made a party to the proceed-mg may acquire that status by filing a petition for intervention showing the basis of his interest.
The Commission concedes, as it must, that Elm City is a party in interest. We have frequently held, relying upon F. C. C. v. Sanders Brothers Radio Station, 1940, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037, that an existing licensee who alleges he may be economically injured by Commission action in a pending proceeding, is a party in interest entitled to be heard therein. Clarksburg Publishing Co. v. F. C. C., 1955, 96 U.S.App.D.C. 211, 214 note 8, 225 F.2d 511, 514 note 8; Metropolitan Television Co. v. F. C. C., 1955, 95 U.S. App.D.C. 326, 221 F.2d 879; Greenville Television Co. v. F. C. C., 1955, 95 U.S. App.D.C. 314, 221 F.2d 870; Camden Radio, Inc., v. F. C. C., 1954, 94 U.S.App. D.C. 312, 220 F.2d 191; cf. National Coal Ass’n v. F. P. C., 1951, 89 U.S.App. D.C. 135, 191 F.2d 462.
Following the KOA case, 319 U. S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374, the Commission amended its Rules to grant intervention as of right to a party who alleges objectionable interference. (Rules, § 1.388(a), see footnote 2, supra.) But it has never amended its Rules to recognize our holdings that the Sanders Brothers ruling applies to intervention in a proceeding before the Commission. To the contrary, the Commission insists here that its Rule 1.388(b), which has been in effect with minor changes since 1939, survives the new § 309(b) enacted in 1952; that it is not required thereby to grant intervention to one who alleges he is a party in interest because of economic injury, unless it (the Commission) decides from reading the petition that the petitioner’s intervention will be “of positive assistance to the Commission in determining whether the public interest will be served by a grant.”
The argument is based on the language of § 309(b) which is to the effect that parties in interest may acquire the status of parties to the proceeding by filing petitions for intervention “showing the basis for their interest.” It is contended by the Commission that the words just quoted clothe it with discretion to deny intervention which it thinks would not be helpful to it. The contention reads into § 309(b) words which are not there. We think it clear that the only legislative purpose in requiring petitioners for intervention to show “the basis for their interest” is to enable the Commission to determine whether the petitioners’ allegations show them to be “parties in interest.” When that is done, the Commission has exhausted its discretion; it may not deny intervention to a party in interest merely because it thinks his participation would not aid its decisional process.
The foregoing, we think, is the plain meaning of the section of the Act under consideration. It is elementary in the law of statutory construction that, absent ambiguity or an absurd or unreasonable result, the literal language of a statute controls and resort to legislative history is not only unnecessary but improper. United States v. Missouri Pac. R. Co., 1929, 278 U.S. 269, 49 S.Ct. 133, 73 L.Ed. 322.
But, as the Commission discusses the legislative history of § 309(b), we shall consider its discussion to see whether it indicates a legislative intent contrary to that shown by what we regard as the unambiguous legislative language. The Commission finds the legislative history “confusing.” But it makes in its brief the following significant admissions concerning that history:
“ * * * There can be no question, in view of the language of the Senate and House Reports cited by appellant in its brief (pp. 14-15), but that Congress intended by its action to spell out a procedure by which all parties in interest could seek intervention, a deficiency in the pre-existing law which Congress felt should not be left to Commission discretion. And, as the Senate Report points out, an objective was to insure that persons having the right to appeal from Commission decisions ‘can make this complaint first before the Commission’. Senate Report No. 44, 82nd Congress, 1st Sess., p. 8. * * *»
Thus the Commission concedes that the legislative history shows Congress intended § 309(b) to provide that one who alleges he may be economically injured, and so is entitled under the Sanders Brothers case to appeal from an adverse Commission ruling, is also entitled as a matter of right to intervene in the administrative proceeding in order to “make his complaint first before the Commission” by participating in the hearing, instead of standing aside until it is concluded and then appealing from the final decision. We think no further consideration need be given to the Commission’s discussion of the legislative history, except to observe that the arguments it now makes as to its need for the discretion to deny intervention were made by it to Congressional committees in unsuccessful opposition to the enactment of the present § 309 (b).
In view of what has been said, we hold that the Commission’s Rule 1.388 (b) conflicts with § 309(b) of the Act; that Elm City, conceded by the Commission to be a party in interest, was statutorily entitled to the right of intervention and that the Commission erred in denying it that right. The only effective way to correct the error is to set aside the grant to WAVZ and to remand the proceeding to the Commission with directions that it conduct a new and full hearing in which Elm City, as well as the applicants and all other parties in interest, shall be permitted to participate, in accordance with the command of § 309 (b).
So ordered.
. Section 309(b) of the Act, 47 U.S.O.A. § 309(b) is as follows:
“If upon examination of any such application the Commission is unable to make the finding specified in subsection (a) of this section [that the public interest will be served by granting the application], it shall forthwith notify the applicant and other known parties in interest of the grounds and reasons for its inability to make such finding. Such notice, which shall precede formal designation for a hearing, shall advise the applicant and all other known parties in interest of all objections made to the application as well as the source and nature of such objections. Following such notice, the applicant shall be given an opportunity to reply. If the Commission, after considering such reply, shall bo unable to make the finding specified in subsection (a) of this section, it shall formally designate the application for hearing on the grounds or reasons then obtaining and shall notify the applicant and all other known parties in interest of such action and the grounds and reasons therefor, specifying with particularity the matters and things in issue but not including issues or requirements phrased generally. The parties in interest, if any, who are not notified by the Commission of its action with respect to a particular application may acquire the status of a party to the proceeding thereon by filing a petition for intervention showing the basis for their interest at any time not less than ten days prior to the date of hearing. Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate but in which both the burden of proceeding with the introduction of evidence upon any issue specified by the Commission, as well as the burden of proof upon all such issues, shall be upon the applicant.”
. Ijong before the enactment of the amendment to the Communications Act which is now § 309(b), the Supreme Court held that the right to intervene claimed because of objectionable interference is a statutory right which cannot be denied. E.O.C. v. National Broadcasting Co. (KOA), 1943, 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374. As a result of this decision, the Commission amended its intervention rules to,, permit, as a matter of, right, intervention sought because of objectionable interference. (Bules, § 1.388 (a).)
. The Michigan station had previously disclaimed any interest in the matter.
. The concession was made on oral argument.
. There the Supreme Court held that one economically injured by a Commission de-cisión is a party in interest who may appeal therefrom. Sanders Brothers Radio Station was a party before the Commission, so the question of intervention was not involved.
. In that case the Supreme Court said, 278 U.S. at page 278, 49 S.Ct. at page 136:
“ * * * Where doubts exist and construction is permissible, reports of the committees of Congress and statements by those in charge of the measure and other like extraneous matter may be taken into consideration to aid in the ascertainment of the true legislative intent. But where the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended. And in such cases legislative history may not be used to support a construction that adds to or takes from the significance of the words employed. [Oases cited.]” See also United States v. American Trucking Ass’n, 1940, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345.
. The words “seek intervention” constitute an understatement by the Commission, as its succeeding clause shows. Intead of saying “could seek intervention,” the Commission should have said “could intervene.”
. This demonstrates the intent of Congress that the ruling of the Sanders Brothers case shall apply to intervention before the Commission as well as to an appeal from its order.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
ANDERSON et al. v. CELEBREZZE, SECRETARY OF STATE OF OHIO
No. 81-1635.
Argued December 6, 1982
Decided April 19, 1983
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, and Blackmun, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which White, Powell, and O’Con-nor, JJ., joined, post, p. 806.
George T. Frampton, Jr., argued the cause for petitioners. With him on the briefs were Mitchell Rogovin, James E. Pohlman, and Thomas A. Young.
Joel S. Taylor argued the cause for respondent. With him on the brief was William J. Brown, Attorney General of Ohio.
Arthur N. Eisenberg, Charles S. Sims, Bruce Campbell, and John C. Armor filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
Paul S. Allen filed a brief for the Libertarian National Committee as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
On April 24, 1980, petitioner John Anderson announced that he was an independent candidate for the office of President of the United States. Thereafter, his supporters — by gathering the signatures of registered voters, filing required documents, and submitting filing fees — were able to meet the substantive requirements for having his name placed on the ballot for the general election in November 1980 in all 50 States and the District of Columbia. On April 24, however, it was already too late for Anderson to qualify for a position on the ballot in Ohio and certain other States because the statutory deadlines for filing a statement of candidacy had already passed. The question presented by this case is whether Ohio’s early filing deadline placed an unconstitutional burden on the voting and associational rights of Anderson’s supporters.
The facts are not in dispute. On May 16, 1980, Anderson’s supporters tendered a nominating petition containing approximately 14,500 signatures and a statement of candidacy to respondent Celebrezze, the Ohio Secretary of State. These documents would have entitled Anderson to a place on the ballot if they had been filed on or before March 20, 1980. Respondent refused to accept the petition solely because it had not been filed within the time required by §3513.25.7 of the Ohio Revised Code. Three days later Anderson and three voters, two registered in Ohio and one in New Jersey, commenced this action in the United States District Court for the Southern District of Ohio, challenging the constitutionality of Ohio’s early filing deadline for independent candidates. The District Court granted petitioners’ motion for summary judgment and ordered respondent to place Anderson’s name on the general election ballot. 499 F. Supp. 121 (1980).
The District Court held that the statutory deadline was unconstitutional on two grounds. It imposed an impermissible burden on the First Amendment rights of Anderson and his Ohio supporters and diluted the potential value of votes that might be cast for him in other States. Moreover, by requiring an independent to declare his candidacy in March without mandating comparable action by the nominee of a political party, the State violated the Equal Protection Clause of the Fourteenth Amendment. The District Court noted that the State did not advance any administrative reasons for the early deadline and rejected the State’s asserted justification that the deadline promoted “political stability.” Not only did that interest have diminished importance in a Presidential campaign; it also was adequately vindicated by another statute prohibiting a defeated candidate in a party primary from running as an independent.
The Secretary of State promptly appealed and unsuccessfully requested expedited review in both the Court of Appeals and this Court, but apparently did not seek to stay the District Court’s order. The election was held while the appeal was pending. In Ohio Anderson received 254,472 votes, or 5.9 percent of the votes cast; nationally, he received 5,720,060 votes or approximately 6.6 percent of the total.
The Court of Appeals reversed. It first inferred that the Court’s summary affirmances in Sweetenham v. Rhodes, 318 F. Supp. 1262 (SD Ohio 1970), summarily aff’d, 409 U. S. 942 (1972), and Pratt v. Begley, 352 F. Supp. 328 (ED Ky. 1970), summarily aff’d, 409 U. S. 943 (1972), had implicitly sustained the validity of early filing deadlines. Then, correctly recognizing the limited precedential effect to be accorded summary dispositions, the Court of Appeals independently reached the same conclusion. It held that Ohio’s early deadline “ensures that voters making the important choice of their next president have the opportunity for a careful look at the candidates, a chance to see how they withstand the close scrutiny of a political campaign.” 664 F. 2d 554, 563 (CA6 1981).
In other litigation brought by Anderson challenging early filing deadlines in Maine and Maryland, the Courts of Appeals for the First and Fourth Circuits affirmed District Court judgments ordering Anderson’s name placed on the ballot. See Anderson v. Quinn, 495 F. Supp. 730 (Me.), affirmance order, 634 F. 2d 616 (CA1 1980); Anderson v. Morris, 500 F. Supp. 1095 (Md.), aff’d, 636 F. 2d 55 (CA4 1980). The conflict among the Circuits on an important question of constitutional law led us to grant certiorari. 456 U. S. 960 (1982). We now reverse.
I
After a date toward the end of March, even if intervening events create unanticipated political opportunities, no independent candidate may enter the Presidential race and seek to place his name on the Ohio general election ballot. Thus the direct impact of Ohio’s early filing deadline falls upon aspirants for office. Nevertheless, as we have recognized, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter, 405 U. S. 134, 143 (1972). Our primary concern is with the tendency of ballot access restrictions “to limit the field of candidates from which voters might choose.” Therefore, “[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Ibid.
The impact of candidate eligibility requirements on voters implicates basic constitutional rights. Writing for a unanimous Court in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958), Justice Harlan stated that it “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In our first review of Ohio’s electoral scheme, Williams v. Rhodes, 393 U. S. 23, 30-31 (1968), this Court explained the interwoven strands of “liberty” affected by ballot access restrictions:
“In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.”
As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Lubin v. Panish, 415 U. S. 709, 716 (1974). The right to vote is “heavily burdened” if that vote may be cast only for major-party candidates at a time when other parties or other candidates are “clamoring for a place on the ballot.” Ibid.; Williams v. Rhodes, supra, at 31. The exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.
Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. We have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U. S. 724, 730 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree— the individual’s right to vote and his right to associate with others for political ends. Nevertheless, the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.
Constitutional challenges to specific provisions of a State’s election laws therefore cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions. Stover, swpra, at 730. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provisionis unconstitutional. See Williams v. Rhodes, supra, at 30-31; Bullock v. Carter, 405 U. S., at 142-143; American Party of Texas v. White, 415 U. S. 767, 780-781 (1974); Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173, 183 (1979). The results of this evaluation will not be automatic; as we have recognized, there is “no substitute for the hard judgments that must be made.” Storer v. Brown, supra, at 730.
II
An early filing deadline may have a substantial impact on independent-minded voters. In election campaigns, particularly those which are national in scope, the candidates and the issues simply do not remain static over time. Various candidates rise and fall in popularity; domestic and international developments bring new issues to center stage and may affect voters’ assessments of national problems. Such developments will certainly affect the strategies of candidates who have already entered the race; they may also create opportunities for new candidacies. See A. Bickel, Reform and Continuity 87-89 (1971). Yet Ohio’s filing deadline prevents persons who wish to be independent candidates from entering the significant political arena established in the State by a Presidential election campaign — and creating new political coalitions of Ohio voters — at any time after mid to late March. At this point developments in campaigns for the major-party nominations have only begun, and the major parties will not adopt their nominees and platforms for another five months. Candidates and supporters within the major parties thus have the political advantage of continued flexibility; for independents, the inflexibility imposed by the March filing deadline is a correlative disadvantage because of the competitive nature of the electoral process.
If the State’s filing deadline were later in the year, a newly emergent independent candidate could serve as the focal point for a grouping of Ohio voters who decide, after mid-March, that they are dissatisfied with the choices within the two major parties. As we recognized in Williams v. Rhodes, 393 U. S., at 33, “[sjince the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected ‘group’ will rarely if ever be a cohesive or identifiable group until a few months before the election.” Indeed, several important third-party candidacies in American history were launched after the two major parties staked out their positions and selected their nominees at national conventions during the summer. But under §3513.25.7, a late-emerging Presidential candidate outside the major parties, whose positions on the issues could command widespread community support, is excluded from the Ohio general election ballot. The “Ohio system thus denies the ‘disaffected’ not only a choice of leadership but a choice on the issues as well.” Williams v. Rhodes, supra, at 33.
Not only does the challenged Ohio statute totally exclude any candidate who makes the decision to run for President as an independent after the March deadline, it also burdens the signature-gathering efforts of independents who decide to run in time to meet the deadline. When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate’s organizing efforts are compounded. Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.
It is clear, then, that the March filing deadline places a particular burden on an identifiable segment of Ohio’s independent-minded voters. Seeswpra,at791. As ourcases have held, it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status. “Our ballot access cases . . . focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens the ‘availability of political opportunity.’” Clements v. Fashing, 457 U. S. 957, 964 (1982) (plurality opinion), quoting Lubin v. Panish, 415 U. S., at 716.
A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and — of particular importance — against those voters whose political preferences lie outside the existing political parties. Clements v. Fashing, supra, at 964-965 (plurality opinion). By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream. Illinois Elections Bd. v. Socialist Workers Party, 440 U. S., at 186; Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (1957) (opinion of Warren, C. J.). In short, the primary values protected by the First Amendment — “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964) — are served when election campaigns are not monopolized by the existing political parties.
Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party’s Presidential nominating convention, observed that such conventions serve “the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U. S. 477, 490 (1975). The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a significant state-imposed restriction on a nationwide electoral process.
hH 1 — I
The State identifies three separate interests that it seeks to further by its early filing deadline for independent Presidential candidates: voter education, equal treatment for partisan and independent candidates, and political stability. We now examine the legitimacy of these interests and the extent to which the March filing deadline serves them.
Voter Education
There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election. Moreover, the Court of Appeals correctly identified that interest as one of the concerns that motivated the Framers’ decision not to provide for direct popular election of the President. We are persuaded, however, that the State’s important and legitimate interest in voter education does not justify the specific restriction on participation in a Presidential election that is at issue in this case.
The passage of time since the Constitutional Convention in 1787 has brought about two changes that are relevant to the reasonableness of Ohio’s statutory requirement that independents formally declare their candidacy at least seven months in advance of a general election. First, although it took days and often weeks for even the most rudimentary information about important events to be transmitted from one part of the country to another in 1787, today even trivial details about national candidates are instantaneously communicated nationwide in both verbal and visual form. Second, although literacy was far from universal in 18th-century America, today the vast majority of the electorate not only is literate but also is informed on a day-to-day basis about events and issues that affect election choices and about the ever-changing popularity of individual candidates. In the modern world it is somewhat unrealistic to suggest that it takes more than seven months to inform the electorate about the qualifications of a particular candidate simply because he lacks a partisan label.
Our cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues. In Dunn v. Blumstein, 405 U. S. 330 (1972), the Court considered the validity of a Tennessee statute requiring residence in the State for one year and in the county for three months as a prerequisite for registration to vote. The Court held the statute unconstitutional, specifically rejecting the argument that the requirements were justified by the State’s interest in voter education.
“Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election, the State cannot seriously maintain that it is ‘necessary’ to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections.” Id., at 358 (footnotes omitted).
This reasoning applies with even greater force to a Presidential election, which receives more intense publicity. Nor are we persuaded by the State’s assertion that, unless a candidate actually files a formal declaration of candidacy in Ohio by the March deadline, Ohio voters will not realize that they should pay attention to his candidacy. Brief for Respondent 38. The validity of this asserted interest is undermined by the State’s willingness to place major-party nominees on the November ballot even if they never campaigned in Ohio.
It is also by no means self-evident that the interest in voter education is served at all by a requirement that independent candidates must declare their candidacy before the end of March in order to be eligible for a place on the ballot in November. Had the requirement been enforced in Ohio, petitioner Anderson might well have determined that it would be futile for him to allocate any of his time and money to campaigning in that State. The Ohio electorate might thereby have been denied whatever benefits his participation in local debates could have contributed to an understanding of the issues. A State’s claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism. As we observed in another First Amendment context, it is often true “that the best means to that end is to open the channels of communication rather than to close them.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 770 (1976).
Equal Treatment
We also find no merit in the State’s claim that the early filing deadline serves the interest of treating all candidates alike. Brief for Respondent 33. It is true that a candidate participating in a primary election must declare his candidacy on the same date as an independent. But both the burdens and the benefits of the respective requirements are materially different, and the reasons for requiring early filing for a primary candidate are inapplicable to independent candidates in the general election.
The consequences of failing to meet the statutory deadline are entirely different for party primary participants and independents. The name of the nominees of the Democratic and Republican Parties will appear on the Ohio ballot in November even if they did not decide to run until after Ohio’s March deadline had passed, but the independent is simply denied a position on the ballot if he waits too long. Thus, under Ohio’s scheme, the major parties may include all events preceding their national conventions in the calculus that produces their respective nominees and campaign platforms, but the independent’s judgment must be based on a history that ends in March.
The early filing deadline for a candidate in a party’s primary election is adequately justified by administrative concerns. Seventy-five days appears to be a reasonable time for processing the documents submitted by candidates and preparing the ballot. 499 F. Supp., at 134. The primary date itself must be set sufficiently in advance of the general election; furthermore, a Presidential preference primary must precede the national convention, which is regularly held during the summer. Finally, the successful participant in a party primary generally acquires the automatic support of an experienced political organization; in the Presidential contest he obtains the support of convention delegates.
Neither the administrative justification nor the benefit of an early filing deadline is applicable to an independent candidate. Ohio does not suggest that the March deadline is necessary to allow petition signatures to be counted and verified or to permit November general election ballots to be printed. In addition, the early deadline does not correspond to a potential benefit for the independent, as it does for the party candidate. After filing his statement of candidacy, the independent does not participate in a structured intra-party contest to determine who will receive organizational support; he must develop support by other means. In short, “equal treatment” of partisan and independent candidates simply is not achieved by imposing the March filing deadline on both. As we have written, “[sjometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.” Jenness v. Fortson, 403 U. S. 431, 442 (1971).
Political Stability
Although the Court of Appeals did not discuss the State’s interest in political stability, that was the primary justification advanced by respondent in the District Court, 499 F. Supp., at 134, and it is again asserted in this Court. Respondent’s brief explains that the State has a substantial interest in protecting the two major political parties from “damaging intraparty feuding.” Brief for Respondent 41. According to respondent, a candidate’s decision to abandon efforts to win the party primary and to run as an independent “can be very damaging to state political party structure.” Anderson’s decision to run as an independent, respondent argues, threatened to “splinter” the Ohio Republican Party “by drawing away its activists to work in his ‘independent’ campaign.” Id., at 37; see id., at 44.
Ohio’s asserted interest in political stability amounts to a desire to protect existing political parties from competition— competition for campaign workers, voter support, and other campaign resources — generated by independent candidates who have previously been affiliated with the party. Our evaluation of this interest is guided by two of our prior cases, Williams v. Rhodes and Storer v. Brown.
In Williams v. Rhodes we squarely held that protecting the Republican and Democratic Parties from external competition cannot justify the virtual exclusion of other political aspirants from the political arena. Addressing Ohio’s claim that it “may validly promote a two-party system in order to encourage compromise and political stability,” we wrote:
“The fact is, however, that the Ohio system does not merely favor a ‘two-party system’; it favors two particular parties — the Republicans and the Democrats — and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.” Williams v. Rhodes, 393 U. S., at 31-32.
Thus in Williams v. Rhodes we concluded that First Amendment values outweighed the State’s interest in protecting the two major political parties.
On the other hand, in Storer v. Brown we upheld two California statutory provisions that restricted access by independent candidates to the general election ballot. Under California law, a person could not run as an independent in November if he had been defeated in a party primary that year or if he had been registered with a political party within one year prior to that year’s primary election. We stated that “California apparently believes with the Founding Fathers that splintered parties and unrestrained factionalism may do significant damage to the fabric of government,” and that destruction of “the political stability of the system of the State” could have “profound consequences for the entire citizenry.” 415 U. S., at 736. Further, we approved the State’s goals of discouraging “independent candidacies prompted by short-range political goals, pique, or personal quarrel.” Id., at 735.
Thus in Storer we recognized the legitimacy of the State’s interest in preventing “splintered parties and unrestrained factionalism.” But we did not suggest that a political party could invoke the powers of the State to assure monolithic control over its own members and supporters. Political competition that draws resources away from the major parties cannot, for that reason alone, be condemned as “unrestrained factionalism.” Instead, in Storer we examined the two challenged provisions in the context of California’s electoral system. By requiring a candidate to remain in the intraparty competition once the disaffiliation deadline had passed, and by giving conclusive effect to the winnowing process performed by party members in the primary election, the challenged provisions were an essential part of “a general state policy aimed at maintaining the integrity of the various routes to the ballot.” Moreover, we pointed out that the policy “involves no discrimination against independents.” Storer, supra, at 733.
Ohio’s challenged restriction is substantially different from the California provisions upheld in Storer. As we have noted, the early filing deadline does discriminate against independents. And the deadline is neither a “sore loser” provision nor a disaffiliation statute. Furthermore, it is important to recognize that Storer upheld the State’s interest in avoiding political fragmentation in the context of elections wholly within the boundaries of California. The State’s interest in regulating a nationwide Presidential election is not nearly as strong; no State could singlehandedly assure “political stability” in the Presidential context. The Ohio deadline does not serve any state interest in “maintaining the integrity of the various routes to the ballot” for the Presidency, because Ohio’s Presidential preference primary does not serve to narrow the field for the general election. A major party candidate who loses the Ohio primary, or who does not even run in Ohio, may nonetheless appear on the November general election ballot as the party’s nominee. In addition, the national scope of the competition for delegates at the Presidential nominating conventions assures that “intraparty feuding” will continue until August.
More generally, the early filing deadline is not precisely drawn to protect the parties from “intraparty feuding,” whatever legitimacy that state goal may have in a Presidential election. If the deadline is designed to keep intraparty competition within the party structure, its coverage is both too broad and too narrow. It is true that in this case § 3513.25.7 was applied to a candidate who had previously competed in party primaries and then sought to run as an independent. But the early deadline applies broadly to independent candidates who have not been affiliated in the recent past with any political party. On the other hand, as long as the decision to run is made before the March deadline, Ohio does not prohibit independent candidacies by persons formerly affiliated with a political party, or currently participating in intraparty competition in other States — regardless of the effect on the political party structure.
Moreover, the early deadline for filing as an independent may actually impair the State’s interest in preserving party harmony. As Professor Bickel perceptively observed:
“The characteristic American third party, then, consists of a group of people who have tried to exert influence within one of the major parties, have failed, and later decide to work on the outside. States in which there is an early qualifying date tend to force such groups to create minor parties without first attempting to influence the course taken by a major one. For a dissident group is put to the choice of foregoing major-party primary and other prenomination activity by organizing separately early on in an election year, or losing all opportunity for action as a third party later.” Bickel, supra n. 11, at 87-88.
The same analysis, of course, is applicable to a “dissident group” that coalesces around an independent candidate rather than attempting to form a new political party.
We conclude that Ohio’s March filing deadline for independent candidates for the office of President of the United States cannot be justified by the State’s asserted interest in protecting political stability.
“For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U. S., at 343. ‘Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.’ NAACP v. Button, 371 U. S. [415], 438 [(1963)]. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.” Kusper v. Pontikes, 414 U. S. 51, 58-59 (1973).
> I — I
We began our inquiry by noting that our primary concern is not the interest of candidate Anderson, but rather, the interests of the voters who chose to associate together to express their support for Anderson’s candidacy and the views he espoused. Under any realistic appraisal, the “extent and nature” of the burdens Ohio has placed on the voters’ freedom of choice and freedom of association, in an election of nationwide importance, unquestionably outweigh the State’s minimal interest in imposing a March deadline.
The judgment of the Court of Appeals is
Reversed.
Section 3513.25.7 provides, in pertinent part:
“Each person desiring to become an independent candidate for an office for which candidates may be nominated at a primary election, except persons desiring to become independent joint candidates for the offices of governor and lieutenant governor, shall file no later than four p.m. of the seventy-fifth day before the day of the primary election immediately preceding the general election at which such candidacy is to be voted for by the voters, a statement of candidacy and nominating petition as provided in section 3513.261 [3513.26.1] of the Revised Code. . . .” Ohio Rev. Code Ann. § 3513.25.7 (Supp. 1982).
The Code sets the first Tuesday after the first Monday in June as the date of the primary election, § 3501.01(E), a date that fell on June 3, 1980. Thus the filing deadline for independent candidates was March 20, 1980, a date 229 days in advance of the general election. Section 3513.25.7(A) requires independent candidates in statewide elections, including Presidential primaries, to submit nominating petitions signed by no less than 5,000 and no more than 15,000 qualified voters.
Anderson’s name had been entered in the Republican primary in Ohio and 26 other States before he made his decision to run as an independent, and he actually competed unsuccessfully in nine Republican primaries. Nevertheless, the parties agree that his timely withdrawal from the Ohio primary avoided the application of the State’s “sore loser” statute, Ohio Rev. Code Ann. § 3513.04 (Supp. 1982), which disqualifies a candidate who ran unsuccessfully in a party primary from running as an independent in the general election. See 499 F. Supp. 121, 135, 140 (SD Ohio 1980); 664 F. 2d 554, 556, n. 3 (CA6 1981).
After the Court of Appeals denied a motion for expedited appeal, respondent filed a petition for a writ of certiorari before judgment in this Court, together with a motion to expedite consideration of the petition. The motion and the petition were both denied before the election in November 1
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_lcdisposition
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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.
DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC.
No. 83-18.
Argued March 21, 1984
Reargued October 3, 1984
Decided June 26, 1985
Powell, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist and O’Connor, JJ., joined. Burger, C. J., post, p. 763, and White, J., post, p. 765, filed opinions concurring in the judgment. Brennan, J., filed a dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined, post, p. 774.
Gordon Lee Garrett, Jr., reargued the cause for petitioner. With him on the briefs were Hugh M. Dorsey, Jr., David J. Bailey, William B. B. Smith, Peter J. Monte, and A. Buffum Lovell.
Thomas F. Heilmann reargued the cause and filed briefs for respondent.
Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, George Kaufmann, and Laurence Gold; for Dow Jones & Co., Inc., by Robert D. Sack and Frederick T. Davis; for the Information Industry Association by Richard E. Wiley, Lawrence W. Secrest III, Michael Yourshaw, and Patricia M. Reilly; and for the Washington Post by David E. Kendall and Kevin T. Baine.
William E. Murane filed briefs for Sunward Corp. as amicus curiae urging affirmance.
Justice Powell
announced the judgment of the Court and delivered an opinion, in which Justice Rehnquist and Justice O’Connor joined.
In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the First Amendment restricted the damages that a private individual could obtain from a publisher for a libel that involved a matter of public concern. More specifically, we held that in these circumstances the First Amendment prohibited awards of presumed and punitive damages for false and defamatory statements unless the plaintiff shows “actual malice,” that is, knowledge of falsity or reckless disregard for the truth. The question presented in this case is whether this rule of Gertz applies when the false and defamatory statements do not involve matters of public concern.
HH
Petitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related information about businesses. All the information is confidential; under the terms of the subscription agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition for bankruptcy. This report was false and grossly misrepresented respondent’s assets and liabilities. That same day, while discussing the possibility of future financing with its bank, respondent’s president was told that the bank had received the defamatory report. He immediately called petitioner’s regional office, explained the error, and asked for a correction. In addition, he requested the names of the firms that had received the false report in order to assure them that the company was solvent. Petitioner promised to look into the matter but refused to divulge the names of those who had received the report.
After determining that its report was indeed false, petitioner issued a corrective notice on or about August 3, 1976, to the five subscribers who had received the initial report. The notice stated that one of respondent’s former employees, not respondent itself, had filed for bankruptcy and that respondent “continued in business as usual.” Respondent told petitioner that it was dissatisfied with the notice, and it again asked for a list of subscribers who had seen the initial report. Again petitioner refused to divulge their names.
Respondent then brought this defamation action in Vermont state court. It alleged that the false report had injured its reputation and sought both compensatory and punitive damages. The trial established that the error in petitioner’s report had been caused when one of its employees, a 17-year-old high school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to respondent a bankruptcy petition filed by one of respondent’s former employees. Although petitioner’s representative testified that it was routine practice to check the accuracy of such reports with the businesses themselves, it did not try to verify the information about respondent before reporting it.
After trial, the jury returned a.verdiet in favor of respondent and awarded $50,000 in compensatory or presumed damages and $300,000 in punitive damages. Petitioner moved for a new trial. It argued that in Gertz v. Robert Welch, Inc., supra, at 349, this Court had ruled broadly that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth,” and it argued that the judge’s instructions in this case permitted the jury to award such damages on a lesser showing. The trial court indicated some doubt as to whether Gertz applied to “non-media cases,” but granted a new trial “[bjecause of . . . dissatisfaction with its charge and . . . conviction that the interests of justice require[d]” it. App. 26.
The Vermont Supreme Court reversed. 143 Vt. 66, 461 A. 2d 414 (1983). Although recognizing that “in certain instances the distinction between media and nonmedia defendants may be difficult to draw,” the court stated that “no such difficulty is presented with credit reporting agencies, which are in the business of selling financial information to a limited number of subscribers who have paid substantial fees for their services.” Id., at 73, 461 A. 2d, at 417. Relying on this distinguishing characteristic of credit reporting firms, the court concluded that such firms are not “the type of media worthy of First Amendment protection as contemplated by New York Times [Co. v. Sullivan, 376 U. S. 254 (1964),] and its progeny.” Id., at 73-74, 461 A. 2d, at 417-418. It held that the balance between a private plaintiff’s right to recover presumed and punitive damages without a showing of special fault and the First Amendment rights of “nonmedia” speakers “must be struck in favor of the private plaintiff defamed by a nonmedia defendant.” Id., at 75, 461 A. 2d, at 418. Accordingly, the court held “that as a matter of federal constitutional law, the media protections outlined in Gertz are inapplicable to nonmedia defamation actions.” Ibid.
Recognizing disagreement among the lower courts about when the protections of Gertz apply, we granted certiorari. 464 U. S. 959 (1983). We now affirm, although for reasons different from those relied upon by the Vermont Supreme Court.
II
As an initial matter, respondent contends that we need not determine whether Gertz applies in this case because the instructions, taken as a whole, required the jury to find “actual malice” before awarding presumed or punitive damages. The trial court instructed the jury that because the report was libelous per se, respondent was not required “to prove actual damages . . . since damage and loss [are] conclusively presumed.” App. 17; accord, id., at 19. It also instructed the jury that it could award punitive damages only if it found “actual malice.” Id., at 20. Its only other relevant instruction was that liability could not be established unless respondent showed “malice or lack of good faith on the part of the Defendant.” Id., at 18. Respondent contends that these references to “malice,” “lack of good faith,” and “actual malice” required the jury to find knowledge of falsity or reckless disregard for the truth — the “actual malice” of New York Times Co. v. Sullivan, 376 U. S. 254 (1964)—before it awarded presumed or punitive damages.
We reject this claim because the trial court failed to define any of these terms adequately. It did not, for example, provide the jury with any definition of the term “actual malice.” In fact, the only relevant term it defined was simple “malice.” And its definitions of this term included not only the New York Times formulation but also other concepts such as “bad faith” and “reckless disregard of the [statement’s] possible consequences.” App. 19. The instructions thus permitted the jury to award presumed and punitive damages on a lesser showing than “actúal malice.” Consequently, the trial court’s conclusion that the instructions did not satisfy Gertz was correct, and the Vermont Supreme Court’s determination that Gertz was inapplicable was necessary to its decision that the trial court erred in granting the motion for a new trial. We therefore must consider whether Gertz applies to the case before us.
“If you find that the Defendant acted in a bad faith towards the Plaintiff in publishing the Erroneous Report, or that Defendant intended to injure the Plaintiff in its business, or that it acted in a willful, wanton or reckless disregard of the rights and interests of the Plaintiff, the Defendant has acted maliciously and the privilege is destroyed. Further, if the Report was made with reckless disregard of the possible consequences, or if it was made with the knowledge that it was false or with reckless disregard of its truth or falsity, it was made with malice.” App. 18-19 (emphasis added).
Ill
In New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official’s recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Id., at 271. Noting that “freedom of expression upon public questions is secured by the First Amendment,” id., at 269 (emphasis added), and that “debate on public issues should be uninhibited, robust, and wide-open,” id., at 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with “‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” id., at 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a “matter of public or general interest,” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.).
In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the protections of New York Times did not extend as far as Rosenbloom suggested. Gertz concerned a libelous article appearing in a magazine called American Opinion, the monthly outlet of the John Birch Society. The article in question discussed whether the prosecution of a policeman in Chicago was part of a Communist campaign to discredit local law enforcement agencies. The plaintiff, Gertz, neither a public official nor a public figure, was a lawyer tangentially involved in the prosecution. The magazine alleged that he was the chief architect of the “frame-up” of the police officer and linked him to Communist activity. Like every other case in which this Court has found constitutional limits to state defamation laws, Gertz involved expression on a matter of undoubted public concern.
In Gertz, we held that the fact that expression concerned a public issue did not by itself entitle the libel defendant to the constitutional protections of New York Times. These protections, we found, were not “justified solely by reference to the interest of the press and broadcast media in immunity from liability.” 418 U. S., at 343. Rather, they represented “an accommodation between [First Amendment] con-cernís] and the limited state interest present in the context of libel actions brought by public persons.” Ibid. In libel actions brought by private persons we found the competing interests different. Largely because private persons have not voluntarily exposed themselves to increased risk of injury from defamatory statements and because they generally lack effective opportunities for rebutting such statements, id., at 345, we found that the State possessed a “strong and legitimate . . . interest in compensating private individuals for injury to reputation.” Id., at 348-349. Balancing this stronger state interest against the same First Amendment interest at stake in New York Times, we held that a State could not allow recovery of presumed and punitive damages absent a showing of “actual malice.” Nothing in our opinion, however, indicated that this same balance would be struck regardless of the type of speech involved.
<
We have never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern. To make this determination, we must employ the approach approved in Gertz and balance the State’s interest in compensating private individuals for injury to their reputation against the First Amendment interest in protecting this type of expression. This state interest is identical to the one weighed in Gertz. There we found that it was “strong and legitimate.” 418 U. S., at 348. A State should not lightly be required to abandon it,
“for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. . . .’ Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (concurring opinion).” Id., at 341.
The First Amendment interest, on the other hand, is less important than the one weighed in Gertz. We have long recognized that not all speech is of equal First Amendment importance. It is speech on “‘matters of public concern’” that is “at the heart of the First Amendment’s protection.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978), citing Thornhill v. Alabama, 310 U. S. 88, 101 (1940). As we stated in Connick v. Myers, 461 U. S. 138, 145 (1983), this “special concern [for speech on public issues] is no mystery”:
“The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964). ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,”’ and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886, 913 (1982); Carey v. Brown, 447 U. S. 455, 467 (1980).”
In contrast, speech on matters of purely private concern is of less First Amendment concern. Id., at 146-147. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent. In such a case,
“[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press. The facts of the present case are wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling.” Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 366, 568 P. 2d 1359, 1363 (1977).
Accord, Rowe v. Metz, 195 Colo. 424, 426, 579 P. 2d 83, 84 (1978); Denny v. Mertz, 106 Wis. 2d 636, 661, 318 N. W. 2d 141, 153, cert. denied, 459 U. S. 883 (1982).
While such speech is not totally unprotected by the First Amendment, see Connick v. Myers, supra, at 147, its protections are less stringent. In Gertz, we found that the state interest in awarding presumed and punitive damages was not “substantial” in view of their effect on speech at the core of First Amendment concern. 418 U. S., at 349. This interest, however, is “substantial” relative to the incidental effect these remedies may have on speech of significantly less constitutional interest. The rationale of the common-law rules has been the experience and judgment of history that “proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.” W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971); accord, Rowe v. Metz, supra, at 425-426, 579 P. 2d, at 84; Note, Developments in the Law—Defamation, 69 Harv. L. Rev. 875, 891-892 (1956). As a result, courts for centuries have allowed juries to presume that some damage occurred from many defamatory utter-anees and publications. Restatement of Torts § 568, Comment b, p. 162 (1938) (noting that Hale announced that damages were to be presumed for libel as early as 1670). This rule furthers the state interest in providing remedies for defamation by ensuring that those remedies are effective. In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages — even absent a showing of “actual malice.”
V
The only remaining issue is whether petitioner’s credit report involved a matter of public concern. In a related context, we have held that “[w]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Connick v. Myers, supra, at 147-148. These factors indicate that petitioner’s credit report concerns no public issue. It was speech solely in the individual interest of the speaker and its specific business audience. Cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 561 (1980). This particular interest warrants no special protection when — as in this case — the speech is wholly false and clearly damaging to the victim’s business reputation. Cf. id., at 566; Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Moreover, since the credit report was made available to only five subscribers, who, under the terms of the subscription agreement, could not disseminate it further, it cannot be said that the report involves any “strong interest in the free flow of commercial information.” Id., at 764. There is simply no credible argument that this type of credit reporting requires special protection to ensure that “debate on public issues [will] be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S., at 270.
In addition, the speech here, like advertising, is hardy and unlikely to be deterred by incidental state regulation. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 771-772. It is solely motivated by the desire for profit, which, we have noted, is a force less likely to be deterred than others. Ibid. Arguably, the reporting here was also more objectively verifiable than speech deserving of greater protection. See ibid. In any case, the market provides a powerful incentive to a credit reporting agency to be accurate, since false credit reporting is of no use to creditors. Thus, any incremental “chilling” effect of libel suits would be of decreased significance.
I — i >
We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of “actual malice” does hot violate the First Amendment when the defamatory statements do not involve matters of public concern. Accordingly, we affirm the judgment of the Vermont Supreme Court.
It is so ordered.
Compare Denny v. Mertz, 106 Wis. 2d 636, 318 N. W. 2d 141, cert. denied, 459 U. S. 883 (1982) (Gertz inapplicable to private figure suits against nonmedia defendants); Stuempges v. Parke, Davis & Co., 297 N. W. 2d 252 (Minn. 1980) (same); Rowe v. Metz, 195 Colo. 424, 579 P. 2d 83 (1978) (same); and Harley-Davidson Motorsports, Inc. v. Markley, 279 Ore. 361, 568 P. 2d 1359 (1977) (same), with Antwerp Diamond Exchange, Inc. v. Better Business Bureau, 130 Ariz. 523, 637 P. 2d 733 (1981) (Gertz applicable in such situations); and Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A. 2d 688 (1976) (same).
Respondent also argues that petitioner did not seek the protections outlined in Gertz before the jury instructions were given and that the issue therefore was not preserved for review. Since the Vermont Supreme Court considered the federal constitutional issue properly presented and decided it, there is no bar to our review. See Orr v. Orr, 440 U. S. 268, 274-275 (1979).
The full instruction on malice reads as follows:
The dissent states that “[a]t several points the Court in Gertz makes perfectly clear [that] the restrictions of presumed and punitive damages were to apply in all cases.” Post, at 785, n. 11. Given the context of Gertz, however, the Court could have made “perfectly clear” only that these restrictions applied in cases involving public speech. In fact, the dissent itself concedes that “Gertz . . . focused largely on defining the circumstances under which protection of the central First Amendment value of robust debate of public issues should mandate plaintiffs to show actual malice to obtain a judgment and actual damages ....” Post, at 777 (original emphasis).
The dissent also incorrectly states that Gertz “specifically held,” post, at 779, 793, both “that the award of presumed and punitive damages on less than a showing of actual malice is not a narrowly tailored means to achieve the legitimate state purpose of protecting the reputation of private persons . . .,” post, at 779, and that “unrestrained presumed and punitive damages were ‘unnecessarily’ broad ... in relation to the legitimate state interests,” post, at 793-794. Although the Court made both statements, it did so only within the context of public speech. Neither statement controls here. What was “not . . . narrowly tailored” or was “‘unnecessarily’ broad” with respect to public speech is not necessarily so with respect to the speech now at issue. Properly understood, Gertz is consistent with the result we reach today.
This Court on many occasions has recognized that certain kinds of speech are less central to the interests of the First Amendment than others. Obscene speech and “fighting words” long have been accorded no protection. Roth v. United States, 354 U. S. 476, 483 (1957); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); cf. Harisiades v. Shaughnessy, 342 U. S. 580, 591-592 (1952) (advocating violent overthrow of the Government is unprotected speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931) (publication of troopship sailings during wartime may be enjoined). In the area of protected speech, the most prominent example of reduced protection for certain kinds of speech concerns commercial speech. Such speech, we have noted, occupies a “subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978). It also is more easily verifiable and less likely to be deterred by proper regulation. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976). Accordingly, it may be regulated in ways that might be impermissible in the realm of noncommercial expression. Ohralik, supra, at 456; Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 562-563 (1980).
Other areas of the law provide further examples. In Ohralik we noted that there are “[njumerous examples ... of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees.” 436 U. S., at 456 (citations omitted). Yet similar regulation of political speech is subject to the most rigorous scrutiny. See Brown v. Hartlage, 456 U. S. 45, 52-53 (1982); New York Times Co. v. Sullivan, 376 U. S. 254, 279, n. 19 (1964); Buckley v. Valeo, 424 U. S. 1, 14 (1976). Likewise, while the power of the State to license lawyers, psychiatrists, and public school teachers — all of whom speak for a living — is unquestioned, this Court has held that a law requiring licensing of union organizers is unconstitutional under the First Amendment. Thomas v. Collins, 323 U. S. 516 (1945); see also Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.) (“the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern”).
As one commentator has remarked with respect to “the case of a commercial supplier of credit information that defames a person applying for credit” — the case before us today — “If the first amendment requirements outlined in Gertz apply, there is something clearly wrong with the first amendment or with Gertz.” Shiffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw. U. L. Rev. 1212, 1268 (1983).
The dissent, purporting to apply the same balancing test that we do today, concludes that even speech on purely private matters is entitled to the protections of Gertz. Post, at 786. Its “balance,” however, rests on a misinterpretation. In particular, the dissent finds language in Gertz that, it believes, shows the State’s interest to be “irrelevant.” See post, at 794. It is then an easy step for the dissent to say that the State’s interest is outweighed by even the reduced First Amendment interest in private speech. Gertz, however, did not say that the state interest was “irrelevant” in absolute terms. Indeed, such a statement is belied by Gertz itself, for it held that presumed and punitive damages were available under some circumstances. 418 U. S., at 349. Rather, what the Gertz language indicates is that the State’s interest is not substantial relative to the First Amendment interest in public speech. This language is thus irrelevant to today’s decision.
The dissent’s “balance,” moreover, would lead to the protection of all libels — no matter how attenuated their constitutional interest. If the dissent were the law, a woman of impeccable character who was branded a “whore” by a jealous neighbor would have no effective recourse unless she could prove “actual malice” by clear and convincing evidence. This is not malice in the ordinary sense, but in the more demanding sense of New York Times. The dissent would, in effect, constitutionalize the entire common law of libel.
The dissent suggests that our holding today leaves all credit reporting subject to reduced First Amendment protection. This is incorrect. The protection to be accorded a particular credit report depends on whether the report’s “content, form, and context” indicate that it concerns a public matter. We also do not hold, as the dissent suggests we do, post, at 787, that the report is subject to reduced constitutional protection because it constitutes economic or commercial speech. We discuss such speech, along with advertising, only to show how many of the same concerns that argue in favor of reduced constitutional protection in those areas apply here as well.
The Court of Appeals for the Fifth Circuit has noted that, while most States provide a qualified privilege against libel suits for commercial credit reporting agencies, in those States that do not there is a thriving credit reporting business and commercial credit transactions are not inhibited. Hood v. Dun & Bradstreet, Inc., 486 F. 2d 25, 32 (1973), cert. denied, 415 U. S. 985 (1974). The court cited an empirical study comparing credit transactions in Boise, Idaho, where there is no privilege, with those in Spokane, Washington, where there is one. 486 F. 2d, at 32, and n. 18.
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_procedur
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
ALABAMA ELECTRIC COOPERATIVE, INC., et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Municipal Electric Utility Association of Alabama, et al., Alabama Power Company, Intervenors.
No. 81-1797.
United States Court of Appeals, District of Columbia Circuit.
Argued 3 May 1982.
Decided 23 July 1982.
D. Biard MacGuineas, Washington, D. C., with whom Bennett Boskey, Washington, D. C., was on the brief, for petitioners.
Joel M. Cockrell, Atty., F.E.R.C., Washington, D. C., with whom Charles A. Moore, Gen. Counsel, and Barbara J. Weller, Deputy Sol., F.E.R.C., Washington, D. C., were on the brief, for respondent.
Arnold Fieldman,. Washington, D. C., with whom Robert A. Buettner and Rodney O. Mundy, Birmingham, Ala., were on the joint brief for intervenors, Alabama Power Co. and Municipal Elec. Utility Ass’n of Alabama, et al.
Before MacKINNON and WILKEY, Circuit Judges, and GREENE, United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge WILKEY.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
WILKEY, Circuit Judge:
If the usual setting for an allegation of unlawful rate discrimination is a case where a utility applies different rates or charges to groups of customers which are claimed to be similarly situated, then this is the unusual case. We are called upon to determine whether an application of the same rate to two groups of customers which are similar in many respects may nevertheless violate statutory prohibitions against unduly discriminatory rate schemes. For reasons set out in detail below, we hold that it may. We also hold, in response to a second question before us, that the petitioners raised their objections in a timely fashion before the Federal Energy Regulatory Commission (FERC), and that the issue of unlawful discrimination should have been resolved. We vacate FERC’s approval of the subject rate filings and remand to the Commission for appropriate action.
I. Background
On 17 June 1974 Alabama Power Company filed with what was then the Federal Power Commission a proposed $12 million increase in its wholesale rates to rural electric distribution cooperatives (Cooperatives) and to municipal electric distribution systems (Municipalities). The proposed rates were such that, when applied to the test year data, they allowed “an overall rate of return of 8.72 and 8.89 percent, respectively, on the capital devoted to serving the Municipalities and Cooperatives.”
The proposed rates became effective, subject to refund, on 12 September 1974, and were referred to an administrative law judge for hearings on their reasonableness. On 30 April 1976 Alabama Power filed a superseding rate increase which, by Commission order, became effective on 1 October 1976, also subject to refund. As a result of this subsequently-filed rate increase, the terms of which were the product of negotiations between the parties, the proceedings related to the June 1974 filing became restricted to an evaluation of the reasonableness of the rates which were in effect for a locked-in period from 12 September 1974 through 30 September 1976.
The ALJ’s initial decision, rendered on 22 October 1976, called for revisions in Alabama Power’s filings and held, meantime, that the proposed rates were not just and reasonable. This decision was modified on 1 August 1979 by FERC’s Opinion No. 54, which disallowed the rate increase until Alabama Power filed a revised cost-of-service study and other “necessary amendments” to its rate schedule. The Commission further clarified the determinations of Opinion No. 54 in an order issued 28 September 1979 and directed Alabama Power to submit compliance filings in accordance therewith.
Alabama Power’s 1 November 1979 filing of a revised cost-of-service study and amended rate schedules triggered protests from both the Cooperatives and the Municipalities, who claimed that the filing did not comply with the Commission’s directives. The Cooperatives argued also that the company’s revised schedules embodied rates which
would have the effect of allocating improperly the responsibility for test year revenues between two wholesale groups. Indeed, . .. application of such a single rate would result in the Cooperatives being required to pay approximately $36,1,-000 more, and the Municipalities approximately $338,000 less, than the test year revenue for which each is responsible under Alabama Power’s revised cost of service. Furthermore, this proposed single rate would have the effect ... of permitting the Company to collect approximately $23,000 more in test year revenue than it is entitled to collect under its own revised cost of service. Such results that would be obtained by application of this single rate to both wholesale groups is clearly unjust, unreasonable, and unduly discriminatory for the Cooperatives.
The Commission noted numerous deficiencies in the compliance filing and encouraged the company, intervenors, and Commission staff to meet informally to discuss the matter. Following the meeting, held in April 1980, the Cooperatives notified FERC that their contention that the overall rate structure, should be designed to produce revenues which matched, as closely as practical, the costs of service for each group— Cooperatives and Municipalities — remained unresolved. And when Alabama Power tendered another revised compliance filing on 8 January 1981, the Cooperatives once again objected, arguing that, while the figures were different, the revised schedule retained the fundamental defect to which the Cooperatives had objected earlier — a single rate yielding disparate overall rates of return on the costs to Alabama Power of providing service to the Municipalities and Cooperatives respectively. The Cooperatives indicated in their formal protest to the Commission that
application of this proposed rate would result in the Cooperatives being required to pay approximately $173,000 more, and the Municipalities approximately $171,000 less, than the test year revenue for which each is responsible under Alabama Power’s cost of service.... The results obtained by the application of this proposed rate to both wholesale groups is clearly unjust, unreasonable, and unduly discriminatory and causes substantial economic injury to the Cooperatives.
The Municipalities protested the new compliance filings on other grounds, but opposed the Cooperatives’ contentions.
FERC noticed the revised filing on 30 January 1981 and on 1 May 1981 issued a “By Direction” letter accepting the filing. The Commission’s letter did not address the merits of the Cooperatives’ complaint, but stated only that “[bjecause [Alabama Power] proposed a single wholesale rate applicable to both customer classes and the issue of separate rates for the two customer classes was not raised prior to the compliance date of this proceeding, Cooperatives’ request for rate design revision is untimely and inappropriate.”
FERC denied rehearing on 29 June 1981 and the Cooperatives subsequently petitioned for this court’s review.
II. Discussion
The opposing sides in this controversy do not actually meet head-on. The Cooperatives are firm in their contention that the rate accepted by FERC is unduly discriminatory. This particular argument is not directly countered on the merits, either by FERC or by the intervenors. These parties, for their part, have taken a procedural stance, casting the Cooperatives’ position as a demand for separate rates and then insisting that the demand was simply made too late in the proceeding. Thus by these separate, in a sense converging, but not necessarily opposing arguments, we must address two principal issues: the first, whether the Cooperatives’ objections were raised in a timely manner before the Commission; the second, whether there is a basis in law for the Cooperatives’ argument that Alabama Power’s revised rate schedule was unlawfully discriminatory. If the answer to both of these issues is in the affirmative, then we must conclude that FERC erred in failing to consider the objections raised. We shall address each in turn.
A. The Nature and Timeliness of the Cooperatives’ Objections.
FERC’s position before this court is the same one taken in its denial of the petitioners’ application for rehearing below — that because petitioners’ objections to Alabama Power’s revised rates did not relate specifically to the compliance of the company’s filings with the Commission’s directions in Opinion No. 54 and “could have been raised earlier,” they were inappropriate to the compliance stage of the rate proceedings. The Commission points for support to United States v. Tucker Truck Lines and related cases for the proposition that “a reviewing court should not overturn an administrative decision unless the agency has erred in the face of objection made at the time appropriate under agency practice.” We do not question the accuracy of FERC’s statement of this general rule. We simply cannot accept the Commission’s insistence that the rule applies under the facts of this case.
First of all, FERC’s contention depends strongly on its own insistence that the Cooperatives’ protest against Alabama Power’s compliance filing was (and is) simply a demand for separate rates. We are not persuaded by this characterization of the petitioners’ case.
It is clear from the record that the Cooperatives’ objections to Alabama Power’s rate schedule are not leveled at the company’s application of a single rate, per se, but only at the fact that the particular single rate ultimately revised and filed in this case creates what the Cooperatives maintain to be an undue disparity between the rates of return to Alabama Power on its sales to the two groups of wholesale customers. Petitioners clearly articulated to FERC that they were not necessarily demanding a multiple rate schedule but simply a rate scheme which eliminated a “windfall” to the Municipalities at the expense of the Cooperatives: “So long as the necessary redesign of the rate produces equitable results as between the Cooperatives and Municipalities, it is immaterial whether there is a single wholesale rate or separate wholesale rates — particularly since this case involves a locked-in period.” We do not see how this issue could have been raised before the Commission any earlier than it was.
The original rates proposed by Alabama Power in June 1974 called for rates of return from the Cooperatives and Municipalities of 8.89 percent and 8.72 percent, respectively. By all indications, the 0.17 percent difference between these two rates of return was considered by the parties to be a minor, unobjectionable disparity. Indeed, in his direct testimony at hearing, Alabama Power’s B. J. Crawford indicated that it was because this disparity was only 0.17 percent that the company had made no attempt to establish separate rates for the two groups of wholesale customers. “The difference between these two rates of return figures,” he testified, “does not warrant separate consideration for the two classes from a rate design standpoint and as a practical matter service to the two classes must be considered as essentially equivalent.”
As it turned out, however, the “practical matter” at the time of the June 1975 rate proposals was significantly altered when the rate filings were revised to “comply” with the Commission’s subsequent directives. The 0.17 percent disparity of the original proposal broadened to one nearly three times as great — 0.45 percent — in the rate schedule finally filed with the Commission. An unacceptable difference in the rates of returns was simply not an issue until late 1979 when Alabama Power first proposed a new rate design as part of its compliance filings. The Cooperatives raised objection to the disparity effected by the revised rates as soon as the increased disparity appeared.
The Commission argues further that, even if the petitioners’ protest against the revised filings was triggered by the disparity in the rates of return, this disparity should have been anticipated and raised at the hearing stage of the proceedings. Such a contention stands the concept of timeliness on its head. It is one thing for the Commission to require that good faith objections to projected effects of an existing rate proposal be raised at a particular time in its proceedings. It is quite another to suggest that a protest be made on potential effects of hypothetical alterations to the existing proposal. Yet it is the latter and not the former requirement to which the Commission seeks to hold petitioners in this case.
There is no escaping the fact that, although the Cooperatives have anticipated that a disparity different from — even larger than — the 0.17 percent resulting from the original rates proposed by Alabama Power might result from any subsequent modifications to that single rate, a disparity as large as 0.45 percent was merely hypothetical at the time of the hearings on the reasonableness of the then proposed rates. We cannot believe, as a practical matter, that FERC could have been expected to give proper consideration to a contention that a single rate yielding a 0.45 percent disparity would be unduly discriminatory when the rate before it at the hearing yielded a much smaller difference.
More important, perhaps, than our consideration of practicalities is that the Commission’s contentions are blatantly inconsistent, not only with the position adopted in at least one earlier case, Carolina Power and Light Co., but with its overall statutory responsibility to administer the standards of the Federal Power Act, and to disapprove as unlawful any rate which is unduly discriminatory or otherwise not “just and reasonable.”
In Carolina Power, as here, FERC was presented with a single rate design applicable to both cooperative and municipal groups of wholesale customers. In that case, as here, the original proposed rate schedule produced approximate, but not equal, rates of return from the two customer groups, and no challenge was made based on that disparity. It was not until the compliance stage in Carolina Power, when a proffered compliance filing resulted in a 1.09 percent rate of return differential, that the issue of an unacceptable disparity was raised. The filing was rejected by the Commission in that case, as were the utility’s contentions that the issues were not raised in a timely fashion.
FERC now dismisses its approach in Carolina Power as aberrational — a departure from the established precedent of the “Tucker Truck Lines principle” that only timely objections must be considered. Specifically, FERC intimates that the compliance filing in Carolina Power created a disparity in rates of return which was so great that it could not have been anticipated and that the objections could not have been raised earlier. The disparity in this case, it is argued on the other hand, was not so large as to excuse the Cooperatives’ failure to anticipate it. FERC points also to the opinion underlying the compliance filing in Carolina Power, arguing that the Commission expressly left the door open in that case to issues which might arise in the compliance stage. According to the Commission, the absence of an equivalent allowance in Opinion No. 54 distinguishes this case from that one. We do not agree. We find little difference between the two cases.
The “permission” to which FERC refers in Carolina Power appears in its Opinion No. 19:
We leave the development of the actual compliance rates to [the utility], which must then submit the rates to the Commission for approval. If, on their examination, [any party] believes that a viable issue is present, it may submit supplemental briefs for our consideration, detailing its specific objections and the evidence and arguments in support.
We simply are not convinced that this statement should be read as the express and limited permission FERC claims it to be. Rather than as support for a position that issues arising for the first time in the compliance stage cannot be brought to the Commission’s attention unless the Commission has expressly left the door open for the parties to do so, the Carolina Power’s pronouncement is, we think, more suitably styled as a restatement of a general principle that issues related to the conformity of a rate design with the applicable statutory standards may be raised properly within a reasonable time of whenever they present themselves. Such a reading is not only more in tune with the Commission’s statutory responsibilities “to weigh discriminatory effects in rate proceedings” but it also raises Carolina Power to a level entirely consistent with Tucker Truck Lines and other cases. It does not detract from the rule that arguments must be raised in a timely manner; it simply reaffirms the common sense that the timeliness of an objection, protest, complaint, or argument is to be judged, not in terms of what stages of the administrative process may have passed, but when the issues themselves arise and call for a decision.
Against this standard it is difficult to see how the Cooperatives’ objections at issue here could have been made before the Commission any earlier than they were. We therefore hold that FERC erred in dismissing the petitioners’ arguments as untimely and refusing to consider the argument of undue discrimination on the merits. The Commission’s duty to do so on remand brings us to the second aspect of our discussion.
B. The Issue of Discrimination.
The statutory standards relevant to the issues in this case are clearly set forth in the Federal Power Act. Section 205 provides in relevant part as follows:
(a) All rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission, ... and any such rate or charge that is not just and reasonable is hereby declared to be unlawful.
(b) No public utility shall, with respect to [such] (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service.
While neither statutes nor decisions of this court require that the Commission utilize a particular formula or a combination of formulae to determine whether rates are just and reasonable, it has come to be well established that electrical rates should be based on the costs of providing service to the utility’s customers, plus a just and fair return on equity. FERC itself has stated that “[i]t has been this Commission’s long standing policy that rates must be cost supported. Properly designed rates should produce revenues from each class of customers which match, as closely as practicable, the costs to serve each class or individual customer.”
Ratemaking is, of course, much less a science than an art. Cost itself is an inexact standard and may, in a particular set of circumstances, serve as the basis for several different rates. It is for this reason, if for no other, that great deference is given to FERC’s expertise and judgment on the reasonableness of a particular rate proposal — and courts will not be so presumptuous as to hold unlawful a rate approved by the Commission if, even if not in the court’s judgment the “ideal” design, it is nevertheless within a “zone of reasonableness.”
But FERC’s responsibility under the Federal Power Act does not end with a determination that a proposed rate is reasonable, for it may be unlawful on other grounds. As the Supreme Court established long ago, “rates may lie within the zone of reasonableness and yet result in undue prejudice,” unlawful under section 205(b).
While the typical complaint of unlawful rate discrimination is leveled at a rate design which assigns different rates to customer classes which are similarly situated, a single rate design may also be unlawfully discriminatory. Such would be the case where, as is alleged here, a uniform rate creates an undue disparity between the rates of return on sales to different groups of customers. It matters little that the affected customer groups may be in most respects similarly situated — that is, that they may require similar types of service at similar (even if varying) voltage levels. If the costs of providing service to one group are different from the costs of serving the other, the two groups are in one important respect quite dissimilar. And, as several commentators have noted, “charging the same price to two purchasers where the seller’s costs with respect to each differ must ... be considered discrimination,” just as charging different prices where the seller’s costs are the same.
There is no question against this principle that a rate design yielding a 0.45 percent difference in cost-justified rates of return is discriminatory. This would have been so for that matter of Alabama Power’s original proposed rate, which offered only a 0.17 percent disparity. Both have the effect of imposing on one group — the Cooperatives— charges which are higher than necessary to recover the costs of servicing that group plus the authorized overall return on capital, while permitting the Municipalities to pay a lower amount relative to service costs. By the Cooperatives’ calculations, unchallenged by the other parties, application of the rate at issue here results in revenues from the Cooperatives of about $173,000 more and from the Municipalities about $171,000 less than the revenue for which each is responsible under Alabama’s revised cost of service, as set out in the margin.
We do not intimate that any such discrimination necessarily renders the underlying rate unlawful. We recognize that, even under a purely cost-based rate scheme, absolute equivalence of overall rates of return among similar customer groups is little more than an ideal. It would no doubt be impossible, even if desirable, to formulate a rate scheme with such precision that each customer — or even customer group — is made to bear the exact cost of the service he received. Furthermore, Congress, through section 205(b), has not required absolute uniformity. The section proscribes only “any unreasonable difference in rates” and “any undue preference or advantage.”
But even if we cannot at this point hold that the discrimination at issue here is per se unreasonable, neither can we say, as a matter of law, that the disparity is so small as to be per se reasonable. Translated into dollars, it is not insignificant. Although absolute equivalence of the overall rates of return yielded on revenues from customers or customer groups under a specific rate scheme may not be achievable in every case, it remains the standard. Any return disparity created by a rate scheme must therefore be as close to zero as the circumstances permit. This is simply a logical element of the standard for the overall reasonableness of a rate scheme — that it “should produce revenues from each class of customers which match, as closely as practicable, the costs to serve each class or individual customer.”
There can be no doubt that the Cooperatives’ objections to the single rate schedule proposed by Alabama Power raised cognizable issues concerning the rate’s discriminatory effects. However, we are not, at least for the moment, the appropriate body to rule on the issues. Congress delegated to FERC, and not to the courts, the .first-round responsibility to determine whether an identified discrimination in a rate design is “undue” and therefore unlawful. FERC erred in refusing to fulfill that responsibility when timely objection was made, and it is for the purposes of giving it a chance to fully consider the Cooperatives’ objections that we must remand this case. The Commission may find it appropriate under the circumstances to permit supplemental briefs or other appropriate submissions on the issue. The Cooperatives have, after all, pointed to the discriminatory nature of the rate structure. It will be for Alabama Power to demonstrate that this discrimination is not “undue,” and it should in all fairness be allowed the opportunity to do so.
This will be no facile task, we are sure. In the typical case, where the section 205(b) challenge is raised against a rate design calling for different rates to customer classes which are similarly situated, the utility has the burden of satisfying FERC that such differences exist between the classes as to justify the separate rates. Only if the utility fails to carry this burden will the rate be found to be unduly discriminatory and unlawful. The burden is not changed simply because a single and not a multiple rate schedule is at issue. So it must be that when a purportedly cost-justified tariff is challenged because it yields disparate overall rates of return on the service to various customer groups, the utility must demonstrate to the Commission’s satisfaction that the discriminatory effects are not unreasonable. It might do so by offering a valid reason for the disparity or by demonstrating that the gap is as small as practicable under the circumstances. Regardless of the methods or arguments employed, if attempts at justifying the rate fail, the rate must be held to be unlawful until it is restructured to eliminate the disparity, or at least to reduce it to acceptable levels.
FERC may, in such a case, permit the utility to correct the deficiencies, or it may itself fix the rate to be applied to the locked-in period. The Commission’s responsibility to undertake the task of overseeing the design of an appropriate, non-discriminatory rate is outlined under section 206(a) of the Federal Power Act:
Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate ... demanded ... by any public utility for any transmission or sale subject to the jurisdiction of the Commission ... is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate ... to be thereafter observed and in force, and shall fix the same by order.
The Commission’s power to establish or require a new rate is not limited to a particular rate structure. Thus, even though Alabama Power’s proposed tariff calls for a single rate, a separate rate structure for the Municipalities and Cooperatives for the locked-in period is not out of the question. If, upon consideration of the arguments made by the respective parties, the Commission determines that a reduction in the demonstrated disparity between the rates of return from the Cooperatives and the Municipalities is necessary but that it cannot be achieved under a uniform rate, it should accept this as an indication that the two wholesale groups be treated as different customer classes for ratemaking purposes.
We do not imply that a single rate may not be found to be appropriate. But the Commission must not close the door at this point to the possibility that separate rates may be required. It is not, as FERC has intimated, that “the record is utterly devoid of evidence to support designing separate rates for cooperatives and municipals.” At a minimum, there is evidence of a discriminatory disparity of 0.45 percent in the rates of return. If this discrimination is undue and cannot be remedied by a single rate design, then its existence alone may be sufficient to justify the development of separate rates for the two groups. But this issue, just as the issue of discrimination itself, is a matter properly committed to the Commission on remand. It is not fair game for this court at this time.
III. Conclusion
Contentions by FERC, joined by the Municipalities and Alabama Power, that this rate proceeding has languished for an excessive period to this point are no doubt well taken. But the difficulties and delays encountered in attempts to arrive at an acceptable rate scheme offer no justification for FERC to perform any less than its full regulatory responsibility under the Federal Power Act. We do not know if the Commission actually misunderstood the nature and intent of the Cooperatives’ objections or if it was simply unwilling to prolong the proceeding — as proper consideration of the protests might require. In either case, the disposal of the objections by a simple assertion that they are not raised in a timely manner is unacceptable. Objections were raised in a timely manner — when the issues presented themselves.
Furthermore, although overshadowed perhaps by energetic objections to other aspects of Alabama Power’s proposed rates, the position that Alabama Power should receive the same rate of return with respect to services to the Cooperatives as it did with respect to services to Municipalities was consistently maintained throughout the proceedings. This position is correct as a matter of principle, and FERC was under a statutory duty to evaluate that aspect of the proposed rates in its overall examination of their qualification against the standards set by the Federal Power Act.
We made no finding as to what is an undue disparity. We point only to the requirement that Alabama Power be required to justify the disparity or, absent such justification, that the disparity be reduced, by whatever method or designs may be necessary or appropriate. It is so ordered.
Vacated and remanded.
. Cover letter submitted to FERC with Alabama Power’s 17 June 1974 rate filing, reprinted in Joint Appendix (J.A.) at 20-21.
. Order issued 27 July 1976.
. “Initial Decision of Administrative Law Judge on a Rate Increase Filing,” Alabama Power Co., Docket No. E-8851, 22 Oct. 1976, slip op. at 81, J.A. at 117.
. Opinion No. 54, Alabama Power Co., 18 FPS 5-692, 5-718 (1 Aug. 1979).
. “Order Clarifying [Opinion No. 54] and Denying Applications for Rehearing,” Alabama Power Co., 19 FPS 5-266 (28 Sept. 1979).
. “Intervenor Cooperatives’ Protest of Alabama Power Company’s Revised Cost of Service Study and Amended Rate Schedules,” 27 Dec. 1979, J.A. 184, 185.
. “Intervenor Cooperatives’ Protest of Alabama Power Company’s Modifications to Revised Cost of Service and Amendments to Rate Schedules to Comply with the Direction of Opinion No. 54,” 23 Jan. 1981, J.A. 232,234r-35.
. 46 Fed.Reg. 10,980 (5 Feb. 1981).
. Letter from FERC to Alabama Power Co., 1 May 1981, J.A. at 259 (a so-called “By Direction of the Commissioner Letter”).
. Id.
. 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
. See, e.g., Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141-42, 91 S.Ct. 599, 601, 27 L.Ed.2d 735 (1971); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941).
. Brief for Respondent [hereinafter “FERC Brief’] at 14.
. In the proceedings below, the Commission stated simply that “[b]ecause [Alabama Power] proposed a single wholesale rate applicable to both customer classes and the issue of separate rates for two customer classes was not raised prior to the compliance stage of the proceeding, Cooperatives’ request for rate design revision is untimely and inappropriate.” By Direction Letter, supra note 9, J.A. at 259. It holds to this position before this court, urging that “the question of single or multiple rate schedules was an issue which Cooperatives could have raised at the hearing but did not.” FERC Brief at 7.
. “Intervenor Cooperatives’ Opposition to Municipalities’ Motion to Strike a Portion of Their Protest,” 10 Jan. 1980, J.A. at 202 (emphasis added).
. Prepared Direct Testimony of B. J. Crawford at 9, J.A. at 34.
. There is simply no basis for the Commission’s present contention that the Company’s filings were limited to implementing the rates found reasonable in Opinion No. 54, see FERC Brief at 8. Alabama Power totally revised the rate design in its November 1979 filing. FERC’s staff in fact criticized the Company at the time it filed the revised tariff for, among other things, failing to provide supporting data for the alterations in energy and demand charges. Letter from FERC to Alabama Power, 3 March 1980, J.A. at 213.
. We find no basis in law or reason to hold that the petitioners are foreclosed from protesting the 0.45 percent disparity by their apparent decision not to object to the discrimination inherent in the 0.17 percent disparity worked by the original rate proposal. A person is not to be prevented from objecting to being struck by a car simply because he raised no earlier objection to having been hit by a bicycle. The “car” by which the Cooperatives claim to have been hit did not exist prior to the compliance filings and the objection was not untimely for not having been raised before that time.
. Carolina Power & Light Co., Docket No. ER76-495, By Direction Letter, 2 Oct. 1979.
. 16 U.S.C. § 824e(a) (1976).
. Id. at 824d(a) (1976).
. The original disparity in Carolina Power was 0.21 percent.
. FERC Brief at 18.
. Carolina Power & Light Co., 15 FPS 5-619 (2 Aug. 1978).
. Id. at 5-634.
. Conway Corp. v. FPC, 510 F.2d 1264, 1270 (D.C.Cir.1975), aff'd, 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976). This responsibility goes hand in hand with the Commission’s overall duty under the Power Act to protect consumers from excessive rates and charges, and therefore to declare as “unlawful” any rate or charge that is not “just and reasonable.” As this court has observed, it is “[tjo effectuate this purpose [that] the FPC is empowered, either upon complaint or on its own initiative, to enter upon an investigation concerning the lawfulness of a rate in a newly filed schedule.” Municipal Light Boards v. FPC, 450 F.2d 1341, 1348 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972).
. 16 U.S.C. § 824d (1976).
. We may require only that the rates fall within a “zone of reasonableness.” See p. 27 infra.
. Carolina Power & Light Co., Docket No. ER76-495, By Direction Letter, 2 Oct. 1979.
. No cost of service study — a compilation endeavoring to allocate to the various categories of service the costs of supplying such service— can be precise and factual. Rather than demonstrating with precision the revenue requirements to be assigned to each class of service, it simply reflects the opinion and approach of the individual making it. Thus, it can never be more than an aid to judgment in the design of a structure that will be fair and reasonable to all categories of customers.
. FERC v. Pennzoil Producing Co., 439 U.S. 508, 517, 99 S.Ct. 765, 771, 58 L.Ed.2d 773 (1979); Permian Basin Area Rate Cases, 390 U.S. 747, 797, 88 S.Ct. 1344, 1375, 20 L.Ed.2d 312 (1968); National Ass’n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 368, 374 (D.C.Cir.1982).
. United States v. Illinois Central R. R., 263 U.S. 515, 524, 44 S.Ct. 189, 193, 68 L.Ed. 417 (1924).
. Dam, The Economics and Law of Pnce Discrimination, 31 U.ChiX.Rev. 1, 6 (1963). See also J. Bonbright, Principles of Pubic Utility Rates, 374 (1961); Hale, Commissions, Rates, and Policies, 53 Harv.L.Rev. 1103, 1105 (1940). This principle has been recognized by this court on at least one occasion. See Payne v. Washington Metro. Area Transit Comm’n, 415 F.2d 901, 915-16 n.71 (D.C.Cir.1968).
. Cooperatives Municipalities
Cost of Service Revenue (including the 9.09% rate of return authorized) $12,194,431 $19,507,888
Revenue under Revised Rate 12,367,452 19,337,177
Differential $ 173,021 ($ 170,711)
The overall rates of return to Alabama Power, by this calculation, are 9.37 percent from the Cooperatives and 8.92 percent from the Municipalities.
. See J. Bonbright, supra note 33, at 296-97.
. 16 U.S.C. § 824d(b
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_3_3
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
Joseph F. DUGAN, Plaintiff, Appellant, v. Arch RAMSAY, Director of the Office of Personnel Management, Defendant, Appellee.
No. 83-1427.
United States Court of Appeals, First Circuit.
Argued Nov. 9, 1983.
Decided Feb. 9, 1984.
Joseph F. Dugan, Providence, R.I., pro se.
Everett G. Sammartino, Asst. U.S. Atty., Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, ROSENN, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Third Circuit, sitting by designation.
BREYER, Circuit Judge.
On November 7,1980, Joseph Dugan, the appellant, applied to become a federal administrative law judge. His previous experience in the practice of administrative law was limited. But, he believed he could qualify by showing sufficient trial experience. The Office of Personnel Manage•ment, in its statement of requirements for the ALJ position, says applicants may count towards the seven necessary years of qualifying experience their “experience in preparation of cases for and their presentation at trial in courts of record of unlimited and original jurisdiction.” It adds that the applicant must show that he spent at least two years “in the actual preparation and trial of cases”; and, to do so, he should list “in chronological order ... court cases which he has prepared and tried ... to demonstrate 2 full years (400 workdays) within the 7-year period immediately preceding the date of the application.” Office of Personnel Management, Administrative Law Judge, Announcement No. 318, October 1979, pp. 4, 5, 11 (emphasis in original). Dugan had practiced as a trial lawyer with Neighborhood Legal Services in Washington, D.C. from 1965 to 1969; he had served as Deputy Director and Director of Rhode Island Legal Services from 1970 to 1977; he practiced privately as a trial lawyer from 1977 to 1980. He estimates that he devoted to the preparation of cases for trial and their trial about 95 percent of his time in the first period, about 60 percent in the second period, and 100 percent in the third period. He had other relevant experience as well. Thus he sent to OPM a lengthy application detailing this experience, as required, with case titles, citations, descriptions, dates, names and addresses of courts, judges, counsel, and the number of workdays spent on each case.
In early December Dugan received a printed form from OPM stating that OPM would not process this application further because, among other things, he had shown only 188 days, not 400 days, of acceptable case work. After considerable effort to find out which cases OPM did not count and why, Dugan concluded (and parties here agree) that OPM based its rejection, in relevant part, on its practice of counting towards the necessary two years of trial experience only those trial preparation days belonging to cases actually tried. It will not count a trial preparation day belonging to a case that settles, even if it settles on the eve of trial.
Dugan attacked this practice as arbitrary, (and also unconstitutional). The AU Rating Appeals Panel, within OPM, rejected his argument. The federal district court also seems to have rejected it, although it dismissed Dugan’s action for failure to exhaust his administrative remedies — a point that the court raised sua sponte. Dugan now appeals, claiming that the district court, 560 F.Supp. 1230, erred in believing it lacked jurisdiction and that OPM’s practice must be set aside as “arbitrary, capricious, an abuse of discretion,” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). We agree with Dugan on both counts.
I.
The district court’s dismissal of this case for failure to “exhaust remedies” rests upon its view that the Civil Service Reform Act of 1978 provides Dugan with an administrative remedy that he failed to invoke, namely, the right to petition OPM’s Special Counsel for redress. The statute says the Special Counsel can look into allegations of a “prohibited personnel practice,” report his findings or recommendations, and, if necessary, petition the Merit System Protection Board to consider the matter. 5 U.S.C. § 1206. Dugan did not bring his problem to the attention of the Special Counsel. The district court, however, was wrong in believing that “exhaustion law” required him to do so.
For one thing, exhaustion of remedies requirements are normally waivable. Mathews v. Diaz, 426 U.S. 67, 76-77, 96 S.Ct. 1883, 1889-1890, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). And the government here “waives” (to the extent permitted by statute), for it specifically says that Dugan need not petition the Special Counsel. For another thing, the Court of Appeals for the District of Columbia Circuit has held that the Special Counsel provisions do not provide employees (or applicants) with an exhaustable avenue for further agency review. Frazier v. Merit Systems Protection Board, 672 F.2d 150, 162-63 (D.C.Cir.1982). Rather, the Special Counsel is a type of agency ombudsman. “Corrective action petitions” sent to the Special Counsel are not like individual appeals. Rather, they are “comparable to criminal prosecutions designed to vindicate the public interest.” Id. The government, responding to our request at oral argument that it tell us whether it thinks the district court was right or wrong on the “exhaustion” point, has filed a supplementary brief agreeing with Frazier (and with Dugan) and disagreeing with the district court’s opinion that “appeal to the [Special Counsel] ... is mandatory in these circumstances.” In its view, the “corrective action authority of the Special Counsel does not have ‘anything to do’ with [the] appeal right of individual employees for grievances .... ” Given the government’s concession, we see no reason not to follow Frazier here.
The district court’s discussion suggests, however, that, in referring to “exhaustion,” it may have had a deeper problem in mind. The Administrative Procedure Act makes clear that “final agency action for which there is no other adequate remedy in a court [is] ... subject to judicial review.” 5 U.S.C. § 704. But, there are two exceptions. A court cannot review an agency action under the APA “to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701. The district court seems to have felt that one or the other of these exceptions may apply here. And, the government’s supplementary brief appears to make a similar argument.
We are not aware, however, of any statute that precludes review of the “final” agency action here at issue. The government’s suggestion to the contrary seems to depend upon implying a congressional intent to deny review from the Civil Service Reform Act itself. That Act provides for review of most personnel actions (but not this one) by the Merit Systems Protection Board. It goes on to create two channels for court review of MSPB decisions — one (for most cases) leading to the Court of Appeals for the Federal Circuit, 5 U.S.C. § 7703(b)(1), and the other (for special cases involving, for example, claims of discrimination) leading to federal district court, 5 U.S.C. § 7703(b)(2). The government would imply, from the fact that Congress wished to unify much court review of MSPB decisions in the Federal Circuit, a congressional prohibition against court review of final personnel decisions that do not find their way to the MSPB. This conclusion, however, does not follow logically from the premise. It runs counter to the strong presumption in the law that favors reviewability and almost never implies statutory preclusion of review from congressional silence. See Johnson v. Robinson, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974) (“clear and convincing” evidence of congressional intent is required to preclude review); Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970) (same); San Juan Legal Services, Inc. v. Legal Services Corp., 655 F.2d 434, 438 (1st Cir.1981) (similar); Virginia ex rel. Commissioner v. Marshall, 599 F.2d 588, 592 (4th Cir.1979) (same). It runs counter to a history of court review (as presented here by the government) both before and after the enactment of the CSRA. Friedman v. Devine, No. 81-756 (D.D.C. Feb. 25, 1982) (review by district court of decision of ALJ Rating Appeals Panel); Bromberg v. Civil Service Commission, No. 73 C 537 (N.D.Ill. March 25, 1977) (review by district court of decision of Civil Service Commission), aff’d, No. 75-1485 (7th Cir. Dec. 19, 1975). And, it strikes us as implausible to believe that Congress wished to withdraw court review of even egregious agency behavior in the area— even if, for example, an agency were to discard applications as a result of bribery or the roll of the dice. We therefore reject it.
The district court also suggested that the second exception, “agency action committed to agency discretion,” might bar review. But, that suggestion also seems wrong. Of course, when agencies hire personnel, their discretion is broad and courts must be reluctant to interfere. American Federation of Government Employees v. Hoffman, 543 F.2d 930, 938 (D.C.Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977); Bielec v. United States, 456 F.2d 690, 695, 197 Ct.Cl. 550 (1972); cf. Borsari v. Federal Aviation Administration, 699 F.2d 106, 109 (2d Cir.), cert. denied, -- U.S. --, 104 S.Ct. 115, 78 L.Ed.2d 115 (1983) (“[A] smooth functioning government requires that public officials be afforded broad discretion to make employment decisions based on their view of the agency’s best interest.”). But, the fact that an agency enjoys broad discretionary powers does not mean judicial review is forbidden; it simply means that the reviewing court is unlikely to find against the agency, for the agency is unlikely to have acted unlawfully. See generally Berger, Administrative Arbitrariness and Judicial Review, 65 Colum.L.Rev. 55 (1965); 4 K. Davis, Administrative Law Treatise, § 28.16 (1958) and Administrative Law of the Seventies, § 28.16 (1976). To have bite, the “committed to agency discretion,” exemption must forbid the court to review even those decisions in which the agency may have acted unlawfully — where it may have exceeded its broad powers. Sometimes courts will find that Congress intended to preclude such review, typically when review involves foreign affairs, the military, or other areas in which the very act of reviewing may impede the agency’s ability to carry out its functions. See, e.g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Braniff Airways, Inc. v. CAB, 581 F.2d 846 (D.C.Cir.1978); Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir.1971); Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir.1970); Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367 (1968). But here, as previously mentioned, there is no reason to believe that Congress wished or needed to preclude review of unlawful action in order to carry out a statutory objective. To the contrary, Congress has specifically provided for judicial review of many related actions affecting not only employed civil servants but also “job applicants.” 5 U.S.C. § 7703. In sum, we believe that OPM’s discretionary powers to accept or to reject job applications are broad. 5 U.S.C. § 1302. But, court review of a “final agency decision,” to determine whether the agency’s action was lawful, is nonetheless appropriate.
II.
In reviewing for arbitrariness, we recognize the broad authority that the relevant statutes grant OPM to develop, and to administer, ALJ hiring criteria. See 5 U.S.C. §§ 1305, 3105, 5372. Moreover, the agency practice here challenged consists of an administrative interpretation of its own regulations. An agency’s interpretation of its own regulations is rarely set aside. United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977); Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). But see Jicarilla Apache Tribe v. FERC, 578 F.2d 289, 292-93 (10th Cir.1978). Still, we believe that the agency interpretation here at issue is so totally unreasonable as to be without support in the authorizing statute. Or to put the matter in APA terms, it is unreasonable to the point that it constitutes an “abuse” of the agency’s discretionary powers. 5 U.S.C. § 706(2)(A).
First, the distinction between a day of trial preparation for a case that reaches trial and one that settles prior to that trial is often a distinction without a difference. The legal work involved will often be identical. Indeed a trial lawyer who tends to settle cases may be a better trial lawyer than one who does not.
Second, the agency’s refusal to take this fact of “preparation time equivalence” into account is not the minor sort of irrationality that typically accompanies any administrative effort to shape rules and practices. Rather, it is a serious irrationality that likely thwarts the very purpose of the basic regulation, namely, to allow lawyers with trial experience to qualify to become ALJ’s. Dugan alleges and supports with affidavits from experienced practitioners the well known fact that between 75 percent and 90 percent of all cases filed in court eventually settle. Thus, if the agency insists upon 400 days of “trial practice” and counts only those days related to cases actually tried, the typical trial lawyer would have to engage in 1600 to 4000 days of trial case work to qualify. And 1600 to 4000 days amounts to more workdays than likely exist in the seven year period that OPM allows the applicant to canvass for relevant experience. Of course, these numbers may not be exactly right; and some lawyers will qualify regardless. But, the numbers do show that Dugan has pointed out something seriously, not trivially, wrong with OPM’s system.
Third, OPM cannot claim that its interpretation is necessary to prevent applicants from resting upon experience that is all “preparation” and no “trial,” for there is a perfectly obvious way to guarantee that the applicant has actual trial experience, namely, to require that the applicant have spent a certain number of days in court trying cases.
Fourth, OPM cannot easily claim that its practice is administratively necessary to help it segregate “real” trial preparation experience from work not truly related to trial preparation. All that is at issue here is whether OPM will proceed to its next stage of selection when it writes to opposing counsel and the trial judge to determine in some detail what happened in the particular case. OPM remains free to separate “ersatz” from “real” in light not only of the applicant’s description but also of what it learns through its correspondence (which it routinely undertakes anyway once past the threshold). This is to say that OPM cannot rest upon a “need for mechanical rule” justification in an area where it makes subjective, qualitative judgments regardless.
Fifth, in any event, OPM did not even advance the justifications we have just mentioned. Rather, we might take its justifications to consist of those we have gleaned from the record, prior proceedings, and its briefs in this court. Cf. Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co., -- U.S. --, --, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443, 462 (1983) (“[A]n agency’s action must be upheld, if at all, on the basis articulated by the agency itself.”). They consist of the following:
a. OPM points to language in its qualification announcement stating that trial lawyers, relying on trial, rather than administrative law, experience, must show “actual participation in the preparation and trial” of cases. This, and other similar language in the announcement interpreted in a commonsense manner, however, says that the agency wants lawyers with (1) experience preparing cases for trial and (2) experience trying cases; it does not rigidly insist that all preparation experience must involve a case that actually goes to trial.
b. OPM points to language at page 11 of its announcement that says the applicant relying upon trial experience must prepare “a list ... of ... court cases which he or she has prepared and tried ... to demonstrate 2 full years (400 workdays).” We doubt that even this language has to be read literally, as OPM has done, to make irrelevant all preparatory experience that is not followed by at least a day of trial. But, even if it did say just that, the existence of the language would merely show that OPM has the practice; it would not justify it.
c. OPM states that a group of experts, including representatives of the American Bar Association and the federal regulatory agencies, decided on these selection criteria. There is every reason to believe that these experts wanted trial lawyers to have experience trying eases as well as preparing cases for trial. But the record reveals no reason to believe that these experts hoped for, intended, or knew about OPM’s apparently unnecessarily rigid interpretation of this requirement.
d. OPM’s appeals panel added that “it has always been necessary for an applicant to have prepared and presented a case in court in order to receive credit for it as qualifying experience.” This argument is based upon administrative history. But, there is no evidence of a relevant longstanding administrative practice. Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1975) (“a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration”); Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 241, 84 S.Ct. 1236, 1241, 12 L.Ed.2d 268 (1964) (“Some weight is due to the consistent interpretation of the Maritime Commission: the agency entrusted with administration of the statute.”). There is nothing in the record to indicate that OPM has hired many trial lawyers in the past or any suggestion that anyone previously challenged the practice here at issue.
e. A memorandum written by Administrative Law Judge Irving Sommer states that Dugan’s allegation that the
requirements are arbitrary, whimsical, etc. does not merit serious concern. The record of the Office of Administrative Law Judges, Office of Personnel Management, fashioned throughout the years and acknowledged by all knowing members of the bar and bench as one that has seen the appointment of a group of ALJ’s who are fair, intelligent and learned in all facets of the law and procedure is full testimony to the merits of the examination process.
Dugan, however, is not directly attacking the quality of the existing group of Administrative Law Judges.
f. We have searched the record for any additional justification for OPM’s practice. We have found nothing except frequent references to the broad discretion that OPM enjoys in selecting ALJs. The government places particular weight upon two such cases, Friedman v. Devine, supra, and Bromberg v. Civil Service Commission, supra. The first of these upheld OPM’s decision not to count as litigation experience the applicant’s work in the Advice Division of the Office of General Counsel, where his contact with “formal cases” consisted primarily of preparing Memoranda advising NLRB regional offices to issue complaints or to dismiss cases. The second case upheld the Civil Service Commission’s determination that an applicant who practiced as an Assistant Attorney General in Illinois where he dealt almost exclusively with state revenue matters should receive less credit for experience than a federal lawyer in grade GS15. The OPM decisions and practices in these two cases seem better grounded in reason that the practice at issue here.
Sixth, the record reveals that those OPM officials who specifically focused on the problem that Dugan raised were skeptical about the value of OPM’s practice. At one point Senator John Chafee, to whom Dugan had sent a letter of complaint, wrote to OPM noting that many of Dugan’s points “appear to be right on target.” In reply, Mr. Arch Ramsay, the acting Director of OPM, stated
I am informed that OALJ, ..., is considering asking applicants to differentiate in describing trial experience as to whether cases that fell short of trial on the merits involved participation in pretrial procedures in court so as to demonstrate experience other than office practice.
In a similar vein, Edward T. Rhodes, the Chairman of the ALJ Appeals Panel wrote that Dugan
“raises an interesting point ..., that is his concern of how a practicing lawyer in the private arena ... might be eligible to become an Administrative Law Judge in view of their type of practice and settlement percentages.... [I]t would be an interesting statistic to determine how many active ALJ’s qualify from the private sector as opposed to the government sector .... ”
The record does not reveal the answer to Judge Rhodes’ question.
In sum, OPM’s practice of counting as relevant experience trial preparation work related to cases that are actually tried, but refusing to count as relevant likely identical experience related to cases that settle, strikes us as unreasonable. It threatens to hinder significantly, rather than to help, achieve the purpose of the regulation that it purports to interpret. OPM has provided no sensible justification for the practice. And, the practice, on its face, does not appear a reasonably necessary adjunct for practical administration of ■ OPM’s ALJ qualifications. Under these circumstances, it seems “arbitrary, capricious, an abuse of discretion” within the meaning of the APA. 5 U.S.C. § 706(2)(A).
We add, lest this case be taken incorrectly as a precedent authorizing strict judicial scrutiny of agency decisions not to hire applicants, that such is not our intent. OPM has not yet evaluated Dugan’s application; it has refused to do so on the basis of a “screening rule.” We find only that the particular screening criterion that OPM used is, for the reasons set out, unlawful. OPM’s evaluation of a candidate’s qualifications is not here in issue.
We wish to mention one final matter. The record in this case gives us some reason to fear that OPM may not handle the matter expeditiously. In December 1980 as soon as OPM turned him down, Mr. Dugan wrote OPM asking which cases it had not accepted and why. It took OPM nine months and many letters before it purported to provide a serious answer to this question. That answer, when it finally came, still did not explain which cases were rejected for which reasons. It listed some reasons that are trivial (for example, it says that a major case that Dugan had listed as tried in the Rhode Island federal district court would not count because Dugan had not provided the address of Chief Judge Pettine). It also listed several reasons that are not at issue on this appeal. The lack of clarity in the administrative record, our consequent uncertainty as to whether there are other “threshold” matters that might lead OPM not to consider Dugan’s application, and the history of delay, lead us to suggest that the district court determine the future course of these proceedings with an eye towards expeditious resolution of the case, keeping in mind its power to “compel agency action ... [that is] unreasonably delayed.” 5 U.S.C. § 706(1).
The district court’s order of dismissal is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.
In light of the delay appellant has suffered, the fact that his allegations and arguments on appeal proved correct and the fact that the government failed to provide an initial full briefing of the relevant issues, we award double costs to appellant.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
|
songer_usc1sect
|
410
|
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 17. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
WHIMSICALITY, INC., Appellant, Cross-Appellee, v. RUBIE’S COSTUME CO., INC., Appellee, Cross-Appellant.
Nos. 527, 619, Dockets 89-7829, 89-7887.
United States Court of Appeals, Second Circuit.
Argued Nov. 6, 1989.
Decided Dec. 15, 1989.
Virginia R. Richard, New York City (Pamela G. Bradford, and Kane, Dalsimer, Sullivan, Kurucz, Levy, Eisele and Richard, New York City, on the brief), for appellant, cross-appellee Whimsicality, Inc.
Andrew S. Langsam, New York City (Peter L. Berger, and Levisohn, Lerner & Berger, New York City, on the brief), for ap-pellee, cross-appellant Rubie's Costume Co., Inc.
Arlington R. Robbins, Michael V. Pun-deff, and Robbins, Keehn & Jones, San Diego, Cal., filed a brief, for amicus curiae Nat. Theme Productions, Inc.
Before TIMBERS and WINTER, Circuit Judges, and LEISURE, District Judge.
Honorable Peter K. Leisure, United States District Judge, Southern District of New York, sitting by designation.
TIMBERS, Circuit Judge:
Appellant Whimsicality, Inc. (“Whimsicality”) and appellee Rubie’s Costume Co., Inc. (“Rubie’s”) are competing costume designers and manufacturers. Believing that Rubie’s was selling “knock-offs” of its costumes, Whimsicality commenced the instant action and sought initially a preliminary injunction to prevent further manufacture and sale of the alleged knock-offs. The complaint alleged copyright infringement and unfair competition, in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1988). The District Court for the Eastern District of New York, Raymond J. Dearie, District Judge, finding that Whimsicality based its motion for in-junctive relief largely on the copyright claim, consolidated that motion with a hearing on the merits of the copyright claim, pursuant to Fed.R.Civ.P. 65(a)(2). On September 11,1989, the court granted summary judgment in favor of Rubie’s on the copyright claim and denied injunctive relief, reserving decision on the unfair competition claim. 721 F.Supp. 1566 (E.D.N.Y.1989). The court refused Rubie’s request for attorney’s fees. Whimsicality filed a timely appeal and Rubie’s filed a timely cross-appeal. Our jurisdiction rests on 28 U.S.C. § 1292(a)(1) (1982).
The district court held that Whimsicality had registered a copyright on its costumes, but that the costumes were not copyrightable. 721 F.Supp. at 1575-76. The parties, therefore, devoted most of their arguments on appeal to the latter issue. We agree with the result reached by the district court, and we affirm the dismissal of the copyright claim and the denial of injunctive relief; but we do so on grounds other than those relied on by the district court. We hold that Whimsicality obtained its copyright registrations by misrepresentation of its costumes to the United States Copyright Office. We therefore decline to reach the issue of copyrightability, since proper registration is a prerequisite to an action for infringement. Since we find bad faith on the part of Whimsicality, we vacate that part of the order which declined to award attorney’s fees to Rubie’s pursuant to 17 U.S.C. § 505 (1982) and we remand the case to the district court for determination of that issue in light of this opinion.
I.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Whimsicality, a Vermont corporation, was founded in 1978 by Pierre Couture. It is a small but thriving enterprise that takes great pride in the craftsmanship of its products. Since 1985, it has carried a line of costumes designed by Mr. Couture which now numbers at least 66 varieties. In that short time it has received a great deal of publicity for the quality of its designs, including a cover photograph on New York Magazine and stories in several newspapers including the Chicago Tribune.
Whimsicality achieved sales of more than $1.4 million in 1987 and more than $2.2 million in 1988 for its costumes, which are available in children’s and adult sizes. More than 80% of its costume sales occur between the months of March and August, the time when wholesalers and retailers place their Halloween orders with manufacturers. All of Whimsicality’s promotional material (catalogs, brochures and the like) make clear that it is selling costumes. The stories in outside publications likewise are unanimous in their conclusion that Whimsicality’s products are costumes.
Rubie’s, a New York corporation, has been in the costume business for 35 years. It manufactures and markets a wide variety of masquerade and theater-related items, including Halloween costumes. Its 1988 sales totaled more than $30 million.
The dispute leading to the instant appeal apparently began at the 1989 National Halloween Show, held in the Spring, when Whimsicality discovered that Rubie’s was displaying the allegedly infringing costumes for sale in the upcoming Halloween season. On April 7, Whimsicality wrote a letter demanding that Rubie’s halt marketing the knock-offs. Rubie’s refused to do so. It displayed the costumes at another trade show in June, and has included them in its sales material for the 1989 Halloween season.
Whimsicality’s demand was based largely on the fact that, in 1988 and 1989, it sought and received copyright registration for six of its creations: the Pumpkin, Bee, Penguin, Spider, Hippo Ballerina and Tyrannosaurus Rex. Nowhere in the copyright applications, however, is the word “costume” used. Instead, Whimsicality called its creations “soft sculptures”. The costumes were displayed during the oral argument, and our visual examination disclosed that the costumes lack any firm form unless worn by a person or carefully laid out on a flat surface so that the costume’s design is revealed. Moreover, it is undisputed that the only practical use for the copyrighted material is as costumes. As the district court observed, “in all promotional literature and catalogs containing photographs of the articles, they are always being modelled by children.” 721 F.Supp. at 1570 n. 4. There is no evidence of any actual use as sculpture, as one would expect given the lack of firm form.
The explanation for this deception is not a mystery; the Copyright Office considers costumes to be wearing apparel and consistently rejects applications to register them. Whimsicality was aware of this at the time it sought to register its costumes. The district court asked Whimsicality’s attorney, “if you took this photograph [of a child wearing the costume] and sent it to the copyright office and said we’re filing an application for a children's pumpkin costume, what would happen?” The attorney responded that “[i]t would probably be rejected.”
Despite the foregoing, which the district court found “strongly suggests that Whimsicality has not been as forthright with the Copyright Office as it could have been,” Id. at 1570. The court held that Whimsicality’s conduct did not “reach the level of dissembling that would constitute a fraud.” Id. The court then rejected Whimsicality’s assertion that, despite the costumes’ status as useful articles, certain pictorial, graphic or sculptural elements of the costumes were independently copyrightable.
The court therefore denied Whimsicality’s motion for injunctive relief and granted summary judgment in favor of Rubie’s on the copyright claim. This appeal followed.
II.
The elements of a copyright infringement action are (1) ownership of a valid copyright and (2) copying by the alleged infringer. Eckes v. Card Prices Update, 736 F.2d 859, 861 (2 Cir.1984). Possession of a registration certificate creates a rebuttable presumption that the work in question is copyrightable. 17 U.S.C. § 410(c) (1982); see also Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2 Cir.1980). The presumption generally is not overcome by an “innocent misstatement”. It may be overcome, however, by proof of deliberate misrepresentation. Eckes, supra, 736 F.2d at 861-62; M. Nimmer & D. Nimmer, 2 Nimmer on Copyright § 7.20, at 7-198 (1989). We turn therefore to the question whether Whimsicality’s use of the term “soft sculpture”, rather than “costume”, constituted fraud on the Copyright Office.
We have long held that clothes, as useful articles, are not copyrightable. Fashion Originators Guild v. FTC, 114 F.2d 80, 84 (2 Cir.1940) (L. Hand, J.), aff'd, 312 U.S. 457 (1941); see also 1 Nimmer on Copyright, supra, § 2.08[H], at 2-130.8. The Copyright Act of 1976 did not affect the prior law in this regard. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 55 (1976), reprinted in 1976 U.S.Code Cong. & Admin. News 5659, 5668.
While the pictorial, graphic and sculptural aspects of useful articles may be copyrightable if they are separable from the article, physically or conceptually, 17 U.S.C. § 101 (1982), clothes are particularly unlikely to meet that test-the very decorative elements that stand out being intrinsic to the decorative function of the clothing. Cf. Brandir Int'l, Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142 (2 Cir.1987). In any event, the useful articles standing alone may never be registered. The registration must describe the separable elements. See Compendium II of Copyright Office Practices § 505.02 (1984). Appellant argues that although clothing may not be copyrightable, masquerade costumes are an exception to that general rule. In view of our disposition of this matter we need not address that contention.
Whimsicality does not assert that it is ignorant of the prior case law as to the copyrightability of garments, or of the practices of the Copyright Office. It was aware, therefore, that an application for costumes as such would be rejected. The admission of Whimsicality’s attorney before the district court proves as much. Anticipating rejection, Whimsicality had several options. It could have commenced an action for a declaratory judgment to compel the Copyright Office to change its classification of costumes as per se uncopy-rightable. More practically, it could have acknowledged in its application that the articles in question were costumes, and have requested registration for only the features it claimed were separable. That was the approach taken by the amicus in the instant case, National Theme Productions, Inc., and approved by the court in National Theme Productions, Inc. v. Jerry B. Beck, Inc., 696 F.Supp. 1348, 1352 (S.D.Cal.1988).
Instead Whimsicality chose to classify its creations as soft sculptures with no useful function as wearable articles. Unlike a useful article, a sculpture, soft or hard, is inherently copyrightable, assuming it is an original work. Mazer v. Stein, 347 U.S. 201, 213-14 (1954). Unfortunately for Whimsicality here, the evidence demonstrates not only that the costumes were not soft sculpture, but that Whimsicality knew full well that no reasonable observer could believe that the costumes were soft sculpture.
Whimsicality relies on several cases where various articles were given copyright protection as soft sculpture to support its position that costumes are copyrightable and, by implication, that its applications to the Copyright Office were not misleading. E.g., Original Appalachian Artworks, Inc. v. Toy Loft, 684 F.2d 821 (11 Cir.1982) (dolls); Kamar Int’l. Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9 Cir.1981) (stuffed animals); Durham, supra, 630 F.2d 905 (wind-up toys); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2 Cir.) (en banc) (Uncle Sam bank), cert. denied, 429 U.S. 857 (1976); Past Pluto Productions Corp. v. Dana, 627 F.Supp. 1435 (S.D.N.Y.1986) (foam Statue of Liberty crown). We do not agree that cases about stuffed animals and toys lend support to the contention that costumes may be registered as soft sculpture. The word sculpture implies a relatively firm form representing a particular concept. The costumes in question have no such form. If hung from a hook or laid randomly on a flat surface, the particular animal or item depicted by the costume would be largely unidentifiable. The intended depiction is in fact recognizable only when the costume is worn by a person or is carefully laid out on a flat surface to reveal that depiction. We conclude therefore that these costumes do not constitute sculpture.
Two other cases cited by Whimsicality warrant brief mention. We have referred above to National Theme Productions, supra, 696 F.Supp. 1348. The other case is Animal Fair, Inc. v. Amfesco Indus., Inc., 620 F.Supp. 175 (D.Minn.1985), aff'd mem., 794 F.2d 678 (8 Cir.1986). At issue in Animal Fair was a slipper in the shape of a bear’s paw, which the court held to be copyrightable. Although slippers and costumes are similar in that they are wearable, we distinguish Animal Fair on two grounds. First, a slipper, unlike a costume, has a relatively firm form which can be identified for copyright purposes. Second, plaintiffs application to the Copyright Office in Animal Fair was not nearly as misleading as Whimsicality’s. While the application categorized the slipper as “sculpture”, it listed the title of the work as the “BEARFOOT slipper” (emphasis added). By contrast, Whimsicality’s works are listed as the “Whimsicality Bee” or the “Whimsicality Jack O’ Lantern,” etc. Moreover, in contrast to Whimsicality, the photos accompanying the Animal Fair application made clear that the article was a slipper.
It is the law of this Circuit that the “knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute^] reason for holding the registration invalid and thus incapable of supporting an infringement action.” Eckes, supra, 736 F.2d at 861-62 (quoting Russ Berrie & Co. v. Jerry Elsner Co., 482 F.Supp. 980, 988 (S.D.N.Y.1980)). Faced as we are with that exact situation in the instant case, we hold that Whimsicality, because of its misrepresentations, does not have valid copyrights capable of enforcement. We express no opinion on the unfair competition claim now before the district court.
III.
The Copyright Act provides that the district court, in its discretion, may award attorney’s fees to the prevailing party. 17 U.S.C. § 505 (1982). We review the determination of the district court for abuse of discretion. Roth v. Pritikin, 787 F.2d 54, 57 (2 Cir.1986).
We have interpreted the statute to distinguish between prevailing plaintiffs and defendants. Plaintiffs who prevail are awarded fees as a matter of course. Diamond v. Am-Law Pub. Corp., 745 F.2d 142, 148 (2 Cir.1984). Defendants, on the other hand, will recover if “plaintiffs claims are objectively without arguable merit,” id., or “ ‘baseless, frivolous, unreasonable or brought in bad faith.’ ” Roth, supra, 787 F.2d at 57 (quoting Grosset & Dunlap, Inc. v. Gulf & Western Corp., 534 F.Supp. 606, 610 (S.D.N.Y.1982)).
The district court here found that the issue whether costumes are copyrightable was “difficult”, and declined to award fees to Rubie’s based on its disposition. As stated above, we do not reach the copyrightability issue. Our disposition instead is premised on misconduct by Whimsicality. While the district court may not have abused its discretion in view of its substantive result, its refusal to award fees must be reassessed in light of our holding.
We know of no cases that apply § 505 to misrepresentations in a copyright application. We have little difficulty, however, in holding that Whimsicality’s willful misrepresentation falls within the meaning of “bad faith” under our case law. Cf. Mailer v. RKO Teleradio Pictures, Inc., 332 F.2d 747, 749-50 (2 Cir.1964) (assessing fees against “unreasonable” losing plaintiff).
We vacate that part of the district court’s order which declined to award attorney’s fees to Rubie’s, and we remand the case to the district court for determination of that issue in light of this opinion.
IV.
To summarize:
We affirm so much of the district court’s order which denied Whimsicality’s application for injunctive relief and granted summary judgment in favor of Rubie’s on Whimsicality’s claim of copyright infringement. We do so, however, on the ground that Whimsicality misrepresented the nature of its work to the Copyright Office. We therefore vacate that part of the district court’s order which declined to award attorney’s fees to Rubie’s, and we remand the case to the district court for determination of that issue in light of this opinion.
Affirmed in part; vacated and remanded in part.
. Since the district court reserved decision on the unfair competition claim until after discovery and a hearing on the merits as to that claim, it is not before us on this appeal. We reject Whimsicality’s contention that the district court's failure to consider the unfair competition claim fully when it denied injunctive relief constituted an abuse of discretion. Charles of the Ritz Group, Ltd. v. Quality King Distrib., Inc., 832 F.2d 1317, 1320 (2 Cir.1987).
. The copyright registration numbers for these six creations are, respectively, VA 312 952, VA 312 084, VA 312 085, VA 148 458, VA 148 459, and VA 148 460.
. Indeed, Ruble's has submitted some of its creations, including the allegedly infringing Bee, to the Copyright Office for registration as costumes. The Copyright Office responded that costumes are not copyrightable.
. While we review the district court’s factual findings under the "clearly erroneous” standard, we apply a more searching standard of review to the question whether Whimsicality committed fraud within the meaning of the Copyright Act, which is a mixture of law and fact. Weissmann v. Freeman, 868 F.2d 1313, 1317 (2 Cir.), cert. denied, 110 S.Ct. 219 (1989); Picture Music, Inc. v. Bourne Inc., 457 F.2d 1213, 1215 n. 5 (2 Cir.), cert. denied, 409 U.S. 997 (1972); Donaldson Pub. Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 641 (2 Cir.1967), cert. denied, 389 U.S. 1036 (1968).
. In its applications filed in the Copyright Office, National Theme stated that "no claim is made on functional designs of clothing” but only on the allegedly separable elements. Moreover, the accompanying photos showed human models wearing the costumes. We express no opinion as to the merits of National Theme’s claim of copyrightability, accepted by the district court in that case; we wish only to demonstrate that Whimsicality had alternatives to deception, and we decline to follow the National Theme decision.
. The district court stated that "[p]ossessed of at least an understandable bias about the uniqueness of its creations, Whimsicality could arguably justify describing them to the Copyright Office as something other than just costumes." 721 F.Supp. at 1570. While we do not wish to discourage designers from taking pride in their creations, we caution applicants that, in their submissions to the Copyright Office, honesty is the best policy.
. We deny Whimsicality’s motion to strike portions of Rubie's brief.
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 17? Answer with a number.
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.
Ronald Dennis FENCL, Petitioner-Appellant, v. Gordon ABRAHAMSON, Respondent-Appellee.
No. 86-1813.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 22, 1986.
Decided March 9, 1988.
Ruth S. Downs, Asst. State Public Defender, Richard J. Phelps, State Public Defender, Madison, Wis., for petitioner-appellant.
Daniel J. O'Brien, Asst. Atty. Gen., Dept, of Justice, Madison, Wis., for respondent-appellee.
Before COFFEY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge.
On June 9, 1978, a jury in a Wisconsin trial court found the petitioner, Ronald Dennis Fencl, guilty of first degree murder. Mr. Fencl was sentenced to life imprisonment. The judgment and order were appealed to the Wisconsin Court of Appeals. That court certified the questions presented to the Wisconsin Supreme Court, and the Supreme Court affirmed the trial court’s judgment. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982). After exhausting the available state remedies, Mr. Fencl raised three issues in his petition for habeas corpus: 1) that the prosecutor’s references to Mr. Fencl’s expressed desire to remain silent violated his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel, 2) that Mr. Fencl’s pre-trial counsel was ineffective, and 3) that the trial court erred in giving Wisconsin Jury Instruction No. 1100. The district court denied Mr. Fencl’s petition for habeas corpus, 628 F.Supp. 1379. For the reasons set forth in this opinion, we affirm the judgment of the district court.
I
Background
The Wisconsin Supreme Court summarized the facts underlying Mr. Fencl’s conviction as follows:
Debra Sukowaty disappeared on September 24, 1977. On October 1, 1977, the police received a purse containing Sukowaty’s identification and several other items which were found in a plastic bag in a nearby river. Among the items contained in the bag was a parking ticket, traceable to Ronald Fencl’s car. Detective Geigel of the Two Rivers Police Department visited Fencl that same day to inquire about Sukowaty. Fencl stated that he did not know Sukowaty or anything about the items found in the river.
At approximately 4 p.m. on October 2, 1977, Geigel again visited Fencl. At this meeting Fencl told Geigel that he wanted to talk to his attorney and that he would get back to him. Half an hour later Fencl went to the police station. He told Geigel that he had found the items in his car and threw them into the river in order to avoid any trouble with the police. Geigel had to cut their conversation short because he received a call informing him that a body had been found in a nearby gravel pit. Fencl agreed to meet with him later that evening. In the meantime, the body was identified as Su-kowaty. The police then impounded Fencl’s car.
At 7 p.m. that same day, Fencl returned to the police station with his attorney, Steven Alpert. Fencl said nothing. His attorney spoke to Geigel only to ask why Fencl’s car had been impounded. Two Manitowoc Police Department detectives talked to Fencl and gave him his Miranda rights. Fencl was allowed to leave while the investigation continued. On November 4,1977, a criminal warrant was issued charging Fencl with first-degree murder. He was arrested the next day. Alpert represented Fencl until just after the preliminary hearing. At that time new counsel was substituted because it appeared that Alpert might be called as a witness against Fencl.
During the trial the state made several references to Fencl’s pre- and post-Miranda silence. In his opening statement the district attorney referred to the 4 p.m. meeting on October 2, 1977, between Detective Geigel and Fencl. He said that Fencl did not want to answer too many questions and that Fencl wanted to talk to his attorney. Detective Geigel also testified about this statement. Geigel testified three times about his 7 p.m., October 2, 1977, meeting with Fencl and Alpert. Each time Geigel indicated that Fencl said nothing. In his closing argument the district attorney once again referred to the 4 p.m. meeting of October 2, 1977, between Geigel and Fencl when he stated:
“He [Geigel] said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said that he wanted to talk to his lawyer, so Geigel left.”
The jury found Fencl guilty of first-degree murder, and the court sentenced him to life imprisonment. Fencl moved for a new trial on September 4, 1979. During a hearing on this motion, it was revealed that Fencl’s first attorney, Alpert, had engaged in some questionable practices in connection with his representation of Fencl. Nevertheless, the court denied Fencl’s motion for a new trial by order entered October 27, 1980. Fencl’s appeal of the judgment and the order was certified by the court of appeals and accepted by this court pursuant to sec. 809.61, Stats.
Fencl, 325 N.W.2d at 705-06.
II
The District Court Opinion
The district court set forth the facts as found by the Wisconsin Supreme Court and determined that those findings were fairly supported by the record and adequate to rule on the issues presented.
A.
The district court first addressed Mr. Fencl’s submission that the prosecution’s references to his silence during questioning violated his fifth amendment right against self-incrimination, his sixth amendment right to assistance of counsel, and his fourteenth amendment right to due process. These references, which totaled six in number, took place during opening and closing arguments and during the prosecution’s case-in-chief through the testimony of Detective Geigel. The court addressed separately those references to Mr. Fencl’s silence that occurred after Miranda warnings had been given and those references that occurred before those warnings had been given.
The court first turned to post-Miranda events. Relying on Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed. 2d 623 (1986) and Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986), the district court agreed with the Wisconsin Supreme Court that Detective Geigel’s testimony that Mr. Fencl chose to remain silent after he had been given Miranda warnings violated his due process rights. Fencl v. Abrahamson, 628 F.Supp. 1379, 1384 (E.D.Wis.1986).
The district court next considered whether references to Mr. Fencl’s prearrest, pre-Miranda silence violated his right not to incriminate himself under the fifth amendment. The district court noted that prear-rest silence may be used to impeach the credibility of a defendant who offers an exculpatory story when he testifies at trial. See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The court observed that this case differs from Fletcher and Jenkins because Mr. Fencl chose not to testify at trial. Finding no guidance from the Supreme Court in such a situation, the district court, without an extended analysis, decided that because Mr. Fencl chose not to testify at trial, references to his prearrest, pre-Miranda silence violated his right not to incriminate himself as guaranteed by the fifth amendment. Fencl, 628 F.Supp. at 1384-85.
The district court then considered whether the references to Mr. Fencl’s prearrest silence constituted harmless error. In order to determine whether the references constituted harmless error, the district court considered five factors: 1) the intensity and frequency of the references, 2) which party elected to pursue the line of questioning, 3) the use to which the prosecution put the silence, 4) the trial judge’s opportunity to grant a motion for a mistrial or to give a curative instruction, and 5) the quantum of other evidence indicative of guilt. See Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). The district court found that the state demonstrated that the references to Mr. Fencl’s silence were brief and isolated and mentioned as part of a narrative of the events preceding Mr. Fencl’s arrest. The references were not used to prove any element of the crime, nor did defense counsel move for a mistrial. The district court found that there was no reasonable possibility that the references contributed to the conviction. Therefore, the district court concluded that the references constituted harmless error. Fencl, 628 F.Supp. at 1385-87.
B.
The district court then addressed the second claim raised by Mr. Fencl — whether ineffective assistance by his pretrial counsel rendered his trial fundamentally unfair in violation of his due process rights. The district court decided that because most of the conduct complained of by Mr. Fencl had occurred prior to the initiation of adversary judicial proceedings, the sixth amendment right to counsel did not attach. The only conduct alleged by Mr. Fencl that violated his sixth amendment right to counsel that occurred after adversary proceedings had been initiated was defense counsel’s alleged plan to write a book about the murder. Mr. Fencl also claimed that defense counsel tried to sell information to the district attorney. The district court found that Mr. Fencl did not show how this alleged conflict undermined the reliability of any proceedings prior to the defense counsel’s withdrawal from the trial nor could the court find any mention of the book or sale of information in the transcript. The court accordingly held that Mr. Fencl had not met his burden of showing ineffective assistance of counsel under the Strickland v. Washington standard. Fencl, 628 F.Supp. at 1388-89.
C.
The district court then analyzed whether the trial court erred in giving the former Wisconsin Jury Instruction No. 1100. Mr. Fencl claimed that the instruction imper-missibly shifted the burden of proof on the element of intent to the defendant. Relying upon this court’s holding in Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986), the district court held that the jury instruction did not impermissi-bly assign a burden of proof to the accused. Fencl, 628 F.Supp. at 1389-90. The district court, therefore, denied Mr. Fencl’s habeas corpus petition.
Ill
Analysis
A. References to Mr. Fencl’s Silence
1. Prearrest, Post-Miranda Silence
Both the Wisconsin Supreme Court and the district court held that Detective Geigel’s three references to Mr. Fencl’s silence during the 7:00 p.m. meeting, after he had been given Miranda warnings, violated his due process rights. Mr. Fencl renews that argument here. The respondent contends that the references to Mr. Fencl’s silence at trial were “used primarily to establish the historical sequence of events.... The probative value of such evidence in a case where the petitioner did not testify, and where he gave exculpatory stories both before and after the ‘silence ’ is so low as to have virtually no impact on the outcome.” Respondent’s Br. at 28-29. We agree with both the Wisconsin Supreme Court and the district court that Mr. Fencl’s due process rights were violated by the government’s use of his prearrest, post-Miranda silence.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that the prosecution could not use a defendant’s postarrest silence to impeach an exculpatory story told for the first time at trial. Id. at 611, 96 S.Ct. at 2241. The Court stated that referring to the defendant’s silence after he has been given Miranda warnings violates his due process rights. The rationale for this decision is that:
Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
Id. at 617-18, 96 S.Ct. at 2244-45 (footnotes and citation omitted).
The Supreme Court recently reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), in a case where, like the one now before us, the reference to post-Miranda silence was introduced in the government’s case-in-chief. In Wainwright, the Court held that the prosecution’s introduction of the defendant’s silence after receiving Miranda warnings as evidence of his sanity violated the due process clause. Id. at 295, 106 S.Ct. at 641. The Court stated that “Doyle and subsequent cases have ... made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Id. at 291, 106 S.Ct. at 639; see also Dean v. Young, 777 F.2d at 1241; United States v. Shue, 766 F.2d 1122, 1128 (7th Cir.1985); United States v. Caro, 637 F.2d 869, 874-75 (2d Cir.1981).
Even more recently, in Greer v. Miller, — U.S. —, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the Court clarified that “the holding of Doyle is that the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant’s postarrest silence.” Id., 107 S.Ct. at 3108 (quoting Doyle, 426 U.S. at 619, 96 S.Ct. at 2245) (emphasis in original). Thus, in Greer, where the trial court sustained an objection to the only question involving the defendant’s postar-rest silence, the Court held that no Doyle violation occurred because the defendant’s postarrest silence “was not submitted to the jury as evidence from which it was allowed to draw any permissible inference.” Id. Therefore, we conclude, in accordance with precedent of the Supreme Court and of this court, that the repeated references to the petitioner’s post-M-randa silence during the government’s case-in-chief violated the due process clause.
2. Prearrest, Pre-Miranda Silence
Both the Wisconsin Supreme Court and the district court held that references to Mr. Fencl’s silence before he had been given Miranda warnings violated his fifth amendment right not to incriminate himself. These references involved Mr. Fencl’s two encounters with Detective Geigel on Sunday, October 2. The respondent, relying on United States v. Harrold, 796 F.2d 1275 (10th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987), argues that “there is no independent fifth amendment protection for silence in a prearrest, pre-Miranda situation if there was no governmental action which induced the silence.” Respondent’s Br. at 14. Further, the respondent contends that the petitioner may have waived any fifth amendment right by offering exculpatory stories to the police prior to and after he stated his desire to consult an attorney. At 4:00 p.m. on October 2, the petitioner did not respond to Detective Geigel’s questions about the victim’s belongings found in his car. However, at 4:30 p.m., Mr. Fencl stated to Detective Geigel that he had found the victim’s belongings in his car and had thrown them in a trash bag into the river. Mr. Fencl further offered an explanation for their appearance in his car —he suggested that he had experienced problems with people opening the vent window of his car and breaking into it. The respondent maintains that “the petitioner waived at 4:30 whatever fifth amendment right to silence he may have invoked at 4:00 p.m. that same day. The state submits that it was the 4:30 statement, and not the ‘silence’ one-half hour earlier, that prejudiced the defense at trial.” Respondent’s Br. at 19.
It is firmly established that neither the fifth amendment nor the fourteenth amendment is violated by the government’s use of prearrest silence to impeach a defendant’s credibility when he testifies at trial. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). When a defendant testifies at trial, the fifth amendment is not violated because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Id. at 238, 100 S.Ct. at 2129. The right to fundamental fairness guaranteed by the due process clause is not violated in this situation, because unlike the Doyle situation where Miranda warnings have been given, in this situation, “no governmental action induced petitioner to remain silent before arrest.” Id. at 240, 100 S.Ct. at 2130; see also Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (per curiam) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.”).
As noted by the Wisconsin Supreme Court and the district court, this case presents a different question than either Jenkins or Fletcher because the petitioner chose not to testify at trial. The Supreme Court has yet to address the precise question of whether the prosecution’s reference to pre-Miranda silence in its case-in-chief violates the fifth amendment. The Tenth Circuit, in United States v. Harrold, 796 F.2d 1275 (10th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987), has held that “comment on a defendant’s silence is error only when the defendant remained silent in reliance on government action, i.e., a Miranda warning.” Id. at 1279. The court then held that testimony elicited by the government about the defendant’s pre-Miranda reliance on the fifth amendment was proper. Id. Other courts have declined to decide the question because in those cases, the references to the defendant’s silence were harmless beyond a reasonable doubt. See United States v. Blanton, 730 F.2d 1425, 1433-34 (11th Cir.1984); United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981). In Caro, however, the Second Circuit suggested that references to the defendant’s silence during the government’s direct case are improper. “[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government’s case in chief.... [A]ll of the cases permitting proof of silence, including Jenkins, have involved impeachment or rebuttal of the defendant’s testimony.” Id. at 876. We need not decide this question today, however, because our determination rests on the harmless error doctrine.
3. Harmless Error
The petitioner contends that the prosecution’s references to his prearrest silence did not constitute harmless error. In order to evaluate this claim, we must explore the intensity and frequency of the references at trial, which party pursued this line of questioning, the use to which the prosecution put the silence, the trial judge’s opportunity to grant a motion for a mistrial or to give curative instructions, and the quantum of other evidence indicative of guilt. See Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985); see also United States v. Schmitt, 794 F.2d 555, 559 (10th Cir.1986). This examination requires us to review the references at trial to Mr. Fencl’s silence in some detail.
There were six references to Mr. Fencl’s prearrest silence during the five-day trial. The first reference was made by the prosecutor during the opening argument. In his opening statement, the prosecutor related that Detective Geigel “went to talk to Ron Fencl again over at Mr. Dent’s house. And this time Ron Fencl didn’t want to answer too many questions. He said I want to talk to my lawyer first and then maybe I’ll talk to you.” Tr. (Day 2) at 188.
During the government’s case-in-chief, Detective Geigel referred four times to Mr. Fencl’s silence. The first reference occurred when the prosecutor asked Mr. Geigel how Mr. Fencl responded to his explanation that the police were looking for a missing woman during their initial meeting on October 2. Detective Geigel stated, “he was very friendly. He said I want to talk to my lawyer and I’ll get back to you later.” Tr. (Day 3) at 177. The second reference occurred when Mr. Geigel was testifying about the October 2 evening interview with Mr. Fencl, during which interview Mr. Fencl had been given Miranda warnings.
Q. And did Mr. Fencl — did he come back at that time, at 7?
A. Yes. He came back with his Attorney Steve Alpert.
******
Q. And at that time did Mr. Fencl make any statements to you in regards to the missing girl?
A. No sir.
Tr. (Day 3) at 186-87. Mr. Geigel’s third reference to Mr. Fencl’s silence occurred when he was describing the third meeting with Mr. Fencl.
Q. What about the third meeting?
A. The third meeting he said nothing.
Tr. (Day 3) at 196. Finally, in response to a question by the court, Mr. Geigel made another reference to Mr. Fencl’s silence:
THE COURT: You had another meeting with him?
THE WITNESS: We had prearranged a meeting for 7 p.m., but at this time he came in with his attorney and he didn’t say a word; his attorney did all the talking.
Tr. (Day 3) at 198. During the closing argument, the prosecutor referred once again to Mr. Fencl’s silence:
He said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Debbie Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said he wanted to talk to his lawyer, so Geigel left.
Tr. (Day 5) at 15.
The petitioner contends that the prosecutor repeatedly used Detective Geigel’s testimony to imply that Mr. Fencl was guilty of murder because he would not answer questions and wanted to talk to his attorney. The petitioner further argues that these references to his silence did not constitute harmless error, especially in view of the fact that the prosecution’s case was supported by weak, circumstantial evidence. The state contends that the references to Mr. Fencl’s silence were not used to prove elements of the crime but were merely used to discredit Mr. Fencl’s exculpatory story. Further, argues the state, the references to the silence were not used to imply guilt, but rather to explain the sequence of events.
“Constitutional error is reversible error unless it is harmless beyond a reasonable doubt.” United States v. Shue, 766 F.2d 1122, 1132 (7th Cir.1985). The government bears the burden of proving that a constitutional error is harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As the Supreme Court stated in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986):
The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.
Id. 106 S.Ct. at 3105-06 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986)) (citations omitted). “[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 106 S.Ct. at 1436.
Several factors support Mr. Fencl’s argument that the error was not harmless when evaluated under the Chapman standard. As the district court quite candidly noted, the evidence against Mr. Fencl was not overwhelming. However, as the Supreme Court of Wisconsin determined, “there was sufficient evidence to support Fencl’s conviction.” Fencl, 325 N.W.2d at 712. We also note that the Supreme Court of Wisconsin concluded that the prosecution’s inquiry with respect to the post^-Miranda events “were intended to suggest ‘a tacit admission of guilt on the part of the defendant.’ ” Id. at 710 (quoting Reichhoff v. State, 76 Wis.2d 375, 251 N.W.2d 470, 472 (1977)). However, the court seemed to temper that statement in its discussion of harmless error, when it noted that “[t]he state did not make a concentrated, overt effort to imply Fencl’s guilt through references to his silence.” Id. at 712. It is not unusual, in a case such as this one, for the government’s case to be grounded on circumstantial evidence and to be dependent, at least to some degree, on the demeanor of the witnesses.
More important, our task, in assessing whether the error was harmless beyond a reasonable doubt is not to engage simply in a reweighing of the evidence. Rather, as the court made clear in Phelps v. Duckworth, 772 F.2d 1410 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed. 2d 471 (1985), we must assess, as precisely as we can, the impact of the objectionable material on the jury’s verdict. The references to Mr. Fencl’s silence were brief. Moreover, when viewed as part of the entire record, these references play a rather minor role in the government’s presentation of its case. These references did not, of course, directly establish any element of the charged offense. The majority of the references were made during the witness’s narration of a sequence of events designed to show that, during the course of the investigation, Mr. Fencl voluntarily told the authorities inconsistent stories. See generally 1 J. Weinstein & M. Berger, Wein-stein’s Evidence ¶ 401[10], at 401-70 to 401-71 (1986) (discussion of the use of false exculpatory statements to show consciousness of guilt). Thus, the prosecutor was primarily emphasizing that Mr. Fencl affirmatively attempted to mislead the investigation — not that he relied on his right to remain silent. While the defense counsel had interposed a continuing objection before trial, which was sufficient under state law to preserve the issue, it is not without some significance, in assessing the import of the testimony, that he did not object further or move for a mistrial. Further, the trial judge instructed the jury both before the opening statements and in the final jury instructions that they were not to consider any statements made by counsel during the trial as evidence. Tr. (Day 2) at 178; Tr. (Day 5) at 49; see United States v. Alvarado, 806 F.2d 566, 575 (5th Cir.1986). Accordingly, we conclude that the govemment has satisfied its burden of showing that the jury would have convicted Mr. Fencl absent the improper references to his silence and thus the errors were harmless beyond a reasonable doubt.
B. Ineffective Assistance of Counsel
The petitioner contends that his pretrial counsel’s activities prejudiced his defense and that his counsel’s conduct raised a
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_r_stid
|
33
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellees, v. Donald RETTALIATA and William McKeon, Commissioners of the New York State Board of Elections, Individually and in their official capacities, Defendants-Appellants. Martha C. PEREZ, Maria S. Ramirez and Gloria A. O’Connell, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellees, v. Donald RETTALIATA and William McKeon, Commissioners of the New York State Board of Elections, Defendants-Appellants.
No. 828, Docket 84-7949.
United States Court of Appeals, Second Circuit.
Argued March 5, 1985.
Decided June 17, 1985.
0. Peter Sherwood, Deputy Sol. Gen., New York City (Robert Abrams, Atty. Gen., Robert Hermann, Sol. Gen., Barbara Rottier, Christopher Keith Hall, Asst. At-tys. Gen., New York City, on brief), for defendants-appellants.
Lewis B. Oliver, Jr., N.Y. Public Interest Research Group, Albany, N.Y. (Arthur N. Eisenberg, N.Y. Civil Liberties Union, New York City, Ronald Sinzheimer, Student Assn, of the State Univ., Albany, N.Y., Jack Lester, New York City, on the brief), for plaintiffs-appellees.
Before MANSFIELD, NEWMAN and KEARSE, Circuit Judges.
JON 0. NEWMAN, Circuit Judge.
This appeal concerns a voting rights suit brought on behalf of a class of all students residing in, and desiring to register and vote in general elections in, Albany and Ulster Counties, New York. The class representatives were refused registration after completing a special questionnaire required by county officials to determine the residence of students for voting purposes. They brought this suit against the commissioners of the state and county boards of elections, challenging the constitutionality of section 5-104 of the New York Election Law and Article II, section 4, of the New York State Constitution both facially and as applied. The District Court for the Northern District of New York (Neal P. McCurn, Judge) granted a preliminary injunction ordering registration of the class representatives and prohibiting discrimination against students seeking to register to vote, Auerbach v. Kinley, 499 F.Supp. 1329, 1343 (N.D.N.Y.1980), and, on cross-motions for summary' judgment, declared these provisions unconstitutional on their face and as applied and issued a permanent injunction prohibiting discrimination against students seeking to register, Auer-bach v. Kinley, 594 F.Supp. 1503 (N.D.N.Y. 1984).
Donald Rettaliata and William McKeon, commissioners of the New York State Board of Elections, appeal from the final judgment of the District Court. Their appeal challenges only the declaration that the state law provisions at issue are unconstitutional on their face and thereby implicates the grant of injunctive relief against them. The holding of unconstitutionality as applied is unchallenged, since review is not sought by the state defendants and the county defendants took no appeal. We reverse that part of the District Court’s judgment declaring the state law provisions unconstitutional on their face and remand for modification of the injunction.
I.
By statute New York defines “residence” for voting purposes as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” N.Y.Elec.Law § 1-104(22) (McKinney 1978). The District Court correctly noted that, as a matter of state law, this definition — particularly the requirement that the home be “permanent” —should not be read literally but rather “is intended to approximate the test for domicile, i.e., physical presence and an intention to remain for the time at least.” Auerbach v. Kinley, supra, 594 F.Supp. at 1507 n. 5 (citing Ramey v. Rockefeller, 348 F.Supp. 780 (E.D.N.Y.1972) (three-judge court, Friendly, J.)); see Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 47, 334 N.Y.S.2d 860, 866, 286 N.E.2d 247, 251 (1972) (“Palla ”). “Presence” and “intention to remain” are explicated by the election law provisions challenged by this lawsuit. The statute at issue reads:
Qualifications of voters; residence, gaining or losing
1. For the purpose of registering and voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any institution of learning, nor while kept at any welfare institution, asylum or other institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.
2. In determining a voter’s qualification to register and vote, the board to which such application is made shall consider, in addition to the applicant’s expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicant’s financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, if any, leaseholds, site of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a person’s residence for voting purposes.
N.Y.Elec.Law § 5-104 (McKinney 1978). The challenged provision of the New York State Constitution, Article II, section 4, is nearly identical to section 5-104(1) of the New York Election Law. Our discussion and analysis of section 5-104(1) is equally applicable to Article II, section 4, unless otherwise indicated.
The District Court reviewed the construction the New York Court of Appeals has given to section 5-104 and concluded that the statute could not survive “strict scrutiny” equal protection analysis because, Judge McCurn concluded, the provision creates a rebuttable presumption that students are not residents of their college communities and because the burden of proof of residency thus imposed on students is not necessary to the advancement of any compelling state interest. For the reasons that follow, we reverse.
“ ‘In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.’ ” Kolender v. Lawson, 461 U.S. 352, 355, 103 S.Ct. 1855, 1857, 75 L.Ed.2d 903 (1983) (quoting Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191, n. 5, 71 L.Ed.2d 362 (1982)). The interpretation of a state statute or constitutional provision made by that state’s highest court is binding on a federal court. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981). The New York Court of Appeals definitively construed section 5-104 of the New York Election Law in Palla, supra, a case remarkably similar to this one.
In Palla, students denied voter registration in their college communities challenged on equal protection grounds the constitutionality of the predecessor to section 5-104, section 151 of the New York Election Law of 1949, quoted in full in Ramey v. Rockefeller, supra, 348 F.Supp. at 783-84 n. 1. The prior version included virtually the same language that now constitutes section 5-104. The Court of Appeals con-eluded that the “statutory scheme ... represents, at most, merely a permissible effort to insure that all applicants for the vote actually fulfill the traditional requirements of bona fide residence.” 31 N.Y.2d at 46, 334 N.Y.S.2d at 866, 286 N.E.2d at 251. As construed by the courts of New York, these requirements of bona fide residence include “not only an intention to reside at a fixed place, but also personal presence in that place coupled with conduct which bespeaks of such an intent.” Id. at 47, 334 N.Y.S.2d at 867, 286 N.E.2d at 252 (emphasis added). Section 5-104(2) lists, “[w]ith some particularity,” various “criteria which the board of elections may deem relevant in determining an applicant’s residence for voting purposes,” id., 334 N.Y.S.2d at 866, 286 N.E.2d at 251. As construed by the Court of Appeals, the statute identifies criteria that may demonstrate conduct bespeaking an intention to reside at a particular place.
The District Court held that, even as interpreted by the New York Court of Appeals in Palla, the factors listed in section 5-104(2) “are impermissibly stacked against students thereby creating an almost irrebuttable presumption against student residency” in the locality where they attend school. 594 F.Supp. at 1510. We disagree. Certainly the New York Court of Appeals did not think that its interpretation of the election provisions created any such presumption: “Thus, by its terms and in its effects, the [statutory] scheme ... raises no presumption for or against student residency, but rather requires that the board look to other factors [than physical presence] in reaching a final determination.” Palla, supra, 31 N.Y.2d at 48, 334 N.Y.S.2d at 868, 286 N.E.2d at 252-53. And nothing on the face of section 5-104(2) creates a presumption against student residency, for, as the Court of Appeals noted in Palla, the criteria set forth in this subsection “are applicable to all prospective registrants, student and non-student alike.” Id. at 50, 334 N.Y.S.2d at 869, 286 N.E.2d at 254.
If the provisions of New York law challenged in this appeal are facially unconstitutional, the defect must arise from the classification effected by section 5-104(1). That subsection provides that “no person shall be deemed to have gained or lost a residence by reason of his presence or absence ... while a student____” N.Y. Elec.Law § 5-104(1). Appellees read this language as establishing a different substantive standard for students than for non-students when both groups seek to establish residency for purposes of voting. But the New York Court of Appeals has not so construed the statute. Rather than create a different substantive standard for students, the statute simply identifies “recognizable categories of persons whose presence in this State might properly be deemed transient and [who] thus present special problems in determining residence [for voting purposes].” Palla, supra, 31 N.Y.2d at 48 n. 3, 334 N.Y.S.2d at 867 n. 3, 286 N.E.2d at 252 n. 3 (emphasis added); see Carrington v. Rash, 380 U.S. 89, 95, 85 S.Ct. 775, 779, 13 L.Ed.2d 675 (1965). Though specially identified, students and other classes of persons are held by the statutory scheme to the same substantive standard as all other applicants for registration.
■At most the statute distinguishes students by subjecting them, along with other groups likely to include transients, to the risk of a more searching inquiry than is applicable to prospective registrants generally as to whether they have met the substantive standard for voter eligibility. Even this procedural distinction is not as pronounced as appellees contend. In their view, their ability to meet the substantive standard has been made extremely difficult because, unlike others wishing to register, their presence in the community in which they wish to vote is accorded no evidentiary weight at all. Some support for this view is gleaned from a phrase in Palla arguably suggesting that a student’s residence in a college community has “no effect” upon a determination of residence for the purpose of voting. Palla, supra, 31 N.Y.2d at 48, 334 N.Y.S.2d at 867, 286 N.E.2d at 252. Read in context, however, this passage does not preclude all consideration of a student’s presence, see Ramey v. Rockefeller, supra, 348 F.Supp. at 786. As Judge Friendly observed in Ramey, the words of section 5-104(1), as construed in Palla, “say to us only that presence of a former non-domiciliary as a student within the state is not alone sufficient to supply ... the required mental element” of bona fide residence. Id. The issue in this case therefore becomes whether the challenged statute impermissibly classifies students by obliging them to produce evidence, in addition to physical presence, demonstrating that they satisfy the substantive standard of an intention to remain in the community in which they seek to register.
Appellees maintain, and appellants dispute, that “strict scrutiny” must be given to the procedural distinction that section 5-104 imposes upon students and members of other groups likely to include transients. Appellees rely on numerous decisions of the Supreme Court subjecting to strict scrutiny state laws denying various classes of individuals the right to vote. E.g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (those failing to meet a durational residence requirement of one year in a state and three months in a county); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970) (those not owning property); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (those residing in federal enclave); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (those who had not paid a, poll tax); see also Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) (upholding 50-day residence requirement); Burns v. Fortson, 410 U.S. 686, 93 S.Ct. 1209, 35 L.Ed.2d 633 (1973) (same). In each of these cases the challenged state law provision prohibited an identified class of persons from voting. It is not clear whether strict scrutiny is required of classifications that only make voting somewhat more difficult for some groups than for others. The Supreme Court has noted the distinction between “an absolute denial of the franchise” and provisions that “made casting a ballot easier for some.” Kramer v. Union Free School District, 395 U.S. 621, 626 n. 6, 89 S.Ct. 1886, 1889 n. 6 (1969). For example, the Court applied the “rational basis” test to uphold a state’s decision not to supply absentee ballots to pretrial detainees, even though such ballots were available to others. McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Possibly, the Court, though using the rational basis test to uphold a provision that made distinctions between groups eligible for a device that made voting easier, would apply strict scrutiny to a provision that affirmatively placed a special procedural burden on one class of potential voters. That course seems likely at least as to a procedural device so burdensome as to create a substantial risk that numerous members of an identified class would be barred from voting.
We need not resolve the issue concerning the degree of scrutiny for assessing the procedural distinction reflected in section 5-104 because, even according the provision the strict scrutiny appropriate to voter exclusion cases, we conclude that the provision on its face validly “reflects a state legislative judgment” of what is “necessary to achieve the State’s legitimate goals.” Marston v. Lewis, supra, 410 U.S. at 680, 93 S.Ct. at 1212. There is no doubt that “the States have the power to require that voters be bona fide residents of the relevant political subdivision.” Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct. at 1004. By identifying classes of persons whose residence for voting purposes and whose physical residence may not coincide, section 5-104(1) permissibly aids the State in “ferreting out those whose claimed residence is not bona fide.” Palla, supra, 31 N.Y.2d at 50, 334 N.Y.S.2d at 869, 286 N.E.2d at 253. There is “nothing constitutionally impermissible in New York’s having thus enumerated certain categories of persons who, despite their physical presence, may lack the intention required for voting, persons who, in the Supreme Court’s words, ‘present specialized problems in determining residence.’ ” Ramey v. Rockefeller, supra, 348 F.Supp. at 786 (quoting Carrington v. Rash, supra, 380 U.S. at 95, 85 S.Ct. at 779).
At the time Ramey was decided, the three-judge court noted that, though the Palla decision appeared to give the predecessor of section 5-104 a construction comporting with constitutional standards, it was then “too early to determine whether, in light of Palla[,] New York will or will not apply a notion of a student’s intention to make a dormitory or other room a home that is too rigorous to meet constitutional standards.” Id. at 790 (footnote omitted). Subsequent decisions of the New York courts have given no cause for concern. See Cesar v. Onondaga County Board of Elections, 54 A.D.2d 1108, 389 N.Y.S.2d 58 (4th Dep’t) (upholding right of student to register), appeal dismissed, 40 N.Y.2d 1079, 392 N.Y.S.2d 1029, 360 N.E.2d 964 (1976); Matter of Falcher, 107 Misc.2d 296, 433 N.Y.S.2d 981 (Sup.Ct. Nassau County 1980) (same). Cf. Iafrate v. Suffolk County Board of Elections, 42 N.Y.2d 991, 398 N.Y.S.2d 413, 368 N.E.2d 35 (1977) (upholding right of voluntary resident of psychiatric facility to register); Fenn v. Suffolk County Board of Elections, 59 A.D.2d 709, 398 N.Y.S.2d 448 (2d Dep’t 1977) (same).
We do not agree with appellees that the Equal Protection Clause requires New York to forgo identification of classes of likely transients in favor of an acceptance of every applicant’s claim of domicile, subject to further inquiry only upon some substantial challenge. Requiring groups likely to include transients to show something in addition to physical presence in the community in order to meet a neutral test of residence for purposes of voting comports with the element of “necessity” in the “strict scrutiny” test.
We also reject appellees’ contention that section 5-104 is constitutionally deficient by according overly broad discretion to election officials in determining voter residence. As the three-judge court observed in Ramey v. Rockefeller, supra, “the decision of the Election Board is guided by the factors set out in [section 5-104(2) ] and is subject to judicial review in accordance with common law rules. It is difficult to see what more could be expected so long as bona fide residence, rather than mere presence, may be required. Cf. Carrington v. Rash, supra, 380 U.S. at 95 [85 S.Ct. at 779].” 348 F.Supp. at 791 n. 7.
If, in the course of administering section 5-104, election officials engage in discrimination against students that transgresses constitutional standards, courts are not powerless to provide appropriate relief, as the District Court demonstrated in this case by the injunction aimed at ending discriminatory practices as they were found to exist in Albany and Ulster counties. We hold only that appellees are not entitled to have the state statute declared unconstitutional on its face.
The judgment of the District Court is reversed insofar as it declares section 5-104 of the New York Election Law and Article II, section 4, of the New York Constitution facially unconstitutional. The cause is remanded to the District Court for modification of the injunction with respect to the state defendants in light of the ruling upholding the facial constitutionality of the challenged provisions. The revision with respect to the state defendants may either eliminate them entirely from the injunction, or, if plaintiffs can justify entitlement to some relief against the state defendants with respect to the claim of unconstitutional application of the state statutory and constitutional’ provisions, adjust the relief accordingly.
Reversed in part and remanded.
. In addition, the prior version included a requirement that every member of the classes now identified in section 5-104(1), including students, file a written statement "showing where he actually resides and where he claims tó be legally domiciled, his business or occupation, his business address, and to which class he claims to belong." See Ramey v. Rockefeller, supra, 348 F.Supp. at 783 n. 1. In 1976, with the enactment of the election laws currently in ef-feet, this requirement was relaxed: Instead of requiring a statement of all members of the designated classes, the current version requires a statement only of those who reside at a location different from their domicile and wish to vote where they are domiciled. N.Y.Elec.Law § 5-222 (McKinney 1978). State law now does not require students or members of classes identified in section 5-104(1) to furnish a prescribed statement when they claim that their place of current residence is their domicile.
. Whether such factors have been used unconstitutionally to prevent students from registering in their college communities is not an issue on this appeal. This issue, including the effects of the use by county officials of a questionnaire required of students, concerns the constitutionality of the election provisions as applied. Because the use of such a questionnaire is not required by state law, we cannot consider it when ruling on the facial constitutionality of the election provisions, the only issue raised on this appeal.
. The injunction prohibits imposing any requirement upon students that is not required of non-students. See Auerbach v. Kinley, supra, 594 F.Supp. at 1512. We need not determine whether this remedy was broader than necessary to eliminate the discriminatory practices found to have been practiced against students by the county election officials in Albany and Ulster Counties because those officials have not appealed from the issuance of the injunction against them.
. Indeed, the record contains affirmative evidence that the challenged provisions do not suffer from facial invalidity. Appellees presented survey evidence concerning the efforts of students to register in various counties of New York. The evidence showed that all students seeking to register in New York County became enrolled voters, though local election officials were operating under the same statutory and constitutional provisions challenged in this litigation.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_circuit
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D
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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, Appellee, v. Hortence RAMOS, a/k/a Hortense Ramos, Appellant.
No. 12676.
United States Court of Appeals Fourth Circuit.
Argued Feb. 4, 1969.
Decided Feb. 28, 1969.
Thurman L. Dodson, Washington, D. C. (Court-appointed counsel) for appellant.
Nevett Steele, Jr., Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., and Alan B. Lipson, Asst. U. S. Atty., on brief) for appellee.
Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.
PER CURIAM:
Hortence Ramos appeals from a conviction for forging and uttering a United States Treasurer’s check in violation of 18 U.S.C. § 495. The arguments which she presents on appeal indicate no instance of reversible error on the part of the District Court, and the conviction is accordingly
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_counsel2
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E
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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
Robert WILLIAMS and Henry J. Williams, Appellants, v. UNITED STATES of America, Appellee.
No. 17216.
United States Court of Appeals Ninth Circuit.
April 27, 1961.
B. W. Minsky, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan and Edward M. Medvene, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG, and MERRILL, Circuit Judges.
BARNES, Circuit Judge.
Appellants Robert and Henry Williams were charged in several counts, and convicted in one and two counts, respectively, of concealing and transporting, heroin in violation of 21 U.S.C.A. § 174. William Allen, a co-defendant of appellants, was convicted on ten pleas of guilty of the sale or concealment and transportation of heroin. Apprehension of these defendants was effected by federal narcotics agents and Los Angeles County Sheriff’s Deputies with the aid of Francis Jones, a special employee of the Federal Bureau of Narcotics. The district court’s jurisdiction to try this offense rests upon 18 U.S.C. § 3231. This court has jurisdiction on appeal. 28 U.S.C. § 1291.
On June 21, 1960, Jones contacted Allen and told him that he would probably want to buy some heroin on the following day. On June 22, 1960, after contacting law enforcement officers, Jones again called Allen and agreed to meet him at his residence. Jones, supplied with $160.00 of government funds and a Fargo listening device, was taken by the officers to the vicinity of Allen’s home. Jones entered Allen’s residence, the government agents maintaining a fixed surveillance on the building. Jones waited with Allen until about 11:00 A.M., when a 1960 Blue Oldsmobile Sedan pulled up in front of Allen’s house. Allen indicated that this was his connection, and requested Jones and two other persons in the building to wait in the back bedroom. Jones gave Allen $100.00 in government funds and then joined the two other men in the back bedroom. Robert Williams left the 1960 Blue Oldsmobile Sedan and walked to the door of Allen’s house where Allen was waiting for him. Both men walked back toward Williams’ car, and then, after a few moments returned to and entered, Allen's house. Williams then left the residence, went to the passenger side of his car, picked up a package and returned to the residence. At approximately 11:20 A.M. Williams left the house, returned to his car and departed from the area. As soon as Williams had left the house, Allen called Jones into the room and gave him a condom containing heroin. Jones left the house and was under continuous surveillance until he met the law enforcement officers a short time later. He gave the officers the heroin and the remaining $60.00 of advance funds supplied by the government.
On June 24, 1960, substantially the same sequence of events transpired.
In the evening on July 7th, Allen called Jones and told him that he could get a half ounce of heroin for $125.00. The following morning, at 7:45 A.M. Allen called Jones again and told him that Robert “Bobby” Williams’ brother, Henry “Sonny” Williams, would be at Allen’s house about 9:00 A.M. Again Jones met with federal and local agents, was searched, supplied with government funds and a Fargo listening device, and was taken to the vicinity of Allen’s residence. Jones entered Allen’s residence and waited until about 10 :50 A.M. when Henry “Sonny” Williams, driving a white 1959 Ford convertible drove past Allen’s residence and blew the horn. Allen said, “Here he is now,” and ran from the house. About five minutes later, Allen came back, got the money from Jones, and left. A few minutes later Allen returned and said that “Sonny” would call in about five minutes. Allen would then meet “Sonny” at Lorraine Walk and Gáge streets to get the heroin. About ten minutes later the telephone rang and Allen, after conversing a short while, left the house. Allen walked along Lorraine Walk to Gage and entered Williams’ car. A few moments later Allen left the car, ran back to his residence, and gave Jones the heroin.
After Allen had left the vehicle, “Sonny” Williams drove away from the area; being followed by two officers. While Williams was driving, officer Landry saw Williams “looking back” and apparently putting something in his mouth. When the officers arrested Williams they asked him to open his mouth, but he did not do so, until he had swallowed. The officer found, on Williams’ person, $15.00 of the money that they had given Jones to purchase the heroin. Later the same day, Williams told a narcotics agent that he wasn’t feeling well because he had swallowed some money.
Appellants raise two points in this appeal. First they contend that the trial court erred in denying their motion for a bill of particulars. Secondly, they claim that error was committed when the court admitted evidence of statements made by Allen outside the presence of appellants. We consider each matter in turn.
1. Alleged error in denial of bill of particulars.
Appellants claim that their motion for a bill of particulars should have been granted to inform them of (a) exactly when and where the heroin was sold; (b) the person to whom defendant allegedly sold and transferred the heroin; (c) whether the buyer at the time of the alleged sale was in the employ of the government; (d) whether the buyer was acting at the instance of the government at the time of the sale.
The indictment, itself, provided notice of the days on which the transactions occurred, though not of the exact time of day. The indictment also revealed the name of the person to whom the heroin was sold. In this connection, however, it should be noted that appellants were not convicted on charges of selling narcotics; they were convicted only of concealing and transporting narcotics, or facilitating such actions.
With the foregoing in mind, we find only one of appellants’ allegations to be significant. The exact location of the alleged offense may very well be a fact essential to the preparation of a defense to charges of concealing and transporting heroin. A defendant is entitled to a bill of particulars insofar as it is necessary to enable him adequately to prepare a defense. Rodella v. United States, 9 Cir., 1960, 286 F.2d 306, 310. It would seem then, that the trial court’s failure to grant a bill of particulars, to the extent of revealing the exact geographical sites of the alleged offenses, might be an abuse of discretion. Under the circumstances of this case, however, there was, we believe, no abuse of discretion. An abuse of discretion does not occur unless defendants are actually surprised in the progress of the trial; it must appear that appellants’ substantial rights have been prejudiced by the denial of the bill. Schino v. United States, 9 Cir., 1954, 209 F.2d 67, 70.
In the instant action, the government filed its trial memorandum, revealing the exact location of the June 22 and June 24 transactions, on September 8, 1960, one week before trial. Appellants’ bland assertion that they were surprised is not supported by anything more significant than the further allegation that there was no way for them adequately to prepare their case. These conclusory statements, of course, do not support a claim of prejudice to appellants’ substantial rights. Nor did appellants at the time of trial make any showing of surprise; ask for any continuance of the trial; or rely on any alleged prejudice on their motion for new trial. They urge their legal position now at too late a date.
2. Alleged error in admission into evidence of co-defendant Allen’s statement, made in the absence of appellants.
Appellants contend that Allen’s statements made to Jones, gave color to the acts of appellants. Such statements, made outside the presence of appellants, could not, appellants assert, be admitted in evidence without independent proof of a conspiracy between Allen and appellants.
In Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537, we summarized the case law relevant to the same contention appellants here make. We reaffirm what we there held (at pages 539, 540). Clearly no charge or proof of conspiracy need be produced in order to justify the admission of a confederate’s statements, made in the defendant’s absence. Such third party statements may be admitted if there is adequate independent evidence of a concert of action between the third party and the defendants. In the case at bar, the observations of the several law enforcement officers and special employee Jones, unsupported by any reference to Allen’s declarations, constitute facts sufficient to establish a concert of action between Allen and appellants. To repeat the evidence, without any reference to Allen’s statements, it is established that Robert Williams arrived at Allen’s house on June 22, 1960. At that time the only persons in Allen’s residence were Allen, Jones and two others, the last three named being in the back bedroom when Williams entered the house. Williams went to the door of the house and met Allen; Williams then left the residence and removed a package from his car. Williams next entered the residence and remained a few moments. When Williams left, Allen gave Jones the heroin. A repetition of these events occurred on June 24, 1960. It is a fair inference from such data, that appellant Robert “Bobby” Williams and Allen were acting in concert.
Again without reference to any statements by Allen, it is established that Henry “Sonny” Williams drove to Allen’s house on July 8, 1960, and sounded his car horn. Allen, thereupon ran from his house, returning about five minutes later. Jones then gave Allen $150.00 of government funds. Allen departed and in a few minutes returned. After receiving a telephone call, Allen again departed and walked to the intersection of Lorraine Walk and Gage where he entered Williams’ car. After a short time Allen left the car, returned to his residence and gave Jones the heroin. In the meantime, Henry “Sonny” Williams was apprehended and found to be in possession of some of the money ($15.00) which Jones had previously given Allen. Again the data is sufficient to support an inference that Henry “Sonny” Williams and Allen were acting in concert.
The cases relied upon by appellants (Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920; Braatelien v. United States, 8 Cir., 1945, 147 F.2d 888; Nibbelink v. United States, 6 Cir., 1933, 66 F.2d 178; and Kuhn v. United States, 9 Cir., 1928, 26 F.2d 463) are distinguishable. All deal with situations where actual conspiracy is charged, and the co-conspirators’ statements are admitted in order to link defendants with the conspiracy. Here conspiracy was not charged, and Allen’s statements were admitted to prove that appellants had committed certain substantive acts. Furthermore, the cases relied upon by appellants stand only for the proposition that the declarations of a coconspirator cannot be admitted against another conspirator unless independent evidence tends to establish the existence of the conspiracy and the third party’s connection with it. Such independent evidence, of course, may be and usually is entirely circumstantial. Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920, 925. As we have seen, there is circumstantial evidence in the instant case which tends to establish a concert of action between each appellant and Allen.
Of course, appellant Robert Williams, while admitting the visits described hereinabove on June 22 and 24th, 1960, to Allen’s house, and appellant Henry Williams, admitting the meeting on July 8th, 1960, at Lorraine Walk and Gage streets, each by use of the respective automobiles described by the various witnesses, ascribe such contact to innocent purpose and friendly companionship with codefendant Allen. At best, this creates a conflict in the evidence, decided adversely to appellants by the trial court. Such factual determination is not clearly erroneous. It is therefore binding on this court.
Finding no error, we affirm.
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_appfiduc
|
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 "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.
MONARCH ELECTRIC & WIRE CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 4202.
Circuit Court of Appeals, Seventh Circuit.
Feb. 26, 1930.
Evans, Circuit Judge, dissenting.
Herbert G-. Mayer and Carl Meyer, both of Chicago, Ill., for appellant.
Randolph C. Shaw, of Washington, D. C., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
SPARKS, Circuit Judge.
This is a petition by Monarch Electric & Wire Company to review an order of the Board of Tax Appeals entered August 14, 1928, and involves income and excess profits taxes for the year 1920, in the amount of $6,-104.03.
The uncontroverted facts relating to this issue are as follows:
In 1906, one Nathan Deutseh owned the entire capital stock of the Monarch Electric & Wire Company, an Illinois corporation organized in 1902 (not the petitioner herein). In the latter part of 1906, Deutseh sold a 16 per cent, interest in this company to each of the three Schwab brothers, L. S. Schwab, H. S. Schwab, and A. G. Schwab, and retained for himself the remaining 52 per cent, controlling interest. In the latter part of the year 1919, the Schwab brothers began negotiations for the purchase of Deutseh’s stock. Both parties dealt at arm’s length through their respective attorneys. An agreement, dated January 1, 1920, was finally perfected, by the terms of which the name of the company was changed to Schwab Electric Company; a new corporation, the petitioner herein, was organized and acquired all the assets subject to the liabilities of the Schwab Electric Company, with the exception of certain indebtedness of Deutseh which was canceled and $25,300 in Liberty Bonds which was paid directly to Deutseh. Besides the Liberty Bonds and the cancellation of his indebtedness, Deutseh received from petitioner $300,-000 par value of its preferred stock (being its total authorized preferred stock). This preferred stock had voting rights, and was entitled to cumulative dividends of 6 per cent, per annum, the payment of the dividends being guaranteed individually by the three Schwab brothers. The Schwab brothers further agreed that this preferred stock would be redeemed at a certain amount each year, the last maturity of which is to be April 1, 1937.
The Schwabs further agreed with Deutsch that, until $100,000 of the preferred stock was redeemed their aggregate annual salaries would not exceed $36,000, and until $150,000 par value of preferred stock was redeemed their aggregate annual salaries would not exceed $45,000, and until $200,000 par value of preferred stock was redeemed their aggregate annual salaries would not exceed $54,000.
The three Schwabs' received from petitioner all its common stock, which gave the Schwabs a 52 per cent, interest and voting control.-
The assets conveyed to petitioner by the Schwab Electric Company had a fair market value, in the amount agreed upon between Deutsch and the Schwabs and admitted by respondent, and were reflected as invested capital in the petitioner’s income tax returns as follows:
Leasehold ................... $ 75,000.00
Building .................... 300,000.00
Machinery................... 46,075.52
Good will.................... 75,000.00
These assets were taken over by the petitioner at the above figures. The Schwab Electric Company had carried the assets at a much lower valuation, and no good will was carried as an asset by it.
Respondent, in computing petitioner’s invested capital, valued the assets acquired by petitioner from the Schwab Electric Company on the same basis as they stood on the boobs of that company, instead of at their market value. Petitioner contends that for the year T920, it is entitled to have its invested capital computed on the actual cash value of the property paid in for its stock on January 1, 1920, and that the limitation of section 331 of the Revenue Act of 1918 is not applicable. The commissioner contends that the limitation of section 331 is applicable. This is the only issue involved.
The material portion of section 331 of the Revenue Act of 1918 (40 TJ. S. Stat. 1095) is as follows:
“See. 331. In the ease of the reorganization, consolidation, or change of ownership of a trade or business, or change of ownership of property, after March 3, 1917, if an interest or control in such trade or business or property of 50 per centum or more remains in the same persons, or any of them, then no asset transferred or received from the previous owner shall, for the purpose of determining invested capital, be allowed a greater value than would have been allowed .under this title in computing the invested capital of such previous owner if such asset had not been so transferred or received: » * *
Petitioner contends that inasmuch as Nathan Deutsch, on January 1, 1920, owned more than 50 per cent, of the stock of the Schwab Electric Company, and after the reorganization or change of ownership he owned less than 50 per cent, in the new corporation, such transaction does not come within the provisions of the statute. With this contention we cannot agree. In our judgment the wording of the statute is not ambiguous in this particular. It explicitly says that “if an interest or control of 50 per centum or more remains in the same persons, or awy of them,” (italics ours), then the statute applies. Before the reincorporation Deutsch, it is true, owned and controlled more than 50 per cent, of the stock; but it is also true that he, with either one or more of the Schwabs, at that time owned and controlled more than 50 per cent, of the stock. After the reincorporation we find the persons holding the stock in the new corporation are identical with the stockholders in the old, and that Deutsch, with either one or more of the Schwabs, still owns and controls more than 50 per cent, of the stock of the new corporation; and this brings the transaction squarely within the statute.
We are thoroughly convinced that the reorganization and transfer of stock was a bona fide transaction in every particular, and that there was no effort whatever on the part of petitioner or its stockholders to circumvent the government; but of course these facts are not sufficient to overcome the plain and unambiguous terms of the statute.
The order of the Board of Tax Appeals 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_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 "financial institution". Your task is to determine what subcategory of business best describes this litigant.
UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellant, v. HOUSING AUTHORITY OF THE TOWN OF BERWICK, Defendant, Hibernia National Bank of New Orleans, Intervenor, Martin-Lebreton Insurance Agency, Intervenor-Appellee.
No. 75-3848.
United States Court of Appeals, Fifth Circuit.
Aug. 12, 1977.
A. Morgan Brian, Jr., New Orleans, La., for plaintiff-appellant.
Russell M. Cornelius, New Orleans, La., for defendant.
Before WISDOM and GEE, Circuit Judges, and BOOTLE, District Judge.
Senior District Judge of the Middle District of Georgia sitting by designation.
WISDOM, Circuit Judge:
This appeal concerns a dispute over the retained contract funds of two companion public construction projects. The parties are the surety (plaintiff-appellant) on the prime contractor’s statutory performance and payment bonds on both projects, and the contractor’s insurance agency as a conventional assignee of a portion of the contractor’s rights to the retained funds on only one of the projects. We hold for the surety, and reverse the district court.
I.
The Housing Authority for the Town of Berwick, Louisiana, (Authority) initiated two construction projects for low-rent housing developments on companion sites in St. Mary Parish, referred to here as Job-2 and Job-3. The prime contractor on each, Delta General Construction Corporation (Delta), furnished to the Authority statutory performance and payment bonds to cover both prime contracts on which United States Fidelity and Guaranty Company is surety. Delta executed in favor of USF&G one general indemnity agreement and a separate application for each of the two bonds.
The pertinent provisions of the bond applications state:
As collateral, to secure the obligations herein of the undersigned and all other indebtedness liabilities of [Delta] to [USF&G], whether heretofore or hereafter incurred. . . [Delta], assigns . . . all . . . interest of [Delta] in and to . . . every contract covered by [USF&G’s] bond including all retained percentages, deferred payments, earned moneys and all funds and properties whatever that may be due or become due under said contract . growing out of said contract or work done thereunder.
. such assignment [is] to be effective as of the date of said contract but only in event of . any breach of any of the agreements herein contained, or of said contract or bond, or of any other bond (heretofore or hereafter) executed or procured by [USF&G] on behalf of [Delta]. (Emphasis added.)
Subsequently, Martin Lebreton Insurance Agency (Agency) to enable Delta to pay the past due balance owed on its premium account endorsed Delta’s promissory note to Hibernia National Bank in New Orleans for $23,856. The following day the note held by Hibernia was collaterally secured by Delta’s written assignment to the Agency of a $23,856 interest in the retainage outstanding on Job-2. The Authority was notified of this assignment before they were notified of the previous assignment to USF&G.
Delta became unable to pay its subcontractors and suppliers on a current basis and these third parties threatened to assert their claims. USF&G advanced its own funds to pay the claims of those third parties. With the help of money advanced by USF&G in accordance with its bond obligations Delta ultimately completed both jobs. The totals of the respective 10 percent retainages withheld by the Authority under the two contracts were closed out at $56,986 for Job-2 and $85,000 for Job-3. The main action in this ease between USF&G and the Authority has been settled and dismissed. The only remaining matter is the determination of the Agency’s claim to certain contract funds now in the possession of USF&G from Job-2.
The trial judge held in his final judgment that USF&G’s right to the retainage on each job, based on subrogation and bond application assignment, was superior per se to the loan-collateral assignment rights of the Agency, but only up to the respective separate amounts of bond loss USF&G sustained on each particular job. USF&G’s total bond losses were $49,798 on Job-2 and $294,539 on Job-3. When USF&G is credited with the respective remaining contract balances that were paid to it the results are a net retainage balance of $7,188 left over on Job-2 but a net excess loss of $209,539 on Job-3. The trial judge did not, however, allow USF&G to offset the small net retainage left on Job-2 against the large net bond loss on Job-3 to reduce the surety’s deficit as far as possible by utilizing all the available contract funds. Rather the Agency’s assignment was held to be the superior right for recovery of the $7,188 net balance of retainage from Job-2, while USF&G’s net loss of $209,539 on Job 3 was denied the chance to be further reduced by that $7,188.
II.
The only question raised on appeal is whether the surety, USF&G, was properly denied recoupment of its net excess loss on the highest-loss job, Job-3, from the net excess retainage of $7,188 on the lower-loss job, Job-2. Although USF&G seeks reversal on subrogation and assignment theories, in light of our disposition, it is necessary to discuss only the subrogation claim.
The court below recognized that USF&G as surety for Delta was subrogated to the rights of laborers, materialmen, and suppliers of Delta whose claims USF&G paid, and that the rights of those original Delta creditors are superior to those of the Agency. Pearlman v. Reliance Insurance Co., 1962, 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190; Claiborne Parish School Board v. Fidelity & Deposit Co. of Maryland, 5 Cir. 1930, 40 F.2d 577; Bankhead v. Maryland Casualty Co., 197 F.Supp. 879 (E.D.La. 1961); 17 Am.Jur.2d “Contractor’s Bond” §§ 107-8 (1964). It is also true, however, that USF&G is subrogated to the priority statutory position of the public owner with respect to the contract fund. Prairie State Bank v. United States, 1896, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity and Guaranty Co., 1908, 208 U.S. 404, 285 S.Ct. 389, 52 L.Ed. 547; cf. Bankhead v. Maryland Casualty Co., 197 F.Supp. 879 (E.D.La.1961). It is clear, then, as the district court ruled, that USF&G had priority vis-a-vis the Agency, to the retained contract funds of Job-2 for its losses associated with that job. The question here is whether the retainage on Job-2 can be applied to USF&G’s losses on Job-3.
The contract between the Authority and Delta entitled the Authority to backcharge Delta’s potential retainage on Job-2 with all payments required to be made for settling third-party labor and material claims on both Job-2 and Job-3. As a result no “final payment of retainage” ever matured or became due Delta under the prime contract for Job-2.
Article 12 of the contract between the Authority and Delta concerning “Payments” provides:
. [T]here shall be retained 10% . until final completion and acceptance of all such work covered by the Contract . . Upon completion and acceptance by the . . . Authority of all work required hereunder, the amount due the Contractor [Delta] shall be paid after the Contractor has furnished to the . . . Authority a release ... of all claims against the Authority arising and by virtue of this Contract . . . The . Authority may withhold any payment otherwise due the Contractor to protect the . . . Authority against any claim (emphasis added).
The required “release” before final payment was due was not given until March 4, 1975 when close-out documentation on Job-2 was finally completed, executed by Delta, and forwarded to the Authority. On April 30, 1975 the final release documents were signed by the Authority.
By April 30, 1975, close to seven years after Delta’s assignment to the Agency, the massive loss on Job-3 had occurred and the liabilities therefor were fixed. More than the entire balance of Job-3 contract funds, both progress money and final retainage, was necessary to satisfy claims of third parties for those completion costs as well as Delta’s unpaid labor and material bills. Had USF&G not paid those sums under its bond, the Authority had an express contract right and statutory responsibility to use a 11 of Delta’s otherwise available contract funds, whether derived from Job-2 or Job-3 to pay them. Consequently, there never was a debt owed by the Authority to Delta and, therefore, the assignment by Delta to the Agency does not preclude recovery by USF&G of the net excess retain-age of $7,188 from Job 2. As stated in P. P. Williams & Co. v. Roach, 12 La.App. 305, 125 So. 465, 468 (1929), “ . . . [an] assignor can assign no better rights than he has, and the assignee, of course, acquires no better rights than the assignor has.”
The net result is that the Agency acquired nothing, because no debt from the Authority to Delta resulted, and USF&G, subrogated to the Authority’s rights, was entitled under the terms of the contract between the Authority and Delta to use Job-2 retainage to pay Job-3 claims.
A case analogous in principle, P. P. Williams & Co. v. Roach, supports our conclusion. In Williams, the assignee of a subcontractor sued the contractor to recover the October progress payment due the subcontractor. The October payment, however, was backcharged to the subcontractor for debts it had incurred for which the contractor was liable. As a result, since the amount due for the work did not exceed the legitimate charges against it, the October payment never became a debt owed by the contractor to the subcontractor, and the sub-contractor’s assignee could not successfully claim a debt that never existed. Here also, the Agency cannot successfully claim retainage due Delta when the amount of retainage was insufficient to meet the legitimate charges against it.
As one final point, we note Agency’s misplaced reliance on Baker v. City of Shreveport, 165 La. 391, 115 So. 631 (1928) reh. denied. In Baker there is no suggestion that the contract between the public body and the contractor allowed excess retainage from one job to be used to pay claims on another job. Baker, therefore, does not control our determination.
Although other avenues of approach might lead to the result reached in this case, we follow the course outlined in this opinion.
REVERSED.
. As these are public works, the projects and the prime contracts are governed by Louisiana’s Public Works Act, R.S. 38:2241 et seq.
. The Agency handled the underwriting of Del-° ta’s bonds from USF&G on both Job-2 and Job-3. The Agency also placed insurance coverage applicable to those two projects, as well as all such insurance needs on Delta’s other work, maintaining a credit account for the premiums due. In due course, the Agency paid Delta’s note to the Bank and received in return all of the Bank’s rights.
. Louisiana Public Works Act, R.S. 38:2243.
. Whether Baker would otherwise control is a question we need not presently consider.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_circuit
|
H
|
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.
S. W. NOGGLE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 72-1678.
United States Court of Appeals, Eighth Circuit.
Submitted April 11, 1973.
Decided May 1, 1973.
Harry L. Brovvne, Kansas City, Mo., for petitioner.
M. Namrow, Atty., N. L. R. B., Washington, D. C., for respondent.
Before GIBSON, BRIGHT and ROSS, Circuit Judges.
GIBSON, Circuit Judge.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. The Board’s Decision and Order are reported at 199 NLRB No. 107.
The S.W. Noggle Company was found by the NLRB to have committed an unfair labor practice in violation of §§ 8(a) . (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by threatening to discipline and later by the discharge of Mike Masonbrink. It is the contention of the General Counsel that the employer discharged Mason-brink because he advocated that the employees go out on strike for a new contract.
The Department Store, Package, Grocery, Paper House, Liquor and Meat Drivers, Helpers and Warehousemen, Local No. 955, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), had represented a unit consisting of the employer’s ware-housemen and drivers for 30 years. On September 30, 1971, the three-year contract between the employer and the Union expired. Negotiations were in progress at the time of the events with which this action is concerned.
Masonbrink was a part-time employee of the Noggle Company from October 1969 to May 1970 when he enlisted in the Coast Guard. He returned from this military service in June 1971. At the end of June, through the efforts of his sister, Vickie Harrison, an order clerk for Noggle, he was rehired on a full time basis. He worked as a truck driver until mid-October when he requested and received a transfer to the warehouse. He worked in the warehouse about six weeks, until his discharge on December 1, 1971.
During the period when he was employed in the warehouse the Trial Examiner found that Masonbrink “was far from being a model employee.” On several occasions he refused to perform his duties as he was instructed to do although he stated that he later would go ahead and do them. He was reported by Bramer, the leadman, to Thomas Turner, the general manager for Noggle, who in turn complained of his conduct to the Union.
Several witnesses testified that they had heard Mansonbrink state that he would like to draw “rocking chair money” which was explained as meaning state unemployment compensation. Ma-sonbrink did not deny this but only stated that he could not remember saying it.
On November 15, at a meeting between the unit employees and several union representatives Masonbrink strongly advocated that the Union strike the company because of its failure to negotiate a new collective bargaining agreement. Leadman Bramer reported Masonbrink’s position to General Manager Turner. Turner spoke to Vickie Harrison on about November 29, and told her, “Vickie, we’re going to have to do something about Mike. He has the men upset about going out on strike.” When she replied that it was because the company had not negotiated a new contract yet he responded, “I can’t help that. He still has to get his orders out.” The Trial Examiner found that this was a threat to discipline Masonbrink.
Two days later, after Vickie had spoken to her brother concerning this conversation, Masonbrink called to Turner while he was in the warehouse, and told him that if he had anything to say to him he should do so directly and not to tell his sister. Turner made no response to this. At this point the stories of the parties diverge. Masonbrink states that they then began to discuss the performance of his work. Turner stated that he asked Masonbrink to fill a rush order and that Masonbrink refused because he was already working on another order. One of the other warehousemen heard this conversation and his version, while not identical to that of Turner’s tends to support Turner’s version. Both Mason-brink and Turner testified that Mason-brink said that if Turner thought he could do a better job he could do it himself, and that Turner stated to Mason-brink that if he did not like working there he could quit. Masonbrink admits that he told Turner that if he did not like the way he was doing his job Turner could fire him. This challenge was repeated several times and finally Turner did fire Masonbrink.
The sole issue on this appeal is a factual one, whether the finding of the Trial Examiner and the Board that Mason-brink was discharged for his advocacy of a strike was supported by substantial evidence in the whole record. 29 U.S.C. § 160(e). ■ The Supreme Court has defined “substantial evidence” as:
“ ‘. . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 '[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18, 21.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-621, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (footnotes omitted).
Considering first the finding by the Board that Turner had not requested Masonbrink to fill a rush order and been refused, we hold that this finding is not supported by substantial evidence on the whole record. The issue was decided by the Trial Examiner as a matter of credibility, balancing the testimony of Turner that he had told Masonbrink to fill the order and been refused against Masonbrink’s denial of the incident and testimony that the conversation concerned only his work performance generally. The Trial Examiner appeared to ignore the testimony of Ralph Roberts, one of the other warehousemen, to the effect that he had heard the conversation between Turner and Masonbrink, and that he had heard Turner tell Masonbrink to fill an order. Although Roberts did not testify that Masonbrink had openly refused to comply with the instruction, Robert’s version of the confrontation is more consistent with Turner’s version than was Masonbrink’s in that Mason-brink denied that he was even told to fill an order.
Turning next to the statement made by Turner to Vickie Harrison with regard to Masonbrink’s advocacy of striking, the Examiner failed to fully examine this incident. Beyond reciting the facts of the statement and the bare finding that “I also find that Turner’s statement to Vickie constituted a violation of Section 8(a)(1) of the Act” there was no analysis of the statement. Turner denied that it was a threat to discharge Masonbrink. He stated that he wanted Vickie to see if she could get Mike to settle down. In view of the fact that Vickie Harrison had been instrumental in getting Masonbrink the job, and the cordial relationship which obviously existed between the small group of employees and the management, this is not an unlikely explanation for the conversation. From the record of this conversation it would be erroneous to draw the conclusion that Turner was threatening to fire Masonbrink for advocating a strike.
In view of the fact that Masonbrink had been employed in the warehouse only a short time, and that after the one occasion when a complaint had been made of Masonbrink’s sub-par performance Turner had promptly notified the Union, this record cannot support the finding by the Examiner that Turner had “put up with quite a bit” or condoned the prior misconduct of Masonbrink. This finding appears incredible. By employing such reverse logic, the mere condoning of inferior work, would give the employee a shield against dismissal for cause.
Even without the refusal by Masonbrink to fill the order on the day of his discharge, the record does not support the finding that he was not discharged for cause but for his union activities. It is clear that he initiated the confrontation with Turner. It is further undisputed that he several times challenged Turner to discharge him if Turner did not like the way he did his work, indicating that he would not even attempt to meet the standards which his employer would expect. This sort of defiant attitude by employees is not protected by either a Union shield or the National Labor Relations Act.
Considering the record as a whole, it is clear that the finding of a discriminatory discharge of this hostile and contentious employee is not supported by substantial evidence. Accordingly, the Board’s Order which required his reinstatement with back pay will not be enforced.
Enforcement denied.
. Of course, an employee, absent a protective agreement, may be discharged with or without cause so long as it is not for a reason prohibited by the National Labor Relations Act.
“It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965).
See also NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972) (cases cited at n. 4).
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_usc2sect
|
174
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Robert MALOFSKY, Appellant.
No. 239, Docket 31388.
United States Court of Appeals Second Circuit.
Argued Dec. 14, 1967.
Decided Jan. 17, 1968.
Certiorari Denied April 8, 1968.
See 88 S.Ct. 1273.
Phylis Skloot Bamberger, New York City (Anthony F. Marra, New York City, on the brief), for appellant.
Pierre N. Leval, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., Southern District of New York, on the brief), for appellee.
Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges.
PER CURIAM:
Appellant Robert Malofsky was tried before Judge Weinfeld and a jury on count one of an indictment charging him with the sale of 15.900 grams of heroin hydrochloride in violation of 21 U.S.C. §§ 173 and 174. On April 21, 1967 he was found guilty as charged and sentenced to five years imprisonment.
No question is raised by the appellant concerning the sufficiency of the evidence presented at trial in support of his conviction. The sole issue on this appeal is whether the trial judge committed error when he denied the appellant’s motion to dismiss the indictment on the ground that oply hearsay testimony was presented to the Grand Jury.
The Bureau of Narcotics Agent who purchased the heroin from the appellant and who had firsthand knowledge of the transaction did not testify before the Grand Jury, but an agent who had maintained surveillance both of the undercover agent who actually made the purchase, and the appellant at the time of the sale on June 30, 1965, testified as to his personal observations and to what the undercover agent told him about the sale. The presentation of such testimony before the Grand Jury is permissible and the indictment based thereon is valid, and does not, as the appellant claims, violate any of his Fifth Amendment rights. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). See United States v. Andrews, 381 F.2d 377, 378 (2 Cir. 1967); United States v. Heap, 345 F.2d 170, 171-172 (2 Cir. 1965). See also, United States v. Bitter, 374 F.2d 744, 748 (7 Cir. 1967); Smith v. United States, 236 F.2d 260, 268-269 (8 Cir. 1956).
While this court warned against the “excessive use of hearsay in the presentation of government cases to grand juries” unless “it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge,” United States v. Umans, 368 F.2d 725, 730 (2 Cir. 1966), cert, granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872, cert, dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (Nov. 6,1967), the indictment in the present case was based on the testimony of a surveillant agent who clearly indicated what he testified to from his own knowledge and observation and what he learned from the participating agent. There is no affirmative duty to tell the grand jury in haec verba that it is listening to hearsay. United States v. Payton, 363 F.2d 996 (2 Cir.), cert, denied 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966).
The judgment of conviction is affirmed.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, Appellee.
No. 17187.
United States Court of Appeals Ninth Circuit.
Aug. 30, 1961.
Rehearing Denied Oct. 24, 1961.
Wm. H. Orrick, Jr., Asst. Atty. Gen., John G. Laughlin and W. Harold Bigham, Attys., Dept, of Justice, Washington, D. C., and Laurence E. Dayton, U. S. Atty., San Francisco, Cal., for appellant.
Graham, James & Rolph, by Henry R. Rolph, San Francisco, Cal., for appellee.
Before CHAMBERS, BARNES and HAMLEY, Circuit Judges.
BARNES, Circuit Judge.
This ease arises in admiralty upon a libel against the United States, and a cross-libel filed by the United States. The district court thus had jurisdiction under 28 U.S.C. §§ 1345 and 1346, and 46 U.S.C.A. § 782. A final decree was entered below, and this court has jurisdiction under 28 U.S.C. § 1291.
On September 8, 1955, appellee’s vessel, the S.S. F. E. Weyerhaeuser, collided with appellant’s vessel, the United States Army dredge Pacific, off the coast of Oregon. The trial court found that both parties were at fault and this finding is not challenged here. The accident caused significant damage to both vessels, and resulted in personal injury. Reynold Ostrom, an employee of the United States serving on the Pacific, recovered compensation from the United States in the amount of $329.01 under the Federal Employees’ Compensation Act (5 U.S.C.A. § 751 et seq.). Ostrom also recovered $16,000 from appellee by settlement. St. Paul Fire & Marine Insurance Company intervened claiming $19,122.75 as damages under its policy of marine insurance for its cargo general average contribution arising out of the collision, and Fireman’s Fund Insurance Company likewise intervened, claiming $923.85 for its marine insurance cargo general average contribution. The court found (Finding II, Tr. 72) the intervenors had made such general average payments, and also found in favor of intervenor Boston Insurance Company in the sum of $443.54, on the same basis, or a total general average recovery of $20,490.14.
In accordance with its finding of mutual fault the trial court divided the damages between the parties as required by maritime law. It found that each party suffered damages as follows:
Weyerhaeuser Steamship Company:
$27,652.13 physical and detention damages of the S.S. F. E. Weyerhaeuser
16,000.00 paid to Ostrom in settlement of suit against it.
$43,652.13 Total provable damages
United States of America:
$16,949.12 physical and detention damages of the Pacific
20,490.14 payable to intervening libel-ants (insurance)
$37,439.26 Total provable damages
(Finding of Fact IV, E. p. 74.) Since appellee’s provable damages exceeded appellant’s damages by $6,212.87, the court awarded appellee judgment in the sum of $3,106.44, plus interest. Appellant, claiming that the court erred in including the $16,000 personal injury award in appellee’s provable costs, has taken this appeal.
Appellant does not deny the antiquity or propriety of the maritime rule requiring the apportionment of damages in cases of mutual fault. Appellant also does not deny that in most instances the apportionment rule applies to damages occasioned by personal injuries. Appellant does contend, however, that the apportionment rule does not apply to damages arising from an injury to any employee covered by the Federal Employees’ Compensation Act. Under 5 U.S.C.A. § 757 (b), the liability of the United States under the Act, with respect to the injury or death of an employee is “exclusive, and in place, of all other liability of the United States * * * to the employee * * * and anyone otherwise entitled to recover damages from the United States * * * on account of such injury or death * * This statute on its face, then, does seem to save the United States harmless from any liability from injury to its employees other than that specified by the statute. The government points out that statutes such as these are “give and take” arrangements. The employer loses his defenses to the employee’s action and the employee gets a remedy which is fast and certain. The employer, on the other hand, enjoys a liability which is limited and determinative. To permit recoveries beyond that specifically allowed by the Act would be subversive of the statutory scheme. This is so, appellant contends, even with respect to recoveries by third parties — what cannot be accomplished directly should not be permitted by the indirect means of a third party recovery.
That the Federal Employees’ Compensation Act provides the sole remedy for injured employees of the United States is well established. That was the only question before the Supreme Court in Patterson v. United States, 1959, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971. And it affirmed Johansen v. United States, 1952, 343 U.S. 427, 441, 72 S.Ct. 849, 96 L.Ed. 1051, which states: The United States “has established by the Compensation Act a method of redress for its employees. There is no reason to have two systems of redress.” 343 U.S. at page 439, 72 S.Ct. at page 856.
In furtherance of this policy it has been held that a joint tortfeasor may not seek contribution or indemnity from the United States when the joint tortfeasor is sued by the administrator of a deceased United States employee (Christie v. Powder Power Tool Corp., D.C.D.C.1954, 124 F.Supp. 693). Appellee contends, however, that this case cannot control here, for it does not deal with the admiralty rule requiring apportionment of damages. Appellee points out that the trial court did not award it any sum as compensation for the injury suffered by Ostrom. Rather the award reflects the damage which appellee suffered as a result of the collision when it was required to compensate Ostrom for his injuries. In other words, appellee sought and received recovery in its own right for appellant’s breach of duty to it under the maritime law; appellee claims that its right is not derivative from any right which Ostrom may have had.
The question presented here is a difficult one. Its resolution will abridge either the statutory policy or the maritime law. To allow a third party recovery against the United States on any ground is subversive of the statute limiting the liability of the United States. On the other hand, the money paid to Ostrom is an element of the total damages suffered by appellee. And failure to apportion such damages is a breach of the maritime rule — for the rule requires the apportionment of all damages suffered, without regard to the fact that some of those damages stem from liabilities which could not be imposed against one of the parties but for the apportionment. The Chattahoochee, 1899, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. There appear to be no cases which can be described as controlling, but there are some precedents which may be helpful.
With the first portion of our last statement appellee would not agree. It refers us to United States (The U.S.S. Ruchamkin) v. The S.S. Washington (Texas Co. v. United States), D.C.E.D.Va.1959, 172 F.Supp. 905, affirmed without opinion, 4 Cir., 1959, 272 F.2d 711 (no petition for writ of certiorari filed).
It is true that Judge Bryan in the Washington-Ruchamkin case, supra, did grant Texas Company, the private shipowner, judgment against the United States (for one-half of the awards made against the Texas Company in favor of the heirs of four soldiers killed aboard the government vessel in the collision)— and also ordered such judgment without deduction for the veterans benefits already paid by the government to the soldiers’ heirs. We point out two things. First: the Washington-Ruchamkin case was, unlike this present action, brought under the Death on the High Seas Act, 46 U.S.C.A. § 761. This action was brought under 46 U.S.C.A. §§ 781-790, the Public Vessels Act. Yet both Acts must be construed together in laying down the pattern and marking the restrictions under which the United States may be sued. Mejia v. United States, 5 Cir., 1945, 152 F.2d 686, certiorari denied 328 U.S. 862, 66 S.Ct. 1366, 90 L.Ed. 1632; United States v. Caffey, 2 Cir., 1944, 141 F.2d 69. Secondly: (and of greater importance) Judge Bryan listed four issues before him, after the fourth circuit had held “The Texas Company also at fault.” The first three do not concern us here; the fourth assumes as admitted the very legal question here in issue. We do not know why this admission was made by the government in the Washington case. But no such admission was made in the instant case. And, of course, the government is not estopped from taking a position here contrary to that it has invariably or occasionally taken previously. Utah Power & Light v. United States, 1917, 243 U.S. 389, 409, 37 S.Ct. 387, 61 L.Ed. 791; United States v. City and County of San Francisco, 1941, 310 U.S. 16, 32, 60 S.Ct. 749, 84 L.Ed. 1050.
Appellee concludes its references to the Washington case in its brief with the following appeal to the court’s conscience:
“The fact is that the United States with knowledge of the admiralty mutual fault collision rule enacted a scheme of compensation for its employees injured in the performance of duty without reference to negligence. Insofar as Weyerhaeuser is concerned the employee’s compensation has nothing to do with this collision and should have no bearing on Weyerhaeuser’s right to have all the damages resulting from the collision mutually apportioned between the two vessels. Any other result would be grossly unfair.”
Whether fair or unfair, the Supreme Court has established the rule that the United States cannot be burdened directly with tort liability for injuries sustained by its employees. We do not presume that if there had never been a retreat by the United States from its absolute nonliability as a sovereign, appellee could or would here maintain that such claim of sovereignty was inferior to the right established by admiralty law, no matter how ancient, simply because unfair to the shipowner. Any claim of sovereign immunity is to some extent always unfair to the one who has sustained loss or damage.
But can a limited waiver of sovereign immunity be enlarged by indirection, i. e., through the negligent act of a third party — the shipowner? We think not.
There has been no question for one hundred years as to the general maritime rule that a total loss in collision cases is divided where both vessels are at fault. The Catharine v. Dickinson, 1954, 17 How. 171, 58 U.S. 171, 177, 15 L.Ed. 233; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. And appellee cites to us as examples where damages have been allowed against the government two eases: Ocean S.S. Co. of Savannah v. United States (The City of Rome), 2 Cir., 1930, 38 F.2d 782, 786; Chicago-Silverpalm, 9 Cir., 1937, 94 F.2d 771.
The City of Rome concerned itself only with an attempt to exempt or limit liability by Ocean Steamship Company (as the owner of The City of Rome) from the claims of Goldye M. Dobson, as Administratrix, against it; and its claim for damages against the United States for property damages. Judge Learned Hand specifically avoided any “question of marshalling the proceeds of the Rome as between the United States and the private claimants.”
Further, this case was decided in 1930. Title 5 U.S.C.A. § 757(b) (the exclusive liability subsection) was created by the Act of October 14, 1949, Secs. 201, 303 (g). It was given but a limited retroactive effect. (See U.S.Code, 1952 Ed., Title 1-14, p. 371, 5 U.S.C.A. § 757 note.)
Chicago-Silverpalm, supra, is cited to us as 94 F.2d 771. The Silver Palm appears in 9 Cir., 94 F.2d 754, and holds the United States at mutual fault with the private shipowner for a collision. It does not touch upon the matter here involved. The Silver Palm (Silver Line v. United States), 9 Cir., 1937, 94 F.2d 776, has solely to do with limitation of liability on the Silver Palm’s part. In The Silver Palm (Silver Line v. United States), 9 Cir., 1937, 94 F.2d 781, the appeal was from an order permitting the administrators of three deceased naval officers to proceed with their wrongful death suits. The appeal was dismissed as moot. Neither The Silver Palm cases, nor The Rome case, establish the principle claimed by appellee that “similar damages have been uniformly allowed in previous cases against the government.” (Appellee’s Brief, p. 10.) Nor do alleged voluntary settlements by the government establish a right specifically excluded and prohibited by an Act of Congress, as is argued in appellant’s brief. However, there is authority to support the appellee’s position. In The Tampico case, D.C.W.D.N.Y.1942, 45 F.Supp. 174, 175, a stevedore was injured while transferring cargo from a barge to The Tampico. The stevedore, who was employed by The Tampico’s owner, sued the barge owner claiming that the barge was defective. The barge owner impleaded the owner of The Tampico, claiming that it was negligent in operating a “clamshell bucket” used in transferring cargo. The Tampico’s owner was immune from personal injury suits by its employees, for it was covered by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. The “exclusiveness of liability” under this Act, 33 U.S.C.A. § 905, is similar in extent to 5 U.S.C.A. § 757(b). Nevertheless, the trial court held that the barge owner could obtain contribution from the owner of The Tampico. The Tampico’s owner was immune from suits brought by the stevedore or anyone in his right, but “the right in admiralty to contribution between wrongdoers does not stand on subrogation but arises directly from the tort.” We must note, of course, that this is a district court case, not binding on this court, and of limited precedential value.
The Tampico was cited and quoted with approval by a higher court in Hitaffer v. Argonne Co., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, certiorari denied 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624. In that case appellant’s husband was injured during the course of his employment; his employer, as in The Tampico, was covered by the Longshoremen’s and Harbor Workers’ Compensation Act. The wife claimed that the injury to her husband had interfered with her marital relationship and she sued for loss of consortium. The court held that the action for loss of consortium does not stand on subrogation but arises directly from the tort. Thus the wife was not suing in her husband’s right; she was suing in her own right and was entitled to damages for her loss. Accordingly, the court held that the wife’s right to damages for loss of consortium was not barred by the Compensation Act. This case, however, was expressly overruled in 1957 in Smithers & Company Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, certiorari denied 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129, a case heard by the District of Columbia Circuit en banc. The court noted that the right to damages for loss of consortium must be regarded as a right “flowing from” the spouse’s injury:
“Whether the right of a spouse be regarded as independent, i. e., arising directly from the tort, or as derivative, that right does not come into existence except for the occurrence of the injury. Absent a compensable injury to the one spouse there would be no claim to assert against the employer.” 242 F.2d at pages 224-225.
Expressing its disagreement with Hitaffer, the court in Smithers & Company Inc. v. Coles held that all liability “flowing from” the employee’s injury is governed by the Act:
“In the Hitaffer opinion this court conceded that ‘the plain and literal language’ of this statute could be construed to bar ‘any right of action flowing from the compensable injury,’ but rejected that interpretation. We think the statute cannot be read any other way without doing extreme violence to those ‘plain and literal’ words read in the light of the purposes of the Act.” 242 F.2d at page 224.
,, , , , , , ,, The same result had already been reached by the tenth circuit with respect to the Federal Employees’ Compensation Act, the statute which is in issue here (Underwood v. United States, 10 Cir., 1953, 207 F.2d 862). The Underwood case received the approbation of this court in Thol v. United States, 9 Cir., 1954, 218 F.2d 12, 14. The Smithers & Company Inc. v. Coles and Underwood cases are,, we think, persuasive authority here. In our opinion the shipowner’s right of action is just as dependent upon the employee’s injury as the wife’s claim for loss-of consortium; or to put it more precisely, the shipowner’s claim is no more independent of the employee’s injury than is the wife’s. If, then, the policy of the statute bars the wife’s action for l°ss of consortium, it should also bar the shipowner’s action for contribution,
The authority supporting appellee’s position is not so persuasive as the cases last cited above. While The Tampico supports appellee’s cause, it was, in the eyes of one court overruled by American Mut. Liability Ins. Co. v. Matthews, 2 Cir., 1950, 182 F.2d 322. See Coates v. Potomac Elec. Power Co., D.C.D.C.1951, 95 F.Supp. 779. For this reason, appel^ee no^ c^e Tampico. We cannot agree that^ the Matthews case overrules Tampico. Matthews held only that Longshoremen s and Harbor Workers Compensation Act prevents the joint tortfeasor from obtaining contribution from the employer covered by the Act. This parallels the holding, under the Federal^ Employees Compensation Act, in Christie v. Powder Power Tool Corp., supra- d°es n°t deal with the problem presented by the admiralty rule and the point raised by The Tampico, viz. that ,. ., , , ,, , ; , the Sult ^ased upon the admiralty rule 1S an dependent cause of action not founded upon the injured employee’s riSht but founded upon the employer’s breach of a duty to other shipowners to-exercise care in navigation. This point is involved, however, in the persuasive authority discussed above relating to a spouse’s right to sue for loss of consortium. Thus, while it does not appear that The Tampico has been overruled, it bas been robbed of its persuasiveness by subsequent developments.
Appellee places its principal reliance upon a series of cases interpreting the Harter Act, the most emphasis being placed on The Chattahoochee, supra. There a steamer and a schooner collided, both vessels being at fault. The owners of the schooner were awarded damages as bailees of the cargo, but the steamer was allowed to recoup half of the value of the cargo — even though the schooner was mot liable to the cargo owners (under Section 3 of the Harter Act, 46 U.S.C.A. § 192). The shipowner’s statutory exemption from liability did not preclude a recovery against it under the maritime rule. Thus, appellee claims, the statutory limitation upon the employer’s liability to his employee should not destroy his liability under the maritime rule.
We concede that The Chattahoochee is strong authority in favor of appellee’s position. There is, of course, the obvious distinction in the fact that The Chattahoochee interprets the Harter Act while we are here called upon to interpret the Federal Employees’ Compensation Act. But a mere comparison of statutory phraseology will not aid in resolving the problem. The Harter Act provides categorically that the shipowner shall not be liable for losses due to faults of navigation. While this command may not be so specific as that contained in the Compensation Acts, it is as clear and strong. But the language of the Harter Act must be considered in light of the judicial gloss which has been placed upon it. In American Mut. Liability Ins. Co. v. Matthews, supra, we learn (182 F.2d at page 324) that “The Harter Act was not intended to affect the liability of one vessel to the other in a collision ease * * Can the same be said with respect to the Compensation Acts? We have already seen that such Acts cut off the spouse’s right to damages for loss of consortium. And there is no sound reason why a distinction should be made between such cases and the case of a shipowner seeking contribution under the admiralty rule. The Acts, in establishing the duty of the employer and in making that duty exclusive, have abolished the independent rights of third parties against the employer for the damage which the employer causes them when he wrongfully injures his employee. Thus it must be candidly admitted that while the United States once had a duty to other shipowners to navigate carefully in order not to injure its own employees, that duty has been abrogated by the Compensation Act. We hold The Chattahoochee is not here controlling because it deals with a different statute which has encrusted upon it a significantly different judicial history.
The policy of an Act which precludes a wife’s recovery for loss of consortium also precludes a shipowner’s claim for contribution from a joint tortfeasor. The judgment below is reversed with directions to recompute damages without any allowance for the $16,000 paid by appellee to the injured United States employee, Ostrom.
The government raised a second issue regarding the trial court’s interpretation of the rules of the sea in connection with the use of radar. Since both parties admitted the propriety of the trial court’s finding of mutual fault, this issue does not bear upon the correctness of the judgment. Appellant briefed the issue only very sketchily and appellee has not briefed the issue at all. In the absence of an actual controversy with adequate briefing by both sides, this court should not be called upon to render a decision on the issue. It appears that the appellant is requesting an advisory opinion, and, of course, federal courts generally refrain from rendering such opinions. Muskrat v. United States, 1911, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. We so refrain here.
Reversed with instructions.
. And see: Lewis v. United States, 3951, 89 U.S.App.D.C. 21, 190 F.2d 22; Sasse v. United States, 7 Cir., 1953, 201 F.2d 871; Smithers & Company Inc. v. Coles, 1957, 100 U.S.App.D.C. 68, 242 F.2d 220, certiorari denied 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129; Underwood v. United States, 10 Cir., 1953, 207 F.2d 862.
Earlier this year, when this court considered the exclusiveness of an injured person’s remedy under the Federal Employees’ Compensation Act (5 U.S.C.A. § 751 et seq.) vis-a-vis the Federal Tort Claim Act (28 U.S.C. § 1346(b)), this court said:
“The language of §§ 751(a) and 757(b) of the Federal Employees’ Compensation Act * * * is plain and unambiguous. Under the statute the employee, regardless of any negligence, is to receive in ease of injury certain definite amounts, which recovery ‘shall be exclusive, and in place, of all other liability of the United States.’ His recovery is not dependent upon the injury being caused by the negligence of any employees of the United States nor is it reduced or taken from him if the injury is the result of his own negligence. That the remedy provided by the Federal Employees’ Compensation Act is to be exclusive is shown by the legislative history of Congress at the time that the statute was amended in 1949. The House Committee Report contains the following:
“ ‘It is the committee’s purpose to have the language of such Section 7 entirely clear in this respect so as to express the intention that the compensation remedy shall henceforth be the exclusive remedy of a person protected by this act against the United States, or against its instrumentalities in eases in which a suable instrumentality is the employer.’
“Similarly, the Senate Report states:
“ ‘The purpose of the latter is to make it clear that the right to compensation benefits under the act is exclusive and in place of any and all other legal liability of the United States or its instrumentalities of the kind which can be enforced by original proceeding whether administrative or judicial, in a civil action or in admiralty or by any proceeding under any other workmen’s compensation law or under any Federal tort liability statute.’
“It thus appears that neither the plain language of the statute, its legislative history, nor the prior construction of similar statutes permits a recovery by appellant.”
Posegate v. United States, 9 Cir., 1961, 288 F.2d 11, at page .14.
. The opinion raises as the fourth question before the court:
“(d) whether against the admitted right of The Texas Company to reimbursement from the Government for onc-half of the death awards as collision damages, the United States may offset the sums paid and payable by the Government to the decedents’ dependents as statutory death gratuities, indemnity and compensation.” (Emphasis added.) 172 F.Supp. 905, at page 907.
. We agree with the reasoning of the tenth circuit. There the court said:
“It is significant, we think, that the Congress chose to speak in terms of liability of the government, not in terms of remedies or rights of action, and in doing so, it gave a right of action only to the extent that it saw fit to relax governmental immunity from any liability.” Underwood v. United States, 10 Cir., 1953, 207 F.2d 862, 864.
. As the District of Columbia Circuit pointed out in Smithers :
“[E]very court which had undertaken to construe the same or similar exclusionary clauses prior to the Hitaffer case-had arrived at a result in conflict with the decision of this court in Hitaffer. [cases noted] Cases decided subsequent to the Hitaffer case also followed the litoral language of statutes cast in substantially the same terms.” 242 F.2d 220, at page 225.
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:
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songer_counsel2
|
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
MEEKINS, INC., Appellant, v. Harold A. BOIRE, Regional Director, Twelfth Region, National Labor Relations Board, et al., Appellees. CONE BROTHERS CONTRACTING COMPANY, Appellant, v. Harold A. BOIRE, Regional Director, Twelfth Region, National Labor Relations Board, Appellee.
Nos. 19847, 19848.
United States Court of Appeals Fifth Circuit.
July 8, 1963.
Erie Phillips, Atlanta, Ga., Ralph R. •Quillan, Hollywood, Fla., Fisher & Phillips, Atlanta, Ga., for appellant Meekins, Inc.
J. Rex Farrior, Jr., Tampa, Fla., Ray G. Muller, Atlanta, Ga., Jack S. Newsome, Tampa, Fla., Erie Phillips, Atlanta, Ga., for appellant Cone Bros. Contracting Co.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon Hirsh, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Ma-noli, Associate Gen. Counsel, Melvin J. Welles, Herman M. Levy, Attys., N. L. R. B., Washington, D. C., for appellees.
Before RIVES and CAMERON, Circuit Judges, and BOOTLE, District Judge.
BOOTLE, District Judge.
These two cases have so much in common that they were consolidated for oral argument and will now be decided together. In each case the appeal is from a judgment sustaining a motion to dismiss the complaint. It will be convenient, therefore to refer to appellants as plaintiffs and to appellees as defendants.
The main thrust of each complaint is against Harold A. Boire in his official capacity as Regional Director, Twelfth Region, National Labor Relations Board because of his refusal to exercise his authority and alleged duty under § 10 (l) of the National Labor Relations Act, 29 U.S.C.A. § 160 (l), to petition the district court “for appropriate injunctive relief pending the final adjudication of the Board with respect to” a charge of unfair labor practice. Each complaint seeks injunctive relief against Boire enjoining him from refusing to petition the district court for such appropriate injunctive relief against the allegedly offending labor organization.
Meekins, Inc. sued both Boire and Local 290, Teamsters Union alleging that said Local caused pickets to be placed on a construction job at Coral Ridge Shipping Plaza where plaintiff was pouring concrete as a subcontractor for R. M. Thompson Company, the general contractor; that also on the job was Joseph Sullivan, another subcontractor who was responsible for placing and finishing the concrete poured by plaintiff; that both Thompson and Sullivan employed union members; that Local 290 did not represent plaintiff’s employees and had no dispute with plaintiff, Thompson, Sullivan, or any other contractor working on the job; that the object of the picketing was to force Thompson, Sullivan, and others to cease using and dealing in the products of, and to cease doing business with plaintiff; that the effect of the picketing and appealing to the employees of Sullivan and others to refuse to work for their employer was that numerous union employees walked off the job bringing it to a standstill; that said activity was in violation of 29 U.S.C.A. § 158(b) (4) (i) (ii) (B); that plaintiff’s three primary places of business were away from said job site and plaintiff’s truck drivers reported to one of these plants each morning and after each delivery returned to a plant for another load; that on April 25, 1962 plaintiff filed an unfair labor practice charge with Boire alleging the above; that on May 14,1962 Boire wrote plaintiff that said charge had been carefully investigated and considered, that as a result of said investigation it appeared that, because there was insufficient evidence of violation, further proceedings were not warranted at that time, and that, therefore, Boire was refusing to issue a complaint in the matter, said letter concluding with the following paragraph :
“Pursuant to the National Labor Relations Board Rules and Regulations (Section 102.19), you may obtain a review of this action by filing a request for such review with the General Counsel of the National Labor Relations Board, Washington 25, D. C., and a copy with me. This request must contain a complete statement setting forth the facts and reasons upon which it is based. The request must be received by the General Counsel in Washington, D. C., by the close of business on May 18, 1962. Upon good cause shown, however, the General Counsel may grant special permission for a longer period within which to file.”
Cone Brothers Contracting Company sued only Boire alleging that plaintiff maintained its principal office and place of business in Tampa, Florida, where it was engaged as a general contractor in the business of constructing streets, highways, bridges, sewers, and excavations; that from May 25, 1960 to date the International Union of Operating Engineers, hereinafter called Engineers, had been actively engaged in picketing certain of plaintiff’s business operations and certain of its work sites; that, as a consequence of certain of the picketing, plaintiff, in June 1960, filed unfair labor practice charges with Boire alleging violations of 29 U.S.C.A. § 158(b) (4) (i) (ii) (B); that on the basis of said charges Boire, on June 16, 1960, petitioned the district court for injunctive relief against the Engineers’ secondary picketing, alleging in said petition that there was reasonable cause to believe that Engineers were picketing in violation of said code section; that as a result of the filing of said petition the Engineers and Boire entered into a settlement agreement on June 17,1960 which provided, among other things, that the Engineers “will not engage in any picketing at or in the vicinity of the General Portland Cement Company mine * * * or at or in the vicinity of the premises of any other person engaged in commerce or in an industry affeetng commerce doing business with [plaintiff] * * * ”; that on April 24, 1962 Engineers commenced picketing plaintiff at the premises and at the work site of employers doing business with plaintiff, and that this picketing caused work stoppages by employees of secondary employers; that plaintiff maintained a permanent place of business in Tampa where plaintiff’s employees could be picketed without interfering with employees of neutral employers; that for the preceding twelve month period the Engineers had not picketed any of plaintiff’s work sites where its employees alone were working; that the picketing complained of extended across the entire width of the secondary work site notwithstanding that plaintiff’s employees at all times confined their work area to the eastern end of the work site; that the picketing followed the work schedule of the secondary employees notwithstanding that plaintiff’s employees had a different work schedule; that on April 26, 1962 plaintiff filed with Boire a charge alleging violations of the secondary boycott provision of the Act; and that Boire caused an investigation to be made after the filing of the charge, knew all of the facts alleged by plaintiff, and, additionally, knew of the Engineers’ breach of the settlement agreement.
Each complaint alleges in effect that Boire had reasonable cause to believe that the charges of unfair labor practices were true, that the respective unions were engaging in violations of the secondary boycott provision of the Act and that a complaint should be filed, and alleges further that Boire’s refusal to proceed was arbitrary and capricious; additionally, Meek-ins, Inc. alleged on information and belief that before writing the letter of May 14, 1962 Boire or his agents asked for, and received, direction from the General Counsel of the National Labor Relations Board and that the refusal to issue a complaint was the result of direction from said General Counsel.
Meekins, Inc., in addition to the injunc-tive relief sought against Boire, also prayed for an injunction against Local 290 enjoining it from (a) picketing at Coral Ridge Shopping Plaza or the premises of any other person engaged in commerce doing business with plaintiff; and (b) engaging in any secondary picketing adversely affecting plaintiff.
In the Meekins case Boire filed a motion to dismiss on the grounds that: (1) the court lacked jurisdiction of the General Counsel of the Board who was an indispensable party; (2) the court lacked jurisdiction over the sub ject matter; and (3) the complaint failed to state a claim upon which relief could be granted. Local 290 filed two motions to dismiss, one upon the grounds that (a) the complaint failed to state a cause of action upon which relief could be granted; (b) the complaint failed to show why the relief prayed for should be granted; (c) there was an adequate remedy at law; (d) the plaintiff failed to exhaust its administrative remedies in that it had not appealed to the General Counsel the Regional Director’s decision to refuse to issue the complaint; (e) only the Regional Director and not the plaintiff would be the proper party to bring the action; and (f) the refusal to issue a complaint and the refusal to apply for a preliminary injunction under the Act were purely within the . discretion and determination of the Regional Director and the General Counsel, and the refusal to issue or to apply was not appealable to any administrative body or court under the Act; and the other upon the grounds that: (a) this matter has been preempted by the Act and final determination of the merits of the cause is solely within the jurisdiction of the Board and the federal appellate courts, and the district court was without jurisdiction; (b) the complaint sought final determination, whereas, at most, under the Act the district court could issue only a temporary restraining order pending final adjudication of the matter by the Board; and (c) if the complaint could be interpreted as a request for only a temporary restraining order then said order would be for no final or ultimate purpose and could not lawfully state under what situations it would become permanent or when it would be dismissed.
Upon these motions in the Meekins case the district court, concluding that it had no jurisdiction to grant either a permanent or temporary injunction against the union at' the suit of the employer and that the complaint against Boire and the union failed to state a claim upon which the court could grant relief, entered its order dismissing the complaint.
In the Cone Brothers case, Boire filed his motion to dismiss upon the same grounds urged by him in the Meekins, Inc. case, and the district court sustained said motion being of the view that “inasmuch as the instant complaint seeks by way of a mandatory injunction to compel the defendant to exercise his discretionary jurisdiction, this court is without jurisdiction of the subject matter and the complaint fails to state a claim upon which relief can be granted even if such jurisdiction would be present.”
As we stated at the outset, the main thrust of these complaints is against Boire in his capacity as Regional Director. While Meekins, Inc. joined Local 290 as a defendant and prayed for an injunction against it, it is clear that the district court had no jurisdiction to enjoin the union. The Norris-LaGuardia Act specifically prohibits the issuance of injunctions in labor suits except under certain circumstances which are not here alleged. 29 U.S.C.A. § 107. Congress has entrusted to the National Labor Relations Board the responsibility of administering the Labor Acts and its final orders may be reviewed by the United States Courts of Appeals. 29 U.S.C.A. § 160(e) and (f). Except for such appellate review the power of the Board in labor-management disputes concerning alleged unfair labor practices is exclusive. 29 U.S.C.A. § 160(a); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 58 S.Ct. 459, 462, 82 L.Ed. 638, 642 (1938). See also San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) and Dunn v. Retail Clerks Int’l Ass’n, 307 F.2d 285 (6th Cir. 1962). The district court was correct, therefore, in dismissing the Meekins, Inc. complaint insofar as it sought relief against the union.
With respect to each complaint insofar as it relates to Boire, the Regional Director, we need not reach any of the questions raised except as to the effect of plaintiffs’ failure to exhaust their administrative remedies, because we are of the opinion that their failure in this regard prevents the maintenance of these suits.
Section 10(b) of the Act, 29 U.S.C.A. § 160(b), empowers “the Board, or any agent or agency designated by the Board * * * to issue * * * a complaint * * * ” upon unfair labor practice charges filed. Section 3(d) of the Act, 29 U.S.C.A. § 153(d) provides that the General Counsel of the Board shall exercise general supervision over the officers and employees in the regional offices and that “he shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board * * By regulations adopted pursuant to § 6 of the Act, 29 U.S.C.A. § 156, the Board has delegated authority to Regional Directors to issue such complaints which they are required to do “if the charge appears to have merit.” 29 C.F.R. §§ 101.8 and 102.15. Charges alleging violations of certain sections of the Act, including § 8(b) (4) (B) involved in the cases at bar, are given priority over all other cases. 29 U.S.C.A. § 160(e); 29 C. F.R. § 101.4. If, after the investigation of a charge alleging a violation of § 8(b) (4) (B), 29 U.S.C.A. § 158(b) (4) (B), the Regional Director “has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court * * * for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.” 29 U.S.C.A. § 160 (l). Following issuance of the complaint the case is heard by a trial examiner and finally culminates in a Board decision and order. 29 C.F.R. §§ 102.34-102.51, 101.-10-101.14. The Board decision is then subject to review by the appropriate court of appeals pursuant to § 10(e) and (f) of the Act, 29 U.S.C.A. § 160(e) and (f).
If, on the other hand, the Regional Director’s investigation reveals that “there has been no violation of the * * * Act, or the evidence is insufficient to substantiate the charge” the Regional Director dismisses the charge. 29 C.F.R. §§ 101.5 and 101.6. If the Regional Director refuses to issue the complaint “the person making the charge may obtain a review of such action by filing a request therefor with the general counsel in Washington, D. C.” 29 C.F.R. § 102.19. The Act contains no provision for review, either by the Board or the courts, of the General Counsel’s refusal to issue a complaint.
No reason appears why plaintiffs should be relieved from “the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or a threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 51, 58 S.Ct. 459, 463, 82 L.Ed. 638, 644 (1938). In our judgment not even the “on information and belief” allegations of Meekins, Inc. that Boire or his agent asked for and received direction from the General Counsel and that the refusal to issue a complaint was the result of direction from the General Counsel should have the effect of relieving from this wholesome rule. Any informal or unofficial direction from the General Counsel to Boire encompassed by said allegation would partake too much of the nature of horseback or curbstone advice to take the place of the “review” called for by 29 C.F.R. § 102.19. There are good reasons why in these two cases all administrative remedies should be exhausted. The district court was asked to assume jurisdiction to determine a controversy over which it normally has no general jurisdiction, either initially or by review, a controversy which normally goes before the Board in the first instance and thence directly to a court of appeals, a controversy over which the Act gives to the district court only a limited jurisdiction in specific instances to issue a temporary injunction in aid of the jurisdiction of the Board. 29 U.S.C.A. § 160(l). Moreover, the matters here involved under the scheme of the Act are left largely, if not exclusively, to the discretion of the Regional Director in the first instance, and then upon review to the discretion of the General Counsel. That discretion should be exercised in the manner prescribed by lawful regulations, that is, by having the Regional Director exercise his judgment in the first instance, and then by having that judgment reviewed by the General Counsel as required by 29 C.F.R. § 102.19.
Nothing held in Levers v. Anderson, 326 U.S. 219, 66 S.Ct. 72, 90 L.Ed. 26 (1945), or in Glover v. United States, 286 F.2d 84, 90 (8th Cir. 1961), relied upon by plaintiffs, militates against the foregoing. In Levers it was held that a motion for reconsideration by the same person who had already rendered a decision was not in that particular case necessary as a prerequisite to court action. Then too, the regulations there involved provided only that the aggrieved person “may file an application * * * for a reconsideration of such order” and that “[t]he Commissioner or district supervisor, with whom such application is filed, may hear the application”, and the court pointed out that under these regulations “there is [was] no assurance that a rehearing will [would] be granted * (Emphasis added). In the cases at bar the regulation provides positively that “the person making the charge may obtain a review * * * by filing a request therefor”. Also, in the cases at bar, we are not concerned with a motion for reconsideration by one who has already ruled, but with a review by the official whom the Act vests with “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints * * * ” 29 U.S.C.A. § 153 (d). In Glover, there had already been four unsuccessful appeals by an inductee who claimed a conscientious objector classification from his classification of 1-A. Even there the court said that the rule “is to be relaxed only under extremely exceptional and unusual circumstances.” P. 91 of 286 F.2d.
While we do not reach the merits of the complaints, we note in passing, and this further indicates the propriety of requiring a review by the General Counsel, that the Regional Director’s refusal to file the complaints and to seek temporary injunctive relief in aid of the Board’s jurisdiction was doubtless based upon his interpretation and application of the Board’s recent decision in Plauche Electric, Inc., 135 NLRB No. 41 (January 12, 1962), in which the Board departed somewhat from its earlier decision in Brewery and Beverage Drivers and Workers Local 67 v. N. L. R. B. (Washington Coca-Cola Bottling Works, Inc. v. N. L. R. B.), 107 NLRB 299, enf’d, 95 U.S.App.D.C. 117, 220 F.2d 380 (1955), and held that the mere availability of another establishment where picketing might have been conducted away from a common construction situs will not make the picketing at the common situs per se unlawful. Defendants contend, with some plausibility, that plaintiffs’ attack is really upon the Board decision in Plauche Electric, Inc. This being so, it is all the more proper and necessary that plaintiffs be required to have the Regional Director’s decision reviewed by the General Counsel before resorting to court action. Whether plaintiffs could successfully maintain suits like these against the Regional Director or the General Counsel, or both, after obtaining a review by the General Counsel in the event he affirmed the decision of the Regional Director we need not presently decide.
Because of the failure of plaintiffs to exhaust their administrative remedies, the judgments of the district court dismissing their complaints were correct and are
Affirmed.
CAMERON, Circuit Judge, concurs in the results.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_applfrom
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Michael J. MAYERSKY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America.
No. 15258.
United States Court of Appeals Third Circuit.
Argued Oct. 19, 1965.
Decided Nov. 2, 1965.
W. J. Krencewicz, Shenandoah, Pa., for appellant.
Merna B. Marshall, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O’Keefe, pj. S. Atty., Sherman L. Cohn, Edward Berlin, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee.
Before McLAUGHLIN, FORMAN and GANEY Circuit Judges ’
PER CURIAM.
It is conceded here that our decision in Marshall v. Celebrezze, Secretary, etc., 351 F.2d 467 (opinion filed October 4, 1965) governs this appeal. As we said in Marshall, “The order from which this appeal has been taken is interlocutory, not final. It is unappealable. 28 U.S.C. 1291.”
The appeal will be dismissed.
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_treat
|
E
|
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.
ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents.
Nos. 74-1381, 74-1382.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 19, 1975.
Decided May 27, 1975.
John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner.
McNeill Stokes, Atlanta, Ga., for amicus curiae.
Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
Before STEVENS, SPRECHER and TONE, Circuit Judges.
SPRECHER, Circuit Judge.
The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.
I
Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility ,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work.
On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164.
It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level.
The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors.
Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors.
On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement.
Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed.
It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these , were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job.
The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a).
II
The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with . . . standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish ... his employees . a place of employment . . . free from recognized hazards . . . likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause.
Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both.
The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said:
[T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication.
Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination.
Id. at 1060-61.
The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:
Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working.
Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative.
Id. at 7-8.
Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge:
In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units.
Id. at 938.
The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case.
Ill
In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.”
The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position.
It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike.
We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death.
IV
If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject.
The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require
a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference.
Legislative History, supra, note 15 at 435 (Remarks of Senator Williams).
The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors.
V
It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties.
We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion.
We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive.
In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself.
Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended.
In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards.
In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards.
Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution.
On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards.
To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act.
For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained.
VI
In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers.
It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382.
. No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection.
. Wright did not contest the citations issued to it.
. 29 C.F.R. § 1926.500 provides in relevant part:
Guardrails, handrails, and covers.
(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.
(b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.
******
(d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
* * * * * *
(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;
(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side;
(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;
(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.
. Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced.
. The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i).
. The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result . .” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973).
. The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part:
The safety and health standards promulgated under . . . Public Law 91-54, Act of August 9, 1969 . . . are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph . . . shall be deemed to be occupational safety and health standards issued under this chapter
The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra.
. Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666.
. If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a).
. For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge).
. See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered).
. See note 6, supra and accompanying text.
. There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that:
[N]o contractor or subcontractor . . . shall require any laborer . . employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards
The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms.
The standards adopted pursuant to the Contract Work Hours and Safety Act included the following:
(b) By contracting for full performance of a contract . . the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to .have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
29 C.F.R. § 1926.16 (emphasis added).
This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable.
While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b).
. As Commission Chairman Moran has stated:
In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site — hazards which may or may not have been created by thejr own employer — or someone else’s — or by some other employees of a totally unrelated and unknown employer.
Address by OSHRC Chairman Moran, National Construction Industry Conference of the American Arbitration Association, Boston, Massachusetts, April 24, 1974.
. It was observed during debate in the Congress that the more than 14,500 workers killed by work-related accidents each year represented an annual death toll exceeding that of the Vietnam war. Subcomm. on Labor of Senate Comm, on Labor and Public Welfare, Legislative History of the
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_suffic
|
E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Drucilla AUBREY, Plaintiff-Appellee, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellant.
No. 88-6417.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 15, 1989.
Decided Sept. 20, 1989.
Rehearing Denied Oct. 30,1989.
John T. Aubrey (argued), Aubrey & Bowling, Manchester, Ky., for Drucilla Aubrey, plaintiff-appellee.
Mark C. Shuford (argued) and Winfrey P. Blackburn, Stites & Harbison, Louisville, Ky., for Aetna Life Ins. Co., defendant-appellant.
Before JONES and MILBURN, Circuit Judges, and BELL, District Judge.
Honorable Sam H. Bell, United States District Judge for the Northern District of Ohio, sitting by designation.
MILBURN, Circuit Judge.
Defendant-appellant Aetna Life Insurance Company (“Aetna”) appeals from a summary judgment for plaintiff-appellee Drucilla Aubrey in this action challenging a denial of benefits under an employee benefit plan. For the reasons that follow, we affirm.
I.
A.
Aubrey filed an action in the Circuit Court of Clay County, Kentucky, on April 11, 1987, seeking a declaration that she was entitled to certain insurance benefits. The insurance policy in question is a Comprehensive Medical and Dental Insurance Plan (“the Plan”) issued and administered by Aetna for the employees of the Modern Woodmen of America (“MWA”), with whom Aubrey is employed as a field representative. The benefits claimed were for medical expenses relating to Aubrey’s pregnancy, which commenced approximately two months prior to the effective date of the coverage. Aetna denied coverage for all costs incurred as a result of the pregnancy under the “Pre-Existing Condition” clause contained in the Plan. Aubrey asserted, based upon the particular wording contained in a separate “Pregnancy Coverage” clause, that her expenses incurred after the effective date of coverage were covered and should have been paid.
Claiming that the insurance policy covering Aubrey was an employee benefit plan governed by the provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., Aetna filed a petition for removal on May 13, 1988. Aubrey responded and urged that the action be remanded to state court. However, on July 25, 1988, the district court granted Aetna’s petition for removal.
As the parties were in agreement that there were no contested issues of fact, they filed cross-motions for summary judgment. On November 21, 1988, the district court denied Aetna’s motion for summary judgment and granted Aubrey's motion. Aetna filed a timely notice of appeal on December 20, 1988.
B.
Aubrey, an employee of MWA, became qualified for coverage under the terms and provisions of an employee benefits plan drafted and issued by Aetna on August 1, 1987. Sometime near the end of June 1987, Aubrey learned that she was pregnant. During the next several weeks, she sought and received medical treatment relating to her pregnancy from Dr. Gordon Betts and the Clinical Laboratories of Southern Kentucky.
The plan under which Aubrey became covered on August 1, 1987, contained two pertinent provisions relating to claims for pregnancy benefits. On page three of the plan, there is contained the following provision:
PREGNANCY COVERAGE
Medical Expense Benefits are payable for pregnancy-related expenses of female employees and dependents on the same basis as for disease, whether or not the pregnancy commences while the individual is covered under this Plan. The expenses must be incurred while the individual is covered under this Plan. If expenses are incurred after the coverage ceases, she may be eligible for benefits during the disability for up to 90 days if satisfactory evidence is furnished to Aet-na that the individual has been totally disabled since her coverage terminated. (Emphasis supplied)
Page 13 of the Plan contained the following provision:
Pre-existing Conditions
No payment for charges incurred in connection with an illness commencing prior to the insured individual’s effective date of coverage will be made until
1. after a continuous period of three months after the effective date of coverage during which the person has received no treatment with respect to the illness, or
2. after a period of twenty-four consecutive months during which the person is continuously insured hereunder.
A “pre-existing condition" means an injury or disease for which the individual received treatment or services or took prescribed drugs or medicines during the three months before he last became covered. (Emphasis supplied)
On August 28, 1987, Aubrey filed for pregnancy-related benefits. She admits that she received treatment for the pregnancy during the month prior to the effective date of coverage. On August 31,1987, the personnel department of MWA responded to Aubrey’s claim by advising her that her pregnancy-related expenses were not covered because her pregnancy constituted a pre-existing condition as defined by the Plan.
On September 8, 1987, Aubrey wrote MWA, stating that she was of the view that the pregnancy coverage clause provided for coverage. On September 15, 1987, MWA’s personnel department again wrote Aubrey and stated that the pregnancy coverage and pre-existing conditions clause operated in the following manner:
[pjregnancy coverage is treated the same as for any other disease. Had the pregnancy commenced prior to your effective date of coverage, and no treatment had been received, normal benefits would be paid. However, because you were treated prior to the effective date of coverage, and have not gone three months free of treatment, your pregnancy (as would any other disease) will be considered a pre-ex-isting condition.
On February 9, 1988, Aubrey gave birth to her child. On March 3, 1988, she again presented her pregnancy-related bills to Aetna for payment. Once again they were denied under the pre-existing condition clause. Thereafter, on April 11, 1988, she filed this action.
In granting summary judgment in favor of Aubrey, the district court held that Aet-na’s interpretation of the pre-existing conditions portion of the Plan rendered the pregnancy coverage provision superfluous and that Aetna’s interpretation would have the effect of forbidding a pregnant insured from seeing a physician for three months in order to obtain benefits, which he concluded was contrary to the public goals of ERISA and medical reality.
The sole issue on appeal is whether the district court erred in concluding that Aubrey was entitled to benefits under the Plan.
II.
A.
Since this action arises under ERISA, its disposition is governed by federal law. As noted in Cook v. Pension Plan for Salaried Employees, 801 F.2d 865, 869-70 (6th Cir.1986), this court had previously adopted the arbitrary or capricious standard of review when reviewing decisions by employee benefit plan administrators to deny benefits. This was the standard of review employed by the district court in the present action.
However, in Firestone Tire & Rubber Co. v. Bruch, — U.S.-, 109 S.Ct. 948, 953-54, 103 L.Ed.2d 80 (1989), the Supreme Court rejected the arbitrary and capricious standard of review and held instead that the appropriate standard of review is guided by principles of trust law. In Firestone, the company had argued “that as a matter of trust law the interpretation of the terms of a plan is an inherently discretionary function” that requires a deferential standard of review. Id. 109 S.Ct. at 955. However, the Supreme Court rejected that argument, holding that
[sjettled principles of trust law, which point to de novo review of benefit eligibility determinations based on plan interpretations, belie this contention. As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation. “The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.” A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court. The terms of trusts created by written instruments are “determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible.”
Id. (emphasis in original and citations omitted). Thus, our review is not whether the district court was correct in concluding that Aetna’s interpretation of the policy language was arbitrary and capricious, but, under a de novo review, which interpretation is more likely to carry out the intent of the parties.
B.
Aetna contends that the “pregnancy coverage” provision exists solely to establish that Aetna is complying with the Pregnancy Discrimination Act of 1978 (“PDA”), which amended Title VII of the Civil Rights Act of 1964 to provide that an employer which maintains any policies that adversely impact on or disparately treat pregnant employees violates Title VII unless an appropriate affirmative defense can be established. In its holding in Newport News Shipbuilding and Dry Dock v. EEOC, 462 U.S. 669, 682-84, 103 S.Ct. 2622, 2630-31, 77 L.Ed.2d 89 (1983), the Supreme Court held that the amendment to Title VII prohibits discrimination in compensation terms, conditions or privileges of employment because of sex, and that includes health insurance provided to employees and their spouses. Aetna contends that it inserted the pregnancy coverage clause to establish that it was in compliance with Title VII by treating pregnancy the same as disease or illness.
On the other hand, Aubrey contends the district court was correct in that Aetna’s interpretation flies in the face of the plain and dispositive language of the Plan which indicates that pregnancy expenses are claimable “whether or not the pregnancy commences while the individual was covered under this plan.” Aubrey further contends that the pregnancy clause is not only a statement that pregnancy expenses will be treated as other expenses under the plan, but also provides an exception to the Pre-Existing Condition clause for pregnancy-related expenses. She argues that if Aetna wished to establish that the Plan was in compliance with the PDA, it simply needed to state in the policy that pregnancy would be treated the same as disease or illness and that there is no reason for the additional language unless the parties wish to create an exception to the pre-existing condition exclusion.
Aetna urges this court to reject the interpretation offered by Aubrey that was ultimately adopted by the district court because Aetna alleges that it is unlawful under Title VII. Aetna contends that the PDA and the Supreme Court’s holding in Newport News require that pregnancy be treated the same as disease or illness and that an employer may not treat pregnancy more beneficially than it does disease or illness.
We reject Aetna’s interpretation of Title VII and the PDA. The PDA prohibits discrimination; it does not prevent an employer from treating pregnant employees more beneficially than it treats other employees. As the Supreme Court has indicated, “Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop — not a ceiling above which they may not rise.” California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 692, 93 L.Ed.2d 613 (1987) (citation omitted); see also Harness v. Hartz Mountain Corp., 877 F.2d 1307 (6th Cir.1989).
Aetna additionally argues that the interpretation adopted by the district court is not the most reasonable interpretation of the Pregnancy Coverage provision. Aetna contends that the second clause of the first sentence of the provision upon which Aubrey relies is limited by the first clause of the sentence which provides that pregnancy-related expenses will be treated the same as disease-related expenses. In other words, Aetna argues that the clause provides that pregnancy-related expenses are claimable, but on the same basis as disease. If a claim for disease or pregnancy is made, but the individual received treatment for the disease during the three months prior to becoming covered under the Plan, Aetna argues that the claim must be denied. However, if the disease or pregnancy developed prior to the effective date of coverage and the individual was unaware of his or her condition, or failed to receive treatment for some reason, then benefits would be payable once the individual became covered by the Plan. Thus, Aetna construes the language to the effect that a woman whose pregnancy commenced sometime during the three months prior to the effective date of coverage, but who was not diagnosed and/or received medical treatment until after becoming covered, would still be entitled to full pregnancy benefits despite the fact that her pregnancy technically pre-existed her coverage.
We agree with the district court that Aetna’s interpretation fails to give full effect to all of the language in question. If Aetna simply wished to have pregnancy treated the same as disease or illness, it simply had to state this in the Plan. Moreover, the Pre-Existing Conditions portion of the Plan makes no mention of pregnancy. In fact, a pre-existing condition is defined as an “injury or disease,” and there is no other language in that provision of the Plan suggesting it applies to pregnancy.
As we read the Plan in its entirety, as we must in reviewing this action under ERISA, the most reasonable interpretation is that adopted by the district court. Under the standard of review announced by the Supreme Court in Firestone Tire, it is reasonable for plan administrators to want to urge women to seek prompt prenatal care instead of encouraging them to forego prenatal care for three months in order to obtain insurance coverage. Indeed, good prenatal care undoubtedly results in healthier mothers and children, and a corresponding lower long-term cost to the Plan.
III.
Accordingly, for the reasons stated, the summary judgment of the district court is AFFIRMED.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_casesourcestate
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31
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
Kendra ESPINOZA, et al., Petitioners
v.
MONTANA DEPARTMENT OF REVENUE, et al.
No. 18-1195
Supreme Court of the United States.
Argued January 22, 2020
Decided June 30, 2020
Steven W. Fitschen, The National Legal Foundation, Chesapeake, VA, for Petitioners.
Michael Bindas, Institute for Justice, Seattle, WA, Timothy D. Keller, Institute for Justice, Tempe, AZ, Erica J. Smith, Richard D. Komer, Institute for Justice, Arlington, VA, William W. Mercer, Holland & Hart LLP, Billings, MT, for Petitioners.
Daniel J. Whyte, Brendan Beatty, Nicholas J. Gochis, Special Assistant Attorneys General, Helena, MT, Anthony Johnstone, Johnstone PLLC, Missoula, MT, Adam G. Unikowsky, James Dawson, Jenner & Block LLP, Washington, DC, Raph Graybill, Chief Legal Counsel, Governor Steve Bullock, Helena, MT, for Respondents.
Chief Justice ROBERTS delivered the opinion of the Court.
The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the "no-aid" provision of the State Constitution, which prohibits any aid to a school controlled by a "church, sect, or denomination." The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.
I
A
In 2015, the Montana Legislature sought "to provide parental and student choice in education" by enacting a scholarship program for students attending private schools. 2015 Mont. Laws p. 2168, § 7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating "student scholarship organization." Mont. Code Ann. §§ 15-30-3103(1), - 3111(1) (2019). The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. §§ 15-30-3102(7)(a), -3103(1)(c).
So far only one scholarship organization, Big Sky Scholarships, has participated in the program. Big Sky focuses on providing scholarships to families who face financial hardship or have children with disabilities. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements. §§ 15-30-3103(1), - 3105(1), - 3113(1).
A family whose child is awarded a scholarship under the program may use it at any "qualified education provider"-that is, any private school that meets certain accreditation, testing, and safety requirements. See § 15-30-3102(7). Virtually every private school in Montana qualifies. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholarship funds directly to the school. § 15-30-3104(1). Neither the scholarship organization nor its donors can restrict awards to particular types of schools. See §§ 15-30-3103(1)(b), - 3111(1).
The Montana Legislature allotted $3 million annually to fund the tax credits, beginning in 2016. § 15-30-3111(5)(a). If the annual allotment is exhausted, it increases by 10% the following year. Ibid.
The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, § 33.
The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a "no-aid" provision barring government aid to sectarian schools. See Mont. Code Ann. § 15-30-3101. In full, that provision states:
"Aid prohibited to sectarian schools. ... The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination." Mont. Const., Art. X, § 6 (1).
Shortly after the scholarship program was created, the Montana Department of Revenue promulgated "Rule 1," over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholarships at religious schools. Mont. Admin. Rule § 42.4.802(1)(a) (2015). It did so by changing the definition of "qualified education provider" to exclude any school "owned or controlled in whole or in part by any church, religious sect, or denomination." Ibid. The Department explained that the Rule was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution.
The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would "very likely" violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV-15-1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5-6. The Attorney General is not representing the Department in this case.
B
This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Montana. Stillwater is a private Christian school that meets the statutory criteria for "qualified education providers." It serves students in prekindergarten through 12th grade, and petitioners chose the school in large part because it "teaches the same Christian values that [they] teach at home." App. to Pet. for Cert. 152; see id. , at 138, 167. The child of one petitioner has already received scholarships from Big Sky, and the other petitioners' children are eligible for scholarships and planned to apply. While in effect, however, Rule 1 blocked petitioners from using scholarship funds for tuition at Stillwater. To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. Petitioners claimed that Rule 1 conflicted with the statute that created the scholarship program and could not be justified on the ground that it was compelled by the Montana Constitution's no-aid provision. Petitioners further alleged that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children.
The trial court enjoined Rule 1, holding that it was based on a mistake of law. The court explained that the Rule was not required by the no-aid provision, because that provision prohibits only "appropriations" that aid religious schools, "not tax credits." Id. , at 94.
The injunctive relief freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school. For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky received 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwater Christian.
In December 2018, the Montana Supreme Court reversed the trial court. 393 Mont. 446, 435 P.3d 603. The Court first addressed the scholarship program unmodified by Rule 1, holding that the program aided religious schools in violation of the no-aid provision of the Montana Constitution. In the Court's view, the no-aid provision "broadly and strictly prohibits aid to sectarian schools." Id. , at 459, 435 P.3d at 609. The scholarship program provided such aid by using tax credits to "subsidize tuition payments" at private schools that are "religiously affiliated" or "controlled in whole or in part by churches." Id. , at 464-467, 435 P.3d at 612-613. In that way, the scholarship program flouted the State Constitution's "guarantee to all Montanans that their government will not use state funds to aid religious schools." Id. , at 467, 435 P.3d at 614.
The Montana Supreme Court went on to hold that the violation of the no-aid provision required invalidating the entire scholarship program. The Court explained that the program provided "no mechanism" for preventing aid from flowing to religious schools, and therefore the scholarship program could not "under any circumstance" be construed as consistent with the no-aid provision. Id. , at 466-468, 435 P.3d at 613-614. As a result, the tax credit is no longer available to support scholarships at either religious or secular private schools.
The Montana Supreme Court acknowledged that "an overly-broad" application of the no-aid provision "could implicate free exercise concerns" and that "there may be a case" where "prohibiting the aid would violate the Free Exercise Clause." Id. , at 468, 435 P.3d at 614. But, the Court concluded, "this is not one of those cases." Ibid.
Finally, the Court agreed with petitioners that the Department had exceeded its authority in promulgating Rule 1. The Court explained that the statute creating the scholarship program had broadly defined qualifying schools to include all private schools, including religious ones, and the Department lacked authority to "transform" that definition with an administrative rule. Id. , at 468-469, 435 P.3d at 614-615.
Several Justices wrote separately. All agreed that Rule 1 was invalid, but they expressed differing views on whether the scholarship program was consistent with the Montana and United States Constitutions. Justice Gustafson's concurrence argued that the program violated not only Montana's no-aid provision but also the Federal Establishment and Free Exercise Clauses. Id. , at 475-479, 435 P.3d at 619-621. Justice Sandefur echoed the majority's conclusion that applying the no-aid provision was consistent with the Free Exercise Clause, and he dismissed the "modern jurisprudence" of that Clause as "unnecessarily complicate[d]" due to "increasingly value-driven hairsplitting and overstretching." Id. , at 482-484, 435 P.3d at 623-624.
Two Justices dissented. Justice Rice would have held that the scholarship program was permissible under the no-aid provision. He criticized the majority for invalidating the program "sua sponte ," contending that no party had challenged it under the State Constitution. Id. , at 495, 435 P.3d at 631. Justice Baker also would have upheld the program. In her view, the no-aid provision did not bar the use of scholarships at religious schools, and free exercise concerns could arise under the Federal Constitution if it did. Id. , at 493-494, 435 P.3d at 630.
We granted certiorari. 588 U.S. ----, 139 S.Ct. 2777, 204 L.Ed.2d 1157 (2019).
II
A
The Religion Clauses of the First Amendment provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We have recognized a " 'play in the joints' between what the Establishment Clause permits and the Free Exercise Clause compels." Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U.S. ----, ----, 137 S.Ct. 2012, 2019, 198 L.Ed.2d 551 (2017) (quoting Locke v. Davey , 540 U.S. 712, 718, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) ). Here, the parties do not dispute that the scholarship program is permissible under the Establishment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. See, e.g. , Locke , 540 U.S. at 719, 124 S.Ct. 1307 ; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819, 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). See also Trinity Lutheran , 582 U.S., at ----, 137 S.Ct., at 2019-2020 (noting the parties' agreement that the Establishment Clause was not violated by including churches in a playground resurfacing program). Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. See Locke , 540 U.S. at 719, 124 S.Ct. 1307 ; Zelman v. Simmons-Harris , 536 U.S. 639, 649-653, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). The Montana Supreme Court, however, held as a matter of state law that even such indirect government support qualified as "aid" prohibited under the Montana Constitution.
The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana's no-aid provision to bar religious schools from the scholarship program. For purposes of answering that question, we accept the Montana Supreme Court's interpretation of state law-including its determination that the scholarship program provided impermissible "aid" within the meaning of the Montana Constitution-and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution.
The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, "protects religious observers against unequal treatment" and against "laws that impose special disabilities on the basis of religious status." Trinity Lutheran , 582 U.S., at ----, ----, 137 S.Ct., at 2021 (internal quotation marks and alterations omitted); see Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Those "basic principle[s]" have long guided this Court. Trinity Lutheran , 582 U.S., at ---- - ----, 137 S.Ct. at 2019-2021. See, e.g. , Everson v. Board of Ed. of Ewing , 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (a State "cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it , from receiving the benefits of public welfare legislation"); Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439, 449, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (the Free Exercise Clause protects against laws that "penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens").
Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the "unremarkable" conclusion that disqualifying otherwise eligible recipients from a public benefit "solely because of their religious character" imposes "a penalty on the free exercise of religion that triggers the most exacting scrutiny." 582 U.S., at ---- - ----, 137 S.Ct., at 2021. In Trinity Lutheran , Missouri provided grants to help nonprofit organizations pay for playground resurfacing, but a state policy disqualified any organization "owned or controlled by a church, sect, or other religious entity." Id. , at ----, 137 S.Ct., at 2017. Because of that policy, an otherwise eligible church-owned preschool was denied a grant to resurface its playground. Missouri's policy discriminated against the Church "simply because of what it is-a church," and so the policy was subject to the "strictest scrutiny," which it failed. Id. , at ---- - ----, 137 S.Ct., at 2022-2025. We acknowledged that the State had not "criminalized" the way in which the Church worshipped or "told the Church that it cannot subscribe to a certain view of the Gospel." Id. , at ----, 137 S.Ct., at 2022. But the State's discriminatory policy was "odious to our Constitution all the same." Id. , at ----, 137 S.Ct., at 2025.
Here too Montana's no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school "controlled in whole or in part by any church, sect, or denomination." Mont. Const., Art. X, § 6 (1). The provision's title-"Aid prohibited to sectarian schools"-confirms that the provision singles out schools based on their religious character. Ibid. And the Montana Supreme Court explained that the provision forbids aid to any school that is "sectarian," "religiously affiliated," or "controlled in whole or in part by churches." 393 Mont. at 464-467, 435 P.3d at 612-613. The provision plainly excludes schools from government aid solely because of religious status. See Trinity Lutheran , 582 U.S., at ---- - ----, 137 S.Ct., at 2019-2021.
The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used-for "religious education." Brief for Respondents 38. In Trinity Lutheran , a majority of the Court concluded that the Missouri policy violated the Free Exercise Clause because it discriminated on the basis of religious status. A plurality declined to address discrimination with respect to "religious uses of funding or other forms of discrimination." 582 U.S., at ----, n. 3, 137 S.Ct., at 2024, n. 3. The plurality saw no need to consider such concerns because Missouri had expressly discriminated "based on religious identity," ibid. , which was enough to invalidate the state policy without addressing how government funds were used.
This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to "schools controlled in whole or in part by churches," "sectarian schools," and "religiously-affiliated schools." 393 Mont. at 463-467, 435 P.3d at 611-613. Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were "religiously affiliated" and "controlled by churches," and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding "schools controlled by churches." Id. , at 466-467, 435 P.3d at 613-614. The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran , which excluded organizations "owned or controlled by a church, sect, or other religious entity." 582 U.S., at ----, 137 S.Ct., at 2017.
The Department points to some language in the decision below indicating that the no-aid provision has the goal or effect of ensuring that government aid does not end up being used for "sectarian education" or "religious education." 393 Mont. at 460, 466-467, 435 P.3d at 609, 613-614. The Department also contrasts what it characterizes as the "completely non-religious" benefit of playground resurfacing in Trinity Lutheran with the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31. General school aid, the Department stresses, could be used for religious ends by some recipients, particularly schools that believe faith should "permeate [ ]" everything they do. Brief for Respondents 39 (quoting State ex rel. Chambers v. School Dist. No. 10 , 155 Mont. 422, 438, 472 P.2d 1013, 1021 (1970) ). See also post , at 2285, 2288 (BREYER, J., dissenting).
Regardless, those considerations were not the Montana Supreme Court's basis for applying the no-aid provision to exclude religious schools; that hinged solely on religious status. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.
Undeterred by Trinity Lutheran , the Montana Supreme Court applied the no-aid provision to hold that religious schools could not benefit from the scholarship program. 393 Mont. at 464-468, 435 P.3d at 612-614. So applied, the provision "impose[s] special disabilities on the basis of religious status" and "condition[s] the availability of benefits upon a recipient's willingness to surrender [its] religiously impelled status." Trinity Lutheran , 582 U.S., at ---- - ----, 137 S.Ct., at 2021-2022 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and McDaniel v. Paty , 435 U.S. 618, 626, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (plurality opinion) (alterations omitted)). To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges "inevitably deters or discourages the exercise of First Amendment rights." Trinity Lutheran , 582 U.S., at ----, 137 S.Ct., at 2022 (quoting Sherbert v. Verner , 374 U.S. 398, 405, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (alterations omitted)). The Free Exercise Clause protects against even "indirect coercion," and a State "punishe[s] the free exercise of religion" by disqualifying the religious from government aid as Montana did here.
Trinity Lutheran , 582 U.S., at ---- - ----, 137S.Ct., at 2022 (internal quotation marks omitted). Such status-based discrimination is subject to "the strictest scrutiny." Id. , at ----, 137 S.Ct., at 2022.
None of this is meant to suggest that we agree with the Department, Brief for Respondents 36-40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi , 508 U.S. at 546, 113 S.Ct. 2217 (striking down law designed to ban religious practice involving alleged animal cruelty, explaining that a law "target[ing] religious conduct for distinctive treatment or advanc[ing] legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases"). Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran , 582 U.S., at ---- - ----, 137 S.Ct, at 2025 (GORSUCH, J., joined by THOMAS, J., concurring in part) (citing, e.g. , Lukumi , 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472, and Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana's no-aid provision discriminates based on religious status.
B
Seeking to avoid Trinity Lutheran , the Department contends that this case is instead governed by Locke v. Davey , 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004). See also post , at 2283 - 2284 (BREYER, J., dissenting); post , at 2296 - 2297 (SOTOMAYOR, J., dissenting). Locke also involved a scholarship program. The State of Washington provided scholarships paid out of the State's general fund to help students pursuing postsecondary education. The scholarships could be used at accredited religious and nonreligious schools alike, but Washington prohibited students from using the scholarships to pursue devotional theology degrees, which prepared students for a calling as clergy. This prohibition prevented Davey from using his scholarship to obtain a degree that would have enabled him to become a pastor. We held that Washington had not violated the Free Exercise Clause.
Locke differs from this case in two critical ways. First, Locke explained that Washington had "merely chosen not to fund a distinct category of instruction": the "essentially religious endeavor" of training a minister "to lead a congregation." Id. , at 721, 124 S.Ct. 1307. Thus, Davey "was denied a scholarship because of what he proposed to do -use the funds to prepare for the ministry." Trinity Lutheran , 582 U.S., at ----, 137 S.Ct., at 2023-2024. Apart from that narrow restriction, Washington's program allowed scholarships to be used at "pervasively religious schools" that incorporated religious instruction throughout their classes. Locke , 540 U.S. at 724-725, 124 S.Ct. 1307. By contrast, Montana's Constitution does not zero in on any particular "essentially religious" course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school "simply because of what it is," putting the school to a choice between being religious or receiving government benefits. Trinity Lutheran , 582 U.S., at ----, 137 S.Ct., at 2023. At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits.
Second, Locke invoked a "historic and substantial" state interest in not funding the training of clergy, 540 U.S. at 725, 124 S.Ct. 1307, explaining that "opposition to ... funding 'to support church leaders' lay at the historic core of the Religion Clauses," Trinity Lutheran , 582 U.S., at ----, 137 S.Ct., at 2023 (quoting Locke , 540 U.S. at 722, 124 S.Ct. 1307 ). As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported clergy was a central subject of founding-era debates, and that most state constitutions from that era prohibited the expenditure of tax dollars to support the clergy. See id. , at 722-723, 124 S.Ct. 1307.
But no comparable "historic and substantial" tradition supports Montana's decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones. "Far from prohibiting such support, the early state constitutions and statutes actively encouraged this policy." L. Jorgenson, The State and the Non-Public School, 1825-1925, p. 4 (1987); e.g., R. Gabel, Public Funds for Church and Private Schools 210, 217-218, 221, 241-243 (1937); C. Kaestle, Pillars of the Republic: Common Schools and American Society, 1760-1860, pp. 166-167 (1983). Local governments provided grants to private schools, including religious ones, for the education of the poor. M. McConnell, et al., Religion and the Constitution 318-319 (4th ed. 2016). Even States with bans on government-supported clergy, such as New Jersey, Pennsylvania, and Georgia, provided various forms of aid to religious schools. See Kaestle, supra , at 166-167; Gabel, supra , at 215-218, 241-245, 372-374; cf. Locke , 540 U.S. at 723, 124 S.Ct. 1307. Early federal aid (often land grants) went to religious schools. McConnell, supra , at 319. Congress provided support to denominational schools in the District of Columbia until 1848, ibid. , and Congress paid churches to run schools for American Indians through the end of the 19th century, see Quick Bear v. Leupp , 210 U.S. 50, 78, 28 S.Ct. 690, 52 L.Ed. 954 (1908) ; Gabel, supra , at 521-523. After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen's Bureau. McConnell, supra , at 323.
The Department argues that a tradition against state support for religious schools arose in the second half of the 19th century, as more than 30 States-including Montana-adopted no-aid provisions. See Brief for Respondents 40-42 and App. D.
Such a development, of course, cannot by itself establish an early American tradition. Justice SOTOMAYOR questions our reliance on aid provided during the same era by the Freedmen's Bureau, post , at 2297 (dissenting opinion), but we see no inconsistency in recognizing that such evidence may reinforce an early practice but cannot create one. In addition, many of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s. That proposal-which Congress nearly passed-would have added to the Federal Constitution a provision similar to the state no-aid provisions, prohibiting States from aiding "sectarian" schools. See Mitchell v. Helms , 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality opinion). "[I]t was an open secret that 'sectarian' was code for 'Catholic.' " Ibid. ; see Jorgenson, supra , at 70. The Blaine Amendment was "born of bigotry" and "arose at a time of pervasive hostility to the Catholic Church and to Catholics in general"; many of its state counterparts have a similarly "shameful pedigree." Mitchell , 530 U.S. at 828-829, 120 S.Ct. 2530 (plurality opinion); see Jorgenson, supra , at 69-70, 216; Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 301-305 (2001). The no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.
The Department argues that several States have rejected referendums to overturn or limit their no-aid provisions, and that Montana even re-adopted its own in the 1970s, for reasons unrelated to anti-Catholic bigotry. See Brief for Respondents 20, 42. But, on the other side of the ledger, many States today-including those with no-aid provisions-provide support to religious schools through vouchers, scholarships, tax credits, and other measures. See Brief for Oklahoma et al. as Amici Curiae 29-31, 33-35; Brief for Petitioners 5. According to petitioners, 20 of 37 States with no-
Question: What is the state of the court whose decision the Supreme Court reviewed?
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55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_casetyp1_9-3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "miscellaneous".
Delmont Vernon CARLSON, Appellant, v. UNITED STATES of America, Appellee.
No. 8633.
United States Court of Appeals Tenth Circuit.
Aug. 23, 1966.
John W. Jordan, of Zacharias, Hiebsch, Render & Kamas, Wichita, Kan., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.
PICKETT, Circuit Judge.
Appellant Carlson was convicted in the United States District Court for the District of Kansas for failure to report for civilian work, in violation of the Universal Military Training and Service Act, 50 U.S.C.App. § 462. He appeals from a two year prison sentence imposed thereon.
At the age of 18, Carlson registered with Local Board No. 8 in El Dorado, Kansas, on April 19, 1957. As a member of the Jehovah’s Witnesses, Carlson indicated his conscientious objection to military service and accordingly, on March 26, 1959, he was given a 1-0 classification, which subjected him to call for assignment of civilian work contributing to the maintenance of the national health, safety and interest. Thereafter Carlson requested reclassification to 3-A (hardship-dependency) status. The Local Board considered the application, and on March 21, 1962, advised Carlson that a change in his classification was not warranted. Meanwhile, Carlson had undergone a physical examination and was found acceptable to perform civilian work. After affording Carlson the opportunity to indicate certain work preferences, the local board informed him that he would be given until May 1, 1962 to arrange his affairs in preparation for his civilian assignment. He was thereafter ordered to report for civilian work at the Kansas University Medical Center at Kansas City, Kansas. The record indicates that he failed to appear; however, because of a procedural defect the order was subsequently vacated. On June 14, 1963, the Local Board mailed Carlson a Dependency Questionnaire which he completed and returned. The Local Board considered the questionnaire and, without reopening the prior classification, again refused to reclassify Carlson from 1-0 to 3-A. By letter of July 29, 1963, Carlson was instructed to file within 10 days his preference in regard to civilian work at Kansas University Medical Center. He did not reply. The Local Board then decided it was necessary to have an “interim conference” with Carlson and a representative of the State Selective Service Director, pursuant to § 1660.20 (c) of the Selective Service Regulations. The meeting was for the purpose of offering assistance in reaching an agreement as to the type of civilian work that Carlson would be willing to perform in lieu of induction into the armed forces. Carlson was advised to present himself for the meeting to be held October 15, 1963, at 11:00 A.M. He did not appear at the Local Board office at the appointed hour. However, around noon a letter signed by Carlson was found on the premises. It stated, in substance, that he had found the door locked; that in attempting to conclude his financial affairs in order to comply with the Selective Service program he had suffered considerable loss; that he wished “to have no part of your program” ; and that any mail should be sent to him c/o 2121 Bedford, Wichita, Kansas. When Carlson did not appear at the meeting, the Local Board proceeded to determine that hospital work at Kansas University Center was appropriate and requested permission to order him to report there. The Director of Selective Service gave the board the requested authorization, and on October 30, 1963, the Order to Report for Civilian Work was mailed to Carlson at his last known address, 2121 Bedford, Wichita, Kansas, ordering him to report to the Local Board at 8:00 A.M. on November 12, 1963. Carlson failed to report as ordered, and the indictment, trial, and conviction followed.
Carlson contends that the civilian work order was invalid in that the Local Board’s refusal to reclassify him as 3-A was unreasonable and factually baseless. In support of his request, Carlson stated that he was providing support in the amount of $100 per month for his father, 78 years of age, whose annual income amounted to $780 in Social Security benefits. Carlson asserts that he thus established a prima facie case for the desired 3-A classification and that the Local Board’s denial of his request was totally unsupported.
It is, of course, well established that federal courts may not sit as “super draft boards” and substitute their judgment on the weight of the evidence for that of designated local boards. Nor should they look for substantial evidence to support such determinations. The judicial inquiry is limited to determining whether there is a factual basis for the classification. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; United States v. Capson, 10 Cir., 347 F.2d 959, cert. denied 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163; Fleming v. United States, 10 Cir., 344 F.2d 912.
The hardship-dependency classification applies only to those persons “whose induction into the armed forces would result in extreme hardship * * *” 32 C.F.R. 1622.30(b). A selective service registrant claiming such an exemption has the burden of clearly establishing his right thereto. Fleming v. United States, supra. The Dependency Questionnaire showed that Carlson had adult brothers and a sister. He declined to complete that section of the questionnaire which would have reflected his financial condition. He tendered no statements or affidavits from other individuals in support of his request. In these circumstances, we cannot say that the Local Board’s refusal to reclassify Carlson had no basis in fact or that its disposition of the case was procedurally arbitrary. See, 32 C.F.R. 1625.4.
Affirmed.
. The letter also stated: “So, wliat you decide let me know by mail so that I can be there to report for trial. I know I — I just as well get it over with unless you decide to cancel my work order permanent. * * * ”
In connection with his failure to report, Carlson testified:
“Q. Then what did you mean when you said in your letter, T wish to have no part of your program.’ Now, what program were you speaking of? A. I was speaking of the program of going to K.U. Medical Center after I had been traded around like I’d been and after I’d lost everything and then they wanted me to — after I sold everything and they didn’t have me report and a lapse of a period of almost ten months — I mean, after I lost everything, what was the point?
Q. So, because of your bitterness you didn’t want to have anything to do with going to work for the — for civilian work or anything.after that? A. More or less, that is correct. * * * ”
. Carlson, contended at his trial that he never received the order and that his failure to report was therefore not willful. However, the jury determined this issue of fact adversely to him, and the point is not raised on appeal.
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer:
|
songer_usc1sect
|
46
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
MILENS v. BOSTIAN (two cases).
Nos. 12677, 12678.
Circuit Court of Appeals, Eighth Circuit.
Dec. 28, 1943.
A. J. Granoff, of Kansas City, Mo. (Julius C. Shapiro and Myer M. Rich, both of Kansas City, Mo., on the brief), for appellants.
Nelson E. Johnson, of Kansas City, Mo. (C. E. Thomson, of Kansas City, Mo., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The referee in bankruptcy on February 4, 1943, in a summary proceeding in the Matter of Bessie Eichenberg, Bankrupt, entered an order and judgment determining that the bankrupt had an undivided one-fourth interest in the estate of her deceased brother, Harry C. Milens, that her trustee in bankruptcy was entitled to her interest, and that a purported renunciation of it, made by her, was void. The order and judgment voided the renunciation and required the administrator of the estate of Harry C. Milens to turn over to the trustee in bankruptcy “an undivided one-fourth (*4) interest in the estate of the said Harry C. Milens, deceased, subject to the payment of the valid debts of said estate, and the costs of administration therein, at such time as an order of distribution may be entered in said estate by the Probate Court of Jackson County, Missouri.” The order and judgment permanently enjoined the administrator from transferring this undivided interest to any person other than the trustee in bankruptcy. On petition to review, the order and judgment was affirmed by the District Court.
These appeals, one by the administrator of the estate of Harry C. Milens, deceased, and the other by an heir of the deceased, challenge the jurisdiction of the court of bankruptcy to enter the summary order and judgment.
The facts out of which the controversy arises are not in dispute. In 1935, in a State court of Missouri, L. E. Fenton obtained a judgment for $29,392.28 against Bessie Eichenberg, upon which nothing has been paid. On February 1, 1942, Harry C. Milens, her brother, died intestate, leaving her and her sister, Rebecca Westerman, and two brothers, M. G. Milens and Charles E. Milens, as his sole heirs. On February 5, 1942, the Probate Court of Jackson County, Missouri, appointed M. G. Milens administrator of the estate of Harry C. Milens, deceased. The estate was valued at more than $90,000. On May 25, 1942, Bessie Eichenberg executed a renunciation and disclaimer of any interest in the estate. This instrument was dated March 9, 1942, and was directed to and served upon M. G. Milens, administrator. No consideration was paid for the renunciation, and Bessie Eichenberg was insolvent when she executed it. On July 20, 1942, an involuntary petition in bankruptcy was filed against her. On August 5, 1942, she was adjudged a bankrupt, and William B. Bostian was appointed trustee in bankruptcy of her estate.
On September 19, 1942, the trustee filed with the referee a petition for the entry of the order and judgment which the appellants now challenge. The petition asserted, in substance, that the bankrupt’s renunciation of her interest in the estate of her deceased brother was a transfer of her property within one year of the filing of the petition in bankruptcy and while she was insolvent, and was void; that the trustee was entitled to her interest in the estate; and that M. G. Milens, administrator, unless restrained, would distribute the interest of the bankrupt to the other heirs of Harry C. Milens. An order was issued by the referee and served upon M. G. Milens, individually and as administrator, Charles E. Milens, Rebecca Westerman, and the bankrupt, directing them to show cause why the prayer of the petition should not be granted.
■ At the hearing upon the petition, M. G. Milens, as administrator, appeared specially and objected to the jurisdiction of the referee. Charles E. Milens also entered a special appearance and objected to the jurisdiction on the ground that he was an adverse claimant “to a right, title and interest in said estate of Harry C. Milens, Deceased, of the asserted one-fourth interest therein, of said bankrupt, when and as the same may be distributed, and become due and payable.” Rebecca Westerman did not appear, although she testified as a witness. The bankrupt filed a motion to dismiss the petition upon the ground that it stated no claim upon which relief could be granted, and because the court of bankruptcy was without jurisdiction of the subject matter.
The referee overruled the objections to his jurisdiction, denied the motion of the bankrupt to dismiss, and entered the order appealed from. He determined that the bankrupt had a vested equitable interest in her deceased brother’s estate which she could not transfer in fraud of her creditors; that she had, prior to her purported renunciation, signed a document evidencing her intention to accept her interest in the estate; that she was guilty of fraud and collusion in attempting to renounce her interest; and that the administrator of the estate of her deceased brother holds her undivided one-fourth interest in that estate in trust for the trustee in bankruptcy.
It is conceded that, at the time the order and judgment appealed from was entered, the estate of Harry C. Milens was being administered by the Probate Court of Jackson County, Missouri, that the assets of the estate were in the custody and possession of M. G. Milens as administrator, and that no decree of distribution had been entered.' It is also conceded that the courts of Missouri have not as yet determined what effect (if any) the renunciation by an heir of an interest in the estate of an intestate has upon the rights of creditors of the heir who renounces, or upon the rights of the other heirs of the intestate. The object of the summary proceeding brought by the trustee in bankruptcy was to obtain a determination that he alone was entitled to the share of the estate of Harry C. Milens which he (the trustee) asserted belonged to the bankrupt at the time of the filing of the petition in bankruptcy, and to make certain that he would ultimately secure possession of that share.
The referee and the District Judge were of the opinion that the right of Bessie Eichenberg to share in the estate of her deceased brother — which right they concluded she still owned at the time of the filing of the petition in bankruptcy — empowered the bankruptcy court to enter the order and judgment which is challenged. They determined that it was not necessary for the trustee in bankruptcy to bring a plenary suit to obtain the bankrupt’s share of her deceased brother’s estate.
We think that the case of Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, indicates that summary jurisdiction cannot be sustained in the instant case. The Supreme Court said in that case (page 481 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876): “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.”
Assuming that Bessie Eichenberg’s right to an undivided one-fourth share of her deceased brother’s estate was not affected by her renunciation, she had, at the time of the filing of the petition in bankruptcy, neither the possession nor the right to the possession of any of the property belonging to that estate. All of the property of the estate was in the possession and custody of M. G. Milens as administrator. He had been appointed by, and was subject to the jurisdiction of, the Probate Court of Jackson County, Missouri. He was not the agent or bailee of the bankrupt. He was the agent of the Probate Court, and as such held in custody the property of the estate for administration in accordance with the laws of Missouri and the directions of that court. Rollins v. Shaner, 316 Mo. 953, 292 S.W. 419, 421. In Cook v. McCoy, Mo.App., 118 S.W.2d 1043, 1046, it was held, in effect, that an heir is not entitled to his distributive share of an estate until all debts and charges against the estate have been paid and an order of distribution has been entered, and that an administrator is not liable to suit by an heir until that time. In Bank of Hamburg v. Tri-State Savings & Loan Ass’n, 8 Cir., 69 F.2d 436, page 438, this Court, after pointing out that, under the laws of Arkansas, an administrator was entitled to-the possession of the land belonging to a decedent, said: “With the above state of law in Arkansas as to the rights of possession in this administratrix, which began far more than four months before the petition in bankruptcy was filed, it seems to us there could be no such character of right of possession in this bankrupt sufficient to constitute a basis for possession in the bankruptcy court as a ground of jurisdiction. The probate court clearly had the sole right to jurisdiction over and possession of this land several years before the bankruptcy proceeding; the administration in the probate court is still in course with unpaid debts for which this land is liable; and nothing has been done by that court to, in any wise, weaken or affect its jurisdiction over and its right to exclusive possession of this land.”
Compare Marcell v. Engebretson, 8 Cir., 74 F.2d 93, 96, 97, and Thompson v. Terminal Shares, Inc., 8 Cir., 104 F.2d 1, 9. See also 11 U.S.C.A. § 46.
There is another reason why we think that the court of bankruptcy should not have proceeded summarily. No matter how improbable it is that the courts of Missouri will rule that the renunciation by an insolvent heir of his interest in the estate of an intestate is effective as against creditors, the question is one of State law which has not been settled. It is conceivable that the turn-over order made by the court of bankruptcy may conflict with the order of distribution ultimately to be entered by the Probate Court of Jackson County. We think that the possibility of such a conflict is to be avoided. The Supreme Court of the United States in Thompson v. Magnolia Petroleum Co., supra, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, was of the opinion that where a trustee, appointed by a court of bankruptcy, sought to recover property claimed by others, and his claim depended upon the title of the debtor to the property, and the title depended upon an unsettled question of state property law, the bringing of a plenary suit in a state court by the trustee was the course to follow.
We conclude that the court of bankruptcy lacked summary jurisdiction to enter the order and judgment appealed from against M. G. Milens, as administrator. The court of bankruptcy can, however, enjoin him, pending the bringing of a plenary suit by the trustee, from distributing the share of the estate of Harry C. Milens to which the trustee claims to be entitled. Steelman v. All Continent Corp., 301 U.S. 278, 287, 57 S.Ct. 705, 81 L.Ed. 1085; Thompson v. Magnolia Petroleum Co., supra, page 483 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876. We conclude also that the controversy between the trustee and Charles E. Milens could not, over objection, be determined by the court of bankruptcy in a summary proceeding.
The order and judgment appealed from, in so far as it affects the appellants, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.
Answer:
|
sc_casesource
|
021
|
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.
PALERMO v. UNITED STATES.
No. 471.
Argued April 28, 1959.
Decided June 22, 1959.
Wyllys 8. N.ewcomb argued the cause for petitioner. With him on the brief was John A. Wells.
Ralph 8. Spritzer argued the cause for the United States. . On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Joseph F. Goetten and Lawrence K. Bailey.
Mr. Justice Frankfurter
delivéred the opinion of the Court.
• Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950,' 1951 and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government’s exhibits at trial was a record, presum-' ably contemporaneous and in the petitioner’s handwriting, of dividends received during 1951 and 1952. This record reflected an amount of dividend income for 1951 substantially larger than that reported on the 1951 return. Petitioner contended that this record had-been turned over to the accounting firm which regularly prepared his return, Arthur R. Sanfilippo & Co., in early 1952 for use in preparing his 1951 return, but that the figures had not been accurately entered on the return by the accountants. The Government’s contention was that the record had not been given to the accounting firm until, early 1953, subsequent to the initiation of the investigation of petitioner’s tax affairs and long after the filing of the 1951 return. The time at which the record had been given to the accountants thus became directly relevant to the issue of. criminal intent in the charge against the petitioner. Arthur R. Sanfilippo, an important government witness and the principal partner in the accounting firm, testified that his firm had not received the handwritten record of dividend income until early 1953.
Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner’s tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo the defense demanded and received various documents including the transcript of the July 16 interrogation and the August 23 affidavit. The defense also requested .production of any memoranda, or of any part thereof summarizing what Sanfilippo had said, which had been made of the August 23 conference. The trial judge denied this request on the ground that the Act of September 2, 1957, 71 Stat. 595, 18 U. S. C. § 3500 — the so-called “Jencks” Act — governing the' production of statements made to government agents-by government witnesses, precluded production of the requested memorandum since it was not within the definition of “statement” in (e) of the Act. The Court of Appeals for the Second Circuit affirmed. 258 F. 2d 397. Together with several other cases raising Jencks Act problems, we granted certiorari, 358 U. S. 905, to determine the scope and meaning of this new statute.
Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.
Exercising our power, in the absence of statutory provision!, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U. S. 657, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. . These statements were therefore to be turned over to the defense at the time of cross-examinátion if their contents related to the subject -matter of the witness’ direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by agents of the Government. We also held that the trial judge was not to examine the statéments. to determine if they contained material inconsistent with the testimony of the witness before deciding whether he woiild turn them over to the defense. Once the statements had been shown to contain related material only the defense was adequately equipped to decide whether they had. value for impeachment.. This decision only concerned production and therefore did not, purport to modify the laws of evidence governing the admissibility of prior statements of a witness.
The decision promptly gave rise to sharp controversy and concern. The day following our opinion the House of Representatives was told that the decision in Jencks posed a serious problem of national security and that legislation would be introduced: 103 Cong. Rec. 8290. The same day H. R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House. Defendants’ counsel began to invoke the Jencks decision to justify demands for production far more sweeping than that involved in Jencks, And under circumstances' far removed from those of that case, and some federal trial judges acceded to those excessive demands. The Department of Justice, concerned over these rapid intrusions of Jencks■ into often totally unrelated areas, drafted legislation to clarify and delimit the reach ■ of Jencks. See 103 Cong. Rec. 15781. On June 24, 1957, this legislation was introduced into the Senate by Senator O’Mahoney acting for himself and several othér Senators. 103. Cong. Rec. 10057. After study by a subcommittee of the Judiciary Committee the bill was reported out, Í03 Cong. Rec. 10601, then withdrawn and a .completely new measure substituted. 103 Cong. Rec. 14913. When the bill reached the floor for debate Senator O’Mahoney proposed an amendment in the nature of a substitute which was adopted,. 103 Cong. Rec. 15938, and the bill passed the Senate on August 26. Ibid. In the House the original H. R. 7915, after, being amended in Committee, see 103 Cong. Rec. 10925, was passed on August 27, 103 Cong. Rec. 16130, and then substituted for. the text of the Senate bill. 103 Cong. Rec. 16131. The two versions went to Conference. The Conference Report was agreed to by the Senate, on . August 29/103 Cong. Rec. 16490, and by the House, the next day. 103 Cong. Rec. 16742. The Act was approved on September 2/ and became law as §3500 of the Criminal Code, 18 U. S. C. Congress had determined to exercise its power to define the rules that should govern in this particular area in the'trial of criminal cases instead of leaving the matter to the lawmaking of the courts.
In almost every enactment there are gaps to be filled and ambiguities to be resolved by judicial construction. This statute is not "free from them. Here, however, the detailed particularity with which Congress has spoken has narrowed the scope for needful judicial interpretation to an unusual'degree. The statute clearly defines procedures and plainly indicates the circumstances for their application. Since thisCase is the first calling for authoritative exposition of an Act that frequently conies into use in federal criminal prosecutions we deem it appropriate to explicate the construction of the statute required by the circumstances of this case.
1. Subsection (a) requires that no statement of a government witness made to an agent of the Government'and in the Government’s possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c) and (d) provide procedures for the production of “statements,” and for the consequences to the, Govérnment of failure to produce. Subsection (e) restrictively defines with particularity. the term “statement” as used in the three preceding sections. The suggestion that the' detailed statutory procedures restrict only the production of the type of statement described in subsection- (e), leaving all other statements, e. g., non-verbatim, ■ non-contemporaneoqs records of oral statements, to be produced under pre-existing rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would-mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious' and less reliable documents a more favored legal status, free from safeguards in the tournament of trials. To state such a construction demonstrates its irrationality;.the authoritative legislative history precludes its acceptance.
To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent’s summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent’s interpretations, and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigátor’s selections, interpretations and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these, dangers by restricting production to those statements •specifically defined in the bill. Indeed both the House and Senate bills as they went to Conference explicitly so stated. See 103 Cong. Rec. 16130; 103 Cong. Rec. 16125. Nothing in the Conference Reports or the limited debate following Conference intimated the slightest intention to change the exclusive nature of the measure. Indeed the reports and debate proceeded on the explicit assumption that the bill retained as a major purpose the barring of all statements not specifically defined. The purpose of the Act, its fair reading and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent' of. the Government which cannot be produced under the terms of 18 U. S. C. § 3500 cannot be produced at all.
2. Since the statutory, procedures are exclusive they constitute the rule of law governing the production of the statement at issue in this case and it becomes necessary to determine the scope and meaning of the statutory definition of “statement” contained in (e). Clause (1) of (e) permits the production of “a written statement made by said witness and signed or otherwise adopted or approved by him . . . .” Although some situations may arise, creating peripheral problems of construction, its import is clear. Clause (2) widens the definition of “statement” to include “a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” Clearly this provision allows the production of mechanical or stenographic recordings of oral statements, even' though later transcribed. A preliminary-problem for determining that the statement now before us may be produced is whether the statutory phrase “other recording” allows an even wider scope for production. We find the legislative history persuasive that the statute .was meant to encompass more than mere automatic reproductions of oral statements.
However, such a finding is only the beginning of the task of construction. It is clear that Congress was con- • cerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as' the conscious or inadvertent infusion of the. recorder’s opinions or impressions. It is' clear from the continuous congressional emphasis on “substan-' tially verbatim recital,” arid “continuous, narrative statements made by the witness recorded verbatim, or nearly so . . . ,” see Appendix B, post, p. 358, that the legislation, was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a, lengthy oral recital. Quoting out of context is one of the most frequent and powerful-modes of misquotation. We think it consistent with this legislative history, and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent’s interpretations or impressions. . In expounding this standard we do not wish to create the impression of a “delusive exactness^” The possible permutations of fact and circumstance are myriad.' Trial courts will be guided by the indicated standard, informed by fidelity to the congressional purposes we have' outlined.There iá nothing impalpable about these provisions. Sihce vie feel the statutory standard has' guiding definiteness, it would be idle to attempt a minute enumeration of particular situations to which it is to be applied. Such a vain attempt at forecasting myriad diversities with, minor variance is as futile and uncalled for in this as in so many other areas of the law. That is what the judicial, process is for — to follow a generally clear direction in dealing with a new diversity as it may occasionally arise. Final decision as to production must rest, as it does so. very often in procedural and evidentiary matters, within the good sense and experience of the district judge- guided by the standards we have outlined, and subject to the appropriately limited review of appellate courts.
3. The statute itself provides no procedure ior making a determination whether a particular statement comes within the terms of (e) and thus may be produced if related to the Subject matter of the witness’ testimony. Ordinarily . the defense demand will be only for those statements which satisfy the statutory limitations. Thus the Government will not produce documents clearly beyond the reach of the statute for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose. The statute governs the production of documents; it does not purport to affect or modify the rules of evidencé regarding admissibility and uSe of statements once produced. The Act’s major concern is with limiting and regulating defense access to government papers, and it is-designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness’ testimony. It would indeed defeat this design to hold that the defense may see statements in order to argue whether it should be allowed to see them.
It is also the function of the trial judge to decide, in light of the circumstances of each case,, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases the answer will be plain from the statement itself. In others further information might be déemed relevant to assist the court’s determination. This is a problem of the sound and fair administration of a criminal prosecution and its solution must be guided by thé need, reflected in so much of our law of evidence, to avoid needless trial of collateral and confusing issues while assuring the utmost fairness to a criminal defendant. See, e. g., Nardone v. United States, 308 U. S. 338, 342.
In light of these principles the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard - governing production of the agent’s memorandum of his conference with Sanfilippo was 18 U. S. C. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (ej as properly understood by them. We have examined the statement and the record and find that the determination of the two courts below was justified and therefore must be sustained. It would bespeak a serious reflection on the conscience and capacity of the federal judiciary if both a trial judge and a Court of Appeals were found to have disregarded the command of Congress, duly interpreted, for making available a prior statement of -a government witness in a case. Against - such a contingency there is always the safeguard of this Court’s reviewing power.
Affirmed.
[For opinion of Mr. Justice Brennan, joined by The Chief - Justice, Mr. Justice Black and Mr. Justice Douglas, see post, p. 360.]
APPENDIX A TO OPINIÓN OF THE COURT.
SUMMARY OF LEGISLATIVE HISTORY DEMONSTRATING THE INTENT OF THE CONFERENCE MEASURE TO RETAIN AS A PRIMARY PURPOSE OF THE ACT A PROHIBITION OF PRODUCTION OF ALL STATEMENTS NOT DESCRIBED IN SUBSECTION (E). (SEE PP. 350-351, ANTE.)
The bills as they went to Congress contained explicit provisions making them exclusive. For example, the Senate. bill provided in subsection (a): v.-
“In any criminal prosecution brought by the United States, no statement or report of a Government witness or prospective Government witness (other than the defendant) made to an agent of the Government which is in the possession of the United States shall be the subject of subpena,- or inspection, except, if provided in the Federal Rules of Criminal Procedure, or as provided in paragraph (b) of this section (Emphasis added.) 103 Cong. Rec. 16130.
The House bill contained a similar provision.
Although the last phrase of this section was dropped out when the section was rewritten to eliminate reference to the Federal Rules of Criminal Procedure, see 103 Cong. Rec. 16488; H. R. Rep. No. 1271, 85th Cong., 1st Sess., there is no indication that its omission was intended to work a silent and radical change in the entire concept and purpose of the Act. Both the Conference Report of the House Managers and the floor remarks of the Senate Conferees enumerate the particular changes which had been made to meet earlier specific differences and objections. No mention is made, nor can an intimation be found, of any intention to change the exclusive nature of the measure. The House Conference Report enumerates the specific changes and then states that “To remove any doubt as to the kinds of statements affected by the bill as agreed to by the conferees, a new paragraph V •was added . . . expressly defining the' term ‘statement.’ ” H. R. Rep. No. 1271, 85th Cong., 1st Sess. 3. In the Senate, Senator O’Mahoney, in response to a question, gave the specific changes which had been made in the bill by the Conference, and he did not give the slightest indication that it had lost its exclusive nature. 103 Cong. Rec. 16487.
What small debate there was following the Conference Report supports the conclusion that no change in the exclusiveness of the bill was intended. For example, Senator O’Mahoney, introducing the conference measure, stated that, “[t]here was some fear upon the part of the Department of Justice that the. Senate bill would create a greater latitude for the examination of irrelevant reports of agents. The language which was devised by the conferees has cleared up the doubts . . . .” 103 Cong. Rec. 16487. See also 103 Cong. Rec. 16488-16489. In the House, Representative Keating, one of the Conferees, explained that “The conferees provided that the only statements a defendant could see, and then only in the courtroom were those actually signed or formally approved by the witness or a stenographic verbatim recital of a statement made by a witness which is recorded contemporaneously with the making of such oral statement. In othfei words, only those statements need be produced in court by the Government, which could be shown in ccrart. to. impeach the credibility of the witness.” 103 Cong. Rec. 16739. See also 103 Cong. Rec. 16742.
APPENDIX BvTO OPINION OF THE COURT.
PARTIAL SUMMARY.OF LEGISLATIVE HISTORY BEARING "ON THE PROPER CONSTRUCTION OF ^SUBSECTION .(E).
(SEE PP. 351 AND 352, ANTE.)
The original Senate bill,' as passed by' the. Senate, allowed the production of “any transcriptions or records of oral statements made by the witness to an agent of the Government . . . .” See 103 Cong. Rec. 16130. During the course of the Senate debate an amendment had "been offered to limit this provision to mechanical transcriptions or recordings. See 103 Cong. Rec. 15930-15931. This amendment was. rejected after Senator O’Mahoney, sponsor of the legislation, had argued that it would leave the bill too “limited.” “All we are asking,” he stated, “is that the records which are . relevant and competent,"-' which deal with.the oral statements made by Government witnesses whom the Government puts on the stand, with respect to the matters concerning which., they testify, be made available.” 103 Cong. Rec. 15932. Thus thé bill as it. left the Senate was clearly not confined to, automatic reproductions of oral statements/although its . further reach was not explicitly demarcated.
The House bill, as passed, allowed only the production of written statements signed by the witness or otherwise adopted ’ or approved. 103 Cong. Rec. 16125. The present language ¿merged from the Conference.
Senator O’Mahoney, sponsor of the original Senate bill and one of the Senate Conferees; in submitting the conference bill,'made it clear that (e) “would include a memorandum made by an agent of the Government of an oral
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
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063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
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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
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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
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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
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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
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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
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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_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.
Alfred P. CARLTON, Jr., Trustee in Bankruptcy as successor-in-interest to the debtor, Firstcorp, Inc., Plaintiff-Appellant, Office of Thrift Supervision, Plaintiff-Appellee, v. FIRSTCORP, INCORPORATED, Defendant-Appellant.
No. 91-1694.
United States Court of Appeals, Fourth Circuit.
Argued March 3, 1992.
Decided June 2, 1992.
As Amended June 9 and Aug. 12, 1992.
Lacy H. Reaves, Poyner & Spruill, Raleigh, N.C. (Beth R. Fleishman, Poyner & Spruill, Raleigh, N.C., David G. Epstein, King & Spaulding, Atlanta, Ga., Alfred P. Carlton, Mark D. Martin, McNair Law Firm, Raleigh, N.C., on brief), for appellant.
Harvey Alan Levin, Office of Thrift Supervision, Washington, D.C. (Ivana Teran-go, on brief), for appellee.
Before SPROUSE, Circuit Judge, KISER, District Judge for the Western District of Virginia, sitting by designation, and BLATT, Senior District Judge for the District of South Carolina, sitting by designation.
OPINION
SPROUSE, Circuit Judge:
We are asked to decide whether regulatory action of the Office of Thrift Supervision (OTS) is precluded by bankruptcy’s automatic stay provision, 11 U.S.C. § 362, after a thrift holding company has filed for Chapter 11 protection in bankruptcy. The district court, reversing a contrary ruling by the bankruptcy court, held that a provision of the Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818(i)(l) et seq., superseded bankruptcy’s automatic stay, and prevented it from applying to ongoing administrative proceedings and a temporary cease and desist order issued by the OTS against the thrift organization. We affirm.
I
Firstcorp, Inc., headquartered in North Carolina, is a bankrupt savings and loan holding company engaged in a struggle with its federal regulator, the OTS. Its problems arise from its dual ownership of the First Federal Savings and Loan Association of Durham (Durham), which is financially sound, and the First Federal Savings and Loan Association of Raleigh (Raleigh) which has been placed in a federal receivership as a result of its continued insolvency.
In 1985, Firstcorp acquired Raleigh. At that time, the Federal Home Loan Bank Board (FHLBB) was the statutorily designated regulator, and holding companies were required to obtain its approval before acquiring or disposing of savings and loan subsidiaries. The FHLBB approved the acquisition of Raleigh but conditioned the approval on a commitment by Firstcorp to maintain the net worth of the subsidiary at appropriate levels. To accomplish this,' after obtaining the money from a public offering of Firstcorp securities, Firstcorp, in November and December 1985, infused $13.4 million into Raleigh.
In 1987, Firstcorp acquired Durham and operated both thrifts until late 1990. Although Durham so. far has managed to weather the savings and loan crisis, Raleigh deteriorated rapidly in 1990. During the second half of 1990, its losses increased' and it became insolvent.
Because of Raleigh’s insolvency, the OTS (the successor to the Federal Home Loan Bank Board) entered the picture. It placed Raleigh into a federal receivership and charged Firstcorp with responsibility for $45 million required to rejuvenate the financially distressed institution.
The Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818 et seq., empowers the OTS to supervise thrift holding companies. Pursuant to that authority, the OTS ordered Firstcorp to take various steps which would effectively decrease the size of Raleigh’s insolvency. It issued a temporary cease and desist order instructing Firstcorp to buttress Raleigh’s balance sheet by transferring immediately its stock in Durham to a subsidiary of Raleigh. The temporary order also requires Firstcorp to cancel and return two capital notes to Raleigh, which Firstcorp received from Raleigh in exchange for the 1987 capital infusion of $13.4 million. OTS served the temporary cease and desist order on Firstcorp on November 30, 1990, accompanied by a notice charging Firstcorp with committing an “unsafe and unsound practice” by failing to maintain the net worth of Raleigh in accordance with the requirements of the resolution authorizing the Raleigh acquisition. See 12 U.S.C. § 1818(b)(1) and (c). With the Notice of Charges, the OTS initiated an internal OTS administrative proceeding designed to result in a final cease and desist order.
Title 12 U.S.C. § 1818(c)(2) permits holding companies aggrieved by a temporary cease and desist order to seek an injunction in district court to suspend enforcement of the temporary order until a final order results. On December 4, 1990, Firstcorp responded to the OTS action by invoking that provision. It filed a complaint and an application for a temporary restraining order to stay enforcement of the temporary order in the district court for the Eastern District of North Carolina.
The following day, Firstcorp opened a second front — filing for protection under chapter 11 of the Bankruptcy Code in the Eastern District bankruptcy court. Two days later on December 7, 1990, Firstcorp sought further protection from the OTS, moving the bankruptcy court for an order confirming that both the internal OTS administrative proceedings and the temporary cease and desist order were suspended by the automatic stay provisions of 11 U.S.C. § 362.
At this juncture, Firstcorp on the one hand and the OTS, its regulatory adversary, on the other, moved and counter-moved with some rapidity. On this same day, December 7, the OTS declared Raleigh insolvent, placed it into receivership, and appointed the Resolution Trust Corporation as its receiver. The OTS then immediately chartered a new savings and loan, First Federal Savings Association of Raleigh, which purchased the assets and assumed the deposit and other liabilities of Raleigh. As a result of the OTS action, Raleigh no longer operates as a thrift; it is in receivership.
After filing its action for an injunction in the district court and requesting confirmation of the automatic stay in the bankruptcy court, Firstcorp filed a third request for relief against the OTS on December 11, 1990, this time again in the bankruptcy court. Firstcorp’s latest action took the form of a complaint against the OTS and an application for temporary and permanent injunctive relief under 11 U.S.C. § 105(a).
The bankruptcy court expedited its consideration of Firstcorp’s twin bankruptcy requests for relief. After conducting a hearing on December 14, 1990, it issued a written opinion and order on December 18, 1990, holding that the automatic stay applied to both the ongoing OTS proceeding and to the temporary order. In its opinion, the bankruptcy court indicated that a ruling on Firstcorp’s request for injunctive relief was unnecessary because of the application of the automatic stay. In re Firstcorp, Inc., 122 B.R. 484 (Bkrtcy.E.D.N.C.1990). Nevertheless, Firstcorp obtained an order from the district court which stayed the district court action. See Firstcorp, Inc. v. Office of Thrift Supervision, No. 90-721-CIV-5-BO (E.D.N.C. February 5, 1991).
OTS appealed the bankruptcy court’s ruling that the automatic stay provision applied to its proceedings. The district court reversed the decision of the bankruptcy court, holding that the automatic stay applied neither to the administrative proceeding nor to the temporary order. In re Firstcorp, Inc., 129 B.R. 450 (E.D.N.C.1991). Firstcorp, in turn, appeals to this court.
II
While this appeal was pending, the United States Supreme Court decided Board of Governors of the Federal Reserve v. MCorp Financial, Inc., — U.S.-, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). It interpreted language in 12 U.S.C. § 1818(i)(l) (discussed below) to preclude the automatic stay provision of bankruptcy from applying to an administrative proceeding of the Federal Reserve Board involving a bankrupt bank holding company. Correctly recognizing that a major part of its appeal is now controlled by MCorp, Firstcorp now abandons its claim that the automatic stay applies to the internal administrative proceedings of the OTS. It continues to argue, however, that the automatic stay applies to the temporary cease and desist order issued by the OTS. It argues alternatively for a remand to the bankruptcy court so that the bankruptcy court may consider Firstcorp’s request for the putative injunctive relief provided by section 105(a).
A
Title 12 U.S.C. § 1818 establishes three mechanisms for judicial oversight of OTS orders. First, section 1818(c)(2) provides that, within ten days after service of a temporary cease and desist order, a holding company may seek an injunction in district court restraining enforcement of the order pending completion of the related administrative proceeding. Second, section 1818(h) authorizes the courts of appeals to review final cease and desist orders on the application of an aggrieved party. Finally, section 1818(i)(l) empowers the OTS to apply to the district court for enforcement of any outstanding order, whether temporary or final.
Section 1818(i)(l) provides further that “except as otherwise provided in this section no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section, or to review, modify, suspend, terminate, or set aside any such notice or order.”
In MCorp, the Supreme Court interpreted that language to preclude the application of the automatic stay to administrative proceedings of the Federal Reserve Board. MCorp involved two ongoing administrative proceedings at the Federal Reserve Board. One charged MCorp with violating the Board’s “source of strength” regulation, 12 C.F.R. § 225.4(a)(1). The other charged MCorp with violating section 23A of the Federal Reserve Act, 12 U.S.C. § 371c, which imposes various restrictions on bank holding companies.
In MCorp, however, there was no issue concerning application of the automatic stay to a temporary cease and desist order. Although three temporary cease and desist orders had been issued by the Board against MCorp in that case, they were not involved in the Supreme Court proceeding. See MCorp, supra at-n. 6, 112 S.Ct. at 462 n. 6, 116 L.Ed.2d at 364 n. 6 (“We address only MCorp’s effort to enjoin the Board’s administrative proceedings and express no opinion on the continuing vitality or validity of any of the temporary cease- and-desist orders.”).
We think that the Supreme Court’s reasoning in MCorp, that the automatic stay does not apply to internal administrative proceedings, applies equally to temporary cease and desist orders of regulatory agencies in these circumstances. Section 1818(i)(l)’s relevant language is “no court shall have jurisdiction to affect ... enforcement of any notice or order under this section, or to ... suspend ... any such notice or order.”
Firstcorp contends that the temporary order can be distinguished from ongoing administrative proceedings because the order requires Firstcorp to immediately transfer assets of the bankruptcy estate, and that this difference justifies application of the automatic stay to the temporary order. We are unpersuaded. No language in the automatic stay provision, 11 U.S.C. § 362, or in 12 U.S.C. § 1818, provides a basis for such a distinction. Section 1818(h) authorizes courts of appeals to review final orders, and section 1818(i)(l) empowers the OTS to apply to district court for the enforcement of any outstanding temporary or permanent orders. These enforcement provisions present a unified regulatory scheme which under MCorp is free from the intrusion of bankruptcy’s automatic stay. Similarly, section 1818(c)(2), which allows holding companies to obtain injunctive relief from a temporary cease and desist order, complements the statutory structure authorizing the regulatory agency to issue and enforce such orders and provides a mechanism for challenge by holding companies. In the absence of legislative history to the contrary, it seems clear to us that by devising a comprehensive scheme governing the oversight of financial institutions, from administrative control through judicial review of the administrative agency’s actions, and by explicitly making the scheme exclusive, Congress intended to exclude other methods of interfering with the regulatory action. We, therefore, affirm the district court's ruling that the automatic stay does not apply to the temporary order.
B
In view of the above, the judgment of the district court is affirmed, but remanded for appropriate action on Firstcorp’s pending application for an injunction. We leave to the district court the initial determination of whether to resolve Firstcorp’s application for an injunction or to remand it to the Bankruptcy Court.
AFFIRMED, BUT REMANDED WITH INSTRUCTIONS.
. The OTS was created by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989). It replaces the Federal Home Loan Bank Board and is charged with regulating federally-chartered thrifts and thrift holding companies.
. See also 12 U.S.C. § 1463, a provision of the Home Owners’ Loan Act of 1933, codified at 12 U.S.C. § 1461, et seq., as amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
. The temporary cease and desist order directs Firstcorp to: immediately upon receipt of this Order, extinguish and cancel the capital notes from First of Raleigh and the accrued interest receivable thereon and return the canceled instruments to First of Raleigh as partial satisfaction of its capital maintenance obligation.... Firstcorp shall immediately transfer all of its ownership interests in First of Durham to [one of the wholly-owned subsidiaries of] First of Raleigh ... in partial satisfaction of its capital maintenance obligation.
The temporary cease and desist order also directs Firstcorp not to engage, directly or indirectly, in transactions with Raleigh or Durham without prior OTS approval. It instructs Firstcorp not to transfer or pledge any of its assets without OTS consent, and to use its best efforts to meet the minimum capital requirements of Raleigh.
. 11 U.S.C. § 105(a) provides:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
This grant of authority to bankruptcy courts includes the power to enjoin the continuation of ongoing judicial and administrative proceedings which are excepted from the automatic stay. See, e.g., Browning v. Navarro, 743 F.2d 1069, 1084 (5th Cir.1984).
. Because we conclude that § 1818(i)(l) prevents application of the automatic stay, we need not reach, and express no opinion on, the OTS’s alternative argument that the temporary order falls within the § 362(b)(4) and (5) exceptions to the automatic stay.
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_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
HALLAM v. COMMERCE MINING & ROYALTY CO. et al.
No. 288.
Circuit Court of Appeals, Tenth Circuit.
March 27, 1931.
Joseph W. Howell, of Tulsa, Okl., for appellant.
A. Scott Thompson, of Miami, Okl., and Geo. S. Ramsey, of Tulsa, Okl. (Ray McNaughton and F. D. Adams, both of Miami, Okl., on the brief), for appellees Commerce Mining & Royalty Co., Jas. F. Robinson, Geo. L. and Alfred E. Coleman and Chas. M. Harvey.
Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.
Rehearing denied June 1,1931.
PHILLIPS, Circuit Judge.
Anna Beaver Hallam, hereinafter called Anna Beaver, is a full blood Quapaw Indian. She was allotted a tract of two hundred acres of land in Ottawa county, Oklahoma, under the Act of March 2, 1895 (28 Stat. 876, 907), and on September 26, 1896, received a patent therefor. Under the act just mentioned, such land was inalienable for a period of twenty-five years from the date of patent.
Under the .Act of June 7, 1897 (30 Stat. 62, 72), Quapaw Indians were empowered to lease their lands for mining purposes for a term of ten years. Under the Act of March 3,1909 (35 Stat. 781, 783 [25 USCA § 396]), such Indians were empowered to lease their lands for mining purposes for “any term of years,” with the consent of the Secretary of Interior. The pertinent portions of the two last mentioned Acts are set out in marginal •note .
On September 30, 1907, Anna Beaver executed to Don P. Wills a mining lease on her allotment for a term of ten years. Such lease contained the following provision:
“If oil, or any minerals or other substance of value are found in paying quantities in any well drilled or shaft sunk, the privilege of operating shall continue as long as oil, minerals or other substances of value can be produced in paying quantities, on such terms and conditions as parties hereto have herein agreed upon after the expiration of this lease.”
This provision violated the restrictions imposed by Congress, and rendered the lease void. Smith v. McCullough, 270 U. S. 456, 46 S. Ct. 338, 70 L. Ed. 682.
On August 22, 1911, Anna Beaver executed to Wills a mining lease on her allotment for a term of ten years from its date. This lease did not violate any of the restrictions imposed by Congress. United States v. Abrams (C. C.) 181 F. 847; Id. (C. C. A. 8) 194 F. 82. On September 28, 1912, Anna Beaver executed to Wills a mining lease bn her allotment for a term of ten years from its date. The Commerce Mining & Royalty Company is a common law trust created by a declaration of trust executed September 22, 1913. Its predecessor was a copartnership called the Miami Royalty Company. In 1913, Wills assigned the 1911 and 1912 leases to the Miami Company, which in turn assigned them to the Commerce Company.
On September 19, 1913, and January 21, 1915, Anna Beaver executed to Wills mining leases on her allotment each for a term of ten years from its respective date. In taking these two leases, Wills was acting as the agent of the Commerce Company and he assigned such leases to the Commerce Company.'
On June 11, 1915, a contract was entered into between Anna Beaver and Wills, acting for the Commerce Company, by which it was agreed that all of such leases were surrendered and canceled, and that the possession of the leased premises was surrendered to Anna Beaver. Thereafter, and on the same date, Anna Beaver executed to Wills, as the agent of the Commerce Company, a new mining lease on her allotment for a term of ten years from its date at a royalty of 5%. Neither Wills nor those claiming under him went into possession of the leased premises under the leases of August 22, 1911, September 28, 1912, September 19, 1913, or January 21, 1915. The lease of June 11, 1915, among other things, provided:
“Second. • The party of the second part agrees to go upon’ said described land and mine and carry on mining operations thereon from the date hereof. - * *
“This lease shall be in full force and effect from the date hereof for a period of ten years, and the parties of the first part (Anna Beaver Bear and Thos. M. Bear, husband) agree to and do hereby deliver possession of said premises to said party of the second part for mining purposes concurrent with the delivery of this lease, and the party of the second pai’t agrees to and does take possession and control of said described land for mining purposes concurrent with the execution of this lease.”
Prior to the lease of June 11, 1915, the lands included in the' above mentioned leases were undeveloped. Six prospect holes had been drilled along the north line of the allotment but no commercial ores had been discovered. Immediately following the execution of the lease of June 11, 1915, the Commerce Company commenced exploration and development on the allotment, and discovered and developed lead and zinc ores in commercial quantities. On February 26, 1917, the Commerce Company entered into a mining sub-lease with Bulkeley Wells, agent, on 180 acres of such allotment. Such sub-lease was later assigned to R. H. Charmings, Jr., agent. On February 2, 1918, the Commerce Company entered into a mining sub-lease on the additional twenty acres with the Standard Zinc Lead Mining Company. Between June 11,1915, and October 18,1922, the Commerce Company and its sub-lessees expended approximately $900,000 in the exploration and development of the property, and the erection of mining plants thereon.
On April 30, 1919, the Secretary declared Anna Beaver incompetent to manage her mining business. In 1907, the Commissioner of Indian Affairs caused an investigation to be made as to the competency of the Qua-paws to manage their business and to lease their lands without departmental supervision. On July 30, 1907, he reported to the Secretary the results of such investigation and recommended that supervision be retained over nine Quapaws. Anna Beaver was not one of such nine. On November 15, 1907, the Secretary adopted the recommendation of the Commissioner and struck the names of all other Quapaws from the incompetent class. From the foregoing it will be seen that from August 22, 1911, to April 30, 1919, Anna Beaver was both legally and actually competent to lease her land for mining purposes for a term of ten years.
By the Act of March 3, 1921 (41 Stat. 1225, 1248), existing restrictions against the alienation of allotted lands of certain named Quapaw Indians were extended for 25 years from the date of suteh act. Anna Beaver was one of those named in such act. Such act provides that the lands of such named Indians may “be leased for mining purposes for such period of time and under rules, regulations, terms, and conditions only as may be prescribed by the Secretary of the Interior, and said lands while restricted against alienation may be leased for mining purposes only as provided herein.” 41 Stat. 1249.
On October 18, 1922, the Commerce Company -negotiated and entered into a new lease with Anna Beaver, subject to the approval of the Secretary, “for the period of 15 years from and after the .date hereof and as long thereafter as lead and zinc may be produced in paying quantities • but not longer than March 3,1946.” As additional consideration for such lease, the Secretary required the Commerce Company: To expend, in five years from the date of approval of such lease, $10,000 in prospect drilling on the allotment; to keep accurate and detailed maps of the workings of each mine on the allotment, and to furnish blueprints of such maps to the lessor or the representative of the Department of Interior whenever demanded; to permit an audit of its books and accounts semiannually or at such other times as the Secretary might direct, and to furnish copies thereof, without charge, to the Secretary; to keep and maintain a complete and adequate organization of mining engineers and accountants; to furnish proper supervision of the mining operations conducted on such allotment; to maintain a store-room, stockyard and machine shop with sufficient supplies and equipment to minimize delays resulting from break-downs and accidents; to permit the miners and other employees freedom of purchase; to operate on an eight hour day and not to employ any boy under the age of sixteen years or any girl or woman, without regard to age, underground. It provided that the royalty to be charged sub-lessees, including the base royalty, should not exceed 12%%; that the royalty provisions under such lease should be-in force from and after its approval by the Secretary; and that the Commerce Company should give a bond with a responsible surety conditioned for the faithful performance of such lease and supplemental agreement. On July 9, 1923, the Secretary approved such lease and supplemental agreement. Such lease provided for a royalty of 7%% for a period approximating the unexpired term of the lease of June. 11, 1915, and for a royalty of 10% there-* after.
Thereafter the Commerce Company executed and delivered to Wells, agent, a mining sub-lease on 180 acres of the leased premises, and to O. W. Sparks a mining sub-lease on 20 acres of such leased premises. The Secretary approved such sub-leases on October 22, 1924. On January 11, 1924,.Wells assigned his sub-lease to R. H. Channings, Jr., agent. The Secretary approved such assignment on October 22, 1924. On October 3, 1924, Sparks assigned his sub-lease to the Blue Streak Mining Company, a corporation. The record does not disclose whether this assignment was approved by the Secretary.
Up to May, 1928, $707,829.11 in royalties had been paid to Anna Beaver, either directly or deposited to her credit with the Secretary, under the leases of June 11, 1915, and October 18, 1922. ' Of this sum, $625,161.83, or 88%%, had been paid under the lease of October 18, 1922.
After the lease of October 18, 1922, had been approved by the Secretary, Anna Beaver brought a proceeding before the Secretary to have the approval of such leases and sub-leases set aside. Upon a hearing, the Secretary refused to set aside the approvals.
Anna Beaver brought this suit against the Commerce Company and its sub-lessees alleging that they at all times have been and now are trespassers on her allotment, prayed for cancellation of each of such leases and sub-leases, for an injunction against further operation thereunder, and for an accounting for the ores extracted therefrom.
The trial court held that the leases of June 11, 1915, and October 18, 1922, were valid, and entered a decree dismissing the bill. Anna Beaver has appealed.
Counsel for Anna Beaver contends that all of such leases, except the lease of October 18, 1922, were overlapping leases, were violative of the restrictions imposed by Congress and were void. He cites in support of this contention United States v. Noble, 237 U. S. 74, 35 S. Ct. 532, 533, 59 L. Ed. 844, and Smith v. McCullough, 270 U. S. 456, 46 S. Ct. 338, 70 L. Ed. 682.
United States v. Noble, supra, was a suit ¡brought by the United States to cancel certain leases and certain assignments of royalties Tinder leases made by one Black Hawk, a 'Quapaw Indian. Such leases and assignments' ate described in the opinioil of the Supreme Court, as follows:
“(1) Lease, dated January 11, 1902, to A. W. Abrams, for ten years from date, in consideration of the sum of $10, and a royalty of 5 per cent. * * * On August 13, 1903, the lease was assigned by Abrams to the Iowa & Oklahoma Mining Company.
• “(2) Lease, dated August 24,1903, to A. W: Abrams, for ten years from date, in consideration of $18, and of royalties which were the same as in first lease. * * * This lease was assigned on November 2, 1904, .to the Iowa & Oklahoma Mining Company.
“(3) Lease, dated March 25, 1905, to L. C. Jones, and the appellee A. J. Thompson, for ten years from date, for $10 -and 5 per cent royalty. It was stated that the lease was subject to the first lease above mentioned. The interest of Jones was assigned to the appellee A. J. Thompson on July 31, 1905.
“(4) Lease, dated April 4, 1905, to the Iowa & Oklahoma Mining Company, for ten years from date, for $25, with the same royalties as in the first lease above mentioned. * * *
“(5) Lease, dated May 12, 1906, to the same company, for ten years from date, and with the same consideration as that of the lease described in paragraph (4). It was provided that ‘this lease and all former leases above referred to shall run concurrently,’ —the lessee being entitled to elect under which of the leases it would operate.
“(6) Lease, dated July 28, 1906, to the same company, for the term of twenty years from date for $21, with the same royalties and minimum rental as those reserved in the preceding lease described in paragraph (5).
“(7) Grant or assignment, dated August 16, 1902, to the appellee Charles P. Noble, of all the allottee’s ‘right, title, and interest in and to the royalty, rent, and proceeds’ of the mining lease dated January 11, 1902, made to Abrams, described in paragraph (1). * * *
“(8) Assignment, dated February 21, 1906, to the appellees A. S. Thompson and Y. E. Thompson. It recited a judgment, in a suit against Noble and Cooper, decreeing that the allottee was the owner ‘of 2% percentage of the entire product mined from said land and sold on or subsequent to the 31st day of January, 1906, and up to and including the 11th day of January, 1912,’ and assigned to the above-mentioned appellees ‘an undivided one-half interest in and to the said judgment for royalties,’ that is, ‘1% per cent of the whole product on said lands’ during the period covered by the first lease to Abrams, described in paragraph (1).”
The government conceded the validity of the lease described, in paragraph one. The trial eourt sustained the validity of the leases described in paragraphs two, three and four. It held that the leases described in paragraphs five and six were invalid. United States v. Abrams (C. C.) 181 P. 847. On appeal this decision was affirmed by the Eighth Circuit. United States v. Noble, 107 F. 292. The United. States prosecuted an appeal from the decision of the Eighth Circuit to the Supreme Court and there questioned the decision of the lower court with reference to the lease described in paragraph three and the assignments of rents and royalties. It will be noted that the lease described in paragraph three was expressly subject to the pri- or lease of January 11, 1902, to Abrams and was inferior to the prior lease of August 24, 1903, to Abrams. ,The Supreme Court held that the lease described in paragraph three was either a lease in futuro or an assignment of the reversion and, in either event, it violated the restrictions imposed by Congress and was void.
The Noble Case is distinguishable from the instant case. The lease of August 22, 1911, was valid. The leases of August 22, 1911, September 28, 1912, September 19, 1913, and January 21,1915, were to the same lessee and covered the same premises. Where there is an existing lease, the term of which has not expired, the acceptance by the tenant from the lessor of a new lease for the same premises, unless it appears that the parties intended otherwise, operates as a surrender of the first lease by operation of law. United States v. Noble (C. C. A. 8) 197 F. 292, 294; United States v. Abrams (C. C.) 181 F. 847; Diamanti v. Aubert, 68 Utah, 582, 251 P. 373, 374; Brown v. Linn Woolen Co., 114 Me. 266, 95 A. 1037, 1038; Enyeart v. Davis, 17 Neb. 228, 22 N. W. 449; Coe v. Hobby, 72 N. Y. 141, 146, 28 Am. Rep. 120; Fleischner v. Citizens’ Real Estate & Inv. Co., 25 Or. 119, 35 P. 174, 176. The release of one party to the old lease is a sufficient consideration for the release of the other party. Diamanti v. Aubert, supra; Evans v. McKanna, 89 Iowa, 362, 56 N. W. 527; Ettlinger v. Kruger, 76 Misc. Rep. 540, 135 N. Y. S. 659; Eggers v. Paustian, 184 Iowa, 1250, 169 N. W. 739. It follows that each of the four last mentioned leases operated as a surrender of the lease immediately preceding it. Therefore, they were not leases in futuro nor assignments of the reversion, as was the lease held invalid by the Supreme Court in the Noble Case.
Furthermore, on June 11, 1915, Anna Beaver and Wills acting for the Commerce Company, which held assignments of all pri- or leases, entered into a contract for the cancellation of such prior leases and the surrender of the leased premises to Anna Beaver. On the same day, Anna Beaver executed a new lease to Wills, agent of the Commerce Company, for a term of ten years from its date, containing the provisions with reference to possession and the commencement of the term of the lease, hereinbefore set out. The validity of such a transaction was sustained in the case of the United States v. Abrams (C. C. A. 8) 194 F. 82, 83, where the court said:
“The act of Congress authorized a leasing for a term not exceeding 10 years. We perceive of no reason, and find nothing in the letter or spirit of the congressional enactment, which restrains her [the Indian lessor], after having made a lease, from entering into a valid contract with the lessee to eaneel such, lease before the expiration of its term, and then make a new lease to such party or parties as she might see fit for another term, not exceeding 10 years. This is what she did,, and all that she did. We think it clear that, the last-mentioned lease, of date March 21„ 1910, was a valid lease.”
The opinion in that case was handed down by the Eighth Circuit -on March 4,1912. The United States prosecuted no appeal therefrom, thus indicating that it accepted as correct the principles therein announced. Since the contract of June 11, 1915, effected a cancellation of the prior leases, and the lease of June 11, 1915, became immediately effective, and the Commerce Company went into immediate possession thereunder, it is clear that it was neither a lease in futuro nor an assignment of the reversion.
On July 9,1923, the Secretary expressly approved the lease of June 11,1915. Should this be construed as an over-lapping lease to commence in futuro, Anna Beaver was not authorized to make it without the approval of the Secretary, under the Act of March 3, 1909. But it was so approved and such approval, if authorized, related back to June 11, 1915, the date the lease was made, and validated it from its inception. Barnett v. Kunkel (C. C. A. 8) 259 F. 394; Lykins v. McGrath, 184 U. S. 169, 22 S. Ct. 450, 46 L. Ed. 485; Anchor Oil Co. v. Gray (C. C. A. 8) 257 F. 277, 280, 281; Id., 256 U. S. 519, 522, 41 S. Ct. 544, 65 L. Ed. 1070.
Counsel for Anna Beaver contends that the Secretary was not authorized to approve the lease of June 11, 1915, after the enactment of the Act of March 3, 1921. A very-analogous situation was considered by the Supreme Court in Harris v. Bell, 254 U. S. 103, 113, 41 S. Ct. 49, 65 L. Ed. 159. The Act of April 26, 1906 (34 Stat. 137), prohibited the alienation of inherited lands by full blood Indian heirs, without the approval of the Secretary. The Act of May 27,1908 (35 Stat. 312), prohibited the alienation of inherited lands by full blood Indian heirs, without the approval of the court having jurisdiction of the settlement of the estate of the deceased allottee. The deed of the full blood Indian heir in Harris v. Bell, supra, was executed on January 15, 1908, and was approved by the Secretary on July 6, 1910. The court held that the 1908 act did not take away from the Secretary the power to approve deeds made prior to its enactment. Here, under both statutes, the power of approval is vested in the Secretary, and the latter act broadens the authority and discretion of the Secretary in this respect. We conclude that the Secretary was authorized to approve the lease of June 11,1915.
For the reasons hereinbefore stated, we hold that the leases of August 22, 1911, and June 11,1915, were valid.
Counsel for Anna Beaver contends that the lease of October 18, 1922, was illegal and void because it was bottomed inseparably upon a consideration that was in part unlawful and was modified by another contract to which Anna Beaver was not a party.
As to the second ground of this contention, it is sufficient to say that this court held, in Whitebird v. Eagle-Picher Lead Co. (C. C. A. 10) 40 F.(2d) 479, that the Secretary had the power to make a lease of Quapaw lands without the consent of the incompetent Indian allottee. Furthermore, Anna Beaver wrote a letter to the Secretary expressing her consent to, and requesting the Secretary not to withdraw his approval of such lease and supplemental agreement.
It is true that, in fixing the royalty under the 1922 lease, consideration was given to the lesser royalty provided in the lease of June 11, 1915, and the unexpired term of the latter lease. Counsel’s contention, however, is predicated upon the premise that the June 11, 1915, lease was invalid. We have concluded that such lease was valid. Therefore, it was neither illegal nor improper to take into consideration the royalty provision and the unexpired term of the 1915 lease, in arriving at the terms of the 1922 lease.
Counsel for Anna Beaver contends that the 1922 lease was illegal because it was made in violation of the regulations promulgated by the Secretary on December 29,1921. He asserts that such lease violated section 18 of such regulations, which provides that a lease “shall be for a fixed period of time to be determined in each case by the Secretary.” While such lease did not specify the exact period for which it should extend beyond 15 years, it provided .that it should be for so long as lead and zinc were found in commercial quantities but, in no event, beyond March 3, 1946. It provided means by which the term could be ultimately ascertained and made certain. It was a substantial compliance with the regulations. Section 10 of such regulations, in part, provides:
“Applications under the provisions of Section 10 for a lease or extension of lease or for the approval of said lease or extension of lease will not be received or considered prior to the period of one year next preceding the date of the expiration of such valid existing lease, or leases as may be on the land covered by such application.”
Counsel for Anna Beaver asserts that the above quoted portion of section 10 was violated because the term of the existing 1915 lease did not expire until 1925, and the new lease was approved in 1923. Even if the consideration of the 1922 lease by the Secretary in 1923 was contrary to such regulation, which we do not decide) his approval was not vitiated on that account. The Secretary had the power to suspend such regulations. Ingraham v. Ward, 56 Kan. 550, 44 P. 14; Gage v. Gunther, 136 Cal. 338, 68 P. 710, 89 Am. St. Rep. 141; Pickett v. Wallace, 54 Cal. 147; Knight v. United Land Ass’n, 142 U. S. 161, 12 S. Ct. 258, 35 L. Ed. 974.
Counsel for Anna Beaver contends that the court should have held she was entitled to royalties on a basis of 7%% instead of 5% from October 18, 1922. The approval of the Secretary provided that the royalty provisions should be effective from the date of such approval. In this respect he modified the provisions of the lease negotiated between the Commerce Company and Anna Beaver. This he had full power to do under the decision of this court in Whitebird v. EaglePicher Lead Co., supra.
Counsel for Anna Beaver contends that thé leases entered into between the Commerce Company and Anna Beaver, prior to October 18, 1922, were void, and that they so clouded the title of the allotment of Anna Beaver as 'to disable her from negotiating leases with any other person than the Commerce Company; that, because of these facts, the Commerce Company had no right to enter into the lease of 1922, even with the approval of the Secretary. This argument is bottomed upon the proposition that the lease of August 22, 1911, and the lease of June 11,1915, were void. We have already considered these leases and concluded that they were valid.
Finally, counsel for Anna Beaver contends that the lease of June 11, 1915, and the 1922 lease were invalid because the amount of royalties provided therein were inadequate. The amount of royalty provided in the lease of June 11, 1915, compares favorably with the amount of royalty reserved in other leases on undeveloped lands in the same vicinity as the Anna Beaver allotment. While a few of such leases reserved a royalty of 7%%, by far the greater number provided a royalty of 5%. The evidence wholly failed to establish that the royalty provision in the 1915 lease was inadequate. The amount of royalty in the 1922 lease rested in the discretion of the Secretary. It was his duty to determine the highest obtainable economic royalty, not the highest percentage of royalty, in order that all the ores should be mined and the greatest ultimate return obtained from such lands. This he did after obtaining the advice of experts. See Whitebird v. EaglePicher L. Co., supra. The Act of March 3, 1921, vested discretionary power in the Secretary to determine the amount of royalty and the other terms of mineral leases upon lands of Quapaw Indians named in such act. 41 Stat. 1248; Anicker v. Gunsburg, 246 U. S. 110, 119, 38 S. Ct. 228, 62 L. Ed. 603. The Secretary’s determination of the proper amount of royalty, in the absence of a showing of arbitrary action or fraud, was final and was not open to review by the court. United States v. California & Oregon Land Co., 148 U. S. 31, 43, 44, 13 S. Ct. 458, 37 L. Ed. 354; United States v. De la Maza Arredondo, 31 U. S. (6 Pet.) 691, 728, 729, 8 L. Ed. 547; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 325, 23 S. Ct. 698, 47 L. Ed. 1074; United States ex rel. McCullough v. Lane, 50 App. D. C. 123, 269 F. 202, 204. There is no evidence tending to show that the Secretary acted either arbitrarily or fraudulently.
We have examined the other contentions made by counsel for Anna Beaver, and find they are without merit.
We conclude that the leases of August 22, 1911, and June 11,1915, and the lease of October 22, 1922, approved July 9, 1923, were valid, and that the decree of the trial court was right. It is therefore affirmed.
“That the allottees of land within the limits of the Quapaw Agency, Indian Territory, are hereby authorized to lease their lands, or any part thereof, for a term not exceeding three years, for farming or grazing purposes, or ten years for mining or business purposes. * * * Provided, That whenever it shall be made to appear to the Secretary of the interior that, by reason of age or disability, any such allottee can not improve or manage his allotment properly and with benefit to himself, the same may bo leased, in the discretion of the _ Secretary, upon such terms and conditions as shall be prescribed by him.” 30 Stat. 72.
“That all lands allotted to Indians in severalty, except allotments made to members of the Five Civilized Tribes and Osage Indians in Oklahoma, may by said allottee be leased for mining purposes for any term of years as* may be deemed advisable by the Secretary of the Interior; and the Secretary of the Interior is hereby authorized to perform any and all acts and make such rules and regulations as may be necessary for the purpose of carrying the provisions of this paragraph into full force and effect.” 35 Stat. 783 (25 USCA § -396).
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_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.
COMMISSIONER OF INTERNAL REVENUE v. KELLEY et al.
No. 2939.
Circuit Court of Appeals, First Circuit.
Dec. 1, 1934.
Arnold Raurn, Sp. Asst. Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for petitioner for review.
Joseph W. Worthen, of Boston, Mass. (Holmes & Worthen, of Boston, Mass., and George M. Morris, Allen H. Gardner, and Morris, KixMiller & Baar, all of Washington, D. C., on the brief), for Kelley et al., trustees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is a petition for review of a decision of: the Board of Tax Appeals under sections 1001-1003 of the Revenue Act of 1926, as amended by the Revenue Act of 1928 (section 603) and the Revenue Act 1932 (section 1101, subd. a [26 USCA §1 122A-1226]). The question presented is whether a common-law trust created by the respondents in 1925 is an association within the definition laid down in the case of: Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949, and therefore subject to be taxed as though a corporation. Section 2 (a) (2) of the Revenue Act 1926, 26 USCA § 1262 (a) (2), and section 701 (a) (2) of the Revenue Act 1928, 26 USCA § 2701 (a) (2).
Under such a petition only questions of law can be reviewed. All findings of fact by the Board of Tax Appeals in this ease are agreed to by the parties.
The business of the Union Paste Company, under which name the trustees did business from 1925 to 1930, had been established by the petitioners’ grandfather in 1866, and was conducted under a family partnership until the creation of this trust in November, 1925.
In 1912, Anthony Kelley, the father of these petitioners, the petitioners themselves, and another son, Chester B'. Kelley, entered into a new partnership agreement under which it was agreed that upon the death of Anthony Kelley the partnership business should be divided among the three sons; but his wife, E. Florence Kelley, should during her lifetime receive 25 per cent, of the net income of the business, and that upon the death of either one of the sons, the wife of such deceased son should receive 10 per cent, of the net income for a period of not more than ten years.
Anthony Kelley died in 1917, and the partnership business was thereafter carried on by the three sons until 1920', when Chester B. Kelley died.
From the time of the death of Anthony Kelley in 1917, payments were made to E. Florence Kelley of 25 per cent, of the net income in accordance with the partnership agreement, which it was understood was in lieu of her right to an accounting of her husband’s share in the partnership assets.
Following the death of Chester B. Kelley in 1920, 10 per cent, of the net income was paid to his widow, Helen W. Kelley, until 1925, when she became dissatisfied and claimed the right to an accounting of her husband’s interest in the partnership assets and proceeded to litigate her interest, which was not decided until 1930.
Oh November 2, .1925, the petitioners, Joshua C. Kelley and Herbert W. Kelley, Helen W. Kelley having refused to enter into an agreement defining her interest in the business, executed a declaration of trust, which it is admitted was created “not for corporate purposes or ends, but as a temporary measure to ensure a binding determination of the interest of Helen W. Kelley in the enterprise.” It is also admitted that a form of trust was adopted after corporate forms and partnership relations had been rejected by the surviving partners.
It is true that in form the declaration of trust was broad in its powers, and contained many provisions similar to those of the usual articles of association or corporate charters, and the trust was authorized to acquire and carry on the business of the Union Paste Company, and also to acquire trade-names, formulae, inventions, letters patent, to assign, transfer, mortgage, and deal in personal property of all kinds, issue bonds and debentures when necessary for carrying on the business of the trust, purchase, invest in, hold, own, mortgage, or pledge shares of capital stock, bonds, mortgages, or other securities of corporations, and to sell or exchange the assets of the trust and to do a general manufacturing and mercantile business.
It was provided in the declaration of. trust that the trustees could use the name of Union Paste Company in executing contracts and signing checks, notes, drafts, and bonds; and might appoint a president, treasurer, and clerk; that meetings of the trustees might be held and a record kept; it provided that certificates might be issued to the cestuis qui trustent, but such certificates should not be transferable unless the trustees so determined; it provided that there should be issued to the petitioner Joshua C. Kelley a certificate for forty-five shares of beneficial interest under the trust, and to the petitioner Herbert W. Kelley thirty shares of beneficial interest; it also provided for the payment to E. Florence Kelley of 25 per cent, of the net earnings of the business after certain deductions, which apparently was considered as representing the other 25 per cent, of the beneficial interest.
No certificates of beneficial interest were issued to E. Florence Kelley or to Helen W. Kelley, nor was any provision made in the declaration of trust for the payment to Helen W. Kelley of any part of the net income, her interest then being in litigation.
The term of the trust was three years after the death of the last survivor of the two trustees, unless terminated sooner by vote of the trustees.
It is admitted, however, that Joshua C. Kelley and Herbert W. Kelley, the instant trustees, had complete charge of the trust affairs during the years 1926, 1927, and 1928, and, although the former was designated in the declaration of trust as president and treasurer, and the latter as clerk, they conducted the enterprise in the same manner as they had theretofore conducted the partnership; that Joshua C. Kelley attended to the financial matters, including the distribution of profits to the beneficiaries, and Herbert W. Kelley served as chemist and directed the manufacturing. Neither E. Florence Kelley nor Helen W. Kelley had any control over the trust affairs; that no meetings were ever held by the trustees alone or with E. Florence Kelley and Helen W. Kelley; that each of the trustees attended to his duties in the conduct of the business and informed the other of what he was doing from time to time; that the trust had no minute books, no bylaws, and no directors. The trust had a seal which was used in filing tax returns and claims in bankruptcy; that the trustees did not issue bonds or debentures of any kind and did not attempt to secure outside capital and the enterprise remained a family affair; that on a few occasions on which they borrowed money, in each instance the creditor required that they indorse the note as individuals.
During the taxable period here in question, 25 per cent, of the net income was paid to E. Florence Kelley, and 10 per cent, was credited to a suspense account to provide for the payment to Helen W. Kelley when her rights were determined.
The Commissioner found that the trust thus created was an association within the definition laid down in Hecht v. Malley, supra, and was taxable as a corporation, and assessed a deficiency tax for the years 1926, 1927, and 1928, and to the amount for the respective years of $22,199.64, $19,384.67, and $21,823.19.
The Board of Tax Appeals upon a petition by the trustees for a redetermination held that the trust was not a body of persons doing business according to the forms and general mode of procedure of a corporation ; or, in other words, was not an association, but was taxable as a trust, and found the deficiencies for the years 1926, 1927, and 1928 should be respectively $9.34, $4.23, and $52.23.
While the powers of the trustees under the declaration of trust were broad and the form of organization authorized in the declaration of trust was similar in many respects to that of a corporation, the trustees never exercised these powers; and, although Joshua C. Kelley in the declaration of trust was named as president and treasurer, and Herbert W. Kelley as clerk, it does not appear that either ever performed the usual duties of the office to which he was appointed. It is admitted that the two trustees conducted the business just as they had been accustomed to do as partners, and that upon the termination of the litigation with Helen W. Kelley in 1930, they terminated the trust and entered into a new partnership agreement.
Whether a common-law trust is an association within the meaning of the Revenue Act is not always easy of determination. The decisions in which the courts have attempted to draw the line of demarkation between a trust and an association have left it very vague and difficult of application. No absolute rule for such classification has yet been laid down by the Supreme Court, and the Regulations of the Treasury Department, 74, Art. 1314, cannot be held to be exclusive in defining the line between a trust and an association.
In Morriss Realty Co. v. Commissioner, 23 B. T. A. 1076, 1084, the Board of Tax Appeals laid down as a triple test:
“(1) Business purpose; (2) business operations; and (3) quasi-corporate structure” ; ahd adding: “There has unavoidably been some variation in emphasis, depending upon the particular facts of the case, put by various courts upon these tests.”
In Ittleson v. Anderson (D. C.) 2 F. Supp. 716, 719, the court said:
“Under the opinion from which the foregoing excerpts have been quoted, there appear to be three elemental requisites to a trust which, under the capital stock tax statutes, is to be regarded as an ‘association’: (1) It should have a ‘quasi corporate form’; (2) its trustees should be ‘associated together in much the same manner as the directors in a corporation’; and (3) the trustees must be engaged in carrying on a business.”
In some eases, especially where the issue was the imposition of an excise tax to do business, emphasis has been laid on whether they were conducting a business for profit, or on the business test, so called, Hecht v. Malley, supra; in others, the form in which the affairs of the trust was carried on seems to have been the controlling factor in determining whether the organization was an association or a simple trust, Twin Bell Oil Syndicate v. Helvering (C. C. A.) 70 F.(2d) 402; Commissioner v. Pryor & Lockhart Development Co. (C. C. A.) 70 F.(2d) 154, 158; Gardiner v. United States (C. C. A.) 49 F.(2d) 992; Lucas v. Extension Oil Co. (C. C. A.) 47 F.(2d) 65; while in the ease of Commissioner v. Morriss Realty Co. (C. C. A.) 68 F.(2d) 648, at page 652, the court said, quoting Morriss Realty Co. Trust No. 1 v. Commissioner, 23 B. T. A. 1085:
“But even if we say that they [the trustees] were engaged in business we must not lose sight of the original purpose for which the trust was created, that of liquidation of the property; and the doing of other acts incidental to this ultimate purpose would be justified on the ground of conservation of property and securing the means of earlier liquidation.”
The courts have also said that, in determining whether a trust is taxable as a corporation, substance rather than form is to be regarded; but each case must be determined on its own facts.
In addition to the above eases, the Board of Tax Appeals and the courts have had occasion to pass upon this question in a variety of forms, sometimes emphasizing one test and sometimes another. See Blair v. Wilson Syndicate Trust (C. C. A.) 39 F.(2d) 43; Commissioner v. Atherton (C. C. A.) 50 F.(2d) 740; Commissioner v. Morriss Realty Co., supra; Dunbar v. Commissioner (C. C. A.) 65 F.(2d) 447; Ittleson v.Anderson, supra; Lansdowne Realty Trust v. Commissioner (C. C. A.) 50 F.(2d) 56; Tyson et al. v. Commissioner (C. C. A.) 54 F.(2d) 29; Crocker v. Malley, 249 U. S. 223, 39 S. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601; Burk-Waggoner Oil Association v. Hopkins, 269 U. S. 110, 46 S. Ct. 48, 70 L. Ed. 183; Investment Trust of Mutual Investment Co. v. Commissioner, 27 B. T. A. 1322; Morriss Realty Co. v. Commissioner, 23 B. T. A. 1076.
These do not by any means include all of the decisions of the court, or the Board of Tax Appeals, in which this question was involved, but they are sufficient to indicate how difficult it is to determine from them any absolute or conclusive test.
From the eases cited, however, it may be deduced that there is no law prohibiting trustees from carrying on business for profit; but if the trustees are given absolute control over the business and the eestuis qui trustent have no control, either over the trustees or the business, such a trust is not taxable as a corporation. If the purpose of the trust is a temporary one, as in the ease of liquidating a business, or under the trust the trustees are merely a means for the distribution of income or property, it is not taxable as a corporation.
We can, at least, start in this ease with the proposition that this was not a corporation or a partnership, and it was admitted that the surviving partners rejected both forms of conducting their business during the litigation with Helen W. Kelley.
While the trust here involved can be said to be an organized body without a charter, the main issue, as we view it, is not whether they conducted a business and for profit, but whether they conducted such business from 1925 to 1930 “upon the methods and forms used by incorporated bodies,” or as an organization “having the general form and mode of procedure of a corporation.”
While under the declaration of trust they could have used many of the forms and modes of procedure of a corporation, they did not do so during the continuance of the trust.
In the first place, it is admitted that the sole purpose in organizing the trust was a temporary one, viz., to bring to a conclusive binding determination the interest of Helen W. Kelley in the income of the enterprise. The government seeks to distinguish between motive and purpose; but while the motive for the creation of this trust was the demand of Helen W. Kelley for an accounting, the purpose of creating the trust is admitted to have been to secure a conclusive, binding determination of her interest, and, incidentally, during the pending litigation, to conduct the business along the same lines as under the partnership, with the trustees having full control.
Corporate forms are used ordinarily to secure continued existence of the entity; here, the purpose was temporary, and, as soon as accomplished, the trust was terminated and the partnership form revived. Under corporate forms the shareholders elect the directors and have certain control, at least, in a negative way, over the corporate property; here, the beneficiaries as such had no control over the trustees, nor did they elect them. Corporate shares of stock are transferable; here, the certificates to beneficiaries were not transferable, though the trustees who held them all could at a meeting make them transferable. Directors or stockholders under bylaws hold meetings for transacting the corporate business; here, there were no bylaws, nor were any meetings of the trustees ever held under the declaration of trust. Corporations are, in general, required to have at least three directors, in order that a majority may act; but here, there were only two trustees, and under a private trust all trustees must consent to any action unless otherwise stipulated in the trust agreement. Perry on Trusts (7th Ed.), § 413.
The determining factor in this ease, we think, is not what the trustees could have done under the declaration of trust, nor yet whether in carrying out the purpose for which the trust was created, the trustees were conducting a business and for profit; but the form and manner in which they proceeded in conducting the affairs which were intrusted into their hands during the existence of the trust. Gardiner v. United States, supra; Dunbar et al. v. Commissioner, supra; Lucas v. Extension Oil Co., supra; Commissioner v. Duckwitz (C. C. A.) 68 F.(2d) 629; Commissioner v. Pryor & Lockhart Development Co., supra, page 158 of 70 F.(2d).
In the last-cited case the court well stated the controlling factors in determining how “a body of persons” without a charier doing business should be treated in assessing an income tax :
“Where an entity of this kind resembles a corporation in some respects and that of a partnership in others — that frequently being the case — the features of similarity should be compared and the marks of dissimilarity contrasted. The resemblances should be balanced. It should be determined by that method the one to which the enterprise is predominantly akin in the method, mode, and form of procedure in the conduct of its business. If it be a corporation, it falls within that category; if a partnership, it should be placed in that class and should be taxed accordingly. Tyson v. Commissioner, supra. In Lucas, Commissioner, v. Extension Oil Co. (C. C. A.) 47 F.(2d) 65, 67, involving facts similar to those presented here, the court declared the applicable doctrine as follows:
“ “The Board of Tax Appeals in a careful opinion, balancing the resemblances which petitioner in its structure bore to a trust, against those which it bore to a corporation, and considering also the facts as to what the petitioner actually did, found as a fact and concluded as a matter of law that petitioner was not an association within the meaning of the taxing act, “voluntarily organized to transact business under corporate forms and transacting such business.”
“ ‘With this opinion we agree, for we think it plain that whether the matter be decided from the standpoint of an analysis and balancing of resemblances to corporate forms, in the light of what use the petitioner made of them, as was done by the board, or whether, these resemblances aside, the matter is decided, not upon the basis of the powers potentially held by the petitioner, but of those actually used by it, upon what it did, rather than upon what it could do, a regard for the realities of the ease before us permits no other decision.’ ”
To constitute a trust an association, and taxable as a corporation, there must be a body of persons associated together who aro (1) actually carrying on business for profit, and (2) under the usual forms and procedure of corporations. Both conditions must be present. On the admitted facts in this case, we find no errors of law in the decision of the Board.
The decision of the Board of Tax Appeals is affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
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.
ESTATE OF Nelson A. ROCKEFELLER, Deceased, Laurance S. Rockefeller, J. Richardson Dilworth and Donal S. O’Brien, Jr., Executors and Margaretta F. Rockefeller, Appellants. v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 1041, Docket 84-4182.
United States Court of Appeals, Second Circuit.
Argued April 22, 1985.
Decided May 24, 1985.
William E. Jackson, New York City (Stuart E. Keebler, Joseph M. Persinger, Milbank, Tweed, Hadley & McCloy, New York City), for appellants.
Glenn L. Archer, Jr., Asst. Atty. Gen., Washington, D.C. (Michael L. Paup, Richard Farber, Bruce R. Ellisen, Attys., Tax Div., Dept, of Justice, Washington, D.C.), for appellee.
Before FEINBERG, Chief Judge, and FRIENDLY and NEWMAN, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal by the Estate of Nelson A. Rockefeller and his widow from a decision of the Tax Court, 83 T.C. 368 (1984), Featherston, J., presents a new variation on the old theme of what constitutes “ordinary and necessary expenses paid or incurred ... in carrying on any trade or business,” I.R.C. § 162(a), which are deductible in determining net income. Appellants contended that expenses incurred by Mr. Rockefeller in connection with the confirmation by the Senate and the House of Representatives, pursuant to the Twenty-Fifth Amendment, of his nomination to be Vice President of the United States were such expenses. The Commissioner of Internal Revenue denied this, the Tax Court agreed, and this appeal followed. We affirm.
The case arises as follows: Mr. Rockefeller incurred expenses of $550,159.78 in connection with the confirmation hearings in 1974, primarily for legal and other professional services. The Commissioner does not contend that the expenses were excessive or unreasonable in relation to the services rendered. In their joint income tax return for 1974, which showed a gross income of $4,479,437, Mr. and Mrs. Rockefeller claimed a deduction of $63,275 — an amount of these expenses equal to his salary as Vice President during the year. When the Commissioner of Internal Revenue disallowed this deduction, Mr. Rockefeller’s estate and Mrs. Rockefeller petitioned for review by the Tax Court and asserted that the entire amount of $550,-159.78 was deductible as expenses of the trade or business of “performing the functions of public office.”
The case was submitted on a rather meagre stipulation of facts which cited only Mr. Rockefeller’s tenure as Governor of New York State between January 1959 and December 1973, when he resigned to devote his full time to the Commission on Critical Choices for Americans (1973-74) and the National Commission on Water Quality (1973-74), as showing the trade or business in which Mr. Rockefeller had engaged. However, copies of the hearings before and the reports of the Senate and House Committees on his nomination as Vice President were attached to the stipulation, and the Tax Court’s opinion lists other positions held by Mr. Rockefeller referred to in these hearings, as follows: Coordinator of Inter-American Affairs (1940-44), Assistant Secretary of State for American Republic Affairs (1944-45), Chairman of the Presidential Advisory Board on International Development (1950-51), Undersecretary of Health, Education and Welfare (1953-54), and Special Assistant to the President for International Affairs (1954-55). 83 T.C. at 374-75.
Discussion
Decision turns on the interpretation of the familiar provision of I.R.C. § 162(a), going back to the Revenue Act of 1918, which allows as a deduction
all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
Also relevant is I.R.C. § 7701(a)(26), adopted as § 48(d) of the Revenue Act of 1934, 48 Stat. 680, 696, ch. 277, which says:
The term ‘trade or business’ includes the performance of the functions of a public office.
Almost all discussions of the problem here at issue begin, and many of them end, with McDonald v. C.I.R., 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed.2d 68 (1944), although in fact it sheds a most uncertain light. McDonald had been appointed to serve an unexpired term as judge on a Pennsylvania court, carrying an annual salary of $12,000, with the understanding that he would be a contestant in the ensuing primary and general elections for a full term of ten years. To obtain the support of his party organization, he was forced to pay an “assessment” of $8,000, which was to be used for the support of the entire ticket; he spent an additional $5,017.27 for expenses of his own campaign. The Commissioner disallowed the deduction of both amounts. The Tax Court affirmed, 1 T.C. 738 (1943), as did a sharply divided Supreme Court. The bases for the decision are not altogether clear. At one point Justice Frankfurter emphasized that McDonald’s “campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” 323 U.S. at 60, 65 S.Ct. at 97. Perhaps fearing that this being-becoming distinction would cut too widely, Justice Frankfurter elaborated other factors. One was that allowance of a deduction for the assessments paid by McDonald would lead to deductions by persons who were not candidates but paid “such ‘assessments’ out of party allegiance mixed or unmixed by a lively sense of future favors,” id., a proposition which would not necessarily follow and which in any event would not explain the disallowance of McDonald’s own campaign expenses. This was followed by a sentence, again emphasizing the being-becoming distinction but with a different thought added for good measure, 323 U.S. at 60-61, 65 S.Ct. at 97:
To determine allowable deductions by the different internal party arrangements for bearing the cost of political campaigns in the forty-eight states would disregard the explicit restrictions of § 23 confining deductible expenses solely to outlays in the efforts or services — here the business of judging — from which the income flows. Compare Welch v. Helvering, 290 U.S. 111, 115-116 [54 S.Ct. 8, 9, 78 L.Ed.2d 212 (1933)].
After disposing of arguments based on what are now I.R.C. § 165 and § 212(1), he continued with some observations concerning the increased public hostility to campaign contributions by “prospective officeholders, especially judges,” and then concluded on two notes. One was that, 323 U.S. at 63-64, 65 S.Ct. at 98-99:
To find sanction in existing tax legislation for deduction of petitioner’s campaign expenditures would necessarily require allowance of deduction for campaign expenditures by all candidates, whether incumbents seeking reelection or new contenders. To draw a distinction between outlays for reelection and those for election — to allow the former and disallow the latter — is unsupportable in reason. It is even more unsupportable in public policy to derive from what Congress has thus far enacted a handicap against candidates challenging existing office holders. And so we cannot recognize petitioner’s claim on the score that he was a candidate for reelection,
(footnote omitted). The other was the desirability of according special deference to the Tax Court’s determination on a matter of the sort subjudice, id. at 64-65, 65 S.Ct. at 99. The Supreme Court has not had subsequent occasion to revisit the field plowed in McDonald.
The courts have echoed the various themes sounded in McDonald. Some decisions have stressed the being-becoming distinction; see, e.g., Diggs v. C.I.R., 715 F.2d 245, 250 (6 Cir.1983). Others have emphasized the policy argument against deduction of campaign expenses, namely, that allowing such deductions would involve the whole community in partial subsidization of the electoral expenses of a particular candidate — a subsidy that would pay a larger amount of the campaign expenses of high than of low bracket candidates. See, e.g., James B. Carey, 56 T.C. 477, 479-81 (1971), aff'd per curiam, 460 F.2d 1259 (4 Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 325, 34 L.Ed.2d 257 (1972). The appellants distinguish the latter cases, stressing that the expenses here at issue were not incurred in an election in which Mr. Rockefeller was pitted against another citizen but in a confirmation in which he was the only candidate. However, the policy argument in McDonald is only dubiously applicable to Campbell v. Davenport, 362 F.2d 624, 626 (5 Cir.1966), Nichols v. C.I.R., 511 F.2d 618 (5 Cir.) (en banc), cert. denied, 423 U.S. 912, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975), and Levy v. United States, 535 F.2d 47, 26 Ct.Cl. 97, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976), disallowing the deduction of small qualification fees payable by any candidate to his party to help to defray the costs of conducting the primary election and of which “[n]o part ... was used to espouse the causes of party candidates in the general election.” Nichols, supra, 511 F.2d at 619. Further support for the Commissioner’s position can be found in Joseph W. Martino, 62 T.C. 840, 844 (1974), disallowing deduction of legal fees incurred by a successful primary candidate in defending his victory against an election contest suit filed by his opponent; Martino, like Mr. Rockefeller, was not seeking the suffrage of the people as against another candidate.
Appellants’ principal argument is that a post-McDonald decision of the Tax Court, in which the Commissioner has acquiesced, David J. Primuth, 54 T.C. 374 (1970), has undermined the being-becoming distinction. Primuth, the secretary-treasurer of a small corporation, Foundry Allied Industries, enlisted the aid of a “head-hunter” organization to find him a better job. This work resulted in his employment as “secretary-controller” of a company with greater geographical scope. The Tax Court held that the fees and expenses paid to the headhunter organization were deductible under I.R.C. § 162.
Judge Sterrett’s opinion for a plurality took off from the proposition that “a taxpayer may be in the trade or business of being an employee, such as a corporate executive or manager,” 54 T.C. at 377, rather than or in addition to the trade or business of holding a particular job, citing numerous cases including our own Hochschild v. C.I.R., 161 F.2d 817 (1947). With that established, Judge Sterrett believed that “the problem presented ... virtually dissolve[d] for it is difficult to think of a purer business expense than one incurred to permit such an individual to continue to carry on that very trade or business — albeit with a different corporate employer.” 54 T.C. at 379. However, he proceeded to emphasize the relatively narrow scope of the decision, id.:
Furthermore, the expense had no personal overtones, led to no position requiring greater or different qualifications than the one given up, and did not result in the acquisition of any asset as that term has been used in our income tax laws. It was expended for the narrowest and most limited purpose. It was an expense which must be deemed ordinary and necessary from every realistic point of view in today’s marketplace where corporate executives change employers with a noticeable degree of frequency. We have said before, and we say again, that the business expenses which an employee can incur in his own business are rare indeed. Virtually all his expenses will be incurred on behalf of, and in furtherance of, his corporate employer’s business. What we have here, however, is an exception to that rule.
(footnote omitted). Judge Tannenwald, joined by three other judges, concurred: they were concerned over the “subtle distinctions” which they saw developing in the deduction of employment agency fees and suggested that “everyday meaning” should be the touchstone in interpreting § 162. 54 T.C. at 382. In a separate concurring opinion, Judge Simpson took issue with language in the plurality opinion which he feared might confine the decision to cases where the taxpayer actually secured a new job. Id. at 383. Judge Featherston’s concurrence placed greater weight on a Revenue Ruling that explicitly “allow[ed] deductions for fees paid to employment agencies for securing employment.” Id. at 384. Six judges dissented. The Department of Justice rejected the Commissioner’s request for an appeal and the Commissioner acquiesced in the result, 1972-2 Cum.Bul. 2 (1972).
In Leonard F. Cremona, 58 T.C. 219 (1972), a majority of the Tax Court rejected an attempt by the Commissioner to contain Primuth to cases where the employee had in fact obtained a new position. Again the Department of Justice declined a request to appeal and the Commissioner acquiesced, 1975-1 Cum.Bul. 1 (1975).
However, the erosion of the being-becoming distinction effected by Primuth and Cremona and the Commissioner’s acquiescence in these decisions was partial only. The Tax Court, with the approval of the courts of appeals, has limited deductibility to cases where the taxpayer was seeking employment in the same trade or business. Moreover, the courts have insisted on a high degree of identity in deciding the issue of sameness. Thus, in William D. Glenn, 62 T.C. 270 (1974), the court found that the broader scope of activities permitted in Tennessee to certified public accountants as compared with public accountants made the former a new trade or business and, in consequence, that the expense of taking a review course designed to assist the taxpayer in qualifying for certification was not deductible. Similarly, being a registered pharmacist constitutes a different trade or business than being an intern pharmacist, so that expenses of attending courses on pharmacology were not deductible, Gary Antzoulatos, T.C.Memo. 1975-327 (1975). In Joel A. Sharon, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9 Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979), the Tax Court disallowed an IRS attorney’s deductions for expenses related to taking the California bar examination. The court found that these expenditures would permit the taxpayer to engage in the new “trade or business” of the general practice of law in the State of California. The Ninth Circuit agreed with the Tax Court’s reasoning that private practice involved “significantly different tasks and activities” from those required of an IRS lawyer, 591 F.2d at 1275. See, to the same effect, Joseph J. Vetrick, T.C. Memo. 1978-83 (1978), aff'd, 628 F.2d 885 (5 Cir.1980). The Tax Court has also disallowed a deduction for helicopter training expenses by an airline pilot. Edward C. Lee, T.C. Memo. 1981-26 (1981), aff'd on other grounds, Lee v. C.I.R., 723 F.2d 1424 (9 Cir.1984). The court found that “a helicopter pilot is in a different trade or business than is an airline pilot” and, since the taxpayer flew only fixed-wing aircraft in his current employment, “the helicopter flight training [led] to Mr. Lee’s qualification in a new trade or business.” Joseph Sorin Schneider, supra, T.C. Memo. 1983-753 (1983), denied a deduction sought by a taxpayer who had resigned from the U.S. Army with a captain’s commission and who later, after graduation, entered the business world as a consultant, for amounts spent in applying to graduate schools, in getting the graduate degrees of M.B.A. and M.P.A. at Harvard, and in seeking a summer job in Europe. The court said that the taxpayer’s business had been that of an Army officer and rejected his claim that he had been in the business of being a “manager” — a claim strongly resembling the one made here that Mr. Rockefeller was in the business of being “a governmental executive.” In Roger Eugene Evans, T.C. Memo. 1981-413 (1981), the court denied'a deduction for job seeking expenses to a taxpayer who had been in the Air Force for 22V2 years and had risen to the rank of Lieutenant Colonel and the post of special assistant to the commander of an Air Force base. The court was convinced that “petitioner’s service as an Air Force officer cannot be compared to any employment he might have obtained outside the Air Force” and that while he “undoubtedly sought employment that would utilize the skills he had acquired during his military career, he [had] failed to show that there would not be substantial differences between the employment he sought to obtain in the private sector and his service as an Air Force officer.” In sum, the Tax Court’s decisions have adopted what Judge Tannenwald, in his concurring opinion in Primuth, characterized as “the simple test of comparing the position which the taxpayer occupied before and after the change,” 54 T.C. at 382, and conform to the statement in Kenneth C. Davis, 65 T.C. 1014, 1019 (1976), that “[i]f substantial differences exist in the tasks and activities of various occupations or employments, then each such occupation or employment constitutes a separate trade or business.”
Appellants’ brief uses a number of different phrases to describe Mr. Rockefeller’s trade or business at the time of his nomination to be Vice President — “an executive in federal and state governments” (p. 8); “an executive in public office” (p. 8); “an executive in public service” (p. 17); and “a governmental executive” (p. 22). In fact, the only public posts Mr. Rockefeller held at the time of his nomination were the chairmanships of two commissions, posts in which he had no executive duties. One of these, the National Commission on Water Quality was created by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, to review water pollution control methods and issue a report to Congress recommending modifications. Although Mr. Rockefeller was elected chairman by the other members when he joined the Commission while still Governor of New York, the record reveals almost nothing about his activities there. The Commission on Critical Choices for Americans was an idea of Mr. Rockefeller’s. It was not a governmental body, although its membership included some members of Congress and of the executive branch. Since federal funding was denied, the Commission was funded from private sources and foundation grants. If only these two activities were to be considered, it would be plain beyond all argument that holding the chairmanship of these Commissions and being Vice President are not the same trade or business but rather separate trades or businesses, if indeed membership on the commissions, particularly the Commission on Critical Choices, was a trade or business at all.
However, a taxpayer who is unemployed when the expenses are incurred is “viewed as still engaged in the business of providing the type of services performed for [his] prior employer, unless ‘there is a substantial lack of continuity between the time of [the employee’s] past employment and the seeking of the new employment.’ ” 1 Bittker, Federal Taxation of Income, Estates and Gifts § 20.4.6, at 20-85 to 20-86 (1981), quoting Rev.Rul. 75-120, 1975-1 Cum.Bul. 55, at 56; see, 4A Mertens, The Law of Federal Income Taxation § 25.08, at 33 (1985) (taxpayer’s “trade or business [does] not cease to exist during a reasonable period of transition”). See also Stephen G. Sherman, supra, T.C. Memo. 1977-301. Appellants urge that this principle allows us to look to Mr. Rockefeller’s fifteen years of service as Governor of New York in considering whether the confirmation expenses on his nomination to be Vice President were in connection with the continuation of the same trade or business. We disagree, for two reasons. In order to take advantage of what is called the “hiatus” principle, a taxpayer must at least show that during the hiatus he intended to resume the same trade or business. See Sherman, supra, T.C. Memo. 1977-301. There is no such showing here. Mr. Rockefeller clearly did not intend to run again for Governor after having resigned that office after holding it for fifteen years. Indeed, the stipulation states that Mr. Rockefeller resigned the governorship “to devote his full time to the Chairs” of the two commissions, and there is nothing to suggest that he was contemplating holding executive public office again. The Vice Presidency became available only due to the resignation of President Nixon in the summer of 1974 — an event that was not foreseeable until shortly before it occurred. We also cannot fault the Tax Court’s holding that being governor of the second most populous state in the union and being Vice President of the United States are not the same trade or business in the narrow sense in which sameness has been consistently characterized. While there are certain areas of overlap, the governorship entails many duties — enforcement of the laws of the state, developing and promoting new laws, supervising a multitude of departments and agencies having thousands of employees and spending billions of dollars, proposing and securing the passage of a budget and the revenues needed to meet it, making appointments, and lobbying for the interests of the state with the Federal Government — which either find no counterparts in the Vice Presidency or find them only to the extent, usually quite limited, which the President has directed. On the other hand, the Vice Presidency involves many duties not found in the governorship of New York — presiding over the Senate, acting on behalf of the President on ceremonial occasions both within and without the United States, and executing special assignments by the President — not to speak of the Vice President’s most important task, readying himself for the possibility of assuming the Presidency on a moment’s notice. Although positions with somewhat different duties and responsibilities may be found to be within the same trade or business, whether in public or private employment, the Tax Court’s finding that the Vice Presidency involved a trade or business for Mr. Rockefeller different from any in which he was engaged at the time of his nomination is not one that we are free to disturb, see I.R.C. § 7482(a).
Appellants ask us to take a still broader view and consider Mr. Rockefeller as having been engaged in the same trade or business since his appointment as Coordinator of Inter-American Affairs in 1940. But the cases do not recognize a definition of “trade or business” wide enough to bring all Mr. Rockefeller’s various posts within it. While there might be sufficient resemblance and continuity between the posts of Coordinator of Inter-American Affairs which Mr. Rockefeller held between 1940 and 1944 and that of Assistant Secretary of State for American Republic Affairs which he held between 1944 and 1945 to have qualified him as being in the business of being a public servant with special interest and expertise in Latin America, we see little resemblance between these positions and his service as Undersecretary of Health, Education and Welfare in 1953 and 1954 or as Governor of New York between 1959 and 1973. Furthermore there are substantial gaps between Mr. Rockefeller’s various posts — five' years between 1945 and 1950, one and one-half years between 1951 and 1953, three years between 1955 and 1958 — far longer than the “hiatus” theory would recognize. See, e.g., Canter v. United States, 354 F.2d 352, 173 Ct.Cl. 723 (1965) (taxpayer who discontinued nursing activities for more than four years held not to retain status of being in the trade or business of nursing); Peter G. Corbett, 55 T.C. 884 (1971). See also Rev.Rul. 68-591, 1968-2 Cum.Bul. 73 (1968) (“Ordinarily, a suspension [of employment] for a period of a year or less, after which the taxpayer resumes the same ... trade or business, will be considered temporary”). Our reading of the record shows Mr. Rockefeller as a distinguished and public-spirited citizen, ready, for a third of a century, to put his great abilities at the disposal of the government in both appointive and elective office. While he was, of course, entitled to deduct unreimbursed expenses incurred in performing the functions of any of the many offices he held, I.R.C. § 7701(a)(26), the Tax Court was warranted in holding that he had not engaged in any trade or business comparable to the Vice Presidency, within the rather narrow sense which the courts have reasonably given to the concept of identity. We therefore have no occasion to decide whether the “policy” reasons underlying the decisions disallowing expenses incurred in elections apply to expenses incurred in seeking confirmation to an appointive office which would seem to be properly regarded as the same trade or business, or whether if they generally do not, there are special considerations for applying them to the unusual bicameral confirmation required by the Twenty-Fifth Amendment which the Commissioner characterizes as the equivalent of an election.
The judgment of the Tax Court is affirmed.
. Mrs. Rockefeller’s involvement arises solely because she and Mr. Rockefeller filed a joint return.
. The Senate and Conference Committee Reports describe this addition as "clerical” and "declaratory of existing law,” S.Rep. No. 558, 73d Cong., 2d Sess. at 29; H.R.Rep. No. 1385, 73d Cong., 2d Sess. at 17 (Conference Report) (1934). A discussion before the Senate Committee on Finance suggests that the primary reason for the provision was to overcome doubts whether Senators were engaged in a "trade or business” so as to permit deduction for extra staff and telephone expenses. 1 Hearings before Committee on Finance on H.R. 7835, 73d Cong., 2d Sess. (March 6, 1934), p. 29-30. The Ninth Circuit has said that § 48(d) was adopted to modify the general rule that “in order for an activity to be considered a trade or business under Section 162 it must be engaged in for profit.” Frank v. United States, 577 F.2d 93, 95 (9 Cir.1978). The court cited Jackling v. C.I.R., 9 B.T.A. 312, 320 (1927), as the "best statement of the [existing] law" with respect to public offir cers, which the amendment was said to have codified. In Jackling, the Board of Tax Appeals allowed business deductions by a war-time government employee whose salary was only one dollar a year and rejected the Commissioner’s argument that the expenses were not deductible because the taxpayer’s employment was not profit motivated. Further support for this reading of § 48(d) can be found in Revenue Ruling 55-109, 1955-1 Cum.Bul. 262 (1955), in which the Commissioner interpreted the section as allowing a public office to be treated as a trade or business “even though the incumbent thereof may serve without compensation, a factor which is ordinarily regarded as a prerequisite to the pursuit of a trade or business."
. Justice Frankfurter delivered a plurality opinion for himself, Chief Justice Stone and Justices Roberts and Jackson. Justice Rutledge concurred in the result. Justice Black dissented for himself and Justices Reed, Douglas and Murphy. It may not be altogether accidental that three of the dissenters had held elective office, an experience not shared by any member of the plurality.
It should be noted that the dissenters did not disagree with the plurality’s conclusion that the amounts were not "ordinary and necessary expenses of a trade or business”; they argued rather that the expenses came within what is now § 212(1), adopted in 1942 to overrule Higgins v. C.I.R., 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941), which allowed deduction of "the ordinary and necessary expenses [of an individual] paid or incurred ... for the production or collection of income.”
. The force of this distinction between election and confirmation expenses is debatable. Mr. Rockefeller’s expenses included not simply amounts incurred in preparing answers to questions of Senators and Representatives but also amounts incurred, with entire propriety, in convincing Congress that he was a good selection for Vice President. Nomination of Nelson A. Rockefeller to be Vice President of the United States: Hearings before the House Comm, on the Judiciary, 93d Cong., 2d Sess., pp. 1-3 (1974). While Mr. Rockefeller was not in direct contest with anyone, others were waiting in the wings if Congress was not so convinced. For reasons developed below, we are not required to pass on the force of the distinction.
. Most of these cases concerned education expenses, as to which there is a regulation, Treas. Reg. § 1.162-5 (1960). This elaborates on the statute by defining a specific type of deductible expenses, § 1.162-5(a)(2), and by prohibiting the deduction of expenses incurred in order to attain minimum educational requirements for a position, § 1.162-5(b)(2), and expenses for a program of study leading to qualification in a new trade or business, § 1.162-5(b)(3). However, the Tax Court cites education cases in decisions regarding other types of expenses incurred in obtaining a new position, see, e.g., Primuth, supra, 54 T.C. at 378; Joseph Sorin Schneider, T.C. Memo. 1983-753 (1983).
. Although the court quoted Treas.Reg. § 1.162-5, including the minimum educational requirement, § 1.162-5(b)(2), it did not base its decision upon that section.
. The court distinguished Stephen G. Sherman, T.C.Memo. 1977-301 (1977), which had allowed deduction of expenses of attending the Harvard Business School by a taxpayer who had been employed as a civilian by the Army and Air Force Exchange Service as chief of its Plans and Programs office and, after, graduating and applying unsuccessfully for reinstatement to his former job, was hired by private industry as a director of planning and research.
. The members of the Commission on Water Quality who were not officers or employees of the United States were paid by the Government on a per diem basis, 33 U.S.C. § 1325(f); it does not appear whether Mr. Rockefeller accepted such payments, at least for the period when he was Governor of New York. The record is silent with respect to what salary, if any, was paid to Mr. Rockefeller as Chairman of the Commission on Critical Choices for Americans.
. E.g., a judge of a federal district court nominated to a court of appeals, a judge of a state court nominated to a federal court, or a foreign service officer nominated to be an ambassador.
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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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
Edward BUNDY, Jr., Plaintiff, Appellant, v. Richard A. WILSON, Superintendant, Cheshire County House of Correction, Defendant, Appellee.
Bryan COLPITT, Plaintiff, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison, Defendant, Appellee.
Nos. 86-1703, 86-1831.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1987.
Decided March 20, 1987.
James E. Duggan with whom Joanne Green, Appellate Defender Program, Concord, N.H., was on brief for plaintiffs, appellants.
John S. Davis with whom Stephen E. Merrill, Atty. Gen., and Robert B. Muh, Asst. Atty. Gen., Criminal Justice Bureau, Concord, N.H., were on brief for defendants, appellees.
Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge and GIGNOUX, Senior District Judge.
Of the District of Maine, sitting by designation.
BOWNES, Circuit Judge.
In these consolidated cases, convicted felony defendants, Edward Bundy, Jr., and Bryan Colpitt, challenge the constitutionality of New Hampshire’s appellate process for criminal defendants. Appellants contend that their due process rights were violated because the New Hampshire Supreme Court disposed of their appeals without granting them access to an adequate trial record and a meaningful opportunity to persuade the court that their appeals should be accepted.
I.
Appellant Bryan Colpitt was convicted of robbery following a two-day jury trial in Strafford County Superior Court. He was sentenced to serve two and one-half to five years in the state prison. Colpitt filed a timely notice of appeal in the New Hampshire Supreme Court. Colpitt’s notice of appeal raised six issues, including the trial court’s refusal to conduct a mid-trial hearing on his competency and its failure to strike three misstatements of the evidence allegedly made by the prosecution during closing argument.
Appellant Edward Bundy was convicted of automobile theft by a jury in Cheshire County Superior Court. He was sentenced to twelve months in jail, with all but thirty days suspended. Bundy filed a notice of appeal challenging the sufficiency of the evidence and the alleged encroachment of the trial judge into the province of the jury by virtue of his answering “No” to its mid-deliberation question: “Does the law read that a person has to be driving a car to be charged with theft?”
The notices of appeal filed by Bundy and Colpitt were reviewed by the New Hampshire Supreme Court. The court disposed of their petitions for review in accordance with New Hampshire Supreme Court Rule 7(1), which provides: “The supreme court may, in its discretion, decline to accept an appeal from a lower court after a decision on the merits, or may summarily dispose of such an appeal as provided in rule 25.” The court chose to dispose of appellants’ petitions for review by issuing a “declination of acceptance order.” Such an order issues when the New Hampshire Supreme Court “does not deem it desirable to review the issues in a case____” N.H.Sup.CtR. 3. A declination of acceptance order disposes of a defendant’s appeal without any implication regarding the court’s views on the merits of the claim; it simply permits the decision of the lower court to stand undisturbed. The New Hampshire Supreme Court issues its declination of acceptance order on the basis of the notice of appeal. A transcript normally does not accompany the notice of appeal. See N.H.Sup.Ct.R. 15; Douglas, Summary Disposition The New Hampshire Supreme Court’s Innovative and Unique Approach to Appellate Case Processing, 27 N.H.B.J. 211, 215-16 (1986).
Both appellants sought reconsideration of the supreme court’s declination of acceptance orders. Their motions were denied without explanation. They then sought habeas relief in the United States District Court for the District of New Hampshire under 28 U.S.C. § 2254 (1982). Appellants advanced the same issues in their habeas petitions as they had raised in their notice of appeal to the New Hampshire Supreme Court, plus an additional claim challenging the constitutionality of the declination process.
The district court ordered the State of New Hampshire to produce a transcript of both proceedings. Both appellants, after reviewing the transcripts of their respective trials, conceded that some of the issues they had pressed to the supreme court and the district court were without merit. Col-pitt, however, continued to urge that he was erroneously denied a competency hearing by the trial court. The district court, however, upheld the trial judge’s refusal to hold a competency hearing, noting that this decision was “amply supported by record evidence.” Bundy dropped his sufficiency of the evidence claim, but continued to assert that the trial court had impermissibly invaded the province of the jury by answering “No” to the question of whether a defendant must be driving a stolen car to be guilty of automobile theft. Bundy argued that the judge’s answer constituted a resolution of the factual issue of whether Bundy exercised sufficient control over the car to be guilty of theft. The district court held that the jury’s question did not reflect any uncertainty regarding a factual issue, but was merely a request for guidance “as to whether it was permissible to find [Bun-dy] guilty if he had not driven the automobile.”
Neither Bundy nor Colpitt succeeded in persuading the district court that New Hampshire’s criminal appellate process was unconstitutional, 638 F.Supp. 1277. Both appealed the district court’s denial of habe-as relief. The cases were consolidated by order of this court on September 12, 1986.
II.
The fundamental issue is whether the New Hampshire Supreme Court’s declination of appeals procedure comports with the strictures of due process. Appellants aver that, at a minimum, due process requires that criminal defendants whose liberty is at stake be afforded a trial transcript or sufficient substitute therefor and the right to submit a written argument to persuade the supreme court to hear their cases on the merits. Appellants contend that they cannot adequately present — nor can the supreme court fairly decide whether to accept — their appeals, without an opportunity to consult a transcript and marshal in writing the salient facts.
In its appellate brief to this court, the state has conceded the following:
(1) the New Hampshire Supreme Court misapplied its own rules in declining to review appellant Colpitt’s conviction;
(2) due process principles apply to the court’s system of discretionary appellate review;
(3) in certain circumstances, due process requires, upon a sufficient showing of need, that an appellant be afforded an opportunity to review and present to the court relevant portions of the transcript of his trial prior to the court’s decision whether to accept the appeal;
(4) appellant Colpitt, with respect to the issue of the competency hearing, made such a showing of need in his notice of appeal and his motion to reconsider declination of appeal; and
(5) the New Hampshire Supreme Court violated appellant Colpitt’s rights to due process of law when it issued its declination order.
Brief for the State at-.
The State thus concedes that the New Hampshire Supreme Court denied appellant Colpitt due process by failing to afford him access to a transcript in order to prepare and present his request for appellate review. Moreover, the State implies that there may be other circumstances in which due process would require providing criminal defendants with a transcript in order to have a meaningful opportunity to persuade the court to accept their appeals. But while the State concedes that there will be instances in which the normal operation of New Hampshire’s declination of acceptance procedure will lead to due process violations, it does not share appellants’ view that there is a systemic constitutional infirmity. Indeed, the State hints that the principal cause of Colpitt’s due process violation was the New Hampshire Supreme Court’s “misapplication of its own rules.” This is a far cry from appellants’ contention that constitutional defects inhere in the regular application of those rules.
In short, the State has conceded only that, as applied to appellant Colpitt, New Hampshire’s declination of acceptance procedure violates due process. The State has made no such concession with respect to appellant Bundy. His challenge to the constitutionality of New Hampshire’s system of appeals for criminal defendants is unaffected by the State’s concession. Thus, notwithstanding the State’s posture toward appellant Colpitt, our inquiry must still focus on whether the New Hampshire declination of acceptance procedure, as presently administered, violates due process.
III.
Virtually every state in the country, as well as the District of Columbia and the Commonwealth of Puerto Rico, grants felony criminal defendants an automatic right to at least one full appeal on the merits. Most states provide criminal defendants with automatic review in an intermediate court of appeals. The supreme court in these states generally has discretion to accept cases after they have been reviewed by the intermediate court of appeals. States which do not have two tiers of appellate review provide criminal defendants with an appeal as of right to the state supreme court. Virginia and West Virginia are the only other states besides New Hampshire which do not provide felony criminal defendants with an automatic right to an appeal on the merits. The procedural protections afforded a criminal appellant in those states, however, underline the solitariness of the New Hampshire system. In Virginia and West Virginia, a criminal appeal cannot be rejected until an appellate court has fully examined the relevant portions of the record and the defendant has been given a chance to persuade a court of review, both orally and in writing, to hear the case.
New Hampshire is the only state in the nation which does not guarantee to all felony criminal defendants, at a minimum, access to a transcript and an opportunity for argument before disposition of their appeals. The New Hampshire Supreme Court may dispose of a criminal appeal solely on the basis of the information in the notice of appeal. The notice of appeal requires the putative appellant to set forth:
(1) A “brief description” of the nature of the case and the result.
(2) The statute on which the case was based.
(3) The “specific questions to be raised on appeal, expressed in terms and circumstances of the case but without unnecessary detail.”
(4) A list of cases supporting the mov-ant’s position.
There may also be attached to the notice of appeal copies of pertinent pleadings, motions, legal memoranda, statutory and constitutional texts, trial court rulings, and any other relevant documents. The notice of appeal does not ask for a statement of reasons or argument on the question of why an appeal should be accepted.
Once the notice of appeal has been filed, the New Hampshire Supreme Court utilizes a screening procedure to determine whether or not to hear the case on its merits. “The standard governing the making of a declination decision is one of sound judicial discretion with respect to the desirability of our hearing and deciding the case.” State v. Cooper, 127 N.H. 119, 125, 498 A.2d 1209, 1214 (1985). A single justice is assigned to review the notice of appeal and recommend whether to accept the case, decline it, or summarily dispose of it pursuant to New Hampshire Supreme Court Rule 25. Douglas The New Hampshire Supreme Court’s Approach to Appellate Case Processing, 27 N.H.B.J. at 215. The other four justices on the supreme court subsequently review the recommendation of the screening justice. If the screening justice suggests that the appeal be declined, his recommendation will be upheld unless one of the other four justices disagrees.
The New Hampshire Supreme Court recently considered a challenge to the constitutionality of its own procedures for criminal appeals in State v. Cooper, 127 N.H. 119, 498 A.2d 1209. The appellants-defendants in Cooper claimed that the New Hampshire rules permitted the supreme court to decline appeals arbitrarily and capriciously simply by invoking a vague standard of “desirability.” They also argued that the declination of acceptance procedure fostered an irrational distinction between meritorious and nonmeritorious appeals. Finally, the Cooper appellants asserted that the declination procedure inhibits counsel from effectively assisting criminal defendants who seek review in the New Hampshire Supreme Court.
The Cooper court stated that New Hampshire instituted a discretionary system of appellate review because the supreme court’s case load had “mushroomed in recent years.” 127 N.H. at 126, 498 A.2d at 1214. The court correctly recognized that the Constitution does not grant a criminal defendant the right to an appeal. 127 N.H. at 122, 498 A.2d at 1212. Accord Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977); McKane v. Durston, 153 U.S. 684, 687-88, 14 S.Ct. 913, 914-15, 38 L.Ed. 867 (1894). It also properly noted that New Hampshire’s criminal appeals system must comport with the strictures of due process. State v. Cooper, 127 N.H. at 122, 498 A.2d at 1212. There can be no question that a discretionary criminal appeals system is subject to the requirements of due process: “[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution — and, in particular, in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 838, 83 L.Ed.2d 821 (1985).
After acknowledging that New Hampshire’s discretionary system of criminal appeals was subject to federal due process standards, the state supreme court indicated that those standards were less rigorous when applied to New Hampshire because its system of criminal appeals is discretionary rather than automatic. State v. Cooper, 127 N.H. at 123, 498 A.2d at 1213. The state supreme court cited Evitts and Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), as support for this proposition. In Ross, the Supreme Court ruled that due process and equal protection did not require the State of North Carolina to provide an indigent defendant with counsel in a discretionary appeal to the state supreme court. Vital to the Court’s reasoning was its recognition that North Carolina did provide counsel to criminal defendants who pursued their automatic right of appeal to the state’s intermediate appellate court. Id. at 613-16, 94 S.Ct. at 2445-47. Thus, the crucial distinction advanced in Ross is not between discretionary appellate systems and automatic appellate systems. Rather, the key difference considered in both Evitts and Ross concerned the nature of constitutional protections in a single system which employed both a first appeal as of right to an intermediate court, and a subsequent discretionary appeal to the state supreme court. Evitts v. Lucey, 469 U.S. at 401-02, 105 S.Ct. at 835-36; Ross v. Moffit, 417 U.S. at 613-16, 94 S.Ct. at 2445-47. Indeed, the distinction between a first appeal of right and subsequent discretionary appeal within the same appellate system has been made by the Court in other cases. United States v. MacCollum, 426 U.S. 317, 324, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976); Douglas v. California, 372 U.S. 353, 356, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963). The Court, however, has not drawn a line between discretionary appellate systems and automatic appellate systems for the purpose of gauging the degree of due process protection owed a criminal appellant.
After asserting that discretionary appellate systems are subject to a less rigorous due process standard than automatic appellate systems, the Cooper court defended the constitutionality of the New Hampshire system by noting that its standards for acceptance of an appeal are similar to those utilized by the state supreme courts in Illinois and Tennessee. State v. Cooper, 127 N.H. at 126-27, 498 A.2d at 1215. The New Hampshire Supreme Court, however, failed to note that both of those states provide a criminal defendant with a first appeal as of right to an intermediate court of appeals. Thus, the court again drew a conclusion regarding single-tiered discretionary appellate systems based on jurisdictions with multi-tiered appellate systems which provided criminal defendants with at least one appeal as of right.
We must note our disagreement with the New Hampshire Supreme Court’s conclusion that single-tiered discretionary appellate systems are subject to less rigorous due process strictures than multi-tiered appellate systems providing at least one appeal of right. The issue of whether the instant appellants are entitled to a transcript and an opportunity to persuade the state supreme court to accept their appeals does not turn on whether New Hampshire’s appellate system is discretionary or automatic. The pertinent due process question is whether criminal appellants in New Hampshire are provided “an adequate opportunity to present their claims fairly within the adversary system.” Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1094, 84 L.Ed.2d 53 (1985) (quoting Ross v. Moffit, 417 U.S. at 612, 94 S.Ct. at 2444). We turn now to this question.
IV.
The fourteenth amendment’s due process guarantee of fundamental fairness requires states to provide a criminal defendant with “the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Ake v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The Supreme Court has stated that it is a criminal defendant’s “access to the record which makes any appellate review mean-ingful____” Gardner v. California, 393 U.S. 367, 368, 89 S.Ct. 580, 581, 21 L.Ed.2d 601 (1969). Accordingly, “there can be no doubt that the State must provide an indigent defendant with a transcript when that transcript is needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). Accord Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The Court also has emphasized that the holdings in the line of cases that began with Griffin, involving a criminal defendant’s right of access to a transcript, are rooted firmly in both the due process and equal protection clauses of the fourteenth amendment. Evitts v. Lucey, 469 U.S. at 403-04,105 S.Ct. at 839-40.
It is clear that the Court regards access to a transcript as an essential element for ensuring that a criminal appellant has “an adequate opportunity to present his claims fairly in the context of a State’s appellate process.” Id. at 402, 105 S.Ct. at 839. Decisions of circuit courts of appeals in this area affirm this assessment. See, e.g., Byrd v. Wainwright, 722 F.2d 716 (11th Cir.) (criminal defendant has a constitutional right to a transcript in order to petition the state supreme court for discretionary review of his conviction), cert. denied, 469 U.S. 869, 105 S.Ct. 217, 83 L.Ed.2d 147 (1984); Thompson v. Housewright, 741 F.2d 213 (8th Cir.1984); Oliver v. Zimmerman, 720 F.2d 766 (3d Cir.1983), cert. denied, 465 U.S. 1033, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984); United States ex rel. Burton v. Greer, 643 F.2d 466 (7th Cir. 1981); United States ex rel. Buford v. Henderson, 524 F.2d 147 (2d Cir.1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1133, 47 L.Ed.2d 332 (1976).
Having identified the constitutional significance which the Court attaches to a criminal appellant’s access to a transcript, we turn now to an evaluation of whether New Hampshire’s declination of appeals procedure violates due process.
V.
The Supreme Court has identified three distinct factors that must be considered when evaluating a claim of due process deprivation. First, the private interest that is affected by the official action. Second, the risk of an erroneous deprivation caused by the procedures used, and the probable value, if any, of additional procedural safeguards. Third, the governmental interest at stake, including the function involved and the fiscal and administrative burden engendered by additional procedural requirements. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
A.
The private interest at stake here is the appellants’ “opportunity to participate meaningfully in a judicial proceeding in which [their] liberty is at stake.” Ake v. Oklahoma, 470 U.S. at 76, 105 S.Ct. at 1093. The appellants seek to guard their interest in an accurate disposition of their appeals by obtaining procedural protections that will provide them with a full and fair opportunity to present their cases for review, and thus ensure the proper functioning of the adversary system. See Gardner v. California, 393 U.S. at 369, 89 S.Ct. at 582. The Supreme Court has recognized that such an interest is of paramount importance: “The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.” Ake v. Oklahoma, 470 U.S. at 78, 105 S.Ct. at 1094.
We note that the “uniquely compelling” interest at stake here carries even greater significance because appellants have only one chance, at the discretion of the New Hampshire Supreme Court, to obtain state appellate review of alleged errors that led to their incarceration.
B.
The risk of an erroneous deprivation of felony defendants’ interests in fairly and meaningfully presenting their appeals is heightened immeasurably by the failure to afford them a transcript. A transcript is “the most basic and fundamental tool” of effective appellate advocacy. Hardy v. United States, 375 U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331 (1964) (Goldberg, J., concurring). Our discussion in Section IV manifests the importance with which the Supreme Court regards access to a transcript. The Court has instructed that the due process mandate of fundamental fairness requires states to furnish criminal appellants with a trial transcript or an adequate substitute. E.g., Britt v. North Carolina, 404 U.S. at 227-30, 92 S.Ct. at 433-35; Draper v. Washington, 372 U.S. at 496, 83 S.Ct. at 779; Griffin v. Illinois, 351 U.S. at 20, 76 S.Ct. at 591; see also Evitts v. Lucey, 469 U.S. at 403-05, 105 S.Ct. at 840-41 (emphasizing the due process roots of Griffin and its progeny). An adequate substitute for a transcript is a document which would “place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper v. Washington, 372 U.S. at 495, 83 S.Ct. at 778.
The Court’s solicitude regarding the furnishing of transcripts not only stems from the necessity of granting a criminal appellant a meaningful and fair opportunity to present his appeal; it also derives from a concern with ensuring that appellate courts have a full and accurate understanding of an appellant’s contentions before dispensing with his appeal. Such concern pertains here regardless of the fact that the New Hampshire Supreme Court is not bound, either by the Constitution or its own rules, to actually decide the merits of an appeal. The New Hampshire Supreme Court has stated that the “right to appeal in New Hampshire is limited to the right to obtain a discretionary determination by this court as to whether it will accept the appeal.” State v. Cooper, 127 N.H. at 124, 498 A.2d at 1213. This discretionary determination, however, cannot be made without regard for the constraints of due process. Evitts v. Lucey, 469 U.S. at 401, 105 S.Ct. at 838-39. To the extent that due process requires safeguards to assure the fair and accurate disposition of official proceedings, those safeguards must be heeded regardless of the fact that the proceedings are undertaken at the discretion of the government. Id.; see also Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970).
The facts of the instant appeals illustrate the dual justification for providing criminal appellants with transcripts. Appellant Col-pitt alleged on appeal that he was entitled to a mid-trial competency hearing. The suasive force of Colpitt’s claim was undercut by his inability to point to statements made on the record which cast doubt on his competency. In addition, the New Hampshire Supreme Court could not fully and accurately assess Colpitt’s need for a mid-trial competency hearing without examining the evidence which called into question his mental capacity.
Appellant Bundy’s state court appeal alleged claims of insufficient evidence and improper invasion of the jury’s province by the trial judge. Although Bundy later dropped his claim regarding sufficiency of the evidence, it is axiomatic that an appellant cannot meaningfully present such a claim without pointing to the specific areas where the prosecution failed to meet its evidentiary burden. As appellate court judges, we are mindful of the skepticism which is engendered by bald assertions of insufficient evidence unsupported by any citation to specific portions of the record. We realize, as already noted, that the New Hampshire Supreme Court is not bound to decide the merits of whether the evidence sufficed to convict Bundy. But the court cannot decide to decline criminal defendants a full review on the merits of their appeals “without first granting them a ‘record of sufficient completeness’ to permit proper consideration of their claims.” Draper v. Washington, 372 U.S. at 499, 83 S.Ct. at 780; see also Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). Due process thus prohibits the New Hampshire Supreme Court from arbitrarily and capriciously deciding to decline to consider Bundy’s sufficiency of the evidence claim. The state supreme court necessarily must make at least a rough assessment that the evidence is sufficient in order for its decision to accord with due process. We think it impossible for a reviewing court to make even a rough assessment of the sufficiency of the evidence without some reference to the trial court record. The accuracy of this rough assessment is especially important in New Hampshire for it will most likely determine the “desirability” of accepting the appeal.
Bundy’s other state appellate claim, which he has continued to press, involved an alleged infringement into the province of the jury by the trial judge when he answered “No” to its question of whether “the law read[s] that a person has to be driving a car to be charged with theft?”. Without an opportunity to make references to the record, Bundy’s counsel was hard-pressed to support his assertion that the judge’s answer resolved a factual question for the jury. Standing alone, the judge’s answer appears to be nothing more than a correct statement of the law. The record reveals, however, that Bundy was only a passenger in the car when it was stolen and that the jury had requested another instruction regarding “exercising control.” In short, the record shows that the jury was struggling to resolve the factual question of whether Bundy had exercised enough control over the car to be adjudged guilty of theft. Thus, a colorable claim could be advanced that the jury regarded the judge’s answer to the question as obviating further exploration of the crucial factual element in the case. The plausibility of this argument could not, however, be advanced effectively without an opportunity to make appropriate citations to the record.
We also are of the opinion that appellants’ interest in meaningfully and fairly presenting their claims was curtailed severely by New Hampshire’s failure to allow felony criminal defendants an opportunity to persuade the court to accept their appeals. The New Hampshire notice of appeal form is, by its own terms, a summary document which requests only a “brief description of the case,” and a recitation of the basis for the appeal “without unnecessary detail.” Thus, not only are criminal appellants unable to marshal coherently the salient facts in their case because of the lack of a transcript, but, in addition, the language of the notice of appeal form discourages them from attempting to persuade the state supreme court to hear their appeals. Yet it is that very form which serves as the basis for the court’s decision to accept or refuse the case.
We think that the failure to provide criminal appellants with a transcript, and the perfunctory outline of the basis for the appeal required by the notice of appeal, seriously threatens the interest of criminal defendants in obtaining meaningful review in New Hampshire’s appellate system. The State’s concession with respect to appellant Colpitt, and the situation of appellant Bundy, illustrate the real and continuing risk of an erroneous deprivation of a defendant’s due process rights inherent in the current manner of administering New Hampshire’s declination of acceptance procedure.
C.
The third due process factor identified in Mathews focuses on the governmental interest at stake, as well as the fiscal and administrative burden of imposing additional procedures. The State interest implicated here is the speedy and efficient disposition of New Hampshire’s appellate case load. New Hampshire contends that the supreme court’s growing case load prohibits it from providing criminal defendants with a transcript and an opportunity to submit a brief written statement which attempts to persuade the court to accept their appeals. This claim is seriously undermined by the fact that every other state in the union which employs a single-tiered system of appeals can manage its case load while providing criminal defendants with more opportunity for appellate review than is sought by the appellants here.
New Hampshire’s interest in the speedy and efficient disposition of its appellate case load “is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.” Ake v. Oklahoma, 470 U.S. at 79,105 S.Ct. at 1094-95. Thus, to a significant degree, the governmental interest implicated here overlaps the private interest which is at stake. Accordingly, New Hampshire’s interest in denying a criminal appellant a transcript and a brief written argument “is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions.” Id.
We may wonder whether the administrative efficiency component of the State interest at stake here actually may be helped, rather than hindered, by adopting the additional procedural safeguards sought. Providing felony defendants with a transcript and an express opportunity to persuade the court to accept the appeal would reduce the need to attach a lengthy appendix composed of pleadings, motions and other documents. Thus, the New Hampshire Supreme Court would have a concise document on hand to aid its determination of whether to accept or decline an appeal. Moreover, the availability of a transcript might help reduce the court’s work load by enabling counsel to eliminate seemingly colorable claims whose actual meritlessness is revealed from an examination of the record. In the instant case, both Bundy and Colpitt dropped some of their claims after consulting the transcript made available to them by the federal district court. In any event, whatever the impact on administrative efficiency, it is of no great significance when compared to the importance of the interest advanced by appellants.
D.
In' sum, an examination of the Mathews factors indicates that we are faced with a “uniquely compelling” private interest; a relatively insubstantial state interest that might actually be advanced by adopting the additional procedures suggested here; and a serious risk of a deprivation of appellants’ interest in a fair and meaningful opportunity to participate in New Hampshire’s appellate process. Accordingly, we hold that the New Hampshire Supreme Court’s declination of the state court appeals brought by the instant appellants violated their due process rights, because the decision was made without giving appellants
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_counsel2
|
E
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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
The FAFNIR BEARING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 133, UAW, AFL-CIO, Intervenor.
No. 352, Docket 29243.
United States Court of Appeals Second Circuit.
Argued April 27, 1966.
Decided June 17, 1966.
Lucian E. Baldwin, Hartford, Conn. (Robinson, Robinson & Cole, William K. Cole, Hartford, Conn., on the brief), for petitioner.
Norton J. Come, National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman and Peter M. Giesey, Attys., on the brief), for respondent.
John Silard, Washington, D. C. (Joseph L. Rauh, Jr., Stephen I. Schloss-berg, Washington, D. C., Harriett R. Taylor, Benjamin Rubenstein, William S. Zeman, Hartford, Conn., on the brief), for intervenor.
Before SMITH, KAUFMAN and FEINBERG, Circuit Judges.
KAUFMAN, Circuit Judge:
The National Labor Relations Act (NLRA), conceived during the Great Depression and founded upon a frank recognition that our boom-and-bust economy was attributable in part to labor-management unrest, was designed to overcome the inequality of bargaining power between employees and employers. Moreover, the NLRA undertook to provide several methods for the peaceful settlement of labor disputes and the avoidance of disruptions and dislocations generated by strikes and other forms of industrial strife so harmful to our economy. See NLRA section 1, 29 U.S.C. § 151. At the heart of the statutory scheme was the duty, now imposed upon both sides, to bargain with each other “in good faith.” NLRA sections 8(a) (5), 8(b) (3) and 8(d), 29 U.S.C. §§ 158(a) (5), 158(b) (3) and 158(d). But, that bargaining duty was not restricted to the negotiation and execution of labor-management agreements; it encompassed post-contractual obligations as well, such as the good faith day-to-day administration of the grievance procedures the parties created for the settlement of their disputes. See United Steelworkers of America v. Warrior and Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Generally, the National Labor Relations Boárd (Board) and the Courts have abstained from interfering with the conduct of this dispute-resolving machinery; but, there are occasions, as in the case before us, where we are compelled, in the interest of avoiding the dissension which flows from uncertainty, to set forth guidelines or place our imprimatur on procedures sought to be utilized.
I.
This case is before us on cross-petitions for review and enforcement of an order of the Board directing the Fafnir Bearing Company (Company) to permit the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 133, UAW, AFL-CIO (Union) to conduct independent time studies at the Company’s plant for the purpose of determining whether the Union should accept certain proposed piece rates or proceed to arbitration, the final step in the grievance procedure. The Union, which filed the underlying charge, has intervened in this proceeding. For the reasons set forth below, we deny the petition for review and enforce the order of the Board.
The factual setting which gave rise to this proceeding is, in the main, undisputed. Many of the essential facts were stipulated; and, as to other facts, we find substantial evidence to support the findings of the trial examiner and the Board. See N. L. R. B. v. Universal Camera Corp., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The Company operates a production plant in New Britain, Connecticut which manufactures ball bearings and related products. Since 1944, the Union has represented the Company’s production and maintenance employees in periodic negotiations concerning wages, hours and working conditions. According to the pertinent provisions of the contract executed in February 1962, wages are paid pursuant to what is commonly termed a “piece rate system.” This method of compensation is designed to provide employees with an incentive to maximize their productivity. Its basic operation is not complex. A time study is conducted by an industrial engineer to determine how many units per hour an average employee working at a normal pace can produce. This figure is called the “standard.” Workers who turn out less than or as much as the standard receive a minimum wage. But, the conscientious and resourceful employee, who so desires, can increase his rate of pay by raising the level of his production. If, for example, he produces double the units specified in the applicable standard, he will receive twice as much compensation as his less ambitious colleague.
There is, however, no demonstrably accurate method for setting “standards”; and, as can be readily predicted, this area is a fertile source of disputes requiring invocation of the Company-Union grievance machinery. Indeed, considering that the Company has established over 10,000 new piece work prices each year, the number of grievances to which they gave rise was relatively modest. In 1961, there were 86 piece rate grievances; in 1962, the corresponding figure was 47; and in the first half of 1963, 33 such grievances were filed.
The governing agreement established only general guidelines as to how “standards” were to be formulated. Section 8.4 provided, inter alia, that piece work prices “shall be set so that the average qualified operator working under normal job conditions and applying normal incentive efforts shall be able, after a reasonable trial period, to earn 5% above the standard earning rate of his labor grade (as indicated in the schedule initialled by the parties).” Subsection 8(a) (4) authorized a piece rate revision only when “there has been a measurable change or accumulation of changes over a period of time in material, method or processes not previously taken into account in setting the price * * * ”
On various dates prior to February 1963, the Union filed grievances claiming that certain piece work prices were improperly established by the Company and did not conform to Section 8.4 of the governing agreement. After unsuccessfully utilizing the first two steps of the Company-Union grievance machinery, key representatives of the Company and the Union met on February 7, 1963, at the third stage of the grievance procedure. At this meeting, the Union requested all time study data which the Company had utilized in setting the piece rates which had prompted the grievances and the Company furnished all the relevant information in its possession. Kermit K. Mead, Director of the Time Study and Industrial Engineering Department of the Union’s parent International, the United Automobile Workers, examined this material during a recess, and upon reconvening, proceeded to question Company representatives about the data supplied. Dissatisfied with the responses, particularly because the Company could not account for a 5% “adjustment factor,” Mead requested permission to conduct his own time study of the operations involved so that he could verify the Company’s proposed rates and intelligently advise the Union whether to accept them or invoke arbitration — the fourth and final step of the grievance machinery. The Company refused this request on three principal grounds: (1) such study was unnecessary for the Union to determine whether to seek arbitration; (2) the governing agreement did not authorize the Union to conduct independent time studies, and (3) in any event, the Union’s rights were adequately protected because the arbitrator would conduct his own studies as he had in the past.
When the Union filed the underlying charge with the Board, a complaint issued alleging, inter alia, that the Company had refused to bargain in good faith as required by section 8(a) (5) of the Act. Thereafter, a full hearing was held before a trial examiner who found as a fact that Mead was unable to determine “from the data set forth in the Company’s studies whether the piecework rates were established in accordance with the contract, and, therefore, was unable to advise the Union whether to request arbitration.” Despite this finding, the examiner believed he was constrained to recommend that the complaint against the Company be dismissed because, inter alia, he was “unable to find any present compelling authority * * * which sanctions the view that a union is entitled to make its own independent time studies after it has received the employer’s time study records.” The Board endorsed its examiner’s findings of fact but rejected his conclusion. In a determination attacked here by the Company, the Board held that sections 8(a) (1) and 8(a) (5) were violated when the Company refused to grant the Union access to its plant for the purpose of conducting an independent time study of the disputed operations.
II.
A threshold question must be determined by us. Contending that principles of stare decisis should control the outcome of this proceeding, the Company maintains that the decision of the Board is directly contrary to this Court’s holding in N. L. R. B. v. Otis Elevator Co., 208 F.2d 176 (2d Cir. 1953). While it is true that in Otis, a per curiam opinion (Judge Clark vigorously dissenting), we declined to enforce that portion of the Board’s order directing a company to permit a union to conduct an independent time study which the union sought for the purpose of assessing the accuracy of proposed piece work prices, we believe Otis is distinguishable in at least two vital respects. First, the company in Otis not only refused to permit the union to make a “live” study, but, rejected outright the union’s request for whatever data the company had in its possession. Thus, Otis reached this Court on a sparse record. Neither the trial examiner nor the Board had been afforded an opportunity to analyze the Company’s time study material. Consequently, no determination had been made as to whether this data alone would have been sufficient for the union to make an informed judgment to accept the company’s proposed rates or seek arbitration. Second, and even more significant, this Court in Otis, on the relatively skimpy record before it, concluded that whatever additional information the union sought could have been obtained merely by interviewing its members. In view of this circumstance, the Court determined that no “invasion of respondent’s plant” was necessary. 208 F.2d at 177.
Seizing upon this language, the Company urges that in the instant case, the Union had alternative sources for the information it sought and therefore did not really require independent time studies. But, there was ample evidence before the trial examiner and the Board to justify the rejection of this contention out of hand. Mead testified in detail as to the absolute need for a “live” time study stating that without it the Union could not make an informed judgment on the Company’s proposed rates. The testimony of Mead and Bertram Gottlieb, Staff Industrial Engineer of the AFL-CIO, also gave the trial examiner a full view of how time studies were generally made: Piece work prices were established by a ratesetter (usually an industrial engineer) on the basis of a combination of subjective and objective factors. Preliminarily, the ratesetter examined the place where the work was performed and noted environmental factors such as heat, light and other conditions which might have a bearing on productivity. He then reduced the particular job under study into its component parts, designated “cyclic” and “non-cyclic” elements. Cyclic elements were those performed in the production of every unit; non-cyclic elements comprised factors such as going to the lavatory, consulting with the foreman or getting stock from a storage area. Next, the ratesetter observed several operators performing their jobs and made a record of the “actual performance of the job in terms of the motion pattern used.” If the ratesetter believed that a particular employee under examination was above or below average pace, he would “normalize” the performance by adjusting the actual timing of the job upward or downward. He then added an allowance, based upon his personal observation and judgment, for “personal fatigue and delay,” and other elements of the job.
Mead testified, as we have indicated, that he could not assess the accuracy of the Company’s studies without making his own investigations. As illustrative, he noted that with respect to one of the piece rates which was the subject of a grievance the Company had employed a normalizing factor of 90%. But, without conducting his own study, Mead had no way of determining whether this adjustment was appropriate. The record is replete with numerous similar examples. Based upon all the testimony with respect to the need for “live” studies, we believe that unlike Otis, there was substantial evidence in this record to support the Board’s finding that Union-conducted “live” studies provided the only means for full assessment and verification of the Company’s proposed rates.
III.
The Company argues, in the alternative, that section 8(a) (5) does not encompass refusals to admit Union representatives to plant facilities for the purpose of conducting “live” studies. The Company points out that it has already turned over to the Union all of its time study data and suggests that by so doing it has fulfilled its obligation to bargain in good faith. This contention presents the most troublesome issue for our decision. An employer’s duty to provide relevant information to union representatives so that they can effectively bargain on behalf of their members has been established beyond question. See N. L. R. B. v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); N. L. R. B. v. Whitin Mach. Works, 217 F.2d 593 (4th Cir. 1954), cert. denied, 349 U.S. 905, 75 S.Ct. 583, 99 L.Ed. 1242 (1955); N. L. R. B. v. New Britain Mach. Co., 210 F.2d 61 (2d Cir. 1954); N. L. R. B. v. Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952); N. L. R. B. v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (2d Cir. 1951). And, it is true that by turning over its own time study data, the Company believed it had complied with all that was required of it under the Act. The issue confronting us, however, is whether in the circumstances presented here, the Company in fact was required to take that next step and grant permission to the Union to make a live study so that it could reliably evaluate the Company’s data. While it is true that the material the Union sought, because of its subjective nature, was not in the Company’s filing cabinets, it was nevertheless within the Company’s exclusive control, cf., N. L. R. B. v. Item Co., 220 F.2d 956 (5th Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955). Consequently, on the evidence and findings presented in this proceeding, we believe the Board, exercising its expertise and special competence, could properly determine that the Union’s need to conduct these tests outweighed the Company’s interests in closing its doors to outsiders. Cf. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Of course, we are not to be understood as saying that if the Company had established that Union-conducted studies would have severely disrupted production, see Note, 17 Stan.L.Rev. 507 (1965), we would not have a significantly different case; but, we shall defer judgment on such a situation until another day. Here, however, the major inconvenience which the Company asserted was that some of its employees might have been distracted' when Union studies were being conducted. But, in the context of this case we find little merit in this contention. The workers were, after all, on a piece rate system and, except for a fixed minimum, were paid on the basis of what they produced. Moreover, a time study to be accurate must be conducted under normal conditions and thus to a certain extent is its own guarantor of minimal interference with production or discipline.
It is also urged that since the arbitrator was authorized to conduct his own studies, what the Union sought here was merely duplication of effort; thus, the Company’s restrictive view of Section 8(a) (5) should prevail. But, this argument misses the mark. The reason the Union desired to make “live” tests was not to usurp the function of the arbitrator and thereby interfere with standard grievance procedures; it was needed, instead, to determine whether to take the grievances to arbitration in the first place. By preventing the Union from conducting these studies, the Company was, in essence, requiring it to play a game of blind man’s bluff. Only by guess-work could the Union determine which piece rates to protest and which to accept. Of course, the Union always had the option of demanding that all grievances on proposed piece work prices be reviewed by the arbitrator; but that alternative obviously would be impractical, expensive and indeed strife-breeding, considering that there were over 10,000 new proposed rates each year. Thus, if the Company-Union grievance machinery was to work smoothly, it was essential that the Union obtain the information necessary for a considered judgment.
Nor are we persuaded that the Board’s decision unduly invaded the Company’s property rights. In other circumstances, the courts have not hesitated to afford union representatives access to company premises in furtherance of the Act’s purposes. See N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638 (1946) (union granted access to company town to hold organizational meeting); N. L. R. B. v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948) (union granted access to company-owned logging camp to solicit membership); N. L. R. B. v. Cities Service Oil Co., 122 F.2d 149 (2d Cir. 1941) (union granted access to company ship to discuss grievances with unlicensed personnel). Similarly, the distinction urged by the Company between affording employees access to the production areas of the plant while limiting non-employees to the non-production areas, cf. N. L. R. B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), has little merit in a case such as this. It would be a rare coincidence where an employee happened to be also a qualified industrial engineer and could adequately conduct time studies on behalf of his union. Moreover, it is apparent that these studies must be made in the production areas of the plant; they are designed, after all, to measure productivity under normal and usual circumstances. Thus, adopting the Company’s suggested distinction would foreclose all Union-conducted time studies, a step which, as already indicated, we believe contrary to the purposes Congress intended the Act to serve.
Equally without merit is the Company’s argument that the failure of the governing agreement to specifically provide for independent time studies is dispositive of this proceeding. While it is true that the Union had not requested permission to make these tests in the past, we do not find that determinative. Our main concern here is with statutory rights. Thus, the agreement did not expressly prohibit union-conducted studies and its silence in these circumstances cannot be construed as a “clear and unmistakable” waiver. See N. L. R. B. v. Perkins Mach. Co., 326 F.2d 488, 489 (1st Cir. 1964).
IV.
Finally, the Company urges that the Board’s order is too broad. In pertinent part, the order directs the Company to permit the Union to perform “independent time studies through its own experts on jobs involved in grievances arising under [the] * * * collective bargaining agreement.” The Company insists that this language authorizes the Union to conduct a fishing expedition in the Company’s plant. But, the order is to be read in the light of this opinion and that of the Board’s. Generally, as we have already indicated, independent time studies should be authorized only when essential for the union to function intelligently in behalf of employees and only when such studies will not unduly disrupt the productive operations of the company. We do not refute the argument that access to company property for the purpose of conducting these studies could be employed by the unscrupulous as a tool of harassment. But such is not the case here. And, we are confident that the Board will perform its traditional function of balancing carefully the respective interests on both sides in cases where the need for time studies is disputed.
Order enforced.
. See International Union, United Automobile, etc., Workers v. Fafnir Bearing Co., 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965).
, These four grievances numbered 62-79, 62-114, 62-161 and 62-187, related to proposed piece rates for jobs involving the Company’s manufacturing process.
. It is not without significance that at this early stage of the proceedings the Company did not urge that Union conducted studies would be disruptive of plant discipline. Indeed, it was not until a month after the Board rendered its decision that the Company moved for leave to reopen the record “to introduce expert testimony from a qualified industrial engineer” to establish, inter alia, that “access to [the Company’s] plant by a Union industrial engineer would unduly interfere with production and operations.” The Board denied this motion (Leedom, member, dissenting) on the ground that the evidence had been available at the time of the hearing.
. Leedom, member, dissenting.
. The Board found “that the information which the Union sought to obtain by means of time studies was not only relevant but also necessary to enable the Union to make an intelligent decision whether to proceed to arbitration.”
. Indeed, in Otis, we enforced that portion of the Board’s order requiring the Company to make this information available to the Union.
. The Union’s brief states (emphasis omitted):
“More than 2400 disputes arising in the grievance process were time-studied by the UAW [Time Study] Department between 1962 and 1965; and of these grievances the Union found 50 percent unjustified and necessary of abandonment, while 99 percent of the remainder were adjusted with the employers without the necessity of invoking arbitration.”
. In the context of this case, we agree with the Board’s conclusion that the evidence establishing a violation of seetion 8(a) (5) also disclosed a violation of section 8(a) (1).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_circuit
|
H
|
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.
Lloyd McCOMY, Appellant, v. UNITED STATES of America, Appellee.
No. 74-1946.
United States Court of Appeals, Eighth Circuit.
Submitted March 12, 1975.
Decided April 7, 1975.
Jack J. Cavanaugh, St. Louis, Mo., for appellant.
Richard Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before GIBSQN, Chief Judge, CLARK, Associate Justice, Retired, and LAY, Circuit Judge.
Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.
PER CURIAM.
The defendant Lloyd McComy entered a guilty plea to three counts of a twenty-three count indictment charging him with fraud in violation of 18 U.S.C. § 1348. He was sentenced to a total prison term of seven years to be followed by a five-year probation term and a fine of $3,000.00. He filed a § 2255 motion contending that his plea of guilty was not voluntary. The district court denied relief and he has appealed. We affirm.
The thrust of petitioner’s argument, as we understand it and we are not sure we do, is that his plea is not voluntary since the bargain (i. e., the dismissal of the other twenty counts along with the promise of the three-year sentence) was not fully spread upon the record with the trial judge. The argument couched in these terms was not raised in the district court since the only alleged misrepresentation before the trial judge was as to the length of the sentence.
The government contends that Rule 11, Fed.R.Crim.P., was fully complied with by the district court. The record shows the district court (a) questioned the defendant concerning his understanding of his rights, (b) advised him of the consequences of his plea, (c) asked if the defendant had been induced to enter his plea by any threats or promises, and (d) established a factual basis for the plea. The defendant urges, however, that in addition to soliciting the above information, the court must also ascertain whether a plea bargain has been made, and if so, its terms.
We find no deficiency in the record in this regard. The record shows the district court was fully aware that the government intended to ask leave to dismiss twenty counts of the indictment at the time of the defendant’s sentence. In addition, the trial judge asked what was to be done with two co-defendants and the United States Attorney replied that the government intended to dismiss the charges against them.
The court specifically asked the appellant whether any other promises or inducements, particularly with regard to sentencing, had been made to him and he responded with equally concise and specific negative answers. At the evi-dentiary hearing on this motion, the court listened to the testimony of the defendant, the defendant’s wife, his attorney at the time the plea was entered and his attorney’s associate.. On the basis of their testimony, the court concluded that no promise as to the length of sentence was ever made. We are bound by this finding unless we can say that it was clearly erroneous and the record does not support this. Therefore, we find to the extent that any “plea bargain” had been made, its terms including the dismissal of the remaining twenty counts of the indictment and the dismissal of charges against the two co-defendants, were fully disclosed in open court.
Judgment affirmed.
. In United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974), this court observed:
Plea bargaining is susceptible to abuse. Its proper use, however, has been tacitly approved by the Supreme Court, this Court and many study commissions that have reviewed the problem. While a recent report has recommended that plea bargaining be abolished by 1978, we are not prepared to adopt that recommendation.
We caution, however, that if plea bargaining is to be practiced, the requirements of Rule 11, as explicated by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), must be followed. Furthermore, the following safeguards must also be implemented:
* * * * * *
(2) Judges are to require the agreement to be disclosed in open court at the time the plea is offered and require that the reasons for reaching the agreement be set forth in detail. 488 F.2d at 640 (footnotes omitted).
. Whenever the United States “bargains” to dismiss other counts of the indictment in exchange for a plea of guilty to one or more counts, this of course should be spread on the record at the time of the guilty plea. When this appears, it is essential that the trial judge determine that the guilty plea independently rests on a factual basis and is not simply induced by the government’s promise to dismiss other counts.
. The following colloquy took place between the court and the defendant:
THE COURT: And you understand, do you, the charges to which you have pleaded “Guilty” and which I have gone over in detail here?
MR. McCOMY: Yes, sir.
THE COURT: The range of penalties for these offenses could be a fine of $1,000.00 or five years’ imprisonment on Count I; a fine of $1,000.00 and imprisonment of five years on Count II; a fine of $1,000.00 and imprisonment for five years on Count III; or a total of $3,000.00 and fifteen years, or some combination of it. That’s the maximum. Do you understand that?
MR. McCOMY: Yes, Your Honor. THE COURT: Have any threats or promises been made to induce you to plead “Guilty”?
MR. McCOMY: No, sir.
THE COURT: You understand, do you, that I have the sole responsibility for imposing sentence in the event a sentence is imposed, and I have not promised Mr. Daly or Mr. Adelman or anybody else, and particularly you, anything in regard to this case?
MR. McCOMY: I understand, Your Honor. THE COURT: I do not know what sentence you will receive until such time as a pre-sentence report is given to me.
Do you think there is any understanding, or have any predictions been made to you concerning — -either by Mr. Daly or by anybody else either representing themselves to be from the Government or being from the Government, as to the sentence you will receive?
MR. McCOMY: No, sir.
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_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
TAKAHASHI v. FISH AND GAME COMMISSION et al.
No. 533.
Argued April 21-22, 1948.
Decided June 7, 1948.
A. L. Wirin and Dean Acheson argued the cause for petitioner. With them on the brief were Charles A. Horsky and Fred Okrand.
Ralph Winfield Scott, Deputy Attorney General of California, argued the cause for respondents. With him on the brief was Fred N. Howser, Attorney General.
Briefs of amici curiae urging reversal were filed by Attorney General Clark, Solicitor General Perlman, Philip Elman and James L. Morrisson for the United States; Arthur Garfield Hays and Edward J. Ennis for the American Civil Liberties Union; William Maslow, William Strong and Ambrose Doskow for the American Jewish Congress; Phineas Indritz and Jacob W. Rosenthal for the American Veterans Committee; Edward J. Ennis for the Home Missions Council of North America et al.; Saburo Kido for the Japanese American Citizens League; and Thurgood Marshall and Marian Wynn Perry for the National Lawyers Guild et al.
Mr. Justice Black
delivered the opinion of the Couri.
The respondent, Torao Takahashi, born in Japan, came to this country and became a resident of California in 1907. Federal laws, based on distinctions of “color and race,” Toyota v. United States, 268 U. S. 402, 411-412, have permitted Japanese and certain other non-white racial groups to enter and reside in the country, but have made them ineligible for United States citizenship. The question presented is whether California can, consistently with the Federal Constitution and laws passed pursuant to it, use this federally created racial ineligibility for citizenship as a basis for barring Taka-hashi from earning his living as a commercial fisherman in the ocean waters off the coast of California.
Prior to 1943 California issued commercial fishing licenses to all qualified persons without regard to alienage or ineligibility to citizenship. From 1915 to 1942 Taka-hashi, under annual commercial fishing licenses issued by the State, fished in ocean waters off the California coast, apparently both within and without the three-mile coastal belt, and brought his fresh fish ashore for sale. In 1942, while this country was at war with Japan, Takahashi and other California residents of Japanese ancestry were evacuated from the State under military orders. See Korematsu v. United States, 323 U. S. 214. In 1943, during the period of war and evacuation, an amendment to the California Fish and Game Code was adopted prohibiting issuance of a license to any “alien Japanese.” Cal. Stats. 1943, ch. 1100. In 1945, the state code was again amended by striking the 1943 provision for fear that it might be “declared unconstitutional” because directed only “against alien Japanese”; the new amendment banned issuance of licenses to any “person ineligible to citizenship,” which classification included Japanese. Cal. Stats. 1945, ch. 181. Because of this state provision barring issuance of commercial fishing licenses to persons ineligible for citizenship under federal law, Takahashi, who met all other state requirements, was denied a license by the California Fish and Game Commission upon his return to California in 1945.
Takahashi brought this action for mandamus in the Superior Court of Los Angeles County, California, to compel the Commission to issue a license to him. That court granted the petition for mandamus. It held that lawful alien inhabitants of California, despite their ineligibility to citizenship, were entitled to engage in the vocation of commercial fishing on the high seas beyond the three-mile belt on the same terms as other lawful state inhabitants, and that the California code provision denying them this right violated the equal protection clause of the Fourteenth Amendment. The State Supreme Court, three judges dissenting, reversed, holding that California had a proprietary interest in fish in the ocean waters within three miles of the shore, and that this interest justified the State in barring all aliens in general and aliens ineligible to citizenship in particular from catching fish within or without the three-mile coastal belt and bringing them to California for commercial purposes. 30 Cal. 2d 719, 185 P. 2d 805. To review this question of importance in the fields of federal-state relationships and of constitutionally protected individual equality and liberty, we granted certiorari.
We may well begin our consideration of the principles to be applied in this case by a summary of this Court’s holding in Truax v. Raich, 239 U. S. 33, not deemed controlling by the majority of the California Supreme Court, but regarded by the dissenters as requiring the invalidation of the California law. That case involved an attack upon an Arizona law which required all Arizona employers of more than five workers to hire not less than eighty (80) per cent qualified electors or native-born citizens of the United States. Raich, an alien who worked as a cook in a restaurant which had more than five employees, was about to lose his job solely because of the state law’s coercive effect on the restaurant owner. This Court, in upholding Raich’s contention that the Arizona law was invalid, declared that Raich, having been lawfully admitted into the country under federal law, had a federal privilege to enter and abide in “any State in the Union” and thereafter under the Fourteenth Amendment to enjoy the equal protection of the laws of the state in which he abided; that this privilege to enter in and abide in any state carried with it the “right to work for a living in the common occupations of the community,” a denial of which right would make of the Amendment “a barren form of words.” In answer to a contention that Arizona’s restriction upon the employment of aliens was “reasonable” and therefore permissible, this Court declared:
“It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration — to admit or exclude aliens- — -is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U. S. 698, 713. The assertion of .an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.” Truax v. Raich, supra at 42.
Had the Truax decision said nothing further than what is quoted above, its reasoning, if followed, would seem to require invalidation of this California code provision barring aliens from the occupation of fishing as inconsistent with federal law, which is constitutionally declared to be “the supreme Law of the Land.” However, the Court there went on to note that it had on occasion sustained state legislation that did not apply alike to citizens and non-citizens, the ground for the distinction being that such laws were necessary to protect special interests either of the state or of its citizens as such. The Truax opinion pointed out that the Arizona law, aimed as it was against employment of aliens in all vocations, failed to show a “special public interest with respect to any particular business . . . that could possibly be deemed to support the enactment.” The Court noted that it had previously upheld various state laws which restricted the privilege of planting oysters in the tidewater rivers of a state to citizens of that state, and which denied to aliens within a state the privilege of possessing a rifle and of shooting game within that state; it also referred to decisions recognizing a state’s broad powers, in the absence of overriding treaties, to restrict the devolution of real property to non-aliens.
California now urges, and the-State Supreme Court held, that the California fishing provision here challenged falls within the rationale of the “special public interest” cases distinguished in the Truax opinion, and thus that the state’s ban upon commercial fishing by aliens ineligible to citizenship is valid. The contention is this: California owns the fish within three miles of its coast as a trustee for all California citizens as distinguished from its non-citizen inhabitants; as such trustee-owner, it has complete power to bar any or all aliens from fishing in the three-mile belt as a means of conserving the supply of fish; since migratory fish caught while swimming in the three-mile belt are indistinguishable from those caught while swimming in the adjacent high seas, the State, in order to enforce its three-mile control, can also regulate the catching and delivery to its coast of fish caught beyond the three-mile belt under this Court’s decision in Bayside Fish Co. v. Gentry, 297 U. S. 422. Its law denying fishing licenses to aliens ineligible for citizenship, so the state’s contention goes, tends to reduce the number of commercial fishermen and therefore is a proper fish conservation measure; in the exercise of its power to decide what groups will be denied licenses, the State has a right, if not a duty, to bar first of all aliens, who have no community interest in the fish owned by the State. Finally, the legislature’s denial of licenses to those aliens who are “ineligible to citizenship” is defended as a reasonable classification, on the ground that California has simply followed the Federal Government’s lead in adopting that classification from the naturalization laws.
First. The state’s contention that its law was passed solely as a fish conservation measure is vigorously denied. The petitioner argues that it was the outgrowth of racial antagonism directed solely against the Japanese, and that for this reason alone it cannot stand. See Korematsu v. United States, supra at 216; Kotch v. Board of River Pilot Comm’rs, 330 U. S. 552, 556; Yick Wo v. Hopkins, 118 U. S. 356; In re Ah Chong, 2 F. 733, 737. We find it unnecessary to resolve this controversy concerning the motives that prompted enactment of the legislation. Accordingly, for purposes of our decision we may assume that the code provision was passed to conserve fish in the California coastal waters, or to protect California citizens engaged in commercial fishing from competition by Japanese aliens, or for both reasons.
Second. It does not follow, as California seems to argue, that because the United States regulates immigration and naturalization in part on the basis of race and color classifications, a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living. The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. See Hines v. Davidowitz, 312 U. S. 52, 66. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid. Moreover, Congress, in the enactment of a comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization, has broadly provided:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 16 Stat. 140, 144, 8 U. S. C. § 41.
The protection of this section has been held to extend to aliens as well as to citizens. Consequently the section and the Fourteenth Amendment on which it rests in part protect “all persons” against state legislation bearing unequally upon them either because of alienage or color. See Hurd v. Hodge, 334 U. S. 24. The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide “in any state” on an equality of legal privileges with all citizens under non-discriminatory laws.
All of the foregoing emphasizes the tenuousness of the state’s claim that it has power to single out and ban its lawful alien inhabitants, and particularly certain racial and color groups within this class of inhabitants, • from following a vocation simply because Congress has put some such groups in special classifications in exercise of its broad and wholly distinguishable powers over immigration and naturalization. The state’s law here cannot be supported in the employment of this legislative authority because of policies adopted by Congress in the exercise of its power to treat separately and differently with aliens from countries composed of peoples of many diverse cul-. tures, races, and colors. For these reasons the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.
Third. We are unable to find that the “special public interest” on which California relies provides support for this state ban on Takahashi’s commercial fishing. As before pointed out, California’s claim of “special public interest” is that its citizens are the collective owners of fish swimming in the three-mile belt. It is true that this Court did long ago say that the citizens of a state collectively own “the tide-waters . . . and the fish in them, so •far as they are capable of ownership while running.” McCready v. Virginia, 94 U. S. 391, 394. Cf. United States v. California, 332 U. S. 19, 38; Toomer v. Witsell, ante, p. 385. The McCready case upheld a Virginia law which prohibited citizens of other states from planting oysters in a Virginia tidewater river. Though the Mc-Cready case has been often distinguished, its rationale has been relied on in other cases, including Geer v. Connecticut, 161 U. S. 519. That decision, where only the commerce clause was involved, sustained a state law that, in order to restrict the use of game to the people of the state, prohibited the out-of-state transportation of game killed within the state. On the other hand, where Louisiana laws declared that the state owned all shrimp within the waters of the state, but permitted ultimate sale and shipment of shrimp for consumption outside that state’s boundaries, Louisiana was denied power under the commerce clause to require the local processing of shrimp taken from Louisiana marshes as a prerequisite to out-of-state transportation. Foster Packing Co. v. Haydel, 278 U. S. 1. In the absence of overriding federal treaties, this Court sustained a state law barring aliens from hunting wild game in the interest of conserving game for citizens of the state against due process and equal protection challenges. Patsone v. Pennsylvania, 232 U. S. 138. Later, however, the Federal Migratory Bird Treaty Act of 1918, 40 Stat. 755, was sustained as within federal power despite the claim of Missouri of ownership of birds within its boundaries based on prior statements as to state ownership of game and fish in the Geer case. Missouri v. Holland, 252 U. S. 416. The Court was of opinion that “To put the claim of the State upon title is to lean upon a slender reed.” P. 434. We think that same statement is equally applicable here. To whatever extent the fish in the three-mile belt off California may be “capable of ownership” by California, we think that “ownership” is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so.
This leaves for consideration the argument that this law should be upheld on authority of those cases which have sustained state laws barring aliens ineligible to citizenship from land ownership. Assuming the continued validity of those cases, we think they could not in any event be controlling here. They rested solely upon the power of states to control the devolution and ownership of land within their borders, a power long exercised and supported on reasons peculiar to real property. They cannot be extended to cover this case.
The judgment is reversed and remanded for proceedings not inconsistent with this opinion.
Reversed.
The comprehensive laws adopted by Congress regulating the immigration and naturalization of aliens are included in Title 8 of the U. S. Code; for codification of laws governing racial and color prerequisites of aliens to citizenship see 8 U. S. C. § 703. An act adopted by the first Congress in 1790 made “free white persons” only eligible for citizenship. 1 Stat. 103. Later acts have extended eligibility of aliens to citizenship to the following groups: in 1870, “aliens of African nativity and . . . persons of African descent,” 16 Stat. 254, 256; in 1940, “descendants of races indigenous to the Western Hemisphere,” 54 Stat. 1137, 1140; in 1943, “Chinese persons or persons of Chinese descent,” 57 Stat. 600, 601; and in 1946, Filipinos and “persons of races indigenous to India,” 60 Stat. 416. While it is not wholly clear what racial groups other than Japanese are now ineligible to citizenship, it is clear that Japanese are among the few groups still not eligible, see Oyama v. California, 332 U. S. 633, 635, n. 3, and that, according to the 1940 census, Japanese aliens constituted the great majority of aliens living in the United States then ineligible for citizenship. See concurring opinion of Mr. Justice Murphy in Oyama v. California, supra at 650, 665, 666, nn. 20 and 22.
Report of the California Senate Fact-Finding Committee on Japanese Resettlement, May 1, 1945, pp. 5-6.
As amended the code section now reads: “Persons required to procure license: To whom issuable. Every person who uses or operates or assists in using or operating any boat, net, trap, line, or other appliance to take fish, mollusks or crustaceans for profit, or who brings or causes fish, mollusks or crustaceans to be brought ashore at any point in the State for the purpose of selling the same in a fresh state, shall procure a commercial fishing license.
“A commercial fishing license may be issued to any person other than a person ineligible to citizenship. A commercial fishing license may be issued to a corporation only if said corporation is authorized to do business in this State, if none of the officers or directors thereof are persons ineligible to citizenship, and if less than the majority of each class of stockholders thereof are persons ineligible to citizenship.” Cal. Fish and Game Code § 990. In 1947 the code was amended to permit “any person, not a citizen of the United States,” to obtain hunting and sport fishing licenses, both of which had been denied to “alien Japanese” and to persons “ineligible to citizenship” under the 1943 and 1945 amendments. Cal. Stats. 1947, c. 1329; Cal. Fish and Game" Code §§427, 428.
The Superior Court first ordered issuance of a commercial fishing license authorizing Takahashi to bring ashore “catches of fish from the waters of the high seas beyond the State’s territorial jurisdiction.” After appeal to the State Supreme Court by the State Commission the Superior Court amended its judgment so as to order a commercial license authorizing Takahashi to bring in catches of fish taken from the three-mile ocean belt adjacent to the California coast as well as from, the high seas. The State Supreme Court held that the Superior Court was without jurisdiction to amend its judgment after appeal and accordingly treated the amended judgment as void. California argues here that its State Fish and Game Commission is authorized by statute to issue only one type of commercial fishing license, namely, one permitting ocean fish to be brought ashore whether caught within or without the three-mile belt, that the Superior Court’s first judgment ordering issuance of a license limited to catches of high seas fish directed the Commission to do something it was without authority to do, and that on this ground we should affirm the state court’s denial of the requested license. The State Supreme Court did not, however, decide the case on that ground, but ruled against petitioner on the ground that the challenged code provision was valid under the Federal Constitution and that the Commission’s refusal to grant a license was required by its terms. Since the state court of last resort relied solely upon federal grounds for its decision, we may properly review its action here.
The opinion cited the following cases: McCready v. Virginia, 94 U. S. 391; Patsone v. Pennsylvania, 232 U. S. 138; Hauenstein v. Lynham, 100 U. S. 483; and Blythe v. Hinckley, 180 U. S. 333.
Truax v. Raich, supra; Chy Lung v. Freeman, 92 U. S. 275, 280; see Hines v. Davidowitz, supra at 65-68.
Yick Wo v. Hopkins, supra at 369; United States v. Wong Kim Ark, 169 U. S. 649, 696; In re Tiburcio Parrott, 1 F. 481, 508-509; Fraser v. McConway & Torley Co., 82 F. 257.
Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326.
See Oyama v. California, 332 U. S. 633, 646, 649, 672.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_treat
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I
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD QUARRIES, INC., Respondent.
No. 18123.
United States Court of Appeals Eighth Circuit.
June 22, 1966.
Clarice R. Feldman, Atty., N. L. R. B., Washington, D. C., for petitioner. Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Elliott Moore, Atty., N. L. R. B., Washington, D. C., were with her on the brief.
Harry L. Browne and Clifton L. Elliott, of Spencer, Fane, Britt & Browne, Kansas City, Mo., for respondent and filed brief.
Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.
MEHAFFY, Circuit Judge.
This case is here upon a petition of the National Labor Relations Board for enforcement of an order reported at 150 N.L.R.B. # 83. This court has jurisdiction.
Howard Quarries, Inc. is a Missouri corporation located in Sedalia, Missouri with its principal business being the operation of various rock quarries and the processing of commercial stone. The quarry involved here is located at Sweet Springs, Missouri, and at the time of the alleged violations was operating two shifts with a payroll of twenty-nine employees.
The issue in this case is whether there is substantial evidence to support the Board’s findings that respondent, Howard, violated § 8(a) (1) and (3) of the National Labor Relations Act, as amended, by unlawfully interrogating and threatening employees during a union authorization campaign and by discriminatorily selecting employees for layoff. Accordingly, we have reviewed the entire record. We reverse both findings. 29 U.S.C.A. § 160(f); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
§ 8(a) (1) — Interrogation
On May 11, 12, 13 and 15, 1964, Teamster Local 534 began soliciting authorization cards from Howard’s employees. The solicitations were openly conducted on a country road near the quarry entrance but some quarter mile from the buildings and actual operations. Howard’s supervisors were aware of the union activity and with the exception of the interrogations were otherwise unconcerned in view of organizational efforts sporadically conducted over the past fifteen years and the continuous picketing of Howard the preceding year.
During this four day period, supervisor J. A. McCollom, day foreman Lloyd Davis, and night foreman Vem Garrison casually observed the union’s activity and informally questioned eleven employees as to whether or not they had signed union cards. It was established that nine employees were questioned once and two employees were questioned twice with the time involved being about one to two minutes per conversation. The questioning occurred on the job and usually in the parking lot during shift changes.
On May 11 Charles L. Williams, Lloyd Goodwin and Clyde Morney signed cards and as they reported for the night shift were met in the parking lot by McCollom. Each was asked if he had signed a union card to which Williams and Goodwin replied affirmatively. Morney was found to have answered that he had only signed a card about a strike and had marked it “no,”’ to which McCollom injected “You have been with us a long time you know.” This negative answer is not based upon the direct examination of Morney- who did in fact tell McCollom he had signed a union card. Although Goodwin and Williams testified that they only heard Mc-Collom say that Morney had been around for a long time, the examiner preferred to accept the testimony of James A. Mullins who overheard the Momey-McCollom conversation and believed Morney to have lied about signing. This reliance by the examiner is relative, we think, to his assumption that Morney was not laid off because Howard believed he had not signed a card and harbored no union sympathies.
The same day Mullins told McCollom he had not signed and did not plan to. Mullins did, however, sign a card on May 12 as did day workers Raymond C. Johnson and Bernard Abbott. Mullins later told foreman Lloyd Davis that he had signed. On May 13, Johnson informed McCollom that both he and Abbott had signed cards. McCollom commented, “I am surprised at you, I did not think that of you, you being one of the oldest men here.” The following day McCollom made a similar comment to Johnson and added, “if you wanted to quit, why didn’t you?” Johnson replied, “I might do that if you are not satisfied with what I did.” McCollom then stated, “what do you think the people will think of you sitting and talking with the union men?” McCollom added, “I did not ask you to quit, I don’t want you to.” On May 13, McCollom asked Abbott if he “got signed up yesterday afternoon.” Abbott said he had. McCollom asked “what [Abbott] expect[ed] to gain,” and “what [the union] promise[d] [him].” Abbott answered “nothing,” to which McCollom commented, “I can’t understand you older guys signing up, the younger men I could figure it out, but not you older men.”
On May 12, day workers Virgil Smith and Alvin 0. Staten signed cards as they left work. The next day McCollom inquired if they had signed. Both replied that such was unnecessary as they already belonged to the union. Staten then showed McCollom his union card.
Night worker Merrill Allison signed a card on May 11. The following day night foreman Vern Garrison asked if “all the boys had signed up.” Allison said he thought “the biggest part of them had.” Garrison shook his head and walked off. Day foreman Lloyd Davis asked Allison the same question and got the same reply. Davis informed Allison that he did not think “it would do a nickel’s worth of good.”
Day worker Robert A. Martin signed a card on May 12 but after questioning by foreman Davis, Martin denied signing. Martin also told McCollom that he had not signed to which McCollom commented, “that’s a good boy.” Doris H. Tin-cher and Walter H. Day signed cards on May 15. Day was never questioned, while Tincher, in reply to McCollom’s question of “what are they signing at the quarry entrance with the union men,” replied, “some kind of negotiation card.” McCollom remarked that unions were no good and “they will get you in trouble.” Tincher “kind of agreed.” James- Freddy Chitwood signed May 11 and Jim Allen Halphin signed May 12. Neither was questioned.
The examiner found that these comments “reasonably show antiunion animus and warrant the inference that the interrogations were far from casual or isolated incidents but rather were deliberate and of the broad nature and extent which the Board has often found to be inherently coercive.” We do not agree. It is well established that otherwise legal acts cannot be the basis for an inference of antiunion animus. N. L. R. B. v. Colvert Dairy Products Co., 317 F.2d 44 (10th Cir. 1963). And, from our examination of the record, we are unable to allow this inference the burden of supporting a § 8(a) (1) violation. True, about one-third of the employees were asked if they had signed union cards with the inquirer expressing various feelings commensurate with the answers. But all were casual and brief and conducted in informal surroundings. Not only do we fail to find evidence that would support feelings of coercion and interference but also that no employee considered himself restricted or limited either in his right of self-expression or his freedom to participate in self-organization. N. L. R. B. v. I. Posner, Inc., 342 F.2d 826 (2nd Cir. 1965); S. H. Kress & Co. v. N. L. R. B., 317 F.2d 225 (9th Cir. 1963); J. S. Dillon & Sons Stores Co. v. N. L. R. B., 338 F.2d 395 (10th Cir. 1964). And, “interrogation as to who has signed cards is not anti-union pressure.” N. L. R. B. v. Covington Motor Co., 344 F.2d 136, 137 (4th Cir. 1965) and cases there cited.
Mere display of antiunion hostility during the course of an organizational campaign is to be expected and does not constitute an unfair labor practice. Fort Smith Broadcasting Co. v. N. L. R. B., 341 F.2d 874, 879 (8th Cir. 1965). Statements that the union would not be advantageous are protected and do not constitute an unfair labor practice. Surprenant Mfg. Co. v. N. L. R. B., 341 F.2d 756 (6th Cir. 1965); N. L. R. B. v. Superex Drugs, Inc., 341 F.2d 747 (6th Cir. 1965). What we have recently said is equally applicable here. “The right of free speech guaranteed by the First Amendment and by § 8(c) should not be defeated by narrow or strained construction.” N. L. R. B. v. William J. Burns Int’l. Detective Agency, Inc., 346 F.2d 897, 903 (8th Cir. 1965).
The interrogations revealed personal expressions of surprise, curiosity, disappointment and antiunion animus, but the record is void of evidence that even those innocuous statements by. Mc-Collom were coercive and injurious to the employees’ right of self-organization. N. L. R. B. v. D. Gottlieb & Co., 208 F.2d 682 (7th Cir. 1953).
§ 8(a) (8) — Layoff
To understand the layoff of eight employees found by the examiner to be in violation of § 8(a) (3), it is necessary to at least summarize the operational background of Howard.
In periods of normal business activity, Howard runs only one shift as the operation of a night shift is more expensive to the extent of four or five cents per ton of crushed stone. Operations at the Sweet Springs Quarry were begun in the fall of 1963 with one shift and a small crusher producing second grade stone and lime for routine road maintenance obligations to the state and to stockpile for open market sales. In October, 1963, Howard obtained a contract for prime crushed rock fill needed on part of Interstate Highway No. 35 which was being constructed by Howard Construction Company, an affiliate concern. The contract required completion in one hundred ninety working days. Under an original schedule, the spreading of crushed rock was to begin August, 1964 after the Construction Company had completed grading and other dirt work. Preliminary crushing was to begin at a second pit, the Cameron Quarry, the middle of July, 1964. In the spring of 1964, however, Howard procured an additional contract to furnish rock to Manefree Construction Company with delivery by August 1, 1964.
The Sweet Springs Quarry being unable to meet both production schedules with a single shift and one small crusher, a large crusher was moved in, and, after expanding the day shift, a second shift of twelve men was added about April 20 with the idea of quickly satisfying the Manefree requirements and then moving the large crusher to the Cameron Quarry to produce the highway stone.
Because of spring rains complicating the highway grading, Howard’s work schedule was changed so that its only immediate deadline was the Manefree stone which could be produced with one shift at Sweet Springs before moving to the Cameron Quarry. Additionally, the night shift at Sweet Springs had crushed and stockpiled all rock stripped by the day shift and had no rock on hand to process. Consequently, on May 6 the entire night shift was laid off for the remainder of the week, although some night employees were transferred to the day shift to help with stripping. The lawfulness of this layoff is not challenged by general counsel.
On Sunday, May 10, President Marvin Howard, Vice President Olin Howard* and Superintendent McCollom again met to review production schedules and con-eluded that the Manefree job could be completed on time with an expanded day shift. It was decided to discontinue the night shift within a week or ten days, and add the best men therefrom to the day shift. Completing production too soon would mean a larger layoff and involve some of the best workers who might obtain employment elsewhere and not be available to Howard in the future. Responsibility for determining which men would be laid off was left to Mc-Collom, day foreman Lloyd Davis, and night foreman Vern Garrison.
At the end of the week, May 15, this prescheduled termination of the night shift was effectuated. Those employees selected for layoff were notified on Saturday and Sunday by McCollom, Davis and Garrison, who, in answer to inquiries, explained the layoff as "a cutback” necessitated by production schedule changes and operational cost of the extra shift. The men were advised that union interest had not been a consideration in layoff selections and that Howard would call them back to work in about three weeks.
■ It was well understood that the layoff was temporary and that Howard’s policy was to keep the best men at all times. Seniority was not and never had been a basis in selection of employees for layoff.
The Board found the layoff economically motivated but based the § 8(a) (3) violation on the discriminatory selection of employees to be laid off by failure- to follow its usual policy of retaining the best men. The finding of discriminatory selection in employees for layoff is not based upon evidence offered by general counsel but is founded upon Howard’s failure to produce records evidencing qualifications of those men retained and those laid off. The examiner thought such absence of specific qualifications “weakened [Howard’s] defense” and warranted the inference that such proof, if adduced, would not support Howard’s position. Consequently, the record proof which “afford [ed] the only clue as to their work ability” was strained until the meager facts provided superficial justification for the § 8(a) (3) violation. Relative wages, length of employment, and the different jobs performed during service were, in the cases of layoffs, offered as outstanding qualifications of superior employees while in-distinquishable qualifications of a retained employee only evidenced Howard’s prejudice and discrimination.
We think the examiner erred in his conception of upon whom the burden of proof falls in establishing a violation of the Act. He speaks of “widespread" and “deliberate” interrogations and an “implied” threat of reprisal made to one employee, all of which reflect respondent’s awareness of the organizational campaign before the layoffs. These were found to present a prima facie case of discriminatory layoffs “which required respondent to go forward with proof adequate to rebut it.” Additionally, the examiner points out other evidence as not weakening “the prima facie case sufficiently to relieve respondent of the burden of going forward with proof in rebuttal.” He concludes “after careful consideration of all the pertinent evidence, and arguments of counsel, pro and con, * * * that respondent has failed to sustain the burden of adducing proof adequate to rebut the prima facie case of discriminatory layoff. * * * ”
Contrary to the examiner’s notion, it is elementary and settled law that the burden of proof to support a charge of violation is upon the Board— and the burden never shifts to the employer to prove his innocence.
In N.L.R.B. v. Great Atlantic & Pacific Tea Co., 346 F.2d 936, 939 (5th Cir. 1965), the court stated, “When the General Counsel charges that an employer has committed an unfair labor practice, he must produce substantial evidence from which it may be inferred that a violation of the Act took place.” And, the Seventh Circuit held in N.L.R.B. v. Chicago Perforating Co., 346 F.2d 233, 238 (7th Cir. 1965), “The burden was upon the Board to prove that his discharge was because of his union activities.”
Neither is the burden upon an employer to show that a retained employee is more valuable or efficient in his occupational unit than one laid off. Rather, the burden is upon the Board. Interlake Iron Corp. v. N.L.R.B., 131 F.2d 129, 134 (7th Cir. 1942). And in the instant case, there was not even the production of evidence by the general counsel to show that a single retained employee was less efficient or valuable than the ones laid off. The crucial question is not knowledge on Howard’s part of the organizational activities, or even any union animus, but rather whether the employees temporarily laid off were selected in a discriminatory fashion. Postulation based on antiunion animus or statistics do not serve as substitutes for substantial evidence to support the serious charge of § 8(a) (3) layoffs. Neither can a violation be grounded upon an unwarranted and illegal shifting of the burden of proof. The unchallenged testimony on the part of Howard’s witnesses was that the layoffs, as always under company policy, were based upon qualifications and personal desires of the employees. We can only assume that the company considered all of the employees as good workers. Also, we are dealing with a background of fifteen years’ involvement with picketing and attempts to organize without the slightest suggestion of any prior inimical feeling by Howard towards the union. Our canvass of the record as a whole leaves us with the clear impression that there is a total lack of substantial evidence in support of the § 8(a) (3) charge.
The order of the Board is set aside and its application for enforcement is denied.
. A day shift operated from 4:00 a. m. to 2 p. m. and a night shift operated from 2:00 p. m. to 11:30 p. m.
. 29 U.S.C.A. § 158(a) (1) and (3) :
“(a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
♦ Hs * * *
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * *
. Unless otherwise stated, all dates ar« 1964.
. “Q. (By Mr. Dowd) Do you recall the conversation between you and McCollom?
A. Yes.
“Q. What was that? A. He asked did I sign the card.
“Q. What did you say? A. I told him I signed a little small one and I told him at that time.
“Q. Then you say you signed one? A. 7 did.
“Q. That is what you said to him? A. 7 did.
“Q. Did he say anything else to you? A. I believe he said, ‘You have been around a long time.’
“Q. Was that all that was said? A. Yes.” (Emphasis ours.)
. “Q. Did you ever hear any conversation between McCollom and any employee about signing union cards? A. Yes.
“Q. When? A. May the 11th.
“Q. Who did you hear a conversation between? A. I heard part of the conversation between Clyde and Dutch, Clyde Morney.
“Q. Did you hear anything at this time? A. To the best of my knowledge he asked Clyde if he signed a union card, Clyde said no, he signed a little piece of paper that asked if he wanted to go on a strike or not on a strike and he marked no.”
. Employee James Mullins was laid off but was asked by McCollom to apply for work at Howard Construction. Mullins declined because he was not interested.
. The examiner found Howard “consistent with its practice of laying off men solely on the basis of qualifications, without regard to seniority, * * * [and therefore] no discriminatory significance in the bare fact that [Howard] retained three employees of comparatively short service while temporarily terminating six men of longer tenure.”
. Despite Howard’s decision of May 10 to make the layoff within a week or ten days, the examiner attempted to weaken the economic motivation by pointing out (1) the actual decision was issued on May 15 or the day the union finally achieved fifteen of twenty-nine employees, and (2) an unfounded recapitulation of questionable facts and figures demonstrating that Howard possibly saved very little by operating only one shift. This latter reason was discounted by the Board. As for the fact that the union obtained a majority on May 15, we are unable to see any importance or attribute any knowledge of this fact to Howard in that Mr. Eugene Bennett, a teamster representative, testified that while a majority was reached by May 15, recognition was not demanded until the following week.
. In addition to the cases cited in the opinion, see N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930 (5th Cir. 1965) and N.L.R.B. v. Winter Garden Citrus Prod. Coop., 260 F.2d 913 (5th Cir. 1958) and cases there cited.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_applfrom
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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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
RAMEX MINING CORPORATION (83-5299), Gabriel Energy Corporation (83-5305), Plaintiffs-Appellants, and The Stearns Company (83-5299), Intervening Plaintiff-Appellant, v. James WATT, Secretary of Interior; Paul Reeves, Acting Director; Andrew Bailey, Acting Director, Office of Surface Mining Reclamation & Enforcement; David C. Short, Region II, Office of Surface Mining Reclamation & Enforcement, Defendants-Appellees.
Nos. 83-5299, 83-5305.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 3, 1984.
Decided Jan. 29, 1985.
Ben B. Fowler, argued, William H. Gorin, Stites & Harbison, Bruce F. Clark, Frankfort, Ky., for plaintiffs-appellants.
Louis DeFalaise, U.S. Atty., Jane E. Graham, Asst. U.S. Atty., argued, Lexington, Ky., for defendants-appellees.
Before STEWART, Associate Justice (Retired) , ENGEL and MERRITT, Circuit Judges.
The Honorable Potter Stewart, Associate Justice (Retired) of the United States Supreme Court, sitting by designation.
MERRITT, Circuit Judge.
In each of these two cases against the Secretary of the Interior, a coal mining company proposes to mine coal under the surface of land owned and maintained by the federal government as forest land. The mining company claims a valid royalty lease of the mineral estate from the successor in interest of the original owner who reserved the mineral estate when he sold the fee interest in the land to the government. Each ease arises under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328 (1983). In each, the coal mining company and the owners of the underlying royalty mineral interest seek from this Court a declaratory judgment that they are entitled to mine coal under the federal lands. In one case the coal underlies part of the Daniel Boone National Forest in Eastern Kentucky, and in the other case the land is part of the so-called “Redbird Purchase Unit” near the Daniel Boone National Forest. Plaintiffs do not seek injunctive relief or damages.
The 1977 Act applies to mining on both public and private lands, but the questions of interpretation and application of the Act presented by plaintiffs here relate to one of the provisions applicable only to public lands, namely § 522(e)(2), codified as 30 U.S.C. § 1272(e)(2). That section provides, with certain exceptions which we need not enumerate here, that “subject to valid existing rights,” no coal mining which disturbs the surface “shall be permitted ... on any federal lands within the boundaries of any national forest____”
Plaintiffs request a declaratory judgment holding that section 1272(e)(2) is not applicable to the mines they intend to operate and hence that the Office of Surface Mining which administers the Act may not apply and enforce this section against them. They argue that section 1272(e)(2) does not regulate their proposed mines for the following reasons: (1) section 1272(e)(2) does not cover separate mineral interests owned by private parties under federal forests but covers only surface interests; (2) unless the section is read to exclude such private mineral estates, the section constitutes an unconstitutional taking under the Fifth Amendment; (3) the mineral estate underlying the government-owned “Redbird Purchase Unit” is not covered by section 1272(e)(2) because Redbird is not a national forest.
When the Office of Surface Mining learned that the two mining companies were about to conduct underground mining operations which would disturb the surface of federal lands, the administrator gave notice that the companies are required to seek and obtain permits under the Surface Mining Reclamation Act and would be subject to the provisions of section 1272(e)(2). When plaintiffs received these notices, they filed this action for declaratory judgment in District Court rather than participate in the administrative hearing process established by the Act. The Act prohibits the mining of coal without an administrative permit, 30 U.S.C. § 1256, and provides for administrative review and adjudication of disputes arising from permit applications. 30 U.S.C. § 1264.
The District Court overruled in part the government’s motion to dismiss the complaints on grounds that plaintiffs had not exhausted their administrative remedies and that their cases were not ripe for decision. Instead, the Court rendered a partial declaratory judgment construing and applying the statute. It held that the companies’ mineral interests and mining operations would operate under and on federal forest lands, and were therefore governed by section 1272(e)(2) of the Act. The District Court then agreed with the government’s position regarding ripeness, and ruled that it would defer to the agency’s primary jurisdiction regarding plaintiffs’ further claims. However, upon motion filed by the plaintiffs, the District Court dismissed the cases in their entirety so that plaintiffs could appeal from the declaratory judgment. On appeal, the government has formally waived any exhaustion and ripeness contentions to the extent that they might be interpreted to interfere with the District Court’s limited declaration, and asserts that the judgment is now ripe for decision by this Court.
Plaintiffs’ first argument is that the Act, and specifically section 1272(e), does not apply to them at all, because their proposed mining operations will not occur “on federal lands.” Their theory is that they still own the “lands” beneath the surface, and although the federal government has been granted some rights on the surface, the lands affected by plaintiffs’ mining, including the surface land necessarily disturbed by their underground mines, are wholly owned by the private plaintiffs as a matter of state law. Proceeding from this premise, plaintiffs then claim that they cannot be made to resort to the administrative procedure that the Office of Surface Mining has set up for determination of “valid existing rights,” because that process necessarily assumes that the plaintiffs’ operations will occur “on federal lands.”
Plaintiffs’ proposal to mine beneath federal national forest lands, with the conceded attendant effects on the surface of those lands, fits squarely within the common sense meaning of the phrase “on federal lands” as used in section 1272(e)(2). This is even more apparent when the definition of “surface mining” contained in the Act, i.e., “surface impacts incident to an underground mine,” is substituted for the phrase “surface mining” in section 1272(e). Thus, the Act and section 1272(e) apply to plaintiffs’ mines. The District Court was correct in so holding.
The plaintiffs’ “taking” argument is governed by the Supreme Court’s decision in Hodel v. Virginia Surface Mining and Reclamation, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), a pre-enforcement challenge to the Surface Mining Act. The Court held that the Act is not facially invalid. Its “mere enactment” does not constitute a taking of plaintiffs’ mineral estate. Thus, the Court upheld the Act against the same type of attack under the Fifth Amendment as plaintiffs make in the instant case.
The Supreme Court observed that “the Act does not, on its face, prevent beneficial use of coal-bearing lands,” and the coal companies “cannot at this juncture legitimately raise complaints in this Court about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances” because “there is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative review.” 452 U.S. 296-97, 101 S.Ct. 2370-71. The Court explains the hypothetical nature of the “taking” claims before it — “if appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached” — and concludes that “the potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution.” Id. at 297, 101 S.Ct. at 2371 (footnote omitted). The same reasoning applies in this case. The Office of Surface Mining has not yet ruled on the questions of plaintiffs’ “valid existing right” to engage in underground coal mining under section 1272(e)(2). Until an administrative disposition is made of this question, we will not know the nature of the restraint imposed by the government on plaintiffs’ mining operations. Thus the District Court correctly ruled that plaintiffs’ takings claim was not ripe for adjudication, and deferred to the agency’s jurisdiction.
We agree with the District Court that lands within the Redbird Purchase Unit are “national forest” lands within the meaning of section 1272(e)(2). “National forest” land, primarily in the west, has been set aside for many years by the President from land in the public domain under section 24 of the Creative Act of 1891, 16 U.S.C. § 471. See United States v. New Mexico, 438 U.S. 696, 705, 98 S.Ct. 3012, 3016, 57 L.Ed.2d 1052 (1978). “National forest” land within the meaning of section 1272(e) has also been acquired, primarily in the eastern section of the United States, under section 11 of the Weeks Law of 1911, 16 U.S.C. § 521, which provides that land so acquired “shall be permanently reserved, held and administered as national forest land” just as are the western lands set aside by the President under the Creative Act of 1891. Land acquired as forest land under the Weeks Act, as distinguished from land set aside under the Creative Act of 1891, need not be formally set aside and proclaimed as national forest by the President. The acquisition of the land by the United States under the authority of the Weeks Act is sufficient to designate it as “national forest.”
The “Redbird” Forest in question here is a so-called “purchase unit” acquired, held and administered as “national forest” land under the Weeks Act. The District Court was therefore correct in holding that section 1272(e) regulating coal mining in national forests governs lands within the Redbird Purchase Unit.
Accordingly, the judgment of the District Court is affirmed. Further relief not inconsistent with this opinion must be sought as an initial matter from the Secretary.
. Plaintiffs originally sought an injunction prohibiting the Secretary from interfering with their mining operations, but have not pursued this remedy. Similarly, although plaintiffs have made a Fifth Amendment takings argument, they have not sought damages at this juncture.
. Section 1272(e) reads as follows:
After August 3, 1977, and subject to valid existing rights, no surface coal mining operations except those which exist on August 3, 1977, shall be permitted—
(1) On any lands within the boundaries of units of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System ...;
(2) On any federal lands within the boundaries of any national forest: provided, however, That surface coal mining operations may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with surface mining operations and—
(A) Surface operations and impacts are incidental to an underground coal mine;
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean 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.
UNITED STATES of America, Appellee, v. Stephen MANCUSO, Defendant-Appellant.
No. 193, Docket 73-2109.
United States Court of Appeals, Second Circuit.
Argued Sept. 25, 1973.
Decided Oct. 10, 1973.
Roy R. Cesar, Buffalo, N. Y., for appellant.
John T. Spotila, Washington, D. C., Atty. for the U. S. Dept. of Justice (John T. Elfvin, U. S. Atty., for the W. D. N. Y., Jerome M. Feit, Washington, D. C., Atty., for the U. S. Dept. of Justice, and Lloyd George Parry, Special Atty. for the U. S. Dept. of Justice, Buffalo, N. Y., on the brief), for appellee.
Before KAUFMAN, Chief Judge, MOORE and MANSFIELD, Circuit Judges.
KAUFMAN, Chief Judge:
It is in the nature of a perjury case that there be conflicting versions of the underlying facts — one version, constituting the claimed perjury, having been asserted by the accused at a prior proceeding, and the other being put forth by prosecution witnesses at trial. We are met in this appeal with an unusual case in which three versions have appeared, with the appellant having maintained essentially the same position at both proceedings, but the Government witness having himself given two conflicting stories at trial.
Maneuso appeals his conviction following a jury trial, on two counts of a three-count indictment brought under 18 U.S.C. 1623. Three portions of his testimony, given on May 23, 1972, before a United States grand jury empaneled in the Western District of New York, were alleged to be perjurious. The jury acquitted on Count One. On Counts Two and Three Judge Curtin imposed concurrent terms of imprisonment of 18 months, with two months to be served in a jail-type institution, the balance suspended, and probation for two years. Although Maneuso mounts numerous attacks upon these convictions, we deem it necessary to treat only one issue extensively — whether the testimony embodied in either count satisfied the materiality requirement of the statute.
The grand jury investigation centered on extortion and official corruption involving the construction industry and certain public officials of the City of Batavia, New York. More particularly, the inquiry concerned possible illegalities surrounding a specific construction project performed by the Twin Village Construction Corporation (“Twin Village”) for the City of Batavia in the latter half of 1970.
Prior to Mancuso’s appearance, the grand jury had heard testimony from Joseph Laraiso. The pertinent parts of Laraiso’s testimony concerned three matters. He testified that Twin Village had been extorted by Joseph Zito in its ultimately successful attempt to secure a contract awarded by the City for reconstruction of Dewey Avenue, and that he rewarded Zito by putting him on the payroll of that project for several weeks, although Zito neither did nor was expected to do any useful work. He stated that soon after the project began, in May or June 1970, an unforeseen problem arose on the site. He instructed Mancuso, Twin Village’s project supervisor, to offer John Claypool, Batavia’s Chief Engineer, a bribe to persuade Claypool to recommend that the contract be modified. Finally, he asserted that soon after Claypool refused to alter the contract, Laraiso and Mancuso learned of an incipient City investigation of the attempt to bribe him. Zito offered to “fix” this investigation by bribing certain City Councilmen. Laraiso was agreeable, but needed a method of transmitting funds to Zito for this purpose. Laraiso and Mancuso hit upon the idea of having Laraiso draw a $500 corporate check to Mancuso. Mancuso cashed the check, and gave the proceeds to Zito, but the problem arose of accounting for the check to Mancuso. At a meeting among Mancuso, Joseph Laraiso, and Laraiso’s brother Carmen, Mancuso suggested that he would be willing to execute a $500 bill of sale to the corporation for a fictitious sale of a chain saw and surveyor’s transit. This procedure was adopted.
After this testimony by Joseph Laraiso, Mancuso was called to appear before the grand jury. He was served with a subpoena at about 6:00 p. m. on May 22, requiring him to appear before the grand jury the following morning. He did so, without having consulted an attorney. The Justice Department prosecutor presenting the case to the grand jury, Robert Ozer, informed Mancuso that the grand jury was investigating possible crimes against the United States, but did not identify the specific nature of the inquiry. He advised Mancuso that he could consult an attorney at any time, and that he need not answer questions which might incriminate him. Mancuso waived his right to confer with counsel and answered all questions, often elaborating upon his responses extensively. Relying on Laraiso’s story, Ozer asked him, inter alia, whether Zito was a bona fide employee during the period he was on the Dewey Avenue payroll (Count One), whether Mancuso ever told Laraiso to falsify the Twin Village records to account for a $500 check to Mancuso (Count Two), and whether Mancuso ever learned of a City investigation of the alleged attempt to bribe Claypool (Count Three).
I.
The portion of grand jury testimony embodied in Count Two deals with alleged falsification of corporate records. Ozer asked Mancuso whether he had ever received money other than his paycheck from Laraiso. Mancuso freely admitted that on one occasion he had permitted Laraiso to “funnel” a $500 corporate cheek through him. He stated that he had cashed the check and returned the proceeds to Laraiso. He flatly denied that he had given the money to Zito, and disclaimed knowledge of whether Laraiso had done so. Ozer then repeatedly asked Mancuso whether he had told Laraiso to falsify the corporate records to account for this check. Although Mancuso at first denied any memory of the subject, and then displayed some confusion as to the meaning .of the question, he finally made the statement that “I have had no reason to ever even suggest” such falsification. Count Two charged that it was material to the grand jury to know whether Mancuso suggested falsification of Twin Village’s records, and that Mancuso’s denial was knowingly false.
At the trial Laraiso repeated the version he had related to the prosecutors and the grand jury. On cross-examination, however, the telling event transpired which lifts this case above the commonplace perjury case. In melodramatic fashion, defense counsel pointedly reminded Laraiso that the alleged attempt to bribe Claypool, which Laraiso claimed had occasioned the need to put money in the hands of Zito, occurred at the beginning of the Dewey Avenue project, in May or June 1970. The check and bill of sale, however, bore the date November 12, 1970, when the job was virtually complete. To everyone’s surprise and the Government’s dismay, Laraiso suddenly remembered on the witness stand that the story he had told the prosecutors more than a year before, and then repeated both before the grand jury and on direct examination at trial, was totally erroneous. He recalled that the transaction in issue had nothing to do with Zito, Dewey Avenue or the City of Batavia at all. He admitted on cross-examination that in November 1970, Twin Village was engaged in the performance of a wholly private construction contract for Litton Industries, in Batavia. This was entirely unrelated to Dewey Avenue, or any other City project. Laraiso then revealed that Andrew Clemons, an individual architect employed by Litton, had helped Twin Village obtain and perform the private contract. Laraiso had decided it would be appropriate to offer Clemons a “gratuity” in appreciation of his assistance, and it was for this purpose that the $500 check to Mancuso and the false bill of sale were intended. Laraiso insisted, however, that as he had originally testified, it was Mancuso who suggested use of the bill of sale to account for the attempted payment to Clemons.
Carmen Laraiso, testifying for the prosecution, parroted his brother by stating that he too suddenly recalled that the transaction involved the Clemons affair, not the Dewey Avenue project. He corroborated his brother’s testimony that the bill of sale was Mancuso’s suggestion.
Mancuso testified in his own defense at the trial, and insisted that the documents — the check and bill of sale — related to the private architect, not the public contract. He stated his belief that he had not suggested the method of falsifying the corporate records, but could not exclude that possibility.
At the conclusion of the government’s case the defense unsuccessfully moved for dismissal of Count Two because the testimony was not material. This motion was renewed at the conclusion of the entire case and again after the verdict. We need not consider Mancuso’s claim that the evidence does not support the jury finding of knowing falsity, for we are of the opinion that the trial court erred in failing to dismiss the count for lack of proof of materiality.
II.
Materiality is an essential element of the statutory offense which the Government has the burden of establishing. United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970). The Government concedes that whether testimony is material is a question of law to be decided by the court. United States v. McFarland, 371 F.2d 701, 703 n. 3 (2d Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1689, 18 L.Ed.2d 624 (1967); United States v. Marchisio, 344 F.2d 653, 665 (2d Cir. 1965). The issue, in the language of § 1623(a), is whether the defendant made a “false material declaration.”
False testimony before a grand jury need not bear upon the ultimate question of guilt or innocence of specific federal crimes in order to possess the requisite materiality. We have held on several occasions since our landmark case, Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927), the famous controversy over the lady in Earl Carroll’s bathtub, that it is sufficient if the untrue declaration has “a natural effect or tendency to influence, impede or dissuade the grand jury from pursing its investigation. . . ..”16 F.2d at 953. We are required to examine both the nature of the inquiry at which the testimony was given and the evidence introduced at trial to prove its falsity, in order to determine whether a truthful answer could conceivably have aided the grand jury investigation.
The ultimate issue, therefore, is whether the Government has shown that it could possibly have assisted the grand jury if it knew that Mancuso suggested the means of accounting for an attempted “gratuity” to the private architect, Clemons, in connection with a job unrelated to the inquiry. We believe that the evidence totally fails to support such a view. The question posed to Mancuso related to a wholly immaterial event. Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation. The question could not, therefore, have elicited a material reply. See cases cited note 17, supra. The only argument offered in support of materiality is that until Mancuso testified, the grand jury had received a single coherent version of the facts from Laraiso. Mancuso’s contradiction of Laraiso’s claim that Mancuso suggested the false bill of sale presented the first conflict in evidence, which, it is said, confused the grand jury, forced it to reconsider its investigation, and therefore in a general sense “impeded” the inquiry. The difficulty with this argument is that the grand jury’s confusion is more properly traceable to Laraiso’s erroneous testimony, compounded by prosecutor Ozer’s misapprehension, that the transaction bore some relationship to the alleged bribery associated with the Dewey Avenue job, when in fact it did not. Had Mancuso admitted that he told Laraiso how to falsify the corporate records, the misconception would have been reinforced, not dissipated. We therefore cannot agree that the truth Mancuso allegedly concealed could conceivably have led to the discovery of relevant evidence or that his alleged false statements tended to influence, impede or dissuade the grand jury from pursuing its investigation. A finding of materiality must have some basis in the content of the testimony itself. That which is otherwise wholly immaterial cannot become material solely because a prior witness, innocently but mistakenly led on by the prosecutor, has given the false or erroneous impression that it has some materiality. Accordingly, we reverse the conviction on Count Two.
III.
The Count Three conviction is grounded in Ozer having asked Mancuso before the grand jury whether he and Laraiso ever received word that the City was to begin an investigation of them concerning a bribe attempt. This elicited an “answer” which consumes more than three pages of the grand jury transcript, Mancuso admitted learning of the investigation, and then in great detail described a second meeting he claimed he initiated with Claypool. Mancuso’s version was that he convinced Claypool of his error in having construed Maneuso’s prior effort to persuade him to approve revision of the Dewey Avenue contract as a bribe offer. Count Three alleged that this testimony was false because a second meeting never occurred.
At trial Claypool testified that Mancuso had offered a bribe at their one and only meeting. Claypool stated that this had angered him greatly, causing him to depart promptly. He reported the incident to his superiors. When asked whether he had any second meeting with Mancuso such as the latter had described, he replied three times, “Not that I recall, no.”
Mancuso’s attacks on the sufficiency of the evidence to support Count Three are wholly without merit. We shall treat only the claim that his testimony concerning the claimed second meeting with Claypool lacked the requisite materiality. We deem this desirable to explicate further our discussion of Count Two.
The claim is that the testimony was not material because an indictment dealing with the attempt to bribe Clay-pool was never returned by the grand jury. Moreover, it is urged, no evidence was introduced at trial to indicate any interstate nexus of the incident to warrant federal jurisdiction. This argument completely misconceives the nature of both the grand jury function and the materiality requirement.
At the time Mancuso appeared, the grand jury had heard testimony from Laraiso depicting a pattern of extortion and public corruption involving Twin Village and the City of Batavia. An attempt to bribe Claypool, the City’s Chief Engineer, could clearly play a significant part in the case being developed, either as an independent crime or as an evidentiary stone in the larger edifice. And although it is certainly not necessary to materiality of grand jury testimony that an indictment be returned, the fact that Zito and Valenti were ultimately indicted and convicted for federal crimes establishes a fortiori that the possibility of federal jurisdiction existed.
Since evidence of the bribe attempt itself would be material, Mancuso’s false testimony that he had convinced Clay-pool that there had been no bribe offer was clearly material, as it tended to impede or dissuade the grand jury from pursuing its investigation. Carroll v. United States, supra; cases cited note 16, supra. Neither the failure of the grand jury to return an indictment concerning the alleged bribery attempt, nor the absence of proof that federal jurisdiction over it would have existed, is relevant to the issue of materiality. The conviction on Count Three is affirmed. We have reviewed appellant’s other arguments and they are equally unpersuasive.
Since the trial court imposed identical concurrent sentences on Counts Two and Three and we have today reversed the conviction on Count Two, it is appropriate that we remand the case to the district court for review of sentence. We do so because of the possibility that conviction on both counts might have affected the punishment set for each. Of course, we do not imply any view on the propriety of the original sentence. We leave the sentence to be imposed entirely to the discretion of district court.
. Section 1623.reads, in pertinent part:
(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Judge Curtin continued Maneuso’s release on $5000 recognizance pending the determination of this appeal.
. Laraiso was president and part-owner of Twin Village during the relevant period of May to December 1970. In December 1970 he was apparently forced out of the corporation by his brother, Carmen Laraiso, who then became its president.
Laraiso approached first the Federal Bureau of Investigation and then attorneys of the Department of Justice Strike Force based in Buffalo, New York, and divulged to them a pattern of illegal conduct in which he and Twin Village had been involved. The grand jury investigation was commenced and conducted largely on the basis of Laraiso’s information.
. Zito and another individual, Frank Valenti, were ultimately indicted and convicted for extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Although the record of that trial is not before us, the record in the present case indicates that the extortion scheme included “prevention” of labor union difficulties in Twin Village’s performance of . the Dewey Avenue project and threats of personal violence against Joseph Laraiso, in addition to “help” in securing the contract.
Apparently no charges have been brought against any public officials of the City of Batavia as a result of this investigation.
. The crew unexpectedly struck bedrock at a depth of 10 feet below the street. The contract. called for the sewer line to be installed 15 feet deep, and provided no added payment for the extra excavation expense, which Laraiso estimated to be $4,500.
. Laraiso had met Mancuso, who was an experienced but then unemployed construction man in Batavia, in the spring of 1970. He offered Mancuso employment if Mancuso would help him prepare the successful bid on the Dewey Avenue contract, to be awarded by the City in May. Mancuso agreed, and the bid of Twin Village was the lowest. They learned, however, that the City was reluctant to award the contract to the company, because of its reputation for poor quality work. It was at this point that Laraiso and Mancuso allegedly engaged Zito to “help” secure the contract. Whether through fair means or foul, Twin Village was awarded the job, and Mancuso became its supervisor.
The contract revisions sought would have provided payment for the unforeseen costs or, alternatively, would have permitted redesign of the sewer.
. Mancuso testified that Zito performed useful work on the project. At trial he repeated his statement, as Laraiso repeated his testimony to the contrary. On the basis of substantial corroboration of Mancuso’s version by other defense witnesses who observed Zito working at the site, the jury acquitted on Count One.
. Ozer liacl the $500 cheek and bill of sale in his possession, but did not show them to Mancuso or indicate their existence. We can say with the luxury of hindsight that had Ozer at least mentioned the date, November 12, 1970, which appears on the two documents to Mancuso, the confusion which engulfed this investigation from the start, but which did not become apparent until the middle of the trial, might have been abated promptly.
. Other than by suggesting the money had come to rest in Zito’s hands, Ozer did not reveal the purpose which, based on Laraiso’s story, he believed the transaction had served.
Mancuso stated his understanding of the reason for the “funnelling” to be that Laraiso needed funds personally, but was prevented by a subordination agreement with a bonding company from withdrawing money from the corporation. It was proved at trial that such an agreement did exist during the relevant time.
. It is apparent that in several of his answers Mancuso equated the word “told” with “instructed,” and therefore responded by disclaiming the power to “tell” his employer to do anything.
. Unfortunately, the briefs submitted on this appeal were inadequate both in the statement of facts and discussion of the law. Only after a reading of the entire transcript have we been able to ascertain all the detailed facts and the bizarre fashion in which the revelations came.
. Laraiso testified that “somewhere” there was another $500 cheek which did involve Zito and the attempt to quash investigation of the Claypool incident. This check, of course, never came to light.
. He also remembered that he had ultimately offered the gift to Clemons, who refused it, and that he had then returned the money to his brother Joseph.
. Corroboration was not a prerequisite to this prosecution. § 1623(e) specifically abrogates the “two-witness rule” for prosecutions brought under that section.
. Our prior decisions dealing with materiality of testimony in perjury prosecutions have arisen under 18 U.S.C. § 1621, the older, more general statute. There is, however, nothing in § 1623, the newer provision under which the present prosecution was brought, to indicate that Congress intended any change in the nature of the materiality requirement, nor is this a matter of contention.
. E. g., United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249 (1972); United States v. Marchisio, 344 F.2d 653, 655 (2d Cir. 1965); United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960).
. There is language in United States v. Siegel, 263 F.2d 530 (2d Cir.), cert. denied, 359 U.S. 1012, 79 S.Ct. 1147, 3 L.Ed.2d 1035 (1959), which may seem to imply that materiality exists unless the question, divorced from the context in which it was asked, could not have elicited a material reply. Our precedents, including Siegel, demonstrate that such a view cannot be maintained ; see, e. g., Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927); United States v. Hirsch, 136 F.2d 976 (2d Cir.), cert. denied, 320 U.S. 759, 64 S.Ct. 66, 88 D.Ed. 452 (1943); United States v. Marchisio, supra; United States v. Stone, supra. In each case the court has examined the factual background to determine whether the question had some bearing on a subject which was material to the proceeding, and whether a truthful answer might possibly have aided the inquiry. We have never permitted materiality to turn simply on whether the question, on its face, could conceivably have evoked a material reply.
We recently stated in United States v. Freedman, 445 F.2d 1220, 1227 (2d Cir. 1971), that before the materiality requirement could be satisfied, the Government was required to establish “ . . . that a truthful answer would have been of sufficient probative importance to the inquiry so that, as a minimum, further fruitful investigation would have occurred.” This statement was repeated in United States v. Birrell, 470 F.2d 113, 115 n.1 (2d Cir. 1972). Neither Freedman nor Birrell, however, concerned grand jury investigations. Both cases involved alleged perjury in contexts where the factual questions to be determined were clearly defined. In Freedman the Securities and Exchange Commission was investigating securities laws violations concerning the shares of three named corporations. The failure of the witness to disclose a profit-sharing agreement relating to the stock of a wholly unrelated corporation could not have had any bearing on that inquiry. In Birrell the issue was a narrow one — whether Birrell was indigent and therefore entitled to appointment of counsel.
The issues before a grand jury, however, are not predetermined. Its function is to investigate possible crimes against the sovereign so that it can make a judgment whether a trial on specific charges is necessary. The scope of legitimate inquiry is therefore broad, and materiality of testimony may more readily appear than in a proceeding whose dimensions are established at the outset. United States v. Stone, supra, 429 F.2d at 140; United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249; see Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
Because of this investigative, rather than adjudicative, function, our prior decisions state the test of materiality of grand jury testimony to be whether a truthful answer could conceivably have furthered the inquiry. We need not decide whether the more stringent view of materiality, expressed in Freedman and Birrell, has effected any change in the test as it applies to a grand jury proceeding, for we are of the opinion that on any view of this case, the testimony was not material.
. Before the grand jury, Claypool stated that Mancuso hinted at a bribe. At trial he was more specific:
[Mancuso] said something along these lines, “What can we do to make you give a favorable recommendation on the extra we submitted for the rock excavation and the sewer,” and I said “What do you mean,” and he said “Well, Joe [Laraiso] is willing to pay money for it”
Mancuso denied vehemently that he had offered a bribe and contended, as he had before the grand jury, that he had convinced Claypool during the putative second conversation that Claypool had misunderstood when Mancuso indicated that the City would save about $500 if redesign of the sewer were permitted.
. Mancuso’s claim that this evidence was insufficient to support the finding that a second meeting had never occurred is frivolous. A witness can only truthfully testify about his current recollection, and the jury could well find on the record before us that if a second conversation had in fact occurred, Claypool would “recall.”
There is, of course, no failure of proof in the fact that Claypool was the sole witness to testify that Mancuso had lied. As we have indicated, § 1623(e) has abolished the “two-witness” rule for prosecutions under this statute.
. The alleged bribery attempt possibly could have constituted a separate federal offense under the so-called Travel Act, 18 U.S.C. 1952, but we need not pass on the question here.
. See United States v. Mapp, 476 F.2d 67, 82 (2d Cir. 1973); United States v. Hines, 256 F.2d 561 (2d Cir. 1958); cf. United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_stpolicy
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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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SLOAN et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6808.
Circuit Court of Appeals, Ninth Circuit.
Feb. 20, 1933.
Melvin D. Wilson, of Los Angeles, Cal., for appellant.
G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and Wm. Cutler Thompson, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR and SAWTELLE, Circuit Judges, and CAVANAH, District Judge.
SAWTELLE, Circuit Judge.
This petition for a review of a decision of the Board of Tax Appeals involves deficiencies in income taxes asserted against the petitioners as transferees and beneficiaries of the Dominguez Harbor Tract No-. 2 for the years 1923, 1924, and 1925. There is no dispute as to the facts, and counsel in their respective briefs have adopted the findings of fact as made by the Board of Tax Appeals. These findings are as follows:
“The several petitioners are individuals residing in or near the city of Los Angeles, California.
“Prior to 1907, certain real estate operators had subdivided a parcel of land containing 108 acres situated between Long Beach and Wilmington, California, and known as the Dominguez Traet, and had sold a few lots. In the panic of 1907, the subdividers failed and the property reverted to the mortgage holders, the Henry Matson Estate. A representative of such estate later asked petitioner C. 0. Middleton to take over the property for the purpose of liquidation.
“1912, Middleton made a nominal payment and in 1913, after inviting several others to- join him in the matter, he took title to the property in the name of Charles 0. Middleton and J. E. Adams as joint tenants and as trustees for all the parties interested in the acquisition and disposition thereof, and on September 1, 1913, Middleton and Adams executed the following declaration of trust:
“ ‘This indenture made this first day of September, A. D. 1913, Witnesseth: That Charles O. Middleton and J. E. Adams of Los Angeles, California, being designated the “trustees,” have and hold the legal title in fee simple in joint tenancy with right of survivorship to the following described real estate situated in the county of Los Angeles, state of California, to wit: [describing the property]. Subject to an existing incumbrance in the amount of $139,345.00'.
“ ‘That the said real estate is held by said trustees in trust for the beneficiaries hereinafter named, their lawful assigns and legal representatives according to their respective interests, for the following uses and purposes with the following powers in said, trustees, to wit:
“ ‘To sell the whole or any part of said real estate and to that end to lay out and subdivide said lands or any part thereof; to pay commissions for the sale of said lands; to improve the same and to execute conveyances for said land or any part thereof; also to mortgage or lease said real estate or any part thereof; and to receive the rents and profits of said real estate and, as incidental to said powers, to prosecute and defend all actions at law or in equity relating to said property or any thereof; to collect moneys owing upon any sale or sales thereof and to satisfy judgments and claims relating thereto and to otherwise exercise full control and management of said property. When said property shall have been sold, to divide the proceeds of the sales thereof after deducting all necessary expenses, among the several beneficiaries or their lawful assigns or legal representatives according to their respective interests.
“ ‘The said beneficiaries and their assigns and legal representatives shall not have or hold any title to said land or any part thereof and shall not be authorized to' maintain any suit for partition thereof or to annul or terminate this trust, except as herein provided.
“ ‘The beneficial interest in said property shall be divided into one thousand shares among the following named beneficiaries with the following number of respective shares to each:
P. H. O’Neil.......................one hundred shares
J. E. Adams & J. H. Miller, joint tenants with right of survivorship ...............three hundred shares
J. A. Anderson....................one hundred shares
Charles O. Middleton.......two hundred fifty shares
G. F. Sloan..................one hundred fifty shares
Alisal Ranch Company...........one hundred shares
“ ‘A separate certificate shall he issued to each beneficiary for his number of shares and upon surrender thereof, such certificate may be divided and separate certificates issue¿l for such shares to those entitled thereto.
“‘In case of death, removal, or inability to act of either of said trustees, the survivor shall fill such vacancy by proper conveyance.
“ ‘Certificates of trust issued under this instrument may be transferred by assignment and delivery.
“ ‘Three fourths of the beneficiaries in interest may by an instrument in writing, remove any trustee under this instrument and appoint another in his stead and may require such trust property to be conveyed to such surviving trustee and new trustee in joint tenancy by proper conveyances and in ease of the death or inability of both said trustees, may fill such vacancies. Three fourths in interest of said beneficiaries may likewise terminate this trust at any time and partition said property by their own act or by judicial proceedings for partition, but in any event this trust shall eease and determine upon the decease of all the natural persons in being named in this instrument.
“ ‘The trustees shall be empowered at any time prior to the determination of this, trust whenever in their judgment it may he expedient and proper, to declare dividends of money among the respective beneficiaries, derived from sales of real estate/
“Certificates of beneficial interest were issued in conformity with, the trust instrument. Two of such certificates were assigned to other parties and such assignments were recognized by the trustees.
“On November 25, 1914, Middleton resigned as trustee and Adams appointed P. H. O’Neil as his successor. On February 15, 1915, O’Neil resigned and Adams appointed G. F. Sloan as his successor.
“On February 29', 1924, March 9, 1925> and March 15,1926, respectively, the trustees filed fiduciary .returns for the years 1923, 1924 and 1925. On March 15, 1929, the trustees executed and caused to be filed with the Collector of Internal Revenue at Los Angeles and with the revenue agent in charge at the same city, an election to be taxed for the years 1923, 1924 and 1925 as a trust under the provisions of section 704 (b) of the Revenue Act of 1928, 26 USCA § 2704 (b).
“The trustees never acquired any land in addition to the lots taken over in 1913 and through agents sold all such lots prior to 1923. Throughout the taxable years they sold no lots and their activities were limited to collecting installment payments on sales contracts previously made, paying expenses, executing deeds for lots covered by paid-up contracts, and distributing proceeds of cofteetions to the beneficiaries. • None of the receipts from sales was reinvested or retained as working capital.
“The beneficiaries never held a meeting, removed or appointed a trustee, terminated the trust or partitioned the land.”
The question presented is whether the so-called Dominguez tract was an association, taxable as a corporation for the taxable years in question, as determined by the respondent, and as found by the Board, or a strict trust, as contended by the beneficiaries.
Respondent concedes error with respect to the taxable year 1923. The reasons for this concession on the part of respondent are stated in the brief as follows:
“It will be necessary to treat the taxable year 1923 separately.
“The term ‘corporation’ is defined by section 2 of the Revenue Acts of 1921, (42 Stat. 227) 1924 and 1920 (26 USCA § 1262) to include associations. The term ‘association’ is not defined in any of the revenue laws. It has been defined in the regulations promulgated by the Commissioner from time to time, pursuant to statutory authority. Article 1502 of Treasury Regulations 62, promulgated under the Revenue Act of 1921, defines ‘association’ to include ‘common law trusts * * * which act or do business in an organized capacity.’ Article 1502 of the cited regulation distinguishes ‘association’ from ‘trust.’ While it is not as clearly drawn as might be desired, it purports to make the presence or absence of control by the beneficiaries the standard for determining whether an organization is a trust or an association within the meaning of the statute.
“The entire administrative viewpoint was changed by the decision of the Supreme Court in Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949; Theretofore the Treasury Department, in reliance upon the earlier decision in Crocker v. Malley, 249 U. S. 223, 39 S. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601, had ruled that control by the beneficiaries was essential in order that a trust should be classified as an association. In Heeht v. Malley, supra, the Supreme Court departed' from the earlier criterion of beneficiary control, holding that a trust is to be treated as an association irrespective of such control where "organized in corporate form for the conduct of a business enterprise. The decision in Hecht v. Malley was adopted and published as T. D. 3595, III-1 C. B. 489, on August 11, 1924, and the Treasury Department has adopted that date as marking the change from the prior practice based upon the existence of beneficiary control to the new rule made necessary by the more recent decision of the Supreme Court.
“Section 704 (a) of the Revenue Act of 1928 (26 USCA § 2704 (a)] was designed to afford retroactive relief to taxpayers from the consequences of a retrospective application of the principles of Hecht v. Malley, supra, which would have subjected them to tax as associations, although they would have been taxable as trusts under the administrative rulings in effect at the time the return was filed or the trust was dissolved. This clearly appears by reference to the legislative history of the statute. The language of the act is broad and relief is extended in respect of any taxpayer who filed a return as a trust for a taxable year prior to 1925 who would have been considered (by the Treasury Department) taxable as a trust under regulations in force or under any applicable ruling of the Bureau effective when the return was filed.
“The return for 1923 was filed on February 29, 1924. Whatever question may exist as to the proper interpretation of article 1504 of Treasury Regulations 62, we concede that under applicable Treasury rulings in effect when the return was filed the petitioners were taxable as a trust and not as an association. On behalf of the respondent error is therefore confessed in so far as the Board of Tax Appeals held the petitioners taxable as an association for the year 1923.”
Respondent further states:
“A very different situation is presented with respect to the taxable years 1924 and 1925. Tbe return for the year 1924 was filed on March 91, 1925. By that time the views of the Treasury Department had crystallized along the line of the principles announced in Hecht v. Malley, supra, Article 1504 of Treasury Regulations 65, promulgated under the Revenue Act of 1924, provided that—
“Operating trusts, whether or not of the Massachusetts type, in which the trustees are not restricted to the mere collection of funds and their payment to the beneficiaries, but are associated together in much the same manner as directors in a corporation for the purpose of carrying on some business enterprise, are to be deemed, associations within the meaning of the act, regardless of the control exercised by tbe beneficiaries.
“On August 31, 1925, the article above quoted was amended and amplified by T. D. 3748, providing—
“Even in the absence of any control by the beneficiaries, where the trustees are not restricted to- the mere collection of funds and their payment to the beneficiaries, but are associated together with similar or greater powers than the directors in a corporation for the purpose of carrying on some business enterprise, the trust is an association within the meaning of the statute.
“The matter above quoted was incorporated as a part of Article 1504, Treasury Regulations 69, under the Revenue Act of 1926.
“The Treasury regulations have been carried over in substantially unchanged form since 1924. During this period tbe Congress has thrice reenacted without change the provisions of the revenue act upon which the Treasury regulations were based. The regulations are therefore to he accorded the force and effect of law. [Cases cited.]”
As stated by Judge Neterer, speaking for this court in the case of Commissioner of Internal Revenue v. Atherton, 50’ P.(2d) 740, 742: “The controlling feature of a trust is an association of individuals for administration of an estate for liquidation and equitable distribution, and the controlling distinction of an association is an association of individuals for administration of an estate for convenience and profit.”
In the case of Von Baumbach v. Sargent Land Co., 242 U. S. 503, 516, 37 S. Ct. 201, 204, 61 L. Ed. 460, the Supreme Court said: “It is evident, from what this court has said in dealing with the former cases, that the decision in each instance must depend upon the particular facts before the court. The fair test to be derived from a consideration of all of them is between a corporation which has reduced its activities to the owning and holding of property and the distribution of its avails, and doing only the acts necessary to continue that status, and one which is still active and is maintaining its organization for the purpose- of continued efforts in the pursuit of profit and gain, and such activities as are essential to those purposes.”
We think that petitioners were an association within the meaning of the law and regulations of the Treasury Department, and that they were engaged in business for profit during the taxable years in question. Petitioners contend, however, that “whatever may have been done in the preceding years, the activities of the trust were certainly limited to the liquidation of contracts in the taxable years involved.” We do not think that'this necessarily follows. We think that the activities during the taxable years were necessary to enable the association to realize the profits for which it was organized. As said by the Supreme Court in the case of Flint v. Stone Tracy Co., 220 U. S. 107, 171, 31 S. Ct. 342, 357, 55 L. Ed. 389, Ann. Cas. 1912B, 1312: “ 'Business’ is a very comprehensive term and embraces everything about which a person can be employed. Black’s Law Diet., 158, citing People v. Commissioners of Taxes, 23 N. Y. 242, 244. ‘That which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.’ Bouvier’s Law Diet. [vol. 1] p. 273.”
The activities of the association during the taxable years in question, as shown by the facts found, was as essentia] to enable 'it to reap the profit contemplated at the time of organization as was its activities in previous years. The business was continued by the association for the purpose of increasing the income and profit of the beneficiaries.
The association having been organized for the purpose of realizing income and profit, it cannot he that merely because all of the lots of the association had been sold, although the purchase price thereof had not been paid, its activities ceased upon tbe sale of tbe lots, and that during the taxable years in question tbe association ceased its activities and became a strict trust within the meaning of the law.
The instant ease was cited with approval by this court in the ease of trust No. 5833, Security-First Nat. Bank v. Welch (Dec. 7, 1931) 54 F.(2d) 323, certiorari denied 286 U. S. 544, 52 S. Ct. 496, 76 L. Ed. 1281. Now that the ease is before us and we have had occasion to examine the record therein, together with the applicable statutes and decisions, we are in entire accord with the decision of the Board of Tax Appeals. To he sure,, the facts in the instant case and those in the ease of trust No. 5833 are not identical; but that is not to be expected. The same general principle controls. See,. also; Merchants’ Trust Co. v. Welch (C. C. A. June 13, 1932) 59 F.(2d) 630.
Reversed as to the year 1923; affirmed as to the years 1924 and 1925.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_casedisposition
|
D
|
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.
MURDOCK ACCEPTANCE CORP. v. UNITED STATES.
No. 56.
Argued February 27, 1956.
Decided March 26, 1956.
Elizabeth Hulen Grayson argued the cause for petitioner. With her on the brief were T. H. Watkins, W. H. Watkins and P. H. Eager.
John F. Davis argued the cause for the United States. On the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Isabelle Cappello.
Per Curiam.
The United States filed a libel in the District Court for the Eastern District of Louisiana, under §§ 3116 and 3321 of the Internal Revenue Code of 1939, 53 Stat. 362, 401, for the forfeiture of an automobile which had been used to transport nontax-paid whiskey. Petitioner, a finance company which had accepted an assignment of a conditional sales contract when the automobile was purchased, sought remission of the forfeiture to the extent of its interest under 18 U. S. C. § 3617. That section provides that in a forfeiture proceeding the District Court “shall have exclusive jurisdiction to remit” the forfeiture, but that the court “shall not allow” remission unless the finance company (1) acquired its interest in good faith; (2) had no reason to believe that the automobile would be used in violation of the liquor laws; and (3),
“was informed in answer to [its] inquiry, at the headquarters of the sheriff, chief of police, principal Federal internal-revenue officer engaged in the enforcement of the liquor laws, or other principal local or Federal law-enforcement officer of the locality . . . that [the purchaser] had no . . . record or reputation [for violating laws of the United States or of any State relating to liquor].”
It is conceded that petitioner satisfied the first two requirements. As to the third, petitioner made a timely inquiry regarding the purchaser of the automobile to the state office of the Federal Alcohol and Tobacco Unit, from which it received the following reply:
“No record or reputation as a liquor law violator as of [the date of the inquiry]. This office does not keep a complete file of State and local arrests or prosecutions, and has no knowledge of the subject’s reputation among State and local officers.”
It is conceded that the inquiry was made to an appropriate office and that, if the substance of the reply satisfied the statute, no further inquiries were required by the statute. The issue is whether the substance of the reply was adequate.
The reply received by petitioner was a form reply designed by the Internal Revenue Service expressly for the purpose of satisfying this statutory requirement. It had for years been accepted as compliance with the statute in administrative remissions and in forfeiture proceedings in other district courts. Nevertheless, the District Court denied remission on the ground that the reply did not satisfy the statute in that it expressly disclaimed any knowledge of the purchaser’s record or reputation for state liquor law violations. 121 F. Supp. 265. The Court of Appeals for the Fifth Circuit affirmed, 218 F. 2d 702, with one judge dissenting upon rehearing, 220 F. 2d 279. We think the courts below misconstrued the reply. The first sentence affirmatively stated that the purchaser had no record or reputation in that office as a “liquor law violator,” and that statement was not limited to federal violations. The second sentence did not qualify the negative character of the reply but merely made clear that that office’s knowledge was not unlimited.
The District Court also based its decision on the alternative ground that, even if the requirements of the statute were technically met, remission would be denied in the discretion of the court. The sole basis for that holding was that petitioner was “put on notice” by the reply that the purchaser might well have a record as a liquor law violator with the state authorities, and its failure to investigate further disclosed “an indifference on its part which does not commend it to the equitable conscience of this court.” We need not decide the extent of the District Court’s discretionary power to deny remissions, since in any event we think there was no occasion for its exercise here. The very purpose of prescribing in detail in the statute the type of inquiry to be made was to avoid uncertainty over the extent of investigation necessary to protect finance companies against forfeitures. That purpose would be frustrated if a duty to investigate further could be grounded solely upon the alleged inadequacy of a reply clearly satisfying the statutory investigation requirements. In limiting the inquiry duty to any one of several offices, Congress must necessarily have contemplated that the records of one office only would be checked. It considered that adequate.
The judgment below is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Frankfurter dissents.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_suffic
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. Boyer Alfredo BRACY, Appellant. UNITED STATES of America, Appellee, v. Sondra Denise MARTIN, Appellant. UNITED STATES of America, Appellee, v. Brenda BRACY, Appellant.
Nos. 76-3416, 76-3289 and 76-3325.
United States Court of Appeals, Ninth Circuit.
Dec. 23, 1977.
Rehearings and Rehearings In Banc Denied Feb. 13 and 28, 1978.
Ron Minkin, (argued), Los Angeles, Cal., Edward F. Bell, (argued), Detroit, Mich., for appellants.
Stephen W. Peterson, Asst. U. S. Atty., (argued), on the brief, Terry J. Knoepp, U. S. Atty., San Diego, Cal., for appellee.
Before WRIGHT and KILKENNY, Circuit Judges, and GRANT, District Judge.
The Honorable Robert A. Grant, Senior District Judge, United States District Court for the Northern District of Indiana, sitting by designation.
KILKENNY, Circuit Judge:
Appellants, together with three others [Stephanie Maria Gurley, Juanita Louise Kendricks, and Jerry Word], were indicted, tried and convicted in a jury trial of: (1) conspiracy to illegally import a controlled substance [heroin and cocaine] in violation of Title 21 U.S.C. § 963; (2) illegal importation of a controlled substance [5.5 pounds of heroin] in violation of Title 21 U.S.C. §§ 952, 960 and 963; (3) illegal importation of a controlled substance with intent to distribute [heroin and cocaine] in violation of Title 21 U.S.C. §§ 841(a)(1) and 846; (4) knowingly and intentionally possessing with intention to distribute approximately 5.5 pounds of heroin, a controlled substance, in violation of Title 21 U.S.C. § 841(a)(1).
The indictment before us, which was returned on June 30,1976, superseded a previous indictment which was returned on April 28th of the same year. James Howard Porter [Porter], who later testified for the government, was named in the June 30th indictment as an unindicted coconspirator. Boyer Alfredo Bracy [A. Bracy], Sondra Denise Martin [Martin], and Brenda Bracy [B. Bracy] appeal. We affirm.
FACTUAL BACKGROUND
The incidents upon which the counts in the superseding indictment were grounded and upon which appellants were convicted are separately summarized to facilitate the treatment of the issue concerning the number of conspiracies. The jury found there was one overall conspiracy.
FEBRUARY 17, 1975, ARREST (CANADA INCIDENT)
On February 16,1975, an airport security guard, while checking luggage at the Detroit airport noticed a large amount of cash in one Canada’s luggage. Canada was accompanied by appellant A. Bracy. The security guard informed a local Drug Enforcement Agency (DEA) agent who ran a routine check on A. Bracy. He found that A. Bracy had a long history of narcotics violations. He notified officials in San Diego, Canada’s destination, to alert them of this information. San Diego authorities established surveillance on Canada when she arrived in their city. She was met at the airport by Turner, a coeonspirator, and later the two of them walked to :a waiting car being driven by one Welsh. The trio rented a room at a local motel and engaged in a variety of activities around San Diego. Phone records from the rented room revealed that its occupants had placed a long distance call to a Detroit number assigned to the wife of a known lieutenant in a narcotics ring headed by Juanita Kendricks [Kendricks], a codefendant, and her husband, Richard, A. Bracy’s parents. The following day, the 17th, Turner and Welsh went to Tijuana, Mexico, and they returned that afternoon. Another series of events followed where one or more of the threesome would leave the motel room. All three, Canada, Turner, and Welsh checked out of the motel and headed north from San Diego. Their car was stopped by California Highway Patrol officers who asked permission to search the vehicle. Permission was granted, and the officers found various narcotics [heroin and cocaine] in the trunk.
JANUARY, 1976, INCIDENT
Porter, an unindicted coconspirator, was employed by A. Bracy as a cleanup man at A. Bracy’s suburban Detroit home. One Lomas worked as construction supervisor on the home. Both men moved to Los Angeles shortly before Christmas, 1975. Early in 1976 A. Bracy called Lomas and told him that he would be stopping in Los Angeles for a visit. A. Bracy arrived at Lomas’ apartment with a girl friend, Susan Perry, and gave Lomas and Porter money, allegedly to buy undergarments to conceal narcotics. Lomas and Porter returned with the clothing. Then A. Bracy and Lomas drove to San Diego where they contacted Porter who had flown to San Diego and registered in a local motel [Royal Inn], Lomas remained in the room while A. Bracy and Porter went to Tijuana. In Mexico, they met with Manuel Banaga (Manning). A. Bracy gave Manning a briefcase. Following the exchange, A. Bracy and Porter checked into a Tijuana Ramada Inn. A. Bracy instructed Porter to wait at the Ramada Inn until Manning arrived. Manning came to the room, and Porter gave him some car keys on A. Bracy’s orders. After more waiting, Porter returned to the San Diego Royal Inn where he had met earlier with Lomas and A. Bracy. Lomas returned to Los Angeles. The next day Porter called Lomas and was advised that Lomas and appellant B. Bracy and her children would be traveling to San Diego. Lomas instructed Porter to wait for B. Bracy in Tijuana. Upon her arrival in Mexico, B. Bracy called Manning who returned to her room with the car keys he had been given by Porter the day before. B. Bracy left the hotel room with her children and returned with two bags of baby clothes in which were mixed several bags of heroin and cocaine. B. Bracy and Porter met and agreed that since they had a large number of drug packages she would transport the heroin, and he would cross with the cocaine. B. Bracy drove into the United States, and Porter flew into Los Angeles. Once in Los Angeles, Porter met Lomas and the two were later joined by B. Bracy. The three agreed that Porter should transport the narcotics to A. Bracy’s home in Belleville, Michigan, a suburb of Detroit. Porter departed that night for Detroit, but on arrival he became suspicious of receiving payment for the smuggling so he left the heroin and flew back to Los Angeles keeping the cocaine as security. After Porter returned to Los Angeles, he was questioned by B. Bracy and Canada as to why he did not leave the cocaine as directed. Appellants B. Bracy and Martin tried to convince Porter to turn over the cocaine. Porter eventually returned the narcotics, but only after he was paid by A. Bracy.
MARCH 17, 1976, INCIDENT
In mid-March, 1976, Porter was contacted by Martin and was told that A. Bracy was coming to Los Angeles. A. Bracy, Martin, and Jerry Word [Word] met Porter in his apartment. The meeting was organized to continue the narcotics smuggling effort. A Bracy again gave Porter money to buy a girdle for smuggling purposes. Porter flew to San Diego and later checked into the Ramada Inn in Tijuana. Six hours later, A. Bracy, Martin, and Word arrived at the hotel restaurant. Porter passed his room number to Word in the hotel restroom. Porter also gave the number to A. Bracy in a similar fashion. Porter returned to his room and waited for one hour for A. Bracy, Martin and Word to arrive. A. Bracy brought two kilos of heroin with him. Porter was assigned to smuggle the heroin across the border in the girdle. Word and Porter left the hotel together, but they took separate cabs into the United States. Porter then flew back to Los Angeles, whereupon he returned to his apartment. About two hours later, A. Bracy arrived at Porter’s apartment and took the heroin. He paid Porter $1,000.00 for his efforts.
MARCH 20, 1976, INCIDENT
On March 20, 1976, A. Bracy again contacted Porter about going to Mexico. Porter was told to go to the Ramada Inn in Tijuana as before. Porter waited at the motel for six hours, and since no one arrived he departed for Los Angeles. That same day, Word went to the residence of one Debra Gillenwater [Gillenwater] and asked to borrow a car that was registered in her sister’s name. Gillenwater consented. Word was accompanied by A. Bracy. Appellant Martin also registered in a nearby room. On the next morning Martin called Porter in Los Angeles and A. Bracy came on the line to inquire why Porter was not in Tijuana. Porter told A. Bracy that he got tired of waiting and had returned to Los Angeles. A. Bracy instructed Porter to come immediately to Tijuana. Several hours later Martin again called Porter and asked why he had not left for Mexico. Porter said he was on his way. These calls were verified by telephone logs at the Ramada Inn in Tijuana. Porter went to the airport but missed his flight and was forced to call A. Bracy with the news. A. Bracy told Porter to forget about coming to Tijuana. Additionally, on March 21, 1976, an automobile driven by Stephanie Gurley, a codefendant, was inspected at the San Ysi-dro port of entry and found to contain narcotics. The car was the same one borrowed by Word the day before. On or about March 21st, Maxine Chong [Chong] phoned B. Bracy and told her that someone named Stephanie was in trouble. At trial, Chong testified that the conversation might have been that Porter told her that Stephanie was in trouble.
There is substantial evidence that A. Bra-cy was the catalyst around whom the overall web of conspiracy was spun and that the command center of the group was in and around Detroit, Michigan.
GRAND JURY INCIDENTS
Porter was served with a grand jury subpoena on April 6, 1976, and immediately phoned B. Bracy demanding $25,000.00 in exchange for his silence. B. Bracy, although professing innocence, referred him to Detroit. Another witness received an envelope from B. Bracy which he gave to Lomas. Inferentially, this envelope contained the money to pay Porter’s legal fees.
On April 14,1976, Porter appeared before the grand jury and told several lies. He testified that he had concluded working for A. Bracy in November of 1975, had only seen him once since then, and that A. Bracy had suggested and he had refused to engage in drug smuggling. Approximately ten days later Porter told DEA agents that he had perjured himself before the grand jury. DEA Agent Lunsford testified before the grand jury on April 28, 1976. He informed the panel members that Porter had been deeply involved in the smuggling operations. Porter did not reappear before the grand jury nor did Agent Lunsford specifically inform the members of the grand jury that Porter had perjured himself. Neither the court nor the opposing counsel was immediately informed of the perjury. As of May 26, 1976, appellants had received the investigating officer’s reports containing the April 26, 1976, admissions by Porter. Additionally, on July 20th, appellants became aware of Porter’s statement to Agent Lunsford as contained in an affidavit supporting the arrest of appellants. The grand jury testimony of Porter, Lunsford, and others was made available to appellants the day before the trial commenced.
ISSUES ON APPEAL
I. Were appellants’ due process rights violated when the government failed to immediately notify the court, counsel, and the grand jury that Porter , had committed perjury before the grand jury?
II. Did the evidence establish, as a matter of law, that there were several conspiracies, rather than one?
III. Was the prosecutor’s closing argument sufficiently prejudicial to require a reversal?
IV. Was there a failure on the part of the government to disclose exculpatory evidence as required by the doctrine taught in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)?
V. Did the security procedures employed by the court deny appellants a fair trial?
VI. Was the evidence sufficient on the conspiracy charge to sustain the guilty verdicts against appellant Martin?
I.
It is undisputed that the government did not immediately inform the grand jury, the court, or the appellants of Porter’s perjury before the grand jury. At the trial, Porter admitted that he had perjured himself. Appellants’ counsel, after a lengthy cross-examination of Porter on the issue of perjury, moved to dismiss the indictment because the government had failed to conform its conduct to the requirements outlined in United States v. Basurto, 497 F.2d 781 (CA9 1974). The district court ruled that Basurto was distinguishable and offered to entertain a motion for a mistrial which would not reserve to appellants a double jeopardy defense. Likewise, the judge refused to grant a mistrial on his own motion.
On appeal, the appellants argue that Ba-surto is controlling and that the lower court should have allowed the motion to dismiss. We hold that Basurto is distinguishable.
In Basurto, a government witness testified before the grand jury as to defendant’s activities in marihuana smuggling. An indictment was returned based, in substantial part, on this witness’s testimony. Prior to trial, the witness informed the government that he had committed perjury before the grand jury. In fact, he told the government that a substantial part of all of his testimony was untrue. The government did inform opposing counsel of the perjury, but did not so inform the court or the grand jury. The trial proceeded on the indictment which was largely grounded on the perjured testimony.
Basurto can be distinguished in two important particulars: (1) an analysis of Porter’s grand jury testimony convinces us that it was so far removed from the truth that it had nothing to do with the return of the indictment. In other words, when viewed in the light of the other testimony before the grand jury, the Porter testimony was immaterial;- (2) assuming the materiality of Porter’s testimony, nonetheless, the grand jury totally disregarded it, named him as a coconspirator and, manifestly, knew he had perjured himself. Obviously, the grand jury believed Lunsford’s testimony in connection with Porter’s widespread activities in the conspiracy and did not believe Porter’s perjured testimony. Beyond doubt, the perjured testimony before the grand jury in Basurto was material. We quote from the opinion:
“At the point at which he learned of the perjury before the grand jury, the prosecuting attorney was under a duty to notify the court and the grand jury, to correct the cancer of justice that had become apparent to him. To permit the appellants to stand trial when the prosecutor knew of the perjury before the grand jury only allowed the cancer to grow.
“As we have noted above, the perjury before the grand jury was material because of the change in the law; all of Barron’s grand jury testimony relating to the appellants’ activities before May 1, 1971 was perjured. The grand jury, if it returned an indictment, might have done so under the Comprehensive Drug Abuse Prevention and Control Act of 1970, supra had it known of the perjury.” 497 F.2d at 785. [Emphasis supplied].
The Basurto court went on to say that the due process clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, material in nature. Additionally, the court noted that whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty “to immediately inform” the court and opposing counsel. Furthermore, Basurto requires that if the testimony was material, the grand jury must be informed in order that appropriate action may be taken. Manifestly, what the Basurto court says with reference to immediately informing the court and opposing counsel is said in its supervisory capacity, rather than in a capacity of imposing a duty on the prosecutor to make such a disclosure.
Even assuming, as argued by appellants, that the government violated Basurto in failing to notify the court and opposing counsel, we do not believe that the case stands for the proposition that the indictment must here be dismissed. Since in Basurto, the government witness’ testimony before the grand jury was material and the case could have been decided on that point alone, we suggest that what the court there said on the duty of a prosecutor to immediately inform court and counsel of the perjury, irrespective of materiality, is dictum. As stated, the perjury exposed in Basurto was material. Here, the contrary is true. The only sound reason for requiring the disclosure of immaterial perjured testimony before a grand jury is to give the defendants an opportunity to confront the witness with his perjured testimony. Here, appellants not only had the opportunity to read the grand jury testimony the day before the trial commenced, but went forward on cross-examination and exhaustively exposed to the jury, the perjury which Porter had committed before the grand jury.
Aside from the fact that Basurto is distinguishable, we believe that its requirement that the prosecutor has an obligation to immediately inform the court and opposing counsel is weakened if not destroyed by the Supreme Court decision in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In that case, Agurs was convicted of second degree murder for killing one Sewell with a knife during a fight. The evidence disclosed that after a brief interlude in an inexpensive motel room, Agurs repeatedly stabbed Sewell causing his death. The only question present was whether the prosecutor’s failure to provide defense counsel with certain background information on Sewell was grounds for granting Agurs’ new trial motion. In particular, the prosecution had failed +o disclose Sewell’s known prior criminal record that would have evidenced his violent character. Agurs sole defense was that Sewell had initially attacked her with the knife and that all of her actions had been in self defense. The issue was raised bet ore the trial court some three months after a verdict of guilty by a motion asserting that the government had withheld this evidence and that such evidence was material to Agurs’ defense. The government opposed the motion for a new trial and after considering the matter, the district court denied it.
While Agurs is not a grand jury case, that fact in our view is not important. The Supreme Court there proceeded to consider whether the prosecutor has a constitutional duty to volunteer exculpatory matter to the defense and, if so, what standards of materiality gives rise to the duty. In this connection, the Court noted that it was dealing with the defendant’s right to a fair trial mandated by the due process clause of the Fifth Amendment to the Constitution and to the comparable clause in the Fourteenth Amendment applicable to trials in state courts. From there the Court advanced to the conclusion that unless the omission deprived a defendant of a fair trial, there was no constitutional violation requiring that a verdict be set aside and, absent a constitutional violation, there was no breach of the prosecutor’s duty to disclose. The Court then noted that the court of appeals must have assumed that the prosecutor had a constitutional obligation to disclose any information that might affect the jury’s verdict. In commenting upon this assumption, the Court noted that such a constitutional standard would approach the “sporting theory of justice” which the Court expressly rejected in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Finally, the Agurs Court went on to conclude that it did not believe that the constitutional obligation is measured by the moral culpability or the willfulness of the prosecutor. It held that if the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor. The Agurs Court emphasized that if the. omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error had been committed and that in making that determination, the omission must be evaluated in the context of the entire record. 427 U.S. at 112, 96 S.Ct. 2392.
We can find no logical reason to say that the tests in Agurs, a case dealing with a failure to disclose exculpatory evidence, should not apply to our facts where incomplete disclosure of the perjured testimony before the grand jury in no way suggested an absence of guilt on the part of the appellants. For that matter, the Porter grand jury testimony was just to the contrary. Manifestly, a greater duty should be placed on a prosecutor to produce exculpatory evidence than to disclose evidence which could be used for impeachment purposes only.
Here, Porter’s grand jury testimony was produced on the day before the trial. On cross-examination, his perjury was exhaustively exposed by appellants’ counsel. In other words, the record clearly establishes that appellants’ convictions were not in any way affected by the failure of the prosecutor to disclose the perjured grand jury testimony. For that matter, it appears from the entire record that appellants were guilty beyond a reasonable doubt and the jury so found, even though being fully aware of Porter’s perjury. In summary, Agurs holds (1) that a prosecutor will not violate the constitutional duty of disclosure unless his omission is sufficiently significant to result in the denial of a defendant’s right to a fair trial, (2) the mere possibility that an item of undisclosed information might have aided the defense, or might have affected the outcome of a trial, does not establish “materiality” in the constitutional sense, (3) the prosecutor’s constitutional duty of disclosure is not measured by his moral culpability or willfulness. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor, (4) the proper standard of materiality of undisclosed evidence is that if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist, constitutional error has been committed. Under the standards outlined in Agurs, the prosecutor’s failure to disclose to the grand jury, the court or counsel, the perjury of Porter prior to the day before trial, did not constitute constitutional or other error.
A Ninth Circuit case more recent than Basurto is United States v. Bowers, 534 F.2d 186 (CA9 1976), cert. denied 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 311. There a witness testified before the grand jury that the defendant’s companion had told him that the companion and defendant had shot a park service ranger. The same witness at another trial testified that the companion had told him only that the defendant had shot the ranger. The court held that any failure of the prosecutor to notify the court and the grand jury of the change in the witness’s testimony was harmless beyond a reasonable doubt because both versions of the testimony implicated the defendant and the defense counsel, while aware of the alleged perjury before the trial, failed to move for dismissal of the indictment. Here, as in Bowers, Porter’s testimony, both before thé grand jury and at trial, implicated all the appellants. Here, as in Bowers, the defense counsel were aware or should have been aware of the alleged perjury before the trial, but, nonetheless, failed to make a motion to dismiss the indictment prior to the trial. In Bowers, it is said:
“Assuming United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), applies, the failure of the prosecutor to notify the court and the grand jury of the change in Phillips’ testimony was harmless beyond any doubt. Both versions of Phillips’ testimony implicated Bowers. Appellant’s counsel was aware of the alleged perjury well before trial, but made no motion to dismiss the indictment.” 534 F.2d at 193.
On our facts, Bowers, rather than Basurto, would control.
Appellants do not argue that they made a specific request for Brady material prior to trial or during the course of the trial. For that matter, they had everything they wanted when the grand jury testimony was presented. That a general request for Brady «material is insufficient for reversal where the evidence, if produced, would not create a reasonable doubt of the appellant’s guilt is held as recently as United States v. Hearst, 563 F.2d 1331, 1351 (CA9 1977). The district court did not err in denying the motion to dismiss the indictment.
II.
Under this assignment of error, appellants Martin and B. Bracy argued that the evidence at trial proved, as a matter of law, that there were several conspiracies, rather than just one. Both argue that they were not involved in certain of the transactions and that insufficient evidence exists to create one conspiracy. B. Bracy says she was not involved in the February 17, 1975, arrest, the March 17,1976, incident, and the March 20, 1976, incident. Martin says she did not take part in the February, 1975, arrest, the January 16, 1976, incident, and the March 17, 1976, incident. Both argue that their participation, if any, in the March 20, 1976, incident was totally innocent.
We have spoken many times on the standard for determining if one or several conspiracies exist. United States v. Kearney, 560 F.2d 1358 (C.A.9 1977); United States v. Perry, 550 F.2d 524 (CA9 1977), cert. denied - U.S. -, 98 S.Ct. 104, 54 L.Ed.2d 85, and United States v. Baxter, 492 F.2d 150 (CA9 1973), cert. denied 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974), are our most recent cases on the subject.
In Baxter, a case involving the appellant and seven other persons, the court applied the following rationale from Blumenthal v. United States, 332 U.S. 539, 557-558, 68 S.Ct. 248, 92 L.Ed. 154 (1947):
“For it is most often true, especially in broad schemes calling for the aid of many persons, that after discovery of enough to show clearly the essence of the scheme and the identity of a number participating, the identity and the fact of participation of others remain undiscovered and undiscoverable. Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others. Otherwise the difficulties, not only of discovery, but of certainty in proof and of correlating proof with pleading would become insuperable, and conspirators would go free by their very ingenuity.” Baxter, supra, at 158, n. 7. [Emphasis supplied].
Continuing, the Baxter court said that although the government had failed to prove direct contact and connivance between the defendant retailers, nonetheless:
“. . .if each knew, or had reason to know, that other retailers were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture, the jury could find that each had, in effect, agreed to participate in the over-all scheme. This would be true even though the individual defendants were not aware of the identity, number or location of the other participating retailers.” Baxter, supra, at 158. [Citations and footnote omitted]. [Emphasis supplied].
More recent Ninth Circuit cases speaking to the same rule are United States v. Kearney, 560 F.2d 1358 (CA9 1977), and United States v. Perry, 550 F.2d 524 (CA9 1977).
The Perry court at page 531 distinguished Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), a case upon which appellants rely by saying: “. Each one of the defendants knew or should have known that other retailers were involved and that each had reason to believe that what benefits he received were probably dependent upon the success of the entire venture.”
The Kearney court, the most recent Ninth Circuit authority, when addressing the subject, said: “It need not even be shown that an alleged co-conspirator knew all of the purposes of and all of the participants in the conspiracy.” [560 F.2d 1362]. Keeping in mind the standards stated in the foregoing authorities, we briefly outline the involvements of Martin and B. Bracy.
Although B. Bracy was not directly involved in the February 17, 1975, arrest or the March 17, 1976, incident, her overall activity is undisputed. She is A. Bracy’s sister and A. Bracy was the central figure in each incident. Her phone records indicate numerous calls to Manning, the Mexican connection in the ring. During late January, 1976, she, Porter, Lomas, and A. Bracy were involved in smuggling a large quantity of heroin and cocaine into the United States from Mexico. She also personally met with Manning in Tijuana. She was involved in the March 20,1976, incident to the extent that Chong phoned her and reported that Stephanie Gurley had been arrested. She arranged money for Porter’s legal expenses. When Porter called her in his attempt to extort money from the drug ring in exchange for his silence before the grand jury, she referred him to Detroit. We hold these connections were sufficient under the foregoing authorities.
We reach a similar conclusion with respect to appellant Martin. She was involved in the January, 1976, incident to the extent that she tried to persuade Porter to return the cocaine he had kept as security. She was an active participant in both the March 17th and 20th operations, even though she did not physically transport the drugs. The only involvement to which there is some doubt is the February 17, 1975, arrest. Although no firm nexus existed between Martin and Canada, they were both girl friends of A. Bracy and both sought the return of the withheld cocaine from Porter. Additionally, the court instructed the jury that they were not to consider any act “. . . unless you should find beyond a reasonable doubt that the person doing the act, making the declaration, was a member of the same conspiracy as was the defendant.” This instruction conforms to the rules stated in United States v. Griffin, 464 F.2d 1352 (CA9 1972), cert. denied 409 U.S. 1009, 93 S.Ct. 444, 34 L.Ed.2d 302, where the same question was raised. This assignment is without merit.
III.
Under this heading, appellant B. Bracy points to various statements by government counsel in its closing argument which she says were prejudicial and contends that they denied her a fair trial. We have carefully examined the complaints and hold that none of them, or in sum total, measure up to conduct which could possibly be viewed as prejudicial. For that matter, it would seem that in each instance, there was evidence to support directly or inferentially the prosecutor’s statement. United States v. Escoto-Nieto, 417 F.2d 623 (CA9 1969), cited by appellant is not in point. Here, the record is replete with references to the value of the smuggled narcotics, as well as the expected payment for bringing or transporting the drugs to major cities in the United States. This assignment is groundless.
IV.
It is claimed that the prosecutor refused to disclose exculpatory evidence under the doctrine taught in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Here, all of the grand jury and the Jencks Act testimony was produced. Here, there is no claim that the jury was prevented from hearing favorable evidence on the issue of guilt or that the jury was not advised of government promises, rewards, or assistance provided to government witnesses. The jury was made fully aware of all evidence of a favorable or impeaching nature prior to the case being submitted to them for decision. Thus, there can be no claim of prejudice. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Even conceding nondisclosure, the prosecutor did not violate a constitutional duty, unless his omission is sufficiently significant to result in the denial of the defendant’s right to a fair trial. United States v. Agurs, supra.
V.
Appellant B. Bracy argues that the number of United States Marshals present at the trial suggested that appellants in some way intended to harm the government witness, Porter. She says that this deprived her of the presumption of innocence, due process of law, and an impartial jury. Since the officers were not in uniform and the case did involve the testimony of a witness who had been threatened, it was certainly not an abuse of the district court’s discretion to permit tight trial security. United States v. Clardy, 540 F.2d 439 (CA9 1976), cert. denied 429 U.S. 963, 97 S.Ct. 391, 50 L.Ed.2d 331.
VI.
Martin urges that there was insufficient evidence to support the verdict against her. As we have said time and time again, we must evaluate the evidence in the light most favorable to the government. United States v. Glasser, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Likewise, we have said time and time again that once the existence of a conspiracy has been established only slight evidence is necessary to connect the specific defendant to it. United States v. Val
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Boyce E. CHUMBLER, Plaintiff-Appellant, v. Marguerite Wallace McCLURE, Executrix of the Estate of Dr. C. C. McClure, Jr., and Ayerst Laboratories, Defendants-Appellees.
No. 74-1169.
United States Court of Appeals, Sixth Circuit.
Oct. 23, 1974.
Franklin D. Brabson, W. Gary Blackburn, Malcolm L. McCune, Blackburn & McCune, Nashville, Tenn., Joseph W. Bolin, Clinton, Ky., for plaintiff-appellant.
W. A. Moody, Carrol D. Kilgore, William J. Harbison, Nashville, Tenn., for defendants-appellees.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and RUBIN , District Judge.
Honorable Carl B. Rubin, United States District Judge for the Southern District of Ohio, sitting by designation.
OPINION
CARL B. RUBIN, District Judge.
This matter comes before the Court as a diversity case alleging medical malpractice against Marguerite Wallace McClure, Executrix of the Estate of Doctor C. C. McClure, Jr., and product liability against Ayerst Laboratories, Inc. The trial was to a jury and the trial judge directed a verdict in favor of defendant Ayerst at the conclusion of the plaintiff’s ease and directed a verdict in favor of the defendant Estate of Dr. C. C. McClure, Jr. at the conclusion of all evidence. We affirm.
The factual background of this case indicates that in April, 1971, the plaintiff consulted Dr. C. C. McClure, a neurosurgeon in Nashville, Tennessee, in connection with injuries sustained by Chumbler in an electrical explosion. Dr. McClure diagnosed Chumbler’s illness as cerebral vascular insufficiency and prescribed a female hormone known as Estrogen, produced and marketed commercially as Premarin by defendant Ayerst Laboratories. Dr. McClure also prescribed Pavabid, a drug which dilates blood vessels. Known side effects of Premarin include an enlargement of the breasts and a loss of libido. While plaintiff also sought damages for impotence and menopausal symptoms, that issue need not be reached.
Plaintiff’s appeal raises issues of whether the District Court acted properly in directing verdicts for the defendants on whether Dr. McClure violated the accepted medical standards in his community in his treatment of Chumbler and whether defendant Ayerst acted negligently in the production or sale of Pre-marin. Further, the plaintiff-appellant asserts that the District Court erred in excluding all testimony on the issue of plaintiff’s informed consent to his drug treatments.
The law is well settled in this circuit and elsewhere that in a diversity case, the trial judge is bound by state law as to the sufficiency of evidence. Moskowitz v. Peariso, 458 F.2d 240 (6th Cir. 1972); Thompson v. Illinois Central Railroad Company, 423 F.2d 1257 (6th Cir. 1970); Dean v. Southern Railway Co., 327 F.2d 757 (6th Cir. 1964). This Court, in Wallace v. Louisville & N. R. Co., 332 F.2d 97 (6th Cir. 1964), found that the rule in Tennessee required the court:
“to look to all the evidence, to take as true the evidence for the plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for the plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion for a directed verdict must be denied.” Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 284, 326 S.W.2d 461, 464 (1958); Baggett v. Louisville & Nashville Railroad Co., [51 Tenn.App. 175] 365 S.W.2d 902, 904-905 (1960).
Accord, Osborne v. Frazor, 58 Tenn. App. 15, 425 S.W.2d 768, 774 (1968); Goings v. Aetna Cas. & Sur. Co., 491 S.W.2d 847 (Tenn.App.1972). The rule remains the same in Tennessee today and has recently been summarized in other terms. See, e. g., Phelps v. Magnovox Co., 497 S.W.2d 898 (Tenn.App.1972) (no evidence in the entire record from which a jury could have based a verdict for the plaintiff); Keller v. East Tennessee Prod. Credit Ass’n., 501 S.W.2d 810 (Tenn.App.1973) (where a reasonable mind could only draw one conclusion from the evidence).
Against this standard, we find that the trial court did not err in directing a verdict for defendant Ayerst Laboratories. Plaintiff failed to prove participation of Ayerst in any alleged experiments by Dr. McClure, any over-promotion, or a lack of warning concerning side effects of Premarin. From the evidence adduced at trial, we find that taking the strongest legitimate view of the evidence for the plaintiff and resolving all inferences in his favor, reasonable minds could only have found in favor of defendant Ayerst Laboratories. Based upon the foregoing conclusion, we find that the District Court acted properly in directing a verdict for defendant Ayerst.
We reach the same conclusion concerning the directed verdict for the Estate of Dr. McClure. Since Dr. McClure was deceased, the plaintiff was confronted with the Tennessee Dead Man’s Statute, Tenn.Code Ann. § 24-105 , see Worthington Corp. v. Lease Management, Inc., 352 F.2d 24 (6th Cir. 1965), cert. den. 383 U.S. 937, 86 S.Ct. 1068, 15 L.Ed.2d 854 (1967). Its applicability to tort cases in Tennessee is well established, See, e. g., Christofiel v. Johnson, 40 Tenn.App. 197, 290 S.W.2d 215 (1956) While the general approach is to construe narrowly the exclusion of testimony, McDonald v. Allen, 67 Tenn. 446 (1874); Christofiel v. Johnson, supra, “transactions” encompass a large range of excludable testimony on things done in the deceased’s presence to which he might testify from his own personal knowledge. Waggoner v. Dorris, 17 Tenn.App. 420, 68 S.W.2d 142 (1933).
We hold that the trial court did not err in excluding all testimony on the alleged lack of informed consent by the plaintiff-appellant concerning his drug treatment. Such testimony would inevitably relate to conversations with the deceased doctor or to transactions involving that doctor. The testimony which plaintiff sought to proffer as to his state of mind as it bore on informed consent also falls well within the bounds of proscribed testimony and well outside the “independent facts” exception to the Dead Man’s Statute.
Plaintiff asserted that proof of his informed consent is an affirmative defense and, consequently, that the burden lies upon the defendant. The trial court properly found that the burden rested on the plaintiff. Since consent does not ordinarily relieve a physician from liability where he has not conformed to accepted medical standards for treatment and since the party offering testimony barred by the Dead Man’s Statute has the burden of proving competency, we believe the trial judge was correct. Martin v. Morris, 163 Tenn. 186, 42 S.W.2d 207 (1931); Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417 (Tenn.Sup.Ct.1937); Story v. Saunders, 27 Tenn. 663 (1848). The harshness of this statute may be as severe as plaintiff argues in effectively making it impossible to obtain a judgment against any deceased doctor. While not deciding this issue, this Court must point out that relief lies not with the courts but with the Legislature of the State of Tennessee.
As the trial court properly refused to admit testimony barred by the Dead Man’s Statute, we may now consider plaintiff’s third ground for appeal — that a directed verdict in favor of the doctor’s estate was erroneous. Deviation from accepted medical practices and community standards is a prerequisite for maintenance of a medical malpractice suit. Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970); Perkins v. Park View Hospital, Inc., 61 Tenn.App. 458, 456 S.W.2d 277 (1970); Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964); Wooten v. Curry, 50 Tenn. App. 549, 362 S.W.2d 820 (1961); Beech v. Hunter, 14 Tenn.App. 88 (1931).
The record in this case is devoid of evidence of such deviation. The most favorable interpretation that may be placed on the testimony adduced at trial below is that there is a division of opinion in the medical profession regarding the use of Premarin in the treatment of cerebral vascular insufficiency, and that Dr. McClure was alone among neurosurgeons in Nashville in using such therapy. The test for malpractice and for community standards is not to be determined solely by a plebiscite. Where two or more schools of thought exist among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medical authority, it is not malpractice to be among the minority in a given city who follow one of the accepted schools. Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); Perkins v. Park View Hosp. Inc., supra; Ison v. McFall, supra; Ball v. Mallinkrodt Chem. Works, 53 Tenn. App. 218, 381 S.W.2d 563 (1964); Wooten v. Curry, supra.
Were this not true, an anomaly might occur where nine neurosurgeons in Memphis, Tennessee, prescribed Premarin for cerebral vascular insufficiency and where nine neurosurgeons in Nashville prescribed other treatment. Should one Memphis neurosurgeon move to Nashville and continue to prescribe Premarin, he might be liable for malpractice. Such a result would impose a standard of practice upon the medical profession which would be totally unsupported by logic and unreasonable in concept. See the cases cited, supra.
Scrutiny of the testimony below leads to no other conclusion. The doctors who testified asserted only that Dr. McClure was alone in Nashville among neurosurgeons in prescribing Premarin. Accompanying testimony as to the medical acceptability of this practice and of the drug itself leave no other possible outcome other than plaintiff’s failure to present even a prima facie case of malpractice. Under Tennessee law on directed verdicts, we find that the trial court acted properly in directing a verdict for the doctor’s estate at the close of all the evidence. Accordingly, for this and reasons mentioned before, the actions of the trial court, both as to defendant Estate of Dr. C. C. McClure, Jr. and defendant Ayerst Laboratories, Inc. are hereby affirmed.
APPENDIX
Testimony of Dr. Ray W. Hester, p. 78:
Q. Do you of your knowledge know of anyone in this community that’s a neurosurgeon or a neurologist that prescribes Premarin in the treatment of cerebral vascular insufficiency other than Dr. McClure?
A. Well, Dr. McClure did, and of my own personal knowledge, I don’t know of any of the other neurosurgeons who do, No, sir.
Page 91:
Q. Now, based on that, and based on your knowledge and based on reasonable medical certainty, etc. should that drug [Premarin] have been used on Boyce Chumbler for anything other than pro-static carcinoma?
A. Again, that’s a difficult question to answer. First of all, we have just quoted two articles that one is for and the other is against. Now there are other articles in the literature where the drug has been used and has been tried and they also have conflicting evidence.
BY THE COURT: Are you saying there is a split of opinion in the medical profession as to whether or not this drug should or should not be used for a vascular insufficiency or vascular accident?
A. Yes, sir. At least at one time there was and I think the physician must come to his own conclusion from what, you know, has been read and his medical knowledge at the time . . .
Page 98:
Q. . . . As I understand and you correct me if I am wrong, there are two schools of thought in medicine as to the use of Premarin in the treatment of a possible vascular situation ?
A. Yes, sir.
Q. All right. One school of thought promotes and uses Premarin, another school of thought to which you belong does not believe in the use of Premarin ?
A. That’s correct.
Page 104:
Q. Now, as you are a neurosurgeon and as you do meet with a group of neurosurgeons, do you have knowledge of the standard that is followed by internists, general practitioners, general surgeons and family doctors in this area with regard to the diagnosis and treatment of symptoms similar to Mr. Chum-bler’s . . .
BY THE COURT: Just let me ask him — -Dr., is this condition we are talking about, is it a medical condition which based on the local standards of this community falls primarily in the field of neurosurgery ?
A. No, sir.
Q. Then I believe I asked you, are you familiar with the standard that is followed by internists, by general surgeons and family practitioners, just plain old doctors in this area, in treating these conditions and prescribing Premarin ?
A. I am not nearly so familiar with that and .
BY THE COURT: Well, now, Doctor, I don’t mean to be abrupt about this matter, but in this matter I think you are going to have to say either you are or you are not.
A. Well, I am not.
Page 119:
Q. Dr. Hester, you didn’t intend to tell the jury, did you, that Dr. McClure didn’t use the standard of care requisite for neurosurgeons in this community in diagnosing the man’s condition, did you ?
A. No, sir, I did not.
Q. . Now, he had a different idea about the medication that might be used from your own ideas, I understand it?
A. Yes, he did.
Q. Are you saying he was violating the professional standards in the community in prescribing it [Premarin], doctor ?
A. Well, I think I have already answered that question earlier when I said the standard in our community was not to prescribe Premarin for cerebral vascular insufficiency and to my knowledge none of us do. Now whether this is just opinions or whether you are going to call this the standard, I don’t know how you are going to arrive at that. In Memphis, maybe the neurosurgeons do, I don’t know, but here we don’t go so far except for Dr. McClure.
Q. All right, but now you are aware that it is widely used by many doctors for many different things, aren’t you ?
A. Yes, sir.
Q. All right, isn’t it a matter of medical judgment which drug to prescribe in the last analysis?
A. It certainly is.
Testimony of Dr. Gerald Feniehel, p. 309:
Q. Doctor, is it your opinion and within that, that Premarin is accepted therapy for cerebral vascular insufficiency?
A. No, it is not.
Q. Is there anyone in this community of neurologists or neurosurgeons that you have knowledge of that uses Premarin in the treatment of cerebral vascular in-sufficiencies ?
A. I can only speak for the neurologists in the city. There are nine. At our last society meeting, of which seven were present, all said they had never used • Premarin for the treatment of cerebral vascular insufficiency . . .
BY THE COURT: ... Are you saying, doctor, that it’s ineffective, is that what you are saying?
A. It has never been demonstrated to be effective as a treatment for cerebral vascular insufficiency.
Page 334:
Q. In the treatment of cerebral vascular problems as it existed beginning in April, 1971, am I correct in assuming there was an honest difference of opinion as to the various approaches among the specialists at that time?
A. Are you referring to all the treatments or just the estrogen therapy?
Q. Any kind of treatment.
A. There have been — that is correct, there is no specific established treatment for cerebral vascular disease.
Q. And especially, some general practitioners honestly disagree as to whether or not there was one proper approach to it?
A. I think they all agreed there was no one established approach.
Page 336:
BY THE COURT: All right, based on the standard that existed in this community in April of 1971, now go ahead and finish your question.
(By Mr. Brabson, continuing)
Q. Was Premarin a drug to use in cerebral vascular insufficiency?
A. ... to the best of my knowledge, Dr. McClure was the only person in the community using Premarin in the treatment of cerebral vascular disease.
Testimony of Dr. Oscar F. Nowell, p. 401:
Q. In your opinion, has Premarin been or can it be an effective medication for the prevention of strokes?
A. In xny way of thinking, yes.
Q. Have you ever used Premarin?
A. Oh, yes, I’ve used it for many years.
Q. And have you—
A. But not for that purpose.
Q. All right, sir, have you ever used Premarin for heart problems?
A. No, I am not a cardiologist . . but I do know it has been recommended for this purpose.
Q. And you do know that it is being used locally for this pux-pose?
A. Yes, sir.
Page 399:
BY THE COURT: Doctor, do you know the standard of medicine in this area with reference to whether or not —I mean with reference to the standard in the medical practice in Nashville, Tennessee ?
A. Yes, sir.
BY THE COURT: All right.:
(By Mr. Moody, continuing)
Q. Doctor, do you know whether or not, basing your knowledge upon the factors that you know about in the practice of medicine in Davidson County, Tennessee, is Premarin used for the treatment of cerebral vascular insufficiency ?
A. Yes, sir.
Q. How is it used and why is it used for that purpose?
A. . .Now the important thing is to enlarge the diameter of these blood vessels so that more blood can get through and at the same time use some kind of drug that will decrease the physiological age of these blood vessels.
Q. Is Premarin one of the drugs?
A. And one of these drugs is Pre-marin to reduce the physiological age of the blood vessels in question . . .
. § 24r-105 states, in pertinent part:
In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify by the opposite party ....
. See attached Appendix for the salient testimony relating to medical standards in Nashville and elsewhere.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_mootness
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that an issue was moot?" 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".
GULL AIRBORNE INSTRUMENTS, INC., Appellant, v. Caspar W. WEINBERGER, Secretary of Defense of the U.S.A., et al.
No. 81-2285.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 10, 1982.
Decided Nov. 30, 1982.
Robert A. Witti, Washington, D.C., with whom F. Trowbridge Vom Baur, Washington, D.C., was on the brief, for appellant.
Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Royce C. Lamberth, R. Craig Lawrence and Cheryl M. Long, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before ROBINSON, Chief Judge, and WRIGHT and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
In October 1977 the United States Navy granted a contract to Consolidated Airborne Systems, Inc. (CAS), for the procurement of certain fuel quantity test sets and data. Following several attempts to obtain administrative relief, appellant, Gull Airborne Instruments, Inc. (Gull), the second low bidder on the contract, filed suit in federal district court, alleging that both the Navy’s award and its administration of the contract were illegal and asking that further performance be enjoined. The district court dismissed the case, finding that Gull had standing to protest the contract’s award (although not its administration), but that its request for injunctive relief was barred by the equitable doctrine of laches. We agree with the district court regarding both Gull’s standing to challenge the award of the contract and its lack of standing to challenge subsequent administration of the contract. We conclude, however, that laches does not bar Gull’s claim on the contract’s award. Nevertheless, we find another possible bar to reaching the merits of the case. The government has recently informed this court that the contract has been fully performed and paid for. We therefore remand to the district court for a factual determination as to whether Gull is barred from receiving the relief it has requested because of mootness.
I. Background
In September 1976 the U.S. Navy’s Aviation Supply Office (ASO) invited bids for “capacitance-type, tank-unit, fuel quantity test sets and data.” Bids were opened in January 1977. Of the three that had been entered, CAS’ was the low bid on the contract and Gull’s was the second low bid.
In February 1977 Gull filed a preaward protest with the procuring agency, ASO, alleging that CAS had no existing designs that could meet the contract’s specifications and that the delivery schedule provided insufficient time for CAS to develop a new design. In April 1977 Gull filed a similar preaward protest with the General Accounting Office (GAO), citing the same allegations and pointing out that ASO’s contracting officer had relied on the imminent CAS merger with Bendix Corporation as the basis for finding CAS financially responsible.
Bendix notified the ASO on April 26, 1977, that it had purchased all the assets, open contracts, and proposal commitments of CAS and guaranteed performance of the Navy’s contract if awarded to CAS. On October 31, 1977, the contracting officer determined that the equipment involved in the contract was urgently needed and awarded the contract to CAS.
On November 7, 1977, the GAO denied Gull’s April protest, finding that an award could properly be made to CAS. Gull promptly requested the GAO to reconsider. In March 1978 the GAO affirmed its prior decision. In neither case did the GAO conduct an independent investigation; it relied instead on CAS’ preaward assurances to the Navy that it could perform the contract as written. In the same month the Navy accepted novation of the contract with Bendix.
Under the contract Bendix was to make its first delivery in April 1978. It failed to do so. A year later, in April 1979, Gull made Freedom of Information Act (FOIA) requests for notes of or any correspondence relating to a June 1978 meeting between the Navy and Bendix. The FOIA documents were received in May 1979 and allegedly indicated that Bendix (as well as CAS) could not comply with either the contract’s specifications or its delivery schedule. In July 1979 Gull wrote the Navy’s contracting officer, pointing out that CAS’ misrepresentations had prompted the contract award and that nonperformance of the contract had directly resulted from these misrepresentations. It therefore requested the officer to terminate the contract for default. The contracting officer once again rejected Gull’s protest. In December 1979 Gull renewed its GAO protest, claiming that the contract was void or voidable and that its maladministration had changed it to a new and different procurement. The GAO denied the protest in August 1980.
Gull filed suit in the district court in February 1981, protesting both the award and the administration of the contract and seeking a permanent injunction directing the Navy to terminate the contract. In June 1981 the Navy moved to dismiss the case on the grounds that Gull lacked standing to sue and that the action was barred by laches. The district court granted the Navy’s motion in October 1981, finding that Gull had standing to challenge the award (not the maladministration) of the contract, but that laches barred the court from hearing the case.
II. Analysis
A. Standing
Gull contends here that it is entitled, as an injured party, to seek review of both the contract award to CAS and the Navy’s subsequent administration of the contract as actions in violation of the regulations governing the issuance and administration of government contracts. We agree with the district court that Gull has standing to contest the award of the contract but not its administration.
Section 702 of the APA gives a right to judicial review to any person “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Control Data Corp. v. Baldrige, 655 F.2d 283, 288-89 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), sets out a three-part test for standing to obtain review of administrative action: (1) the complainant must allege injury in fact; (2) the complainant must assert that arbitrary or capricious agency action injured an interest arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question; and (3) there must be no “clear and convincing” indication of a legislative intent to withhold judicial review. See also Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Howes Leather Co. v. Carmen, 680 F.2d 818, 820 (D.C.Cir.1982) (per curiam).
Gull contends that it has standing under § 702 as a disappointed bidder on the Navy’s contract to protest both its award to CAS and its subsequent maladministration. We agree with both Gull and the district court that disappointed bidders have standing to challenge the failure of an administering agency to follow the applicable statutes and regulations regarding contract awards. See M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir.1971); Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970); Airco, Inc. v. Energy Research and Development Administration, 528 F.2d 1294 (7th Cir.1975) (per curiam); Armstrong & Armstrong, Inc. v. United States, 514 F.2d 402 (9th Cir.1975) (per curiam); Hayes International Corp. v. McLucas, 509 F.2d 247 (5th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92 (1975); Wilke, Inc. v. Department of the Army, 485 F.2d 180 (4th Cir.1973); Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973).
Gull also contends that it has standing to seek review of the Navy’s alleged maladministration of the contract. To be accorded such standing, Gull must satisfy the Control Data test. We agree with the government and the district court that it has been unable to do so.
The first two parts of the test require that the complainant allege injury to an interest arguably within a statute’s or regulation’s zone of interests. Here, Gull alleges that it suffered economic loss from the illegal entry of a government-funded competitor into its own line of business. It also alleges that it suffered economic loss because it was denied an opportunity to bid on reprocurement of the contract. The government, on the other hand, argues that the only economic injury Gull suffered was the original failure to win the contract. Once a contract is in place, it contends, disappointed bidders on the contract revert to the status of ordinary citizens who have no generalized standing to object to government actions. In addition, the government argues, any economic loss sustained through denial of an opportunity to Gull to bid on the reprocurement is conjectural since Gull may not have been the low bidder on that second contract.
Even were we to assume, however, that the Navy’s award of the contract to CAS, its novation of the contract to Bendix, and its decision to extend the contractual delivery date conferred cognizable injury on Gull by illegally allowing CAS and Bendix to become its competitors and by preventing Gull from bidding on the reprocurement of the contract, that injury alone would be insufficient to confer standing on Gull to contest the administration of the contract. Gull must also demonstrate that the regulatory or statutory requirements it seeks to enforce were intended to protect it against such competitive injury. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968).
Unlike the regulations governing the award of contracts, see Merriam v. Kunzig, 476 F.2d at 1242, the regulations governing termination of contracts for default are not designed to foster competition or to protect unsuccessful bidders from illegal injury to their economic interests. The default regulations, see 32 C.F.R. §§ 8-600 to 8-602 (1981), are intended to protect the government against injury from the contractor’s inability to perform the contract and the contracting party from the government’s premature or unjustified cancellation. As a result, Gull must rely on its protest against the original award of the contract to CAS, not its subsequent administration, to establish that the government has illegally injured its economic interests.
B. Laches
The government contends and the district court found that Gull’s request for equitable relief on the bid award is barred by the doctrine of laches. The laches doctrine, of course, reflects the principle that “equity aids the vigilant, not those who slumber on their rights,” and is designed to promote diligence and prevent enforcement of stale claims. Powell v. Zuckert, 366 F.2d 634, 636 (D.C.Cir.1966); 2 J. Pomeroy, Equity Jurisprudence § 418 (5th ed. 1941). To establish a successful laches defense, the defendant must show that the plaintiff was guilty of unreasonable delay prejudicial to the defendant. Gardner v. Panama Railroad, 342 U.S. 29, 81, 72 S.Ct. 12, 13, 96 L.Ed. 31 (1951) (per curiam); Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 530, 84 L.Ed. 754 (1940); Southern Pacific Co. v. Bogert, 250 U.S. 483, 490, 39 S.Ct. 533, 536, 63 L.Ed. 1099 (1919); Powell v. Zuckert, 366 F.2d 634. Whether the doctrine bars an action in a particular case depends upon the circumstances of that case. Burnett v. New York Central Railroad, 380 U.S. 424, 435, 85 S.Ct. 1050, 1058, 13 L.Ed.2d 941 (1965); Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 809 (8th Cir.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Concerned About Trident v. Schlesinger, 400 F.Supp. 454, 478 (D.D.C.1975).
There are, therefore, two factors to be considered in determining whether laches applies: lack of diligence by the plaintiff and injurious reliance thereon by the defendant. Powell v. Zuckert, 366 F.2d at 636; Goodman v. McDonnell Douglas Corp., 606 F.2d at 804; Concerned About Trident v. Schlesinger, 400 F.Supp. at 478. Laches does not depend solely on the time that has elapsed between the alleged wrong and the institution of suit; it is “principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.” Galliher v. Cadwell, 145 U.S. 368, 373, 12 S.Ct. 873, 875, 36 L.Ed. 738 (1892). See also Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946); Goodman v. McDonnell Douglas Corp., 606 F.2d at 805; Concerned About Trident v. Schlesinger, 400 F.Supp. at 478. It closely tracks the question of whether a defendant suffered prejudice from the delay. Goodman v. McDonnell Douglas Corp., 606 F.2d at 807; Public Administrator v. Angela Compania Naviera, 592 F.2d 58, 64 (2d Cir.), cert. dismissed, 443 U.S. 928, 100 S.Ct. 15, 61 L.Ed.2d 897 (1979); Larios v. Victory Carriers, Inc., 316 F.2d 63, 66-67 (2d Cir.1963). If only a short period of time elapses between accrual of the claim and suit, the magnitude of prejudice required before suit would be barred is great; if the delay is lengthy, a lesser showing of prejudice is required. Goodman v. McDonnell Douglas Corp., 606 F.2d at 807; Brundage v. United States, 504 F.2d 1382, 1386 (Ct.Cl.1974), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975); Grisham v. United States, 392 F.2d 980, 983, 183 Ct.Cl. 657, cert. denied, 393 U.S. 843, 89 S.Ct. 125, 21 L.Ed.2d 114 (1968).
Gull instituted this action three years from the date the contract was awarded, six months from the GAO’s denial of its last protest, and three years before the statute of limitations had run on its claim. Gull pursued its administrative remedies diligently throughout this period. It filed a preaward protest with the Navy one month after the bids on the contract were opened in January 1977. In April of the same year it filed a similar protest with the GAO, a request denied in November. Gull thereupon asked the GAO to reconsider its denial; the GAO affirmed its April decision in March 1978. In April 1979 Gull made FOIA requests regarding the Navy’s award and administration of the contract. It received the FOIA documents in May 1979. Two months later Gull again requested the Navy to terminate the contract, alleging that it had been illegally awarded and subsequently maladministered. The Navy refused to do so. In December 1979 Gull once again protested to the GAO, which declined to invalidate the contract in August 1980. In February 1981 Gull filed suit in federal district court.
We are mindful that review by the GAO is permissive and is not a prerequisite to judicial review. Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d at 875. This court has, however, for obvious reasons, encouraged disappointed bidders to pursue their administrative remedies with the GAO. See Wheelabrator Corp. v. Chafee, 455 F.2d 1306, 1313-16 (D.C.Cir.1971); Morgan, Achieving National Goals Through Federal Contracts: Giving Form to an Unconstrained Administrative Process, 1974 Wis. L.Rev. 301, 340, 340 n.178. Although we recognize the need for prompt adjudication of bid challenges, it would be an injustice to unsuccessful bidders if we now penalized them merely for exhausting those administrative remedies.
On the basis of delay alone, therefore, we would not bar Gull’s suit for injunctive relief, thereby punishing it for its persistent attempts to use the administrative process to resolve its dispute and for its forbearance in not filing suit before it had enough concrete facts to support its allegations. But to determine whether Gull’s three-year delay in filing suit was unreasonable, we must also weigh the prejudice the government has suffered as a result of that delay. We find that the grounds on which the district court based its finding of prejudice to the government were insufficient to bar Gull’s suit for injunctive relief.
Two kinds of prejudice support a laches defense. Plaintiff’s delay in filing suit may have resulted in a loss of evidence or witnesses supporting defendant’s position or the defendant may have changed its position in a manner that would not have occurred but for plaintiff’s delay. Concerned About Trident v. Schlesinger, 400 F.Supp. at 478.
The district court found that the government had been prejudiced in both ways in this case. First, it stated that the death of the original contracting officer would seriously prejudice the government’s ability to combat the charge that the award of the contract was arbitrary and capricious. Second, the court found that if the contract were terminated for default, the government would be liable for all the costs Bendix had incurred in performing the contract up to the date an injunction against further performance issued.
Neither of these grounds supports a finding of laches in this case. The government’s own regulations require documentation of all actions taken with respect to a contract. See 32 C.F.R. § 1-308 (1981). This documentation is sufficient to constitute a full history of the transaction and gives any reviewing body the ability to reconstruct the pertinent events. Thus, the loss of a crucial witness in this case is cured by the documentation required by the government’s own regulations.
The district court also found that the government stood to suffer financial prejudice by Gull’s delay in bringing suit. Yet, when Gull filed this suit in district court none of the test sets had been delivered to the government. The government could not have, and did not, therefore, argue that it had lost any monies paid to Bendix for performance of the contract. Bendix might, of course, attempt to sue the government for the costs incurred in its attempt to perform up to the time of filing. The Comptroller General has held, however, that if an award is made contrary to statutory or regulatory requirements in reliance on some statement or action of the contractor, or if the contractor is on direct notice that the procedures being followed violate such requirements, then the government may cancel the award without liability except to the extent recovery may be had on the basis of quantum meruit for work done and accepted by the government. See New England Telephone and Telegraph Co., No. B-197297, 80-2 Comptroller’s Procurement Decisions at 7-8 (Sept. 25, 1980). See also Prestex, Inc. v. United States, 320 F.2d 367, 162 Ct.Cl. 620 (1963).
For purposes of reviewing the laches issue on this appeal, we must take as proven Gull’s allegations that misrepresentations by CAS secured the award of the contract. Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976). Assuming Gull’s allegations to be true, the government would have been allowed to cancel the contract without liability because it was illegally awarded except to the extent that Bendix might have sued to recover its costs under a quantum meruit theory. At the time this suit was filed, however, no quantum meruit recovery was likely since Bendix had made no deliveries to the government. Therefore, the government would not have been prejudiced financially if it had rescinded the contract at that point.
In sum, we do not think the district court should have held that the complaint was barred under the doctrine of laches. Gull filed this suit only a few months after the GAO denied its last administrative protest. No deliveries on the contract had been made when it filed. The grounds on which the district court found prejudice to the government were insufficient to support that finding.
C. Mootness
During oral argument before this court, and in a “Suggestion of . Mootness” filed shortly thereafter, the government, however, stated that Bendix has now fully performed its contract with the Navy and that the Navy has fully paid for that contract. Gull’s request for injunctive relief may therefore very well be moot. Federal courts are “not empowered to decide . . . abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.” California v. San Pablo & Tulane Railroad, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Northwest Airlines, Inc. v. Federal Aviation Administration, 675 F.2d 1303, 1306 (D.C.Cir.1982); United States v. Ford Motor Co., 574 F.2d 534, 539 (D.C.Cir.1978). Upon the record before us, we are unable to determine whether injunctive relief on the bid award is still realistically a remedy.
If the test sets have been delivered, and satisfactorily fulfill the government’s requirements, there is no justification for re-awarding the contract to a more deserving bidder. If, however, the contract has not been fully or satisfactorily performed, then injunctive relief may still be available and appropriate. We therefore remand the case to the district court for a factual determination on the issue of mootness. See Graves v. Walton County Board of Education, 686 F.2d 1135, 1136-37 (11th Cir.1982); New York Health and Hospitals Corp. v. Blum, 678 F.2d 392 (2d Cir.1982).
' Affirmed in part, reversed in part, and remanded for further proceedings as directed by this opinion.
. When a written protest is lodged before the award of a contract, the procurement regulations require that the award be withheld until the matter is resolved unless the contracting officer determines that the items to be procured are urgently required, delivery or performance will be unduly delayed by the failure to make an award promptly, or a prompt award will be otherwise advantageous to the government. 32 C.F.R. § 2-407.8(b)(3) (1981).
. This contention involves two issues: (1) whether the Navy’s actions are subject to judicial review, and (2) whether Gull has standing to protest those actions. Neither Gull nor the government addressed the first issue before the district court or in their briefs to this court. It is well settled, however, that actions of a federal agency alleged to be arbitrary and capricious violations of the statutes and regulations governing the awards of federal contracts, are subject to judicial review under § 706(2)(A) of the Administrative Procedure Act (APA). M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir.1971); Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970); Bayou State Security Servs., Inc. v. Dravo Util. Constructors, Inc., 674 F.2d 325 (5th Cir.1982); Wilke, Inc. v. Department of the Army, 485 F.2d 180 (4th Cir.1973); Merriam v. Kunzig, 476 F.2d 1233 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973). Because we find that Gull had no standing to seek judicial review of the administration of the contract, we do not decide whether the Navy’s actions in administering it are even reviewable under the APA. Cf. Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613.
. To meet this argument, Gull would have had to demonstrate a substantial probability that the relief it requested regarding the administration of the contract would have benefited it in some perceptible, tangible fashion. Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 715 (D.C.Cir.1977). Were the contract here to be enjoined for maladministration, however, it would not automatically be awarded to Gull as the second low bidder on the original contract; instead, new bids likely would be taken. See Appellant’s Brief at 13, 20; Appellees’ Brief at 16-17. Although there is no guarantee that the second low bidder on a government contract will be awarded the contract if the low bid on the contract is rejected, there is far less likelihood that the same bidder on a new contract will be awarded the contract. As a result, Gull’s interests in bidding on reprocurement are more speculative than its interests as the second low bidder on a particular contract award and do not support Gull’s claim to standing to challenge the administration of the contract.
. The Armed Services Procurement Regulations, promulgated pursuant to the Armed Services Procurement Act of 1947, 10 U.S.C. §§ 2301-2315, control contracting decisions of the Army, Navy, Air Force, Coast Guard, and National Aeronautics and Space Administration. The regulations that pertain to the award of government contracts require, in general, ' that bids comply with the government’s invitation for bids (IFB) and that bids be rejected when they fail to conform to the essential requirements or the delivery schedule contained in the IFB, are submitted by nonresponsible concerns, are unreasonable as to price, or contain conditions that would modify the requirements of the IFB. See, especially, 32 C.F.R. §§ 2-301(a), 2^04.2, 2^07.2 (1981).
. The government may, for example, terminate a contract for default if the contractor fails to make delivery or to perform services within the contract’s specified time limits or fails to perform any other contract provision or to make sufficient progress on the contract, thereby endangering its performance. 32 C.F.R. §§ 7-103.11(a), 8-602.1 (1981). Id. § 8-602.3 lists the factors the agency’s contracting officer must consider in deciding whether to terminate a contract for default.
In the event of default the government is empowered to procure similar supplies or services elsewhere. Id. § 7-103.11(b). It is also allowed to avoid default by continuing the contract under a revised delivery schedule, by permitting performance of the contract through subcontracting, or by executing a no-cost termination settlement agreement. Id. § 8-602.4. Finally, the government is permitted to recognize a successor-in-interest to a federal contract when it is consistent with the government’s interests. Id. § 26-402(c).
. See 28 U.S.C. § 2401(a).
. Indeed, we have suggested that, because of the GAO’s competence and experience in procurement activities, district courts should consider, under the doctrine of primary jurisdiction, deferring review of the merits of a challenge to a procurement decision pending a GAO ruling. See Wheelabrator Corp. v. Chafee, 455 F.2d 1306, 1316 (D.C.Cir.1971). The courts have also encouraged district courts to take into consideration GAO decisions upholding procurement awards when deciding whether to grant injunctive relief. See M. Steinthal & Co. v. Seamans, 455 F.2d at 1304-05; Textron, Inc., Bell Helicopter Textron Div. v. Adams, 493 F.Supp. 824, 829 (D.D.C.1980).
. Indeed, Gull’s many attempts to receive administrative relief served to put the government on notice that it was not sleeping on its rights. See Hurst v. United States Postal Serv., 586 F.2d 1197, 1200 (8th Cir.1978); Cady v. Morton, 527 F.2d 786, 792 (9th Cir.1975); Concerned About Trident v. Schlesinger, 400 F.Supp. 454, 479-80 (D.D.C.1975). See also Etelson v. Office of Personnel Management, 684 F.2d 918, 924 n.8 (D.C.Cir.1982) (government attorney challenging method used by government in evaluating candidates for administrative law judge positions had not sat on his rights even though he waited nine years before filing suit since he had been pursuing administrative and legislative remedies during those years).
. Post-Scanwell courts have considered several factors in exercising their discretion to issue or refuse to issue an injunction. See Note, Judicial Review and Remedies for the Unsuccessful Bidder on Federal Government Contracts, 47 N.Y.U.L.Rev. 496, 513-17 (1972). They have looked carefully at the interests to be affected by injunctive relief, recognizing that substantial harm may accrue to the government and the public when agencies are unable to make necessary procurements without undue delay. Although finding merit in the claims of disappointed bidders, they have struck the balance of equities in favor of the government’s interests in the smooth and efficient functioning of the procurement process at the expense of the interests of the unsuccessful bidder in the integrity of the bidding process and equal access to the procurement dollar (and of the public in fairness and competitive bidding). See Simpson Elec. Co. v. Seamans, 317 F.Supp. 684 (D.D.C.1970). See also Wheelabrator Corp. v. Chafee, 455 F.2d 1306; M. Steinthal & Co. v. Seamans, 455 F.2d 1289; A.G. Schoonmaker Co. v. Resor, 445 F.2d 726 (D.C.Cir.1971); Blackhawk Heating & Plumbing Co. v. Driver, 433 F.2d 1137 (D.C.Cir.1970); Lombard Corp. v. Resor, 321 F.Supp. 68
Question: Did the court conclude that an issue was moot?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees.
No. 73-3037.
United States Court of Appeals, Fifth Circuit.
Nov. 11, 1974.
William L. Irons, James D. Forstman, Birmingham, Ala., for plaintiffs-appellants.
William F. Gardner, Sydney F. Frazier, Jr., Birmingham, Ala., for Ala. Pipe, and others.
William E. Mitch, Birmingham, Ala., for Local 324, Glover, and others.
Before BELL, GOLDBERG and CLARK, Circuit Judges.
GOLDBERG, Circuit Judge:
This case stands for the proposition that those with a cause of action should not be barred from the fields of advocacy merely because they have trouble making their way through the jurisdictional thicket. We find ourselves cutting the path which will allow plaintiffs to state their case in district court.
The district court dismissed the plaintiffs’ complaint “for failure to state a claim upon which relief can be granted.” Upon review here for the limited purpose of determining the validity of the dismissal, we look to see if there are any facts which plaintiffs could prove that would entitle them to relief. Czosek v. O’Mara, 1970, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21; Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. As a part of this assessment, we must accept the facts alleged to be true. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247; Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320.
Plaintiffs are members of Local No. 324 of the International Molders and Allied Workers Union [the Union or Local 324] and are employed by the Mead Corporation [Mead or the Company]. The Union and Mead entered into a collective bargaining agreement on February 19, 1972. Article 19 of this agreement carried forward a previous agreement setting up and regulating a pension plan. Section 20 of Article 19 read: “The above plan shall not be subject to renegotiation until June 30, 1972." The Agreement itself was to remain in force through December 31, 1974, and thereafter until one party or the other gave 60 days notice of termination.
Plaintiffs-appellants allege that ' the Union scheduled a meeting for June 3, 1972, to elect members to the committee which would bargain for changes in the Pension Plan. Plaintiffs prepared for that meeting by selecting two nominees dedicated to terminating the pension fund from each Mead plant. They also endeavored to insure that a majority of the membership would show up at the meeting so that their nominees would be elected. But when the meeting was held officers of Local 324 announced that they could not get order and then adjourned the meeting. These officers announced that the meeting would be rescheduled. But two days later employees learned that the president of the Union had instead appointed a bargaining committee on his own. At a subsequent union meeting, on June 17, Union officers assured the membership that a vote would be taken on any plan which this committee brought back. During the ensuing weeks various employees demanded of Union leadership orally and in writing that the pension plan not be extended. On August 15 a petition to impeach the Union leadership, signed by 1,000 of the Local’s 1,800 members, was presented to the Union. On August 18 an amendment to the Pension Plan was executed by the Union and Mead without ratification by the Union membership. Subsequently a petition to rescind the agreement was filed by 1,300 of the Local’s membership. Officers of the Local ignored that petition.
Plaintiffs filed this suit against Mead, the Union, and trustees of the Pension Trust on July 17, 1972, seeking a termination of the Pension Plan and a refund of involuntary payroll deductions currently being held by the Pension Trust.
Subsequent to the dismissal below, the Union and the Company entered into an agreement whereby the Pension Fund refunded $1,700,000 to the class plaintiffs. This sum was made up of employee contributions to the Pension Fund plus interest on those contributions. Thus, at the time of oral argument the appellees had dispersed most of the booty. Except for incremental benefits, infra, and possible attorney’s fees we would have a classic case of mootness. We were not advised of the division of the spoils except by two sentences at the end of Appellant Mead’s brief and in Appellee’s “Alternative Motion for Remand for Determination of Attorney’s Fees.”
Disconcerting as this may be, forcing us to judge in a very sensitive area and in a near vacuum, we do so, knowing of possible remaining remnants on the battlefield. What started out as a potential armageddon will end with a minor skirmish requiring us to fire jurisdictional cannon which will be heard on future battlegrounds.
Plaintiffs-appellants claim that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 gives federal district court jurisdiction over this suit.
“Plaintiffs further aver that the Pension Plan . . . has expired and contrary to the provisions contained in said Pension Plan and the collective bargaining' agreement . is being maintained in violation of the foregoing agreements. >>
A further claim, cognizable under Section 185 when it arises in the context of a collective bargaining agreement, was that the Union leadership abused their duty of fair representation.
“Workers further contend that Local 324 . . . failed to fairly represent the employees within the meaning of Section 159 of Title 29, U.S.C. A. ... in executing an agreement contrary to the written and oral demands of employee-members. The affidavits submitted . . . established that bad faith and hostile discrimination in the Union’s breach of their statutory duty by signing an agreement seeking to breathe life into a defunct pension plan.”
The contention that the collective bargaining agreement was violated by continuation of the Pension Plan is based on the Appellants’ apparent belief that the phrase in Article 19, Section 20 “shall not be subject to renegotiation” means “shall terminate.”
We do not read the agreement as plaintiffs do, and we therefore find that there was no violation of the collective bargaining agreement in the continuation of the Pension Plan after June 30, 1972. The phrase “shall not be open to renegotiation until June 30, 1972” in its plain sense merely prohibits alteration before that date. It does not suggest that renegotiation or any other act is required in order for the plan to remain in effect beyond June 30, 1972. Certainly the documents presented to this Court do not suggest a different intention on the part of those who concluded the first agreement. Nothing in the collective bargaining agreement supports such an interpretation of “renegotiate” and there are no directives for the Pension Fund in the event of termination. The prospect of termination is not covered in the second document submitted, the “Rules and Regulations of the Pension Plan.” Article IX, Section 2 of the Rules and Regulations reads: “If this Pension Plan is discontinued, the assets then remaining in the Pension Fund after providing for the expenses of the Plan, shall be allocated in the following manner. . . .” Rules and Regulations at 20. The section is stated in the conditional; if “renegotiate” was intended to mean “terminate” it is unlikely that the termination provision would have been so worded.
Admittedly, when a pension provision provides for renegotiation one of the possibilities opened is that the negotiators may decide to terminate the plan. But the possibility is not the certainty. The only certainty encompassed by the term “renegotiation” is that the parties are permitted to negotiate about the contents of the plan once again. This is what the Union and the Company did, and, in itself, this did not violate the contract between Local 324 and Mead. We therefore agree with the district court that plaintiffs did not state a cause of action when they contended that Union and Company had violated the terms of the collective bargaining agreement in not terminating the Pension Plan on June 30, 1972.
We must now address ourselves to the issues raised by the allegation that the Union has abused its duty of fair representation. Such a duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all Union dealings implicit in the Congressional grant to unions, in 29 U.S.C. § 159(a), of the exclusive power to represent all employees in the collective bargaining unit. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842, 850; Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048.
This Court has never ruled on the question of whether Section 185 might be used as a jurisdictional base for a claim of abuse of the duty of fair representation outside of the contractual context. Today we hold that Section 185 does not provide such jurisdiction. The plaintiffs-appellants’ essential assertion in the instant case is not that any specific term of the collective bargaining agreement, such as the proper operation of a seniority clause, was violated. Rather they claim that the Union had failed to fairly represent them in the administration of the Pension Plan. The existence of a pension plan clause provides the context within which the Union must act, but there is no stipulation in the clause itself which the Union or Mead has violated. See Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103. Section 185 provides jurisdiction only in “suits for violation of contracts between an employer and a labor organization ... or between any such labor organizations” (emphasis supplied). This section expressly requires a violation of a labor contract before it may be employed as a jurisdictional device. And the literal meaning of the statute is the first reference for Congressional intent. Perry v. Commerce Loan Co., 1966, 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827, 833, quoting United States v. American Trucking Associations, 1940, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345, 1350; Flora v. United States, 1958, 357 U.S. 63, 65, 78 S.Ct. 1079, 2 L.Ed.2d 1165, 1167; Ray Bailie Trash Hauling, Inc. v. Kleppe, 5 Cir. 1973, 477 F.2d 696, 707. It is on this basis that we decide that Section 185 will not serve to bring this action before a federal court. Accord, Leskiw v. Local 1470, Electrical Workers, 3 Cir. 1972, 464 F.2d 721; Adams v. Budd Co., 3 Cir. 1965, 349 F.2d 368; Palnau v. Detroit Edison Co., 6 Cir. 1962, 301 F.2d 702.
This Court has held, however, that federal jurisdiction may be sustained when granted by a federal statute even if the plaintiff has not relied upon that statute in the district court. Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61, 63; see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206 at 77-78 (1969). Therefore, we conclude that this suit can move forward under the jurisdictional aegis of 28 U.S.C. § 1337. As previously noted, the statutory duty of fair representation is implied under Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). The N.L. R.A. is an “Act of Congress regulating commerce,” Capital Service, Inc. v. N. L. R. B., 1954, 347 U.S. 501, 504, 74 S. Ct. 699, 702, 98 L.Ed. 887, 891, so that a cause of action for the breach of Section 9(a) is one “arising under” a statute regulating commerce within the meaning of Section 1337. This Court has previously found jurisdiction under Section 1337 for controversies involving the National Labor Relations Act in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, 1067 and Boire v. Miami Herald Pub. Co., 5 Cir. 1965, 343 F.2d 17, 20. Four other circuit courts have found that the “arising under” jurisdiction encompasses actions involving the duty of fair representation. Retana v. Local 14, Apartment Operators, 9 Cir. 1972, 453 F.2d 1018, 1021-1022; Waters v. Wiscon. Steel Works, 7 Cir. 1970, 427 F.2d 476, 490; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, 283 n. 1; Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103, 106. This conclusion is buttressed by Tunstall v. Brotherhood of Locomotive Firemen, 1945, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187, 193, in which the Supreme Court held that Section 1337 provided a basis for district court jurisdiction over suits for abuse of the duty of fair representation implied from “comparable provisions of the Railway Labor Act.” Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1057.
The jurisdiction thus bestowed by Section 1337 need not be snatched away by the doctrine of pre-emption. This Court had once upheld the primacy of the N.L.R.B. in duty of fair representation cases. Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, involved allegations of a breach of the duty of fair representation, predicated directly on Section 9(a) of the Act and not on 29 U.S.C. § 185. In sending the case to the N.L.R.B. for consideration the Court noted:
“. . .we are convinced that the rights of the individual employees to be fairly represented can be more fully achieved within the spirit of the act by recognizing the Board as the appropriate body to meet the challenge of uniformly administering standards of fair representation.”
368 F.2d at 23.
But this opinion preceded the Supreme Court’s ruling on the matter in Vaca v. Sipes, 1967, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842. In Vaca the plaintiff asserted a Section 185 breach and the question presented was one of state court pre-emption. But the Supreme Court referred to our decision in Rubber Workers, not a Section 185 case, in capsuling the Circuit Court disputes which helped foster its discussion. The issue it then addressed was that of preemption in general and not as limited to the Section 185 context. The reasoning of the Court is worth quoting at length:
A primary justification for the pre-emption doctrine — -the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L. M.R.A. Moreover, when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery ; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision
[T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold
that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674], The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.
386 U.S. 181-183, 87 S.Ct. 903, 912, 17 L.Ed.2d 852-853 (footnotes omitted).
This position was reaffirmed in Amalgamated Assn. of Street Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, wherein the Court noted:
“[I]n Yaca v. Sipes . . . we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agree■ment.”
403 U.S. at 299, 91 S.Ct. at 1924, 29 L.Ed.2d at 490 (emphasis added).
This resolution of the pre-emption question is all the more compelled by the treatment of duty of fair representation cases by the N.L.R.B. In Miranda Fuel Co., 1962, 140 N.L.R.B. 181, enforcement denied, 2 Cir. 1963, 326 F.2d 172, a divided Board held that a breach of the duty of fair representation violated Section 8(b) of the Act. The majority held that Section 7 gave employees the right to be free from unfair treatment at the hands of their exclusive bargaining agent and “that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious or unfair.” 140 N. L.R.B. at 185. Since Miranda, however, the Board has been retreating from the application of a broad duty of fair representation criterion. Rather, it has found violations on traditional 8(b)(1)(A) and 8(b)(2) grounds: most generally where there were allegations of racial discrimination or a breach of the “duty of fair dealing,” which duty merely requires notice to a member of his union obligations before the union may request that the employer discharge him for avoiding them. See, generally, Note, Labor Law Preemption and Individual Rights, 51 Tex.L.Rev. 1037, 1074-84 (1973). Thus the application of Miranda might, in practice, rob a plaintiff of his cause of action if the cause does not fit in one of these narrow niches. In the absence of an overriding reason, this Court is loathe to make an empty ritual of a plenary right.
On remand, the court below should consider whether the facts alleged by plaintiffs are true, and whether in their full presentation they reveal a breach of the duty of fair representation. A legally cognizable breach in this case could stem from proof of Union hostility towards the plaintiff class. Vaca v. Sipes, supra; Amalgamated Association of Street Employees, supra; Cunningham v. Erie, R.R., 2 Cir. 1966, 358 F.2d 640. It might also stem from proof that Union leadership had treated the wishes of membership in a perfunctory fashion. While perhaps not constituting a breach under the “hostility” classification, evidence of nadiral disinterest in the desires of membership might make out a case of arbitrary treatment. See Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, 18; Griffin v. U. A. W., 4 Cir. 1972, 469 F.2d 181; Day v. U. A. W. Local 36, 6 Cir. 1972, 466 F.2d 83; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114; Thompson v. Internat. Assn. of Machinists, E.D.Va.1966, 258 F.Supp. 235. Of course, the mere fact that a new plan was negotiated does not in itself indicate that Union leadership was acting with hostility or disregard for membership. Leadership might very well show that they were trying to act in the best interests of all union members and were devoting sufficient energies to that representational effort. On their face, the facts alleged evidence neither invidious classification nor disparate treatment of membership, the other grounds for.finding breach of the duty of fair representation.
As noted above, Appellees have already refunded pension contributions, plus interest, to employees. Thus, if hostility or disinterest on the part of the Union towards its members is proven in the district court, relief granted from the Union should be limited. Relief would amount to the incremental damage caused to the membership by the delay in the refund from the time that renegotiation could begin to the time when refunds were actually made. Should plaintiffs-appellants prevail or accept a settlement their attorneys should be awarded a reasonable sum for bringing this appeal and for prosecuting the case upon remand.
In addition, if the court below finds that the plaintiffs’ original suit, even though dismissed, precipitated the refund, then counsel is entitled to recover the reasonable costs of bringing the original suit. Kahan v. Rosenstiel, 3 Cir. 1970, 424 F.2d 161. Such fees should be prorated against the funds settled upon each of the plaintiffs by the Pension Plan. Where plaintiff class members are without the funds to reimburse attorneys, such funds may be appropriated from a member’s share of any new fund which might be created by relief in the trial on remand.
Reversed and remanded.
. 29 U.S.C. § 185(a) reads:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
. Appellants also contend that the collective bargaining agreement violates Ala.Code tit. 26, § 375(5) in that it makes contributions to the pension fund a condition of employment. This argument is completely without merit. Ala.Code tit. 26, § 375(5) reads:
“No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.”
The money here was paid into a pension trust and not to, or for the benefit of, the Union.
. Remarkably, this point is assumed throughout the Appellants’ Complaint and Brief. Not a sentence argues to the point.
. 29 U.S.C. § 159(a) provides:
Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided jnrilier, That the bargaining representative has been given opportunity to be present at such adjustment.
. In Deaton Truck Line, Inc. v. Local 612, Teamsters, 5 Cir. 1962, 314 F.2d 418, this Court held that Section 185 is “broad enough to include any agreement significant to the maintenance of labor peace between the employer and the Union.” 314 F.2d at 422. But nowhere does that opinion suggest that a cause of action is provided in the absence of the violation of an agreement.
. 28 U.S.C. § 1337 reads:
The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.
. Thus, technically, N.L.R.B. Jurisdiction is based on a Section 7 implication of the duty of fair representation whose violation is brought before the Board under Section 8(b)(1)(A). The courts find jurisdiction through a Section 9 substantive violation and 28 U.S.C. § 1337 jurisdiction. But the different grounds do not in themselves appear to compel substantive distinctions in disposition of the cases.
. It should be noted that in this case the plaintiffs-appellants allege that they constitute a majority of the Union membership. All previous fair representation cases which have come to the attention of this Court involved the allegation of either an individual or minority of the membership. Majority status is usually sufficient to insure that one’s view is heard. But while this factor greatly increases the probability of fair representation it does not bar a suit when fair representation fails. Other avenues of relief generally open to a majority might not be adequate in the present case. Plaintiffs might not want to institute a decertification action because they may believe that the Union is adequately representing their interests outside of the particular action they are bringing. And internal union democracy, such as election of officers, may not be available in sufficient time to stave off the damage done by Union adherence to an undesirable contract.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_counsel2
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F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
CITY OF GARLAND, Plaintiff-Appellee, v. ZURN INDUSTRIES, INC., et al., Defendants, and URS Company, Successor in Interest to Forrest & Cotton, Inc., Defendant-Third Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Defendant-Appellee.
No. 88-1697.
United States Court of Appeals, Fifth Circuit.
April 21, 1989.
Teresa Jenkins Carson, William R. Al-lensworth, David Taubenfeld, Haynes & Boone, Dallas, Tex., for appellant.
Bert R. Oastler, Neal J. Sweeney, Atlanta, Ga., for City of Garland, Tex.
Jay Tidmarsh, Trial Atty., Torts Branch, Civil Div., U.S. Dept, of Justice, Washington, D.C., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.A.
Before POLITZ and JOLLY, Circuit Judges, and HUNTER, District Judge.
District Judge of the Western District of Louisiana, sitting by designation.
E. GRADY JOLLY, Circuit Judge:
In this case we are asked to consider whether the Environmental Protection Agency (“EPA”) is protected by the “discretionary function” or “misrepresentation” exceptions to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”), for any negligence in its analysis, testing, or eventual approval of a physical-chemical waste water treatment process submitted by the City of Garland. Finding that the “misrepresentation” exception, 28 U.S.C. § 2680(h), bars this third-party action against the EPA for contribution, we affirm.
I
This case arose out of the construction of the City of Garland’s Duck Creek sewage treatment plant. The City of Garland, Texas (“Garland”) turned to URS Company (“URS”) in 1969 and 1970 to study ways in which the city’s sewage plant could be expanded and improved to meet anticipated Texas and EPA effluent discharge permit requirements. Garland wanted an innovative proposal so that it could receive a construction grant from the EPA. In addition, the city sought to be designated a regional waste water treatment facility so that it would be more likely to be awarded significant federal funding. In early 1970 Garland contracted with URS to provide a recommendation and design that would meet the EPA’s permit requirement. URS designed a physical-chemical (“p-chem”) treatment plant which incorporated a technologically innovative carbon adsorption system. Garland applied for and received a substantial grant from the EPA, which financed seventy-five percent of the cost of construction of the Duck Creek project. As part of the application process, before Garland was awarded a grant, the EPA reviewed and approved URS’s design.
As design engineer for the project, URS analyzed Garland’s sewage, reviewed ten years of data Garland had compiled, and conducted its own treatability tests. Although URS wished to build a scaled-down version of its proposed plant so that the p-chem process could be tested, the EPA rejected Garland’s funding request for such a pilot plant. The EPA stated that it had already conducted a wealth of experimentation and studies on p-chem waste treatment, so a test plant was not necessary. Garland declined to fund the pilot plant itself.
Construction of the Duck Creek project was begun in 1974 and the facility began operating in 1977. Soon after the new plant started operations, the system ruptured and could not be repaired to operate as originally intended. The plant did not meet the permit requirements, and as a result the EPA filed suit against Garland in federal district court for violations of the Clean Water Act, 33 U.S.C. § 1311, seeking civil penalties and an abatement of the condition. The City was forced to pay to defend against the environmental enforcement actions brought against it and to redesign the plant in order to bring it into compliance. The EPA withheld certain grant funds until the Duck Creek plant met its permit requirements, which also caused Garland to lose interest and bonding capacity. The EPA’s action against Garland was settled by consent decree, establishing interim effluent levels and assessing Garland a substantial penalty. Garland’s reconfigured plant only became fully operational in late April 1986.
In 1982 Garland filed suit against URS and other engineering consultants and contractors for the p-chem waste water treatment plant, in an effort to recoup the costs it had incurred under the consent decree. Garland requested over $26 million in damages from URS, alleging that URS’s novel physical-chemical process design could never have produced the required effluent quality, and URS had failed to recommend and perform essential pilot scale testing and sufficient waste water testing before recommending the process. See Zurn Industries, Inc. v. Acton Const. Co., 847 F.2d 234 (5th Cir.1988) (related case, reporting additional facts).
In August 1987 URS filed a third-party action against the EPA for contribution as joint tortfeasor. URS’s theory was that if Garland were awarded damages against URS, URS should be compensated by the EPA because the EPA’s acts or omissions in its review and approval process were negligent and a proximate cause of any injury Garland suffered from any deficiency in the design of the Duck Creek plant. URS’s claim evolved into a claim that the EPA had breached its duty to exercise care in the study of p-chem processes before counselling URS on the process and before approving URS’s design. URS alleged that it had relied heavily on the EPA’s input in making its final recommendation to Garland. URS relied on the EPA’s process design manual, met with EPA scientists and engineers for discussion, and combined the results of its own treatability studies with the EPA’s scientific data before recommending to Garland that it go ahead with the p-chem process. Further, URS alleged that the EPA itself participated in the analysis and design of the Duck Creek treatment plant, and reviewed and approved the plant’s final design and specifications. These were operational functions mandated by EPA regulations, and, it therefore was alleged, the EPA must be liable under the FTCA to Garland for any negligence in their execution.
The. United States removed the case to federal court and moved to dismiss URS’s claims, asserting that (1) the acts of the EPA were protected by the “discretionary function” exception to the FTCA; (2) URS was required to file an administrative claim before it brought its third-party action against the EPA; and (3) the doctrine of “derivative jurisdiction” precluded the federal court from obtaining jurisdiction over the removed action.
On March 25, 1988 the court found that the EPA had performed discretionary functions in examining the plans for the plant, in discussing the plans with URS, and in deciding to provide a grant to the city to construct the plant. The court granted EPA’s motion to dismiss on this basis, although it noted that any of the three grounds would have sufficed to warrant dismissal.
II
On appeal URS urges that the district court’s dismissal of URS’s claims was based on a misunderstanding of those claims. URS explains that its third-party claim against the EPA is based not on EPA’s discretionary decision to fund the Duck Creek plant, but on the EPA’s nondis-cretionary acts in implementing its decision to institute a research and development program in order to encourage and develop innovative waste treatment processes. The EPA contributed to Garland’s damages by failing to use due care both in conducting its research into the p-chem process, and in reviewing and analyzing the Duck Creek treatment plant design. These involved scientific research and experimentation, and so, URS contends, are not protected by the FTCA as “social, economic or political policy” decisions. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). Further, because the EPA would not provide funds to Garland for a pilot plant for independent testing of the p-chem system, Garland and URS were forced to rely on studies, test results, and information generated by the EPA’s research center and disseminated by the EPA’s independent research program. The EPA wrongly approved the process, and both Garland and URS relied to their detriment on that recommendation. For these reasons, it is argued, the EPA must be considered a joint tortfeasor and owe contribution to URS.
The EPA responds in turn that the FTCA’s discretionary function exception does bar URS’s claims because the EPA is required to weigh environmental and economic policy objectives in reviewing and approving a grantee’s design, and Congress gave the EPA complete discretion as to the manner in which it would conduct its research and disseminate the information it gleaned from that research. Moreover, to the extent URS alleges that it relied on the EPA’s research data, URS’s claim is barred by the FTCA’s misrepresentation exception, which has been construed to preclude claims based upon negligence in obtaining and communicating information upon which a party may reasonably be expected to rely in the conduct of his economic affairs. United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961).
Ill
We turn first to the EPA’s argument that 28 U.S.C. § 2680(h), the misrepresentation exception to the government’s waiver of sovereign immunity under the FTCA, bars URS’s claim for contribution. It is clear from the case law that section 2680(h), stating that the FTCA will not apply to “[a]ny claim arising out of ... misrepresentation,” protects the EPA against liability for contribution to URS for any damages Garland incurred as a result of its reliance on data the EPA generated or collected on the p-chem process and shared with URS.
In United States v. Neustadt, homebuyers negotiated a purchase price of $24,000 in reliance on an FHA appraisal that negligently misrepresented the value of the home. They sued the government under the FTCA for the difference between the lower fair market value of the property and the price they negotiated on the basis of the FHA appraisal. The district court found the government liable for $8,000. The Fourth Circuit affirmed, but the Supreme Court reversed, finding that section 2680(h) excluded from recovery under the FTCA claims arising out of negligent misrepresentation. The Court considered the legislative history of section 226 of the National Housing Act, 12 U.S.C. § 1701 et seq., requiring that a seller of property approved for FHA mortgage insurance “shall agree to deliver, prior to the sale of the property, to the person purchasing such [property], a written statement setting forth the amount of the [FHA] appraised value ...,” and found nothing from which it could infer that Congress intended to limit or suspend the application of the “misrepresentation” exception of the Tort Claims Act in the Neustadts’ situation:
Long before § 226 was added to the National Housing Act, ... it had been recognized in Congress that FHA appraisals would be a matter of public record, and would thus inure, incidentally, to the benefit of prospective home purchasers, by affording them the “benefit of knowing the appraised value set upon the property * * * by a trained valuator ...”
But at the same time, it was repeatedly emphasized that the primary and predominant objective of the appraisal system was the “protection of the Government and its insurance funds”; ... that “there is no legal relationship between the FHA and the individual mortagor.” Never once was it even intimated that, by an FHA appraisal, the Government would, in any sense, represent or guarantee to the purchaser that he was receiving a certain value for his money.
366 U.S. at 708-09, 81 S.Ct. at 1301 (footnotes omitted). Accordingly, the Supreme Court in Neustadt found no “specific duty” on the part of the FHA to make and communicate an accurate appraisal by virtue of the provisions of the National Housing Act, and therefore no actionable right of redress against the Government in the event a faulty appraisal was given. 366 U.S. at 708-09, 81 S.Ct. at 1301-02.
In Baroni v. United States, 662 F.2d 287 (5th Cir.1981), purchasers of subdivision housing units sued the government under the FTCA to recover for flood damage. The FHA had miscalculated the predicted fifty-year flood height and approved the subdivision so that loans made on residences constructed within the subdivision would be eligible for government-insured financing. After houses were constructed, the subdivision flooded twice and the plaintiffs’ homes were damaged. This circuit found that no federal duty to provide housing safe from flooding was imposed on the government by the National Housing Act.
While the information supplied by the government may ‘inure, incidentally, to the benefit of prospective home purchasers,’ the primary purpose of the government’s undertaking is to make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection.... Congress did not intend ‘to extend to the purchaser any actionable right of redress against the Government in the event of a faulty appraisal....’
662 F.2d at 289 (citations omitted). The panel held that even if the government’s undertaking had created a duty under state law to determine the flood level nonnegli-gently, the damages complained of resulted from the communication of the government’s miscalculation, and the misrepresentation exception barred the purchasers’ claims. Id.
The instant case is not materially distinguishable from Baroni or Neustadt. It has not been shown that the EPA owed Garland any duty whatsoever on which URS can premise its claim for contribution, either to counsel on the p-chem process or to compile accurate information.
The EPA’s authority to conduct research and to make grants derives from the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, 33 U.S.C. § 1251 et seq. The Act’s objective was to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and to that end, under the Act Congress delegated broad authority to the EPA to establish national programs, conduct research, and develop effective processes for the prevention, reduction and elimination of pollution. 33 U.S.C. § 1254(a), (a)(1), (b)(7), (d). The EPA was authorized to collect the results of its research and other activities and make them available to the public, along with appropriate recommendations. 33 U.S.C. § 1254(b)(1), (b)(6). The Act also provided for financial-assistance grants for the construction of publicly owned treatment works meeting various criteria. 33 U.S.C. § 1281(g)(1). See generally 40 C.F. R. § 30.100 et seq (1973) (general grant regulations) and 40 C.F.R. § 35.900 et seq (1973) (specific grant regulations for construction of treatment works).
URS urges that the mandatory language of 40 C.F.R. §§ 35.925 and 35.925-7(b) (1973) demonstrates that the EPA owed Garland a statutory duty to review Garland’s proposal and warrant that it would meet the applicable permit requirements. These regulations state that
Before awarding initial grant assistance for any project for treatment works the Regional Administrator shall determine:
... [t]hat such works will meet applicable effluent limitations and applicable water quality standards and attain not less than secondary treatment....
Although this regulation places on the EPA a duty to review and evaluate proposed treatment works designs before awarding a grant of government funds, it serves as no guarantee to any grantee that the grantee’s plans will satisfy the applicable effluent limitations. 40 C.F.R. § 30.600 (1973), in effect at the time the City of Garland’s construction grant was approved, specifically dictated that “[t]he primary responsibility for administration of a grant must remain with the grantee, who is responsible for the success of the project for which the grant was made.” That section continued:
Although grantees are encouraged to seek the advice and opinions of EPA on problems that may arise, the giving of such advice shall not shift the responsibility for final decision to EPA. The primary concern of EPA is that granted funds be used to achieve the objectives of the grant project in a manner that will accord with program objectives and will make a maximum contribution to the betterment of the environment. Grantees and those assisting them on project work must direct their efforts to this end.
It is plain that the intent of the EPA’s regulations regarding the review and approval of construction grants under the Act is to ensure that federal funds are most effectively spent to achieve the central purpose of the Act — to eliminate the discharge of pollutants into the nation’s waters. See generally 40 C.F.R. §§ 35.915, 35.920 et seq. (1973); 40 C.F.R. § 35.915 (1988). For the same reasons that the Supreme Court in Neustadt and this circuit in Baroni held that the National Housing Act created no actionable duty running from the FHA to homebuyers, in this case we hold that the Clean Water Act imposed no duty on the EPA which would limit or suspend the application of the “misrepresentation exception” to the FTCA.
The respective requirements found in Neustadt and Baroni that the FHA perform appraisals on property prior to its sale and calculate the predicted fifty-year flood height prior to approving a subdivision for government-insured financing were imposed predominantly for the “protection of the government and its insurance funds,” Neustadt, 366 U.S. at 709, 81 S.Ct. at 1301, and to “make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection,” Baroni, 662 F.2d at 289. In the instant case, the Clean Water Act’s regulations requiring review and approval of construction grants and treatment plant designs are also primarily for the purpose of ensuring that the government’s investment in these projects is put to best use to improve the quality of the environment. Although the City of Garland may have been an incidental beneficiary of a determination by the EPA that the Duck Creek Plant would achieve its permit requirements, it is apparent that the environment itself was the intended beneficiary of the EPA’s research efforts and its construction grant administration. See 33 U.S.C. §§ 1251, 1254. Cf. Neustadt, 366 U.S. at 708, 81 S.Ct. at 1301 (FHA appraisals inure only incidentally to the benefit of prospective homeowners); Baroni, 662 F.2d at 289 (flood height calculations inure only incidentally to the benefit of prospective home-buyers). We therefore find that the applicable regulations of the Clean Water Act imposed no duty on the EPA to warrant to Garland that its plant would meet its permit requirements, which would suspend application of the misrepresentation exception. Cf. In re Air Crash Disaster Near Silver Plume, 445 F.Supp. 384, 405-09 (1977) (Federal Aviation Act of 1958 and its regulations create an actionable duty on the part of the FAA personnel to air passengers, pilots and personnel to carry out operational activities under the Act in a nonnegligent manner).
In addition, to the extent that URS bases its claim for contribution on inaccurate data or test results the EPA furnished to Garland or to it as Garland’s agent, this claim is clearly barred by the misrepresentation exception to the FTCA. The FTCA does not allow for the recovery of damages resulting from the government’s negligence in obtaining and communicating information. Neustadt, 366 U.S. at 706, 81 S.Ct. at 1300; Baroni, 662 F.2d at 289.
Because federal courts lack subject-matter jurisdiction to entertain claims against the United States falling within one of the statutory exceptions to the FTCA, URS’s third-party claims against the EPA, alleging damages resulting from its reliance on information the EPA generated negligently and communicated, were properly dismissed by the district court under the FTCA’s misrepresentation exception, 28 U.S.C. §§ 1346, 2680(h).
IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
. All references are to the Clean Water Act in effect in 1973 and 1974, when the actions in this case occurred, unless otherwise noted.
. Although we need not decide this issue in view of our holding above that the misrepresentation exception bars URS’s claims, we note that the "discretionary function" exception, relied on by the district court, also does not seem misapplied here. It is not disputed that the EPA's decision to approve the Duck Creek p-chem process, as the district court held, was the exercise of a discretionary function. Further, the EPA was under no contractual or other duty to provide URS with information URS could use to profit through its contract with Garland; the EPA was simply performing a public service in counsel-ling both Garland and URS prior to its approval of Garland’s Duck Creek proposal.
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
First Lieutenant Michael J. TREMBLAY, United States Army, Petitioner, Appellant, v. John D. MARSH, Jr., Secretary of the Army, Respondent, Appellee.
No. 84-1338.
United States Court of Appeals, First Circuit.
Argued Nov. 6, 1984.
Decided Dec. 14, 1984.
Mitchell Benjoya, Boston, Mass., with whom Denner & Benjoya, Boston, Mass., was on brief for petitioner, appellant.
William P. Joyce, Sp. Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., and Jeffrey R. Martin, Asst. U.S. Atty., Boston, Mass., were on brief for respondent, appellee.
Before COFFIN and BOWNES, Circuit Judges, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
BOWNES, Circuit Judge.
Petitioner-appellant, Michael J. Tremblay, appeals the refusal of the district court to grant a preliminary injunction against defendant-appellee, Secretary of the Army, relieving Tremblay from reporting for 119 days of active military duty as ordered. The district court, 584 F.Supp. 224, granted Tremblay a stay pending decision of this appeal.
THE FACTS
Tremblay joined the United States Army Reserve Officer Training Corps in 1974 while an undergraduate at Northeastern University. Tremblay executed an enlistment contract on January 1, 1977, agreeing to serve for six years in the Army. Upon his graduation from Northeastern, Tremblay was commissioned a second lieutenant in the United States Army Reserves. After being accepted at the New England School of Law in the spring of 1979 for the class starting in September, 1979, Tremblay applied for and was granted an educational delay by the Army so that he could complete his legal studies.
During the summer following his first year at law school, Tremblay worked as a legal intern for the Judge Advocate General Corps (JAGC) at Fort Devens, Massachusetts. The next summer was spent as a JAGC intern in Mannheim, West Germany. When Tremblay was at Fort Devens, he learned of a bill pending in Congress which, inter alia, provided that the entry rank for a JAGC officer would be reduced from captain to first lieutenant and that the three-year service credit for the educational delay period spent in law school would be eliminated. This concerned Tremblay because he intended to apply for JAGC duty on his graduation from law school.
Tremblay learned in May, 1981, that the bill had been passed in November of 1980, the Defense Officer Personnel Management Act, Pub.L. No. 96-513. Tremblay wrote letters in May and June of 1981 to the JAGC Personnel Plans and Training Office and to Senators Paul Tsongas and Strom Thurmond and Representative Joseph Moakley. The letters were critical of the legislation and urged the enactment of an exemption from the reduction in rank and elimination of the service credit provisions for second lieutenants who had, like Tremblay, obtained an educational delay for attending law school prior to the passage of the bill.
Tremblay applied for assignment to the JAGC in October of 1981, but was not selected. He reapplied in January of 1982, and again was rejected by the selection board. Tremblay’s letter to Senator Thurmond and the JAGC’s response to an inquiry by the Senator was included with Tremblay’s application materials and was available for review by the JAGC selection board.
Tremblay graduated from New England Law School with honors in June, 1982. In early April, 1983, Tremblay was ordered to report for active duty on January 13, 1983, for a Military Police Officer Basic Course and permanent assignment to an Army M.P. unit. Tremblay requested release from this active duty assignment in July of 1982; the request was granted in August, 1982. Tremblay twice tendered a resignation of his commission; neither tender was accepted. On April 6, 1983, Tremblay was ordered to report for 119 days of active duty at the United States Army Military Police School on June 1, 1983. The suit leading to the appeal was commenced on May 20, 1983. A temporary restraining order was issued pending a hearing on the preliminary injunction.
The Issues
Tremblay makes two claims as a basis for the relief sought: breach of contract; and retaliation for the exercise of his first amendment right of freedom of speech.
The breach of contract claim is contained in paragraph 6 of the complaint. It alleges:
6. At the time of Petitioner’s enlistment it was represented to him by his ROTC instructors and the literature given to him that his aspiration to attend law school upon graduation from college would be sacrosanct, that he would practice law thereafter in the Army if he (1) attended an ABA accredited law school (2) graduated, and (3) passed a state bar examination, that he would enter the JAG Corps (Judge Advocate General) in the rank of Captain, and, finally, that any debts incurred by him during law school could be deferred until the termination of his service obligation.
The first amendment claim is that the Army refused to appoint him a JAGC officer because he had written letters to Congressmen criticizing the legislation which he felt was unfair to himself and others similarly situated.
The district court found that Tremblay had shown irreparable harm, a balance of hardship in his favor, and no adverse effect upon the public interest, but that he had failed to demonstrate a likelihood of success on the merits of either of his claims. The findings as to the first three factors have not been challenged and we accept them as given. The only question, therefore, is whether or not Tremblay has made a sufficient showing of likelihood of success on the merits.
We agree with the district court on the contract claim and adopt that portion of its opinion dealing with it. We add that petitioner has allowed his dashed expectations to distort his reading of the plain terms of his military contract and that he has adduced no facts except his own assertions, all effectively rebutted by the defendant’s affidavits, to buttress his claim that representations were made to him that upon graduation from law school he would be appointed a JAGC officer.
The first amendment claim, however, is not so easily disposed of. The district court focused on the evidence brought out in the declaration of Major Rosenblatt, executed pursuant to 28 U.S.C. § 1746. Major Rosenblatt was a member of the JAGC and the recorder for the selection board which rejected Tremblay. Paragraph 3 of the declaration states:
3. In July 1981 this office was asked to coordinate on a proposed response to Senator Thurmond prepared by the Administrative Law Division of the Office of The Judge Advocate General. A copy of the response to Senator Thurmond as well as Lieutenant Tremblay’s letter that Senator Thurmond forwarded was included with his application materials and was available for review by the selection board. It is a routine practice to include Congressional correspondence in the application folders. A number of applicants write their Congressmen and Senators. This correspondence provides the board additional insight into an applicant’s writing style and written expression. There is no negative inference drawn by the mere fact that an applicant corresponds with members of Congress.
In paragraph 4, the declaration goes on to state that the Army advocated a view similar to that advocated by Tremblay in his letter to Senator Thurmond.
Paragraph 5 of the declaration explains that the selection rate for a commission in the JAGC decreased significantly. It states that at the time of Tremblay’s first application, 113 out of 388 applicants (29%) were selected and at the time of his second application only 36 out of 377 applicants (9.5%) were chosen. The declaration further states that thirty ROTC officers, including some from Harvard and Columbia Law Schools, and six summer interns were rejected at the time Tremblay’s first application was considered and that forty-five ROTC officers and four summer interns were not selected in April of 1982 when Tremblay’s application was reconsidered.
Paragraph 6 of the declaration states that from 1976 to 1980 the selection rates for ROTC officers into the JAGC were much higher, ranging from 92.8% to a rate in excess of 95%. The final paragraph of the declaration states that Tremblay did not reapply for the JAGC after April, 1982, even though eligible to do so.
The district court did not specifically discuss or comment on the evidence which Tremblay adduced on this issue. Tremblay first pointed out that he had an excellent academic record at law school. His evidence included a certificate of achievement for his work as a legal intern for the Army at the Mannheim Law Center in the summer of 1981. The Army also awarded Tremblay the title of “Legal Eagle” for “the indelible mark he made on military justice in Mannheim Community.” Tremblay filed a letter from his commanding officer at Mannheim recommending him for a commission in the JAGC. Tremblay’s application for an appointment to the JAGC was endorsed by Captain Garrison, Deputy Chief, Criminal Law Division at the Mannheim Law Center. Captain Garrison stated, inter alia, “[a]ll who worked with him were extremely impressed with his knowledge of the law, his methods of case preparation, and his rapport with others. I would be happy to have Mike return to Mannheim as a member of the JAG Corps. I hope this application receives favorable consideration.”
As part of his evidence, Tremblay filed three affidavits of 1982 law school graduates who were accepted by the JAGC. Geraldine Brotherton graduated from New England Law School in 1982. She was a member of the Law Review. She was not a JAGC summer intern, and had no military or ROTC experience. Brotherton applied for the JAGC during her final year at law school and was accepted. Mark P. Sposato also graduated from New England Law School in 1982. He did not work as a JAGC summer intern and had no military or ROTC experience. His application for the JAGC was accepted. Elaine Deedy-Sincali graduated from Suffolk Law School in 1982. Like the other two affiants, she had not worked as a JAGC intern and had no military or ROTC experience and received an appointment as an officer in the JAGC.
Were this case limited to weighing Tremblay’s affidavits and other material against that of Major Rosenblatt’s statistically based explanation of the selection of JAGC candidates, we would be constrained to find that Tremblay had not shown a likelihood of success on the merits. There is, however, the matter of Tremblay’s letter to Senator Thurmond in the selection board application file. We do not agree with the district court that “there is absolutely no evidence linking petitioner’s letter [to Senator Thurmond] with his failure to be selected for the JAGC.”
Contrary to the district court, we find that the very presence of the letter in the application file raises an inference that it might have been a factor in the selection board’s decision. Major Rosenblatt’s explanation of the letter as providing “additional insight into an applicant’s writing style and written expression” is not very convincing. One must wonder what kind of writing sample is used by the selection board for applicants who have not written a Congressman. Nor do we understand why it is “routine practice to include Congressional correspondence in the application folders.” Surely, the selection board for JAGC applicants does not also have the responsibility of replying to congressional inquiries.
The inference of retaliation raised by the presence of the letter in Tremblay’s JAGC application file is heightened by the Army’s failure on three separate occasions to include it in the application folders sent to Tremblay. After Tremblay’s first and second rejections, he received what purported to be his complete application files. Senator Thurmond’s letter was in neither one. In December, 1982, Tremblay made a request for his complete application folder under the Freedom of Information Act. The file he received did not contain the Senator’s letter. Not until Major Rosenblatt’s declaration was filed in court did the Army reveal that Senator Thurmond’s letter was among the materials available for consideration by the JAGC selection board. The letter itself, however, was not included in the submissions to the court.
Another item not included in the file sent to Tremblay or in the court submissions was the response to Senator Thurmond by Major Rosenblatt and the Administrative Law Division of the JAGC. This response as well as Tremblay’s letter was included in his application folder. Although Major Rosenblatt’s declaration does not specifically state that there was an inquiry by Senator Thurmond, we can only assume that the “response” was prompted by an inquiry of some sort. The nature of the inquiry would be revealed by the missing response.
The affidavits and submissions by Tremblay, the presence of Tremblay’s letter to Senator Thurmond and the JAGC’s response to the Senator’s inquiry in the material available to the selection board, and the failure of the JAGC to submit the letter and the response to the court evince, in light of the undisputed findings as to irreparable harm, the balance of hardships and the lack of adverse effect on the public interest, a sufficiently substantial likelihood of success on the merits of the first amendment retaliation claim. See, e.g., Roth v. Bank of the Commonwealth, 583 F.2d 527, 536-38 (6th Cir.1978); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953); generally, C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 450-55 (1973).
Affirmed in part, reversed in part.
Remanded.
The defendant is restrained from ordering plaintiff to active duty pending a hearing on the merits of the first amendment claim.
Costs to appellant.
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_usc1sect
|
2201
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
The MILLER-WOHL CO., INC., Plaintiff-Appellant, v. COMMISSIONER OF LABOR AND INDUSTRY, STATE OF MONTANA, and Tamara L. Buley, Defendants-Appellees. Equal Employment Opportunity Commission, California Dep’t of Fair Employment & Housing, Employment Law Center, and Equal Rights Advocates, Inc., Amici Curiae.
No. 81-3333.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 1982.
Decided Aug. 27, 1982.
See also, 9th Cir., 694 F.2d 203.
Charles L. Fine, Phoenix, Ariz., for plaintiff-appellant.
Paul Van Tricht, Helena, Mont., argued, for Com’r of Labor.
Richard R. Buley, Missoula, Mont., argued, for T. L. Buley; Tipp, Hoven, Skjelset & Fizzell, Missoula, Mont., on brief.
Linda Krieger, San Francisco, Cal., for Dept, of Fair Employment.
Karen MacRae Smith, Washington, D.C., for E.E.O.C.
Before WRIGHT, KILKENNY, and CANBY, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
The Miller-Wohl Company fired Tamara Buley because she missed several days of work. Buley was pregnant. Her pregnancy-related illness caused her absences.
The company’s employment policy permits no sick leave nor leave of absence for any illness during the first year of employment. Regardless what illness or condition causes a new employee’s absence, he or she is discharged for missing work. The company claims it applies this policy consistently.
Two statutes are involved. The Montana Maternity Leave Act (MMLA) proscribes an employer’s termination of a woman’s employment or refusal to grant a reasonable leave of absence because she is pregnant. Mont.Code Ann. § 39-7-203(1), (2). And in Title VII, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (Supp. II 1978), declares that pregnant women shall be treated the same as nonpregnant employees similar in their ability or inability to work.
Buley complained to the Montana Commissioner of Labor and Industry who concluded that the discharge violated the MMLA because Miller-Wohl fired her for pregnancy-related absences.
Miller-Wohl sued in district court for declaratory relief. It argues that the MMLA conflicts with the PDA because it requires an employer to treat pregnant employees preferentially. It asserts that Title VII preempts the application of the contrary state provision.
The company’s argument rests on the plain language of the Pregnancy Discrimination Act, which reads:
The terms “because of sex” or “on the basis of sex” include .. . pregnancy . . .; and' women affected by pregnancy . . . shall be treated the same for all employment-related purposes ... as other persons not [pregnant] but similar in their ability or inability to work ....
42 U.S.C. § 2000e(k) (Supp. II 1978).
The PDA expressly requires employers to treat pregnant women the same as similarly able nonpregnant persons. Women who are disabled because they are pregnant must be treated the same as women or men who are disabled for any other reason. Because the Montana Act requires Miller-Wohl to treat its pregnant employees differently, the company argues, it violates Title VII.
Not unexpectedly, the Commissioner and Buley, defendants in Miller-Wohl’s declaratory judgment action, and amici curiae, including the EEOC, argue that the MMLA does not fail under Title VII. They contend that, although the company’s policy is facially neutral, it violates Title VII because it exerts a disparate impact based on sex. E.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). See also Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981); 29 C.F.R. § 1604.10(c) (1981) (EEOC Guidelines). Because Title VII would require a leave policy to provide a reasonable period for pregnancy, the result achieved by the MMLA, they contend the two statutes do not conflict and both may apply.
The district court agreed and granted summary judgment against Miller-Wohl. It held that the company should provide a reasonable leave period for all first-year employees rather than permit no sick leave for pregnant employees. See 29 C.F.R. § 1604.10 (questions & answers 19, 29, 30) (1981).
However intriguing these arguments, we conclude this court lacks jurisdiction to decide the question. The federal claims contained in Miller-Wohl’s declaratory judgment complaint are defenses to the employee’s state claim. They fail to create the requisite federal question. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950); Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir. 1981), cert. denied, - U.S. -, - - -, 102 S.Ct. 1716-17, 72 L.Ed.2d 138 (1982).
The Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, is procedural. It provides an additional remedy, but only in cases resting on some independent basis of federal jurisdiction. Alton Box Board Co. v. Esprit De Corp., 682 F.2d 1267 (9th Cir. 1982). Here, Miller-Wohl’s anticipation of a federal defense to a state claim is insufficient to state that independent basis.
Buley’s claim lies entirely within the Montana statute. That Miller-Wohl asserts a preemption defense, in the form of a declaratory judgment complaint, does not change its essential nature as a defense. See Gully v. First National Bank in Meridian, 299 U.S. 109, 112-18, 57 S.Ct. 96, 97-100, 81 L.Ed. 70 (1936) (jurisdictional basis must appear in complaint).
Federal law does not impose a remedy by displacing state law, see 42 U.S.C. § 2000e-7, nor does it define rights, duties, or relationships upon which the state claim depends. See Guinasso, 656 F.2d at 1367 & n.7; cf. Franchise Tax Board of California v. Construction Laborers Vacation Trust, 679 F.2d 1307, at 1308 n.1 (9th Cir. 1982) (federal question requirement satisfied in state’s action challenging a trust created under a federal statute and naming a fiduciary defined by and subject to duties contained in federal statutes).
All of Miller-Wohl’s defenses that are federal in nature may be raised in its defense in the state courts. Indeed, they all are asserted in the company’s petition for review of the Commissioner’s determination that it violated the MMLA. Every issue pleaded in its federal complaint, as well as several defenses based solely on state law, appear in that complaint.
We vacate the district court’s judgment, 515 F.Supp. 1264. It had no jurisdiction, Similarly, we dismiss this appeal because we have no jurisdiction to decide its merits.
. Miller-Wohl also invokes the equal protection clause. That claim, like its statutory claim, is directed toward an anticipated application of the MMLA.
If any constitutional rights are directly affected, but see Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), they are those of male employees, not of Miller-Wohl. The company asserts no federal claim of its own, constitutional or statutory, sufficient to confer jurisdiction under either 28 U.S.C. § 1343 or § 1331. See Maine v. Thiboutot, 448 U.S. 1, 8 n.6, 100 S.Ct. 2502, 2506 n.6, 65 L.Ed.2d 555 (1980).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_usc2
|
26
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Carl Junior HIGGINBOTHAM, Appellee, v. UNITED STATES of America, Appellant.
No. 73-1342.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 3, 1973.
Decided Jan. 28, 1974.
Carleton D. Powell, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwaeks, Elmer J. Kelsey, Attys., Tax Div., U. S. Dept. of Justice, and John A. Field, III, U. S. Atty., on brief), for appellant.
John T. Kay, Jr., Charleston, W. Va. (Stanley E. Preiser, Preiser & Wilson, John T. Kay, Jr., and Kay, Casto & Chaney, Charleston, W. Va., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
WIDENER, Circuit Judge;
This case involves a suit for refund of federal excise taxes on wagering and a counterclaim on account of such taxes filed by the United States for the years 1964 and 1965 in the total amount of $353,082.06. 26 U.S.C. § 4401. The district court held that the applicable statute of limitations governing when assessments for wagering taxes must be made was three years and that the period had expired prior to the date of assessment. The court further held that the provisions of § 6501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 6501(c)(3), providing that if no return is filed an assessment may be made at any time, were inapplicable in this case and, therefore, the assessments were untimely and not enforceable.
Since it relied on Lucia v. United States, 447 F.2d 912 (5th Cir. 1971) and an unreported case in holding § 6501(c)(3) inapplicable, the court obviously reasoned, although it did not so state, that depriving the taxpayer of the right to take advantage of the statute of limitations because he filed no wagering tax return would constitute a constitutionally impermissible punishment. Judgment was entered against the United States and this appeal followed. Because we feel that the shelter provided by the statute of limitations is not a fundamental right the denial of which would constitute a penalty in the constitutional sense on those involved in a criminal activity, we reverse.
The facts are not controverted. On February 6, 1970, the Internal Revenue Service made assessments for federal wagering excise taxes against Carl Junior Higginbotham for each of the months in the years 1964 and 1965. The assessments were based on projections made from records seized by agents of the Intelligence Division of the Internal Revenue Service from the taxpayer in a raid on November 20, 1965. Higginbotham had filed no returns for the tax periods covered by the assessments, claiming in the alternative that he did not engage in the business of accepting wagers or that he feared that the information contained in the returns might tend to incriminate him. The district court, without a hearing, found he did not file returns because he feared the information contained in the returns might tend to incriminate him.
On May 6, 1971, the taxpayer paid $293.50 on the assessment for the monthly period ending July 31, 1964, and on May 14, 1971 he filed a claim for refund. After more than six months had expired after filing the claim, Higginbotham brought this suit for refund. In an amended answer, the United States filed a counterclaim against the taxpayer for the unpaid balance of the assessment in the amount of $352,786.56.
As a general rule, the assessment of any tax imposed by Title 26 of the U. S. Code, including the wagering excise tax, must be made within three years after the tax return is filed. 26 U.S.C. § 6501(a). If no return is filed, however, this three-year statute of limitations does not apply, and the assessment, or collection proceedings in court, may begin at any time. 26 U.S.C. § 6501(c)(3). Noth withstanding this latter provision, the taxpayer here contends that the assessment was untimely, and thus he may not be required to pay the tax. Since the filing of the wagering tax return might tend to incriminate him, relying on Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), he argues that the denial of the defense of the three-year statute of limitations would constitute a constitutionally impermissible punishment. See United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). If the taxpayer is correct in this contention, the assessment would be barred since it was made on February 6, 1970, more than five years after the period in question.
The Supreme Court considered the scope of a taxpayer’s privilege against self-incrimination in two opinions rendered the same day in 1968. In Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the court found that criminal prosecutions could not be sustained for failing to register and pay the occupational privilege tax because the system of payment created “real and appreciable” hazards of self-incrimination. The court held that the registration and occupational tax provisions could not be employed to punish criminally persons who defended a failure to comply with a proper assertion of the privilege against self-incrimination. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), involved a defendant who had been convicted for willful failure to pay the wagering excise tax, willful failure to pay the occupational tax, and conspiracy to defraud the United States by evading payment of these taxes. The Supreme Court reversed the convictions, holding that the privilege against self-incrimination afforded a complete defense to criminal prosecutions for noncompliance with federal gambling tax and registration requirements.
More recently, in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the court again had before it the conflict between the power to tax unlawful activity and the values protected by the taxpayer’s privilege against self-incrimination. The defendant in United States Coin had been convicted of failing to register and pay the federal wagering taxes. Thereafter, the United States instituted forfeiture proceedings to obtain $8,674.00 which he had in his possession at the time of his arrest. The court held that the privilege against self-incrimination was applicable in a civil forfeiture proceeding. The court reasoned:
“The Government’s principal argument (that only criminal proceedings were proscribed, not civil proceedings such as forfeiture) turns upon an exceedingly narrow construction of our decisions in Marchetti and Grosso. In those cases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities. It was only the method Congress had adopted in collecting the tax that raised the Fifth Amendment question. The statute commanded that gamblers submit special registration statements and tax returns that contained information which could well incriminate them in many circumstances. Because the risk of self-incrimination was substantial, we held that a Fifth Amendment privilege could be raised as a defense to a criminal prosecution charging failure to file the required forms. Since it was only this method of tax collection which was subject to constitutional objection, we indicated that, the Government remained free to collect taxes due under the statute so long as it did not attempt to punish the taxpayer for his failure to file the required documents.
Thus, rejecting the argument that Marchetti and Grosso applied only to criminal sanctions, the court held that “ ‘proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal’ for Fifth Amendment purposes.”
We feel that neither Marchetti, nor Grosso, nor United States Coin & Currency require the result obtained below. Unlike the defendants in Marchetti and Grosso, the taxpayer here is not being prosecuted criminally for his failure to pay either the occupational tax or the wagering excise tax, nor is he being prosecuted for failing to register. The government seeks from Higginbotham only taxes and interest. Neither civil forfeiture nor criminal penalties have been imposed, nor are they sought.
For similar reasons, we feel that United States Coin & Currency is inapposite. The forfeiture statute there involved constituted a penalty upon those asserting a Fifth Amendment privilege since the provisions of the statute itself were intended to penalize only persons significantly involved in a criminal enterprise. In the instant case, the taxpayer urges that the denial of the statute of limitations’ defense constitutes a similar penalty upon the exercise of his Fifth Amendment right. In contrast, however, the provisions of 26 U.S.C. § 6501(c)(3) (the statute of limitations on assessments) apply across the board to the public at' large, to all persons required to pay taxes under Title 26 of the U. S. Code to the federal government. No distinction is made between those who owe ordinary income taxes, for example, and those who owe gambling excise taxes. All are treated alike as, of course, they must under a largely self-enforcing tax system.
The Supreme Court characterized statutes of limitation in Chase ’ Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). The court thought it significant that these provisions “have come into the law not through the judicial process but through legislation. . . . Their shelter has never been regarded as what now is called a ‘fundamental’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.”
We hold that the provision of 26 U.S. C. § 6501(c)(3) providing that assessments may be made at any time in the case of a taxpayer who fails to file a return, as applied to the defendant here, is not a constitutionally impermissible punishment. Arguably, the taxpayer may not be compelled to file a return since to do so involves substantial hazards of self-incrimination. On the other hand, his failure to file tolls the statute of limitations for assessments under § 6501, the same as any other taxpayer assessed under the Internal Revenue Code. Our legal system is “replete with situations requiring ‘the making of difficult judgments’ as to which course to follow. McMann v. Richardson, 397 U.S. [759], at 769, 90 S.Ct. [1441], at 1448 [25 L.Ed.2d 763]. Although a defendant may have a right, even of constitutional dimensions, to follow whatever course he chooses, the Constitution does not by that token always forbid requiring him to choose.”
Nothing is presented to us, or presents itself, in reason or in law, to justify the defendant in avoiding the assessment here on the grounds of the statute of limitations, when an ordinary taxpayer, engaged in a lawful occupation, may not avoid it under what otherwise would be precisely the same set of circumstances. The provisions of § 6501(c)(3) are not pointed at a small or limited class engaged in activity inherently suspect or unlawful, cf. Marchetti, Grosso, United States Coin & Currency, supra; they cover the broad mass of the taxpaying public sustaining the burden of government under every tax imposed by the Internal Revenue Code. So, if the defendant here finds himself a part of the mass, he may not complain. Accord Lucia v. United States, 474 F.2d 565 (5th Cir. 1973) (en banc); contra, Lucia v. United States, 447 F.2d 912 (5th Cir. 1971) (panel).
Accordingly, the decision of the district court that the February 6, 1970 assessment is barred by the three-year statute of limitations is reversed. The order entered December 5, 1972 must be vacated and the case remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
. No issue has been raised on this appeal as to the taxpayer’s liability under 26 U.S.C. § 4411 for $125 in wagering occupational taxes for the period of January 1, 1964 to June 30, 1966. The sole issue before us is the timeliness of the assessment of wagering excise taxes under 26 U.S.C. §§ 4401 and 6501.
. The Internal Revenue Code of 1954, 26 U.S.C. § 6501, provides:
Section 6501. Limitations on Assessment and Collection.
(a) General Rule.—Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within three years after the return was filed (whether or not such return was
filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such shall be begun after the expiration of such period.
:¡: * * * *
(c) Exceptions.—
sjs * !¡: *• sit
(3) No return.—In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
* * * *
. The Internal Revenue Code of 1954 provides :
Section 4401. IMPOSITION OF TAX.
(a) Wagers.—There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof.
(b) Amount of wager.—In determining the amount of any wager for the purposes of this subehapter, all charges incident to the placing of such wager shall be included; except that if the taxpayer establishes, in accordance with regulations prescribed by the Secretary or his delegate, that an amount equal to the tax imposed by this subchapter has been collected as a separate charge from the person placing such wager, the amount so collected shall be excluded.
(c) Persons liable for taso.—Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subehapter on all wagers placed in such pool or lottery. Any person required to register under section 4412 who receives wagers for or on behalf of another person without having registered under section 4412 the name and residence of such other person shall be liable for and shall pay the tax under this subchapter on all such wagers received by him.
. It should be noted, parenthetically, that the validity of the gambling excise tax is not here in question. “It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed.” United States v. Sanchez, 340 U.S. 42, 44, 71 S.Ct. 108, 110, 95 L.Ed. 47 (1950). Indeed, in characterizing its earlier decisions dealing with the wagering excise tax, the Supreme Court remarked that “(i)n those cases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities.” United States v. United States Coin & Currency, 401 U.S. 715, 717, 91 S.Ct. 1041, 1043, 28 L.Ed.2d 434 (1971). See also Washington v. United States, 402 F.2d 3 (4th Cir. 1968), cert. den., 402 U.S. 978, 91 S.Ct. 1641, 29 L.Ed.2d 145 (1971), rehearing den., 403 U.S. 940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971).
. Internal Revenue Code of 1954 §§ 4411, 4412; 26 U.S.C. §§ 4411, 4412.
. Internal Revenue Code of 1954 § 7302 ; 20 U.S.C. § 7302.
. 401 U.S. at 717, 91 S.Ct. at 1043.
. 401 U.S. at 718, 91 S.Ct. at 1043. (Emphasis in original)
. 325 U.S. at 314, 65 S.Ct. at 1142.
. McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_certreason
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
KANSAS v. COLORADO
No. 105,
Orig.
Argued October 4, 2004
Decided December 7, 2004
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, and in which Stevens and Thomas, JJ., joined except for Part II. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 106. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 107.
John B. Draper, Special Assistant Attorney General of Kansas, argued the cause for plaintiff.. With him on the briefs were Phill Kline, Attorney General, Eric Rucker, Chief Deputy Attorney General, David Davies, Deputy Attorney General, Harry Kennedy, Assistant Attorney General, Leland E. Rolfs, Special Assistant Attorney General, and Andrew S. Montgomery.
David W. Robbins, Special Assistant Attorney General of Colorádo, argued the cause for defendant. With him on the brief were Ken Salazar, Attorney General, Carol D. Angel, First Assistant Attorney General, and Dennis M. Montgomery, Special Assistant Attorney General.
James A. Feldman argued the cause for the United States. With him on the brief were former Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, Jeffrey P. Minear, and Patricia Weiss.
Justice Breyer
delivered the opinion of the Court.
We again consider a long-running water dispute between Colorado and Kansas. The water is that of the Arkansas River, once proudly called the “Nile of America.” The river originates high in the Rocky Mountains. It runs eastward' through Colorado, Kansas, Oklahoma, and Arkansas, before joining the Mississippi near the town of Arkansas Post. For decades, Kansas and Colorado disagreed about the division of its upper waters. See Kansas v. Colorado, 206 U. S. 46 (1907); Colorado v. Kansas, 320 U. S. 383 (1943). In 1949, they entered into an interstate compact. See Arkansas River Compact (Compact), 63 Stat. 145 (agreeing to “[equitably divide and apportion” the waters (internal quotation marks omitted)). But the disagreements have persisted.
Present proceedings began in 1985, when Kansas charged that Colorado had violated the Compact. Kansas pointed out that Compact Art. IV-D says:
“This Compact is not intended to impede or prevent future beneficial development of the Arkansas River basin in Colorado and Kansas by Federal or State agencies, by private enterprise, or by combinations thereof, which may involve construction of dams, reservoir, and other works for the purposes of water utilization and control, as well as the improved or prolonged functioning of existing works: Provided, that the waters of the Arkansas River, as defined in Article III, shall not be materially depleted in usable quantity or availability for use to the water users in Colorado and Kansas under this Compact by such future development or construction.” Id., at 147 (emphasis added and internal quotation marks omitted).
Kansas submitted that Colorado “development,” in particular increases in ground water consumption through new and existing irrigation wells, had “materially depleted” the water otherwise available “for use” by Kansas’ “water users.” Our appointed Special Master agreed, recommending that we find that Colorado had unlawfully depleted the river in violation of Art. IV-D. 2 First Report of Special Master 336 (hereinafter Report). We accepted the Special Master’s recommendations and remanded the case for remedies. Kansas v. Colorado, 514 U. S. 673, 694 (1995) (Kansas I).
The Special Master set forth proposed remedies in his Second and Third Reports. He said that Colorado had over-depleted more than 400,000 acre-feet of usable river flow from 1950 through 1994. Second Report 112. He recommended that Colorado pay Kansas monetary damages to make up for the depletions. Third Report 119. He divided losses into six categories, calculating damages somewhat differently in each category. See id., at 120. And he recommended that Kansas be awarded prejudgment interest on damages reflecting losses incurred from 1969 through 1994. Id., at 107. We subsequently adopted the Special Master’s recommendations with one exception; we held prejudgment interest would run from 1985 (not 1969). Kansas v. Colo rado, 533 U. S. 1, 15-16 (2001) (Kansas III). See infra, at 95-97. And we remanded the case. 533 U. S., at 20.
The Master has now filed a Fourth Report setting forth his resolution of certain remaining issues. Kansas takes exception to several of the Fourth Report’s recommendations. We overrule Kansas’ exceptions and adopt all of the Special Master’s recommendations.
I
Kansas, asked the Special Master to recommend that we appoint a River Master with authority to decide (within clear error limits) various technical disputes related to decree enforcement. See Texas v. New Mexico, 482 U. S. 124, 134 (1987) (appointing a River Master to-“make the calculations provided for in [a] decree” concerning the Pecos River). The Special Master rejected Kansas’ request, recommending instead that “the Court retain continuing jurisdiction in this case for a limited period of time” to permit the Special Master himself to resolve any lingering issues (subject, of course, to this Court’s review). Fourth Report 135. Kansas here renews its request for appointment of a River Master.
We recognize that this Court has previously appointed a River Master to help resolve water-related disputes among States. Texas v. New Mexico, supra, at 134-135; New Jersey v. New York, 347 U. S. 995, 1002-1004 (1954). But it has done so only twice before, each time on recommendation of the Special Master, always as a discretionary matter, and only because it was convinced that such an appointment would significantly aid resolution of further disputes. See Vermont v. New York, 417 U. S. 270, 275 (1974) (per curiam) (“[I]t is a rare case” where we will install a River Master). We are not convinced that such an appointment is appropriate here.
For one thing, further disputes in this case, while technical, may well require discretionary, policy-oriented decision-making directly and importantly related to the underlying legal issues. In this respect, potential disputes in this case differ at least in degree from those that we have asked River Masters to resolve. Implementation of the Pecos River Decree, for example, involved application of a largely noncontroversial mathematical curve. The curve correlates inflows at various New Mexico River locations with expected outflows so that engineers can estimate, for any given inflow, the amount of water that is required to be available for Texas’ use. See Texas v. New Mexico, 462 U. S. 554, 572-573 (1983); see also Texas v. New Mexico, 446 U. S. 540 (1980) (per curiam). Lingering disputes between Texas and New Mexico, we thought, would involve not the curve’s shape but whether officials had properly measured the flows. 482 U. S., at 134-135. Although these disputes might call for a “degree of judgment,” they would often prove capable of mechanical resolution and would usually involve marginal calculation adjustments. Id., at 134; see id., at 135-136; Fourth Report 128 (The Pecos River Master “does not adjudicate the kinds of disputes” potentially at issue here).
Administration of the decree in this case, by contrast, will involve not a simple curve but a highly complex computer model, the Hydrologic-Institutional Model (H-I Model or Model). The H-I Model seeks to determine just what the precise water flows into Kansas would have been had Colorado not allowed increased consumption of ground water after 1949. See 2 First Report 231. Modeling disputes— and there have been many — involve not just measurement inputs, but basic assumptions underlying the Model. See, e. g., Kansas I, supra, at 685-687; 2 First Report 237-240; Fourth Report 123-124. Their resolution may well call for highly judgmental decisionmaking about matters that (compared to the Pecos) are more importantly related to the parties’ basic legal claims. See id., at 128.
Moreover, the need for a River Master is diminished by the fact that the parties may find it possible to resolve future technical disputes through arbitration. The interstate compact itself creates an Arkansas River Compact Administration (Administration) empowered to resolve differences arising under the Compact. Art. VIII, 63 Stat. 149. The Administration consists of three representatives from each State and a representative of the United States acting as chair. Art. VIII-C. Each State has one vote; the United States has no vote. Art. VIII-D. In ease of an equally divided vote, the Administration (with the consent of both States) may refer a matter for resolution to the “Representative of the United States or other arbitrator or arbitrators.” Ibid, (internal quotation marks omitted). The arbitrator’s determinations are binding. Ibid.
At oral argument, counsel for Kansas suggested a willingness to use arbitration, noting that “in the one case [he was] aware of, Kansas’ suggestion of doing an arbitration was rejected by Colorado.” Tr. of Oral Arg. 17. Colorado’s counsel responded that Colorado had proposed “that binding arbitration be used and has committed itself to participate in that.” Id., at 26; see also Reply Brief for Colorado Opposing Exceptions 15. These comments suggest that neither party opposes arbitration, and indeed that Colorado would accept it. Nor have the parties expressed any opposition to the use of other less formal means to resolve disputes, such as joint consultation with experts, negotiation, and informal mediation. See, e. g., Kansas v. Nebraska, 538 U. S. 720 (2003) (Kansas, Colorado, and Nebraska resolved Republican River dispute by settlement and stipulation); Fourth Report 134 (discussing ongoing “joint efforts” and “cooperation” among the States to resolve lingering disputes over the waters of the Republican River).
The Special Master recommended both binding arbitration and these other less formal methods as alternatives, while opposing appointment of a River Master and observing that such an appointment would “simply” make it “easier to continue this litigation.” Id., at 136.
For all of these reasons, we deny Kansas’ River Master request.
II
Kansas takes exception to the Special Master’s prejudgment interest calculation. The calculation and the objection grow- out of the special history of this litigation.
After we initially remanded this case for remedial determinations, see Kansas I, 514 U. S. 673, the Special Master found that Colorado’s unlawful water depletion had harmed Kansas beginning in 1950 and that Colorado must pay monetary damages reflecting that harm. Kansas asked the Special Master to award prejudgment interest on those damages incurred through 1994. Colorado replied that the Compact — like the common law — did not foresee interest payments in respect to unliquidated claims, particularly where, as here, damages were highly speculative. And even with the best of good will, said Colorado, it still could not have known prior to the filing of the complaint (in 1985) how much it owed Kansas. See Third Report 92-94; Kansas III, 533 U. S., at 11-13; Brief for Defendant in Kansas III, O. T. 2000, No. 105, Orig., pp. 28-32.
The Special Master resolved the argument by deciding to calculate pre judgment interest on the basis of what he called ‘“considerations of fairness.’” Third Report 97 (quoting Board of Comm’rs of Jackson Cty. v. United States, 308 U. S. 343, 352 (1939)). In a kind of Solomonic compromise, he divided the prejudgment period into three temporal subcategories: (1) an Early Period, the period from 1950, when Colorado’s unlawful water depletion began, through 1968, when Colorado should first have known about it; (2) a Middle Period, the period from 1969 through 1984; and (3) a Late Period, the period from 1985, when Kansas filed its complaint, through 1994, the last year for which evidence was available at the time of the trial on damages. He adjusted damages from all three periods (Early, Middle, and Late) for inflation. But he awarded additional prejudgment interest, reflecting Kansas’ loss of use of the money, “only from 1969 to the date of judgment.” Third Report 107. Both Kansas and Colorado interpreted his order as awarding interest only on Middle and Late Damages (1969-1994), not on Early Damages (1950-1968). Kansas III, Exception and Brief for Plaintiff Kansas 9; App. to Fourth Report 12-13. The resulting total damages award, including prejudgment interest, came to $38 million. Ibid.
On appeal to this Court, Colorado attacked the award of any prejudgment interest, while Kansas called for full prejudgment interest. We accepted the Special Master’s equitable approach. We were unable to conclude that Colorado should have known that prejudgment interest would “automatically” be imposed “in order to achieve full compensation.” 533 U. S., at 14. But, we added, Colorado did believe (or should have believed) that we would assess “ ‘considerations of fairness’ ” in order to achieve a just and equitable remedy. Ibid. Hence “the Special Master acted properly ... in only awarding as much pre judgment interest as was required by a balancing of the equities.” Ibid.
The Special Master, we found, properly refused to “award prejudgment interest for any years before either party was aware of the excessive pumping in Colorado.” Id., at 15. We then applied our own “considerations of fairness” and concluded that “prejudgment interest should begin to accrue,” not as of 1969 (the Special Master’s date), but as of 1985. Id., at 14-15. We wrote in an accompanying footnote:
“Justice O’Connor, Justice Scalia, and Justice Thomas would not allow any pre judgment interest.. .. Justice Kennedy and The Chief Justice are of the opinion that prejudgment interest should run from the date of the filing of the complaint [1985]. Justice Squ-ter, Justice Ginsburg, Justice Breyer, and [Justice Stevens] ... agree with the Special Master’s view that interest should run from the time when Colorado knew or should have known that it was violating the Compact [1969]. In order to produce a majority for a judgment, the four Justices who agree with the Special Master have voted to endorse the position expressed in the text.” Id., at 15, n. 5.
On remand, the Special Master, seeking to remain faithful to our determination, calculated prejudgment interest from 1985 onward, and calculated that interest on (post-1984) Late Damages alone, i. e., completely exempting both Early Damages and Middle Damages from prejudgment interest. Kansas now objects to this last-mentioned limitation; it challenges the sum upon which post-1984 interest runs. Kansas says the Special Master should have calculated prejudgment interest (from 1985) on all damages, i. e., on Early Damages, Middle Damages, and Late Damages alike. After all, says Kansas, “[p]rejudgment interest serves to compensate for the loss of use of money due as damages ... thereby achieving full compensation for the injury those damages are intended to redress,” West Virginia v. United States, 479 U. S. 305, 310-311, n. 2 (1987) (citing Comment, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. Rev. 192 (1982)). See Exceptions and Brief for Plaintiff 29. Kansas lost the “use of” all the “money due as damages,” i. e., Early and Middle Damages as well (which were “due” at least by 1985). Why then, asks Kansas, calculate post-1984 interest on only some of the damages then due?
Kansas’ argument would make good sense in an ordinary case. But the question here is not about the ordinary case, but rather what the Kansas III paragraph we quoted above means in context. And the Kansas III context is a special one.
For one thing, , like the Special Master, we did not seek to provide compensation for all lost investment opportunities; rather, we sought to weigh the equities. For another, it was apparent that the Special Master’s earlier determination involved both a decision about when to begin .to calculate interest (1969) and what to calculate that interest upon (Middle Damages and Late Damages only). Brief for Plaintiff in Kansas v. Colorado, O. T. 2000, No. 105, Orig., pp. 9, 25, n. 8. All damages incurred before his selected date were totally exempt from interest. Kansas contested the when by arguing that we should award interest for the entire period. Kansas also contested the what by arguing that, even accepting the Special Master’s preferred date, interest should run on Early Damages as well as Middle and Late Damages. See id., at 25, n. 8 (“Even if a defendant’s good-faith ignorance of its breach were a valid reason to deny prejudgment interest, it would not justify the Special Master’s recommendation to deny Kansas compensation for its loss of use of money [reflecting Early Damages] after 1968”).
In overruling Kansas’ exception and sustaining Colorado’s exception, we said nothing about the Special Master’s total exemption of Early Damages. 533 U. S., at 14. Thus, we changed the when (from 1969 to 1985) in Kansas III, but (despite Kansas’ argument) we did not change the methodology for calculating the what. In context, our silence fairly implies acceptance, not rejection, of the Special Master’s underlying methodology. Moving the date forward thus meant moving the exemption period forward as well. And that methodology now yields a post-1985 interest calculation based upon Late Damages only.
This view of our prior opinion is reinforced by the resulting numbers. The Special Master’s original 1969 date (and methodology) produced a total damages award to Kansas, including prejudgment interest, of about $38 million (in 1998 dollars). Were we to accept Kansas’ argument (and calculate post-1984 interest on all damages), the final damages award would be roughly $53 million (in 2002 dollars). App. to Fourth Report 12. We cannot reconcile that numerical result with our acceptance in Kansas III of the Special Master’s equitable approach and with our own equitable determination. That determination implied a modest adjustment of the $38 million award in Colorado’s favor, not, as Kansas now seeks, an adjustment of the award in its own favor. App. to Fourth Report 12.
Consequently, we overrule Kansas’ objection.
l-H
Eansas and Colorado have agreed to use a computer model, the H-I Model, to measure Colorado’s future Compact compliance. This highly complex set of computer programs determines whether Colorado’s post-1949 wells deplete the river of usable water that the Compact makes available for Kansas. It does so by trying to account for almost every Arkansas-River-connected drop of water that arrives in, stays in, or leaves Colorado, whether by way of rain, snow, high mountain streams, well pumping of underground water, evaporation, canal seepage, transmountain imports, reservoir storage, or otherwise. 2 First Report 233-235. With all “switches” turned on, the Model predicts how much river water will leave Colorado for Kansas during a given month. Id., at 234-235. To obtain a figure representing an unlawful depletion (or lawful accretion) under the Compact, the Model subtracts from this figure (the actual flow) a number representing a hypothetical prediction of how much water would have flowed into Kansas had Colorado not dug and operated post-1949 wells. The Model obtains this prediction through a computer rerun with the Model’s “post-1949 well” switch turned off. Ibid. The final figure is then adjusted to reflect depletions to usable, as opposed to total, flow. App. to Second Report 37.
Not surprisingly, the Model’s ability to calculate depletions has proved highly controversial, leading to many Model modifications during this litigation. See, e.g., 2 First Report 236-240 (describing Colorado’s objections to the original Model). The Special Master has recommended use of the Model together with a 10-year measurement period to determine the amounts of any future depletions. Fourth Report 139. That is to say, a determination of whether Colorado owes Kansas water in Year 11 will be made by taking the Model’s total result for Years 1-10, for year 12 by the Model’s total result for Years 2-11, and so forth. Id., at 117; App. to Fourth Report 86, Exh. 14. Kansas takes exception to the 10-year measurement period.
Kansas seeks a measurement period of one year. In support, Kansas points to Compact Art. V-E(5), 63 Stat. 148, which says that there “shall be no allowance or accumulation of credits or debits for or against either State.” (Internal quotation marks omitted.) Kansas argues that a 10-year period averages out oversupply and undersupply during the interim years, with the likely effect of awarding Colorado a “credit” in dry years for oversupply in wet years. Kansas adds that Art. IV-D, 63 Stat. 147, forbids Colorado to deplete the river water’s “availability for use.” (Internal quotation marks omitted.) Kansas says that the 10-year measurement period in effect frees Colorado from the obligation to compensate Kansas for years (within the 10-year period) when overpumping may have made water “unavailable” for Kansas’ use. (Internal quotation marks omitted.) Kansas also notes that the parties and the Special Master have used a 1-year measuring period in this litigation for purposes of calculating past damages. See Exceptions and Brief for Plaintiff 37-40, 43-44.
Like the Special Master, we are not persuaded by Kansas’ arguments. The literal words of the Compact are not determinative. The Compact’s language essentially forbids offsetting debits with “credits,” but it does not define the length of time over which a “credit” is measured. Any period of measurement inevitably averages interim period flows just as it overlooks interim period lack of water “availability.” Thus annual measurement offsets and overlooks seasonal differences; seasonal measurement, monthly differences; monthly measurement, weekly differences, and so forth.
At the same time, practical considerations favor the Special Master’s measurement approach. Model results over measurement periods of less than 10 years are highly inaccurate. The Special Master found, for example, that the current iteration of the Model, if used to project river diversions (including well pumping) during a single year, produces figures that overpredict actual diversions in some years and underpredict them in others by as much as 22%. Fourth Report 111. Similar inaccuracies plague the Model’s projection of actual river flows. Id., at 112. If projected diversions and flows deviate substantially in this way from actual measured diversions and flows, 1-year estimates of final depletions to usable flow — the figure that determines Kansas’ damages — cannot be accurate. Id., at 115 (“I find that the H-I model is not sufficiently accurate on a short-term basis to be used to determine compact compliance on a monthly or annual basis”). But measured over long periods of time, say, the full 540 months between 1950 and 1994, the Model’s predicted and observed diversions “matched almost perfectly.” Id., at 114. For this, reason, the Master concluded that “[o]nly by using longer term averages do the model simulations more closely match historic data.” Id., at 115. Thus, the 10-year measurement period is needed to ensure Model accuracy.
Nor is Kansas likely to suffer serious harm through use of a 10-year measuring period. That is because Colorado has developed a water replacement program designed to minimize depletions. See Amended Rules and Regulations Governing the Diversion and Use of Tributary Ground Water in the Arkansas River Basin (Use Rules), App. to Fourth Report 36, Exh. 6; Fourth Report 8-13. The program protects both Kansas water users and senior Colorado users by insisting that Colorado users with junior rights (and in particular those who obtain water from post-1949 wells) replace the river water that they use. They must either (1) buy replacement water, say, from the Rockies’ western slope or (2) buy land irrigated under pre-1949 water rights and remove it from cultivation. Id., at 10-13. In practice, junior users belong to one of three associations that conduct these transactions, reporting the details monthly to the Colorado State Engineer’s Office, and receiving replacement “credits,” which they divide among their members. Id., at 13.
Were the replacement program and the H-I Model both to work perfectly, the Model’s net depletion figure, whether determined each month, each year, or each decade, would be zero (that is, there would be no difference between actual flow and what the flow would have been under precompact conditions). Of course, perfection is impossible; and Kansas claims certain defects in the Use Rules. See id., at 27. But operation of the Rules should help to diminish the real amount of any depletion, thereby limiting any negative effect that a 10-year measurement period might have upon Kansas. See id., at 119-120; see also id., at 32. The 1997-1999 results, showing essentially no aggregate depletion, suggest the water replacement program will have this effect. Ibid.
Kansas argues that the Compact’s framers expected annual measurement. And they quote a Colorado Commissioner as recognizing that there would be “‘no carry-over from year to year,’ ” see Exceptions and Brief for Plaintiff 39 (quoting Joint Exhibit 3, pp. 14-84). Assuming, argu-endo, that the framers opposed such carryover, they were likely unaware of the modern difficulties of complex computer modeling. And we believe that those framers, in any event, would have preferred accurate measurement. After all, a “credit” for surplus water that rests upon maccurate measurement is not really a credit at all.
Kansas also points out that earlier in this litigation both parties agreed to the use of annual measurement for purposes of calculating past damages. The parties made that stipulation, however, before the Special Master fully examined the Model’s accuracy. In any event, their previous agreements do not govern this determination.
We overrule Kansas’ exception.
> HH
As we just mentioned, measuring the depletion caused by Colorado’s post-1949 wells involves taking account of Colorado’s water replacement program, which credits Colorado with non-Arkansas water pumped into the Arkansas and with Arkansas water not used because farmers have removed from cultivation lands previously irrigated under pre-1949 water rights. The Special Master has recommended that “the final amounts of Replacement Plan credits to be applied toward Colorado’s Compact obligations shall be the amounts determined by the Colorado Water Court, and any appeals therefrom.” Fourth Report 138, ¶ 9. Kansas takes exception to this recommendation.
Kansas points out that the Colorado Water Court is a state court. It says that a “'State cannot be its own ultimate judge in a controversy with a sister State,’ ” Exceptions and Brief for Plaintiff 45-46 (quoting West Virginia ex rel. Dyer v. Sims, 341 U. S. 22, 28 (1951)), and that this Court must “ 'pass upon every question essential’ ” to resolving the dispute, Exceptions and Brief for Plaintiff 46 (quoting Oklahoma v. New Mexico, 501 U. S. 221, 241 (1991), in turn quoting Kentucky v. Indiana, 281 U. S. 163, 176-177 (1930)). Kansas believes that the Special Master’s recommendation violates these well-established principles.
Kansas’ objection founders, however, upon additional language in the Master’s full recommendation. The recommendation adds:
“This is not to say, however, that the Colorado Water Courts are empowered to make a final determination on any matter essential to compact compliance at the State-line, or that Colorado’s reliance on such Water Court actions will necessarily satisfy its compact obligations.... All replacement credits, no matter how determined, are subject to the right of Kansas to seek relief under the Court’s original jurisdiction [as set forth in] Section VIII.” Fourth Report 138-139, ¶ 9.
In the cross-referenced Section VIII, the Special Master makes clear that Colorado’s replacement plan rules affect the rights, not only of Kansas water users, but also of Colorado senior water users; that both groups of water users have similar litigation incentives; and that permitting the Colorado Water Court initially to consider challenges to credit allocations will help prevent inconsistent determinations. Id., at 93-95.
In our view, the Special Master’s full recommendation will help to avoid the potential conflict he mentioned. It also adequately preserves Kansas’ rights to contest any adverse Water Court determination. We overrule Kansas’ exception.
V
The Special Master found that Colorado complied with the Compact for. the period 1997-1999. Kansas takes exception on the ground that the Special Master used a measurement period “greater than one year.” Exceptions and Brief for Plaintiff 47. Kansas concedes that its objection rests upon its claim that the Special Master cannot use “an accounting period longer than one year.” Ibid. Having found against Kansas on that matter, supra, at 100-103, we must overrule this exception.
VI
At the end of its brief, Kansas lists 15 disputed issues that the Special Master has not yet decided. It groups them into three categories:
1. “Disputed H-I Model Calibration Issues” (“[cjalibration procedures, parameters and criteria,” “[cjanal capacities,” “altered diversion records,” “statistical outliers,” “Sisson-Stubbs water right” representation);
2. “Disputed 1997-1999 Accounting Issues” (“[d]ry-up acreage,” “Sisson-Stubbs credit,” “winter water book-overs” credit);
3. “Disputed Future Compliance Issues” (“[d]ry-up acreage monitoring,” “[d]ry-up credits” and external source “return flow obligations,” credit beyond “precom-pact uses,” “[s]pecial waters monitoring,” winter water release credit timing, “[o]ffset [a]ccount” accounting procedures, “consumptive use credit and return flow obligations”). Exceptions and Brief for Plaintiff 48-49.
Kansas takes exception to the Special Master’s refusal to make recommendations on these issues now. It points out that we cannot leave unanswered important questions “ ‘essential’” to our “‘determination of a controversy’” between the States. Id., at 49 (quoting Oklahoma v. New Mexico, supra, at 241). And Kansas asks us to require the Special Master to decide them.
As the Special Master found, however, there are good reasons not to decide these issues immediately. There is no need to resolve most of the issues in the second category. They involve challenges to the accuracy of the figures used to determine whether Colorado depleted the river between 1997 and 1999. The Special Master concluded that Colorado was in compliance during 1997-1999, in the process relying upon Kansas’ own figures. Fourth Report 30-31. As far as we can tell from the briefs, these issues are mostly moot.
The passage of time will produce more accurate resolution of disputes in the first and third categories (and any of those in the second that arise again in the future). The parties will learn more about matters relevant to their resolution, namely, the H-I Model’s strengths, weaknesses, and methods of monitoring and measurement. That is why the Special Master recommendéd that we retain jurisdiction over this case and permit him to take up lingering issues at a future date. Id., at 135-136,139. We accept that recommendation and overrule Kansas’ objection.
The Special Master also recommended that experts for the two parties confer, e. g., id., at 91-92, and he expressed the hope that expert discussion, negotiation, and, if necessary, binding arbitration would lead to resolution of any remaining disputes. Id., at 135-136. We express that hope as well.
VII
For these reasons, we overrule all Kansas’ exceptions. We accept the Special Master’s recommendations and recommit the ease to the Special Master for preparation of a decree consistent with this opinion.
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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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
Lois E. TAYLOR, Personally and on Behalf of Paul Durand Arnold, Plaintiff-Appellee, v. TEXACO, INC., Defendant-Appellant, v. DAPTCO MARINE CORPORATION, and Platform Well Service, Inc., Defendants-Appellees.
No. 85-3095.
United States Court of Appeals, Fifth Circuit.
April 14, 1987.
Miles P. Clements, Samuel F. Reynolds, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendant-appellant.
John M. Robin, Darryl J. Tschirn, Covington, La., for plaintiff-appellee.
Wendell Stout, New Orleans, La., for Daptco.
Thomas E. Balhoff, Baton Rouge, La., for intervenor La. Ins. Guar.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, JOLLY and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
In this appeal Texaco, Inc., argues that the district court erred in holding it 25 percent liable for the death of Paul Durand Arnold, a roustabout who was killed when a fire erupted on the Texaco production platform on which he was working. The fire occurred during a fuel transfer procedure. Texaco contends that, inter alia, the district court incorrectly denied its motion for judgment notwithstanding the verdict, or, alternatively, for a new trial on the issue of its alleged negligence. Upon our review of the record, we find that there is no evidence of any negligence on the part of Texaco and accordingly reverse the district court’s order denying Texaco’s motion for judgment notwithstanding the verdict.
I.
This litigation commenced after Arnold was killed in a fire that occurred on a Texaco-owned fixed production platform in the Gulf of Mexico on January 7, 1982. At the time of the fire, Platform Well Service, Inc., (PWS) drilling rig No. 8 was located on the top deck of Texaco’s platform and was conducting drilling operations pursuant to a Texaco-PWS drilling contract. This contract provided, among other things, that PWS was to man and operate its drilling rig in its entirety, and defined the status of PWS as that of an independent contractor.
Texaco had also entered into a contract with Daptco Marine Corporation (Daptco) under which Daptco was to provide marine transportation and to carry supplies to the platform. The agreement provided that Daptco would man and operate the M/V JUANITA PATRICK for this purpose.
In addition to the equipment required by PWS for its drilling operations, Texaco had production equipment located on the platform. This production equipment was separate from the equipment used by PWS and was operated by a crew of approximately six Texaco employees. The PWS equipment was powered by diesel fuel, and the Texaco equipment was powered by natural gas.
On January 7, 1984, the M/V JUANITA PATRICK arrived at the platform and radioed for instructions. The vessel was informed that a PWS fuel tank was to be filled with diesel fuel. The PWS crane operator lowered the platform's fuel hose, one end being attached to the fuel tank and the other end being attached to the vessel’s fuel hose. PWS personnel advised the Daptco chief engineer that approximately 1200 gallons of fuel were needed. The engineer commenced the transfer operation.
Arnold, a new PWS employee serving as a roustabout, was assisting in the fuel transfer operation. Once the fuel hose was lowered, the crane operator gave a Texaco walkie-talkie to Arnold and another PWS roustabout, David Welborn, who were to actually conduct the refueling.
The PWS fuel tank was a large rectangular tank, 30 feet long, 8 feet wide, and 2 feet high. The tank was situated on the main deck of the platform and was flat, enabling workers to stand on it. The tank did not have an automatic venting system or sight gauge. Thus, in order to determine the amount of fuel in the tank and to vent the tank (i.e., allow the air to escape while filling the tank) and facilitate the intake of fuel, it was necessary for Arnold and Welborn to unscrew a 4-inch (diameter) “bull” plug located on top of the tank at the end farthest from the edge of the platform. Proper procedure in filling the tank would be to remove the bull plug prior to pumping the fuel and not to replace it until pumping had ceased and the shut-off valve, located on a short pipe extension above the tank where the fuel hose was connected, had been closed.
The bull plug was located approximately 10 feet away from a generator building that housed generator engines owned by Texaco and used in its production operation. Located approximately 10 feet above the bull plug were two generator exhausts that extended out from the generator building. The exhausts were not directly over the bull plug but were recessed several feet back; they also pointed upward. Both exhausts were insulated and were equipped with spark arrestors. The testimony indicated that the exhausts were approximately 6 feet apart from each other. Also, two radiator fans were located against the side of the generator building, beneath the exhausts, and blew air away from the building across the fuel tank.
On the day of the fire the exhaust closest to the bull plug was cold. The engine attached to the exhaust inside the building had been turned off for several hours prior to the fuel transfer because of routine inspection servicing being performed by a Reagan Equipment Company serviceman, George Redding. The other exhaust was examined after the fire and showed no sign of fire damage and was not within the area damaged by the fire.
At the commencement of the filling of the fuel tank, Arnold and Welborn removed the bull plug. As the fuel appeared to be coming near to the top of the tank, Arnold used the walkie-talkie to order the M/V JUANITA PATRICK to cease pumping, but he was unable to establish contact. At that point, with neither Arnold nor Welborn using the shut-off valve to stop the flow of fuel into the tank, Welborn took the walkie-talkie and walked the length of the fuel tank to the side of the platform and again called to the vessel, ordering them to shut down the fuel pump. This time the M/V JUANITA PATRICK indicated its understanding of the order.
There was conflicting testimony concerning whether the pump was immediately turned off, or left running, or whether it was turned off and then turned back on again. At any rate, it is apparent that too much fuel was pumped. As Welborn returned to the fuel tank, he saw Arnold crouched over the bull plug with his hand on it, apparently trying to screw it back into the tank. By this time diesel fuel was spilling out of the tank. Also, the effect of attempting to screw the bull plug in while fuel was still being pumped into the tank was to pressurize the fuel and cause it to be sprayed out in various directions about the area, reaching as far away as Welborn, who was approximately 25 feet away. Welborn attempted to warn Arnold but heard a “whoosh”-type noise as Arnold, covered with diesel fuel, caught fire. Welborn turned and ran, feeling diesel fuel strike his back as he ran.
The fire alarm was sounded and the flames on Arnold were ultimately extinguished. A helicopter was dispatched and Arnold was flown to a hospital, where he subsequently died. Lois E. Taylor, Arnold’s mother, filed suit against Texaco, Gulf Oil Exploration, and Daptco. Texaco filed a third-party complaint against PWS and a cross-claim against Daptco.
Trial was before a jury. Following the close of the evidence, the district court entered a directed verdict in favor of PWS on the third-party complaint of Texaco. Texaco’s motion for a directed verdict was denied. The jury returned its verdict, finding both Texaco and Daptco guilty of negligence contributing to the death of Arnold, assessing their percentage of liability at 25 and 75 percent, respectively. Taylor was awarded $500,000 for the loss of society of her son and $750,000 for the conscious pain and suffering of her son prior to his death. The district court entered judgment in favor of Taylor in the amount of $1,250,000, together with interest from the date of the judgment, plus all costs, and ordered that Texaco was liable for 25 percent of the judgment and Daptco was liable for 75 percent of the judgment.
Following the entry of judgment, numerous post-trial motions were made. It is not necessary for purposes of this appeal to describe all these motions. However, the district court did grant Daptco’s motion for a new trial unless Taylor filed a written acceptance of a remittitur of the award to a total amount of $500,000. Taylor accepted the remittitur. The court also granted Texaco’s motion for judgment notwithstanding the verdict based on Washington Metropolitan Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984). Daptco subsequently moved for reconsideration of this decision.
The district court thereafter granted Daptco’s motion for reconsideration of the granting of Texaco’s motion for judgment notwithstanding the verdict. The court reached this conclusion based on its view that Washington Metropolitan was legislatively overruled by the amendments to the LHWCA. The court, therefore, amended the portion of its prior minute entry, which absolved Texaco from liability and substituted an entry that found Texaco liable for its own negligence. An amended judgment was entered in favor of Taylor and against Daptco (75%) and Texaco (25%) in the amount of $500,000, together with costs and legal interest from the date of judicial demand. Texaco now appeals, contending that the district court erred in finding it at fault and not granting its motion for judgment notwithstanding the verdict.
II.
The standard of review of a court’s granting or denying of a motion for judgment notwithstanding the verdict has been well-established in this circuit since Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). In Boeing Co. we stated that in determining whether such a motion should be granted
the Court should consider all the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment notwithstanding the verdict should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Id. at 374-75 (footnotes omitted). The standard governing judgments notwithstanding the verdict remains the same on appeal. Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir.1986). We emphasize, however, that while “[i]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses,” Boeing, 411 F.2d at 374, nevertheless, “[a] mere scintilla of evidence is insufficient to present a question for the jury,” and “[t]here must be a conflict in substantial evidence to create a jury question.” Id. at 375. The jury cannot rest its verdict on speculation and conjecture. Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir.1984).
Our review of the evidence leads us to the conclusion that the district court erred in not upholding Texaco’s motion for a judgment notwithstanding the verdict. We find no basis in the record by which reasonable jurors could have found Texaco to be negligent. In denying Texaco’s motion, the district court hypothesized several potential reasons why the jury might have imposed liability on Texaco:
approving plans calling for the placement of the diesel tank too near to Texaco’s own generator exhaust manifold; failing to move its own generator exhaust manifold out of the proximity to the diesel tank; failing to maintain adequately its own generator exhaust manifold; providing a defective generator exhaust manifold; or operating its generator, which had an exhaust manifold near the diesel tank, during fuel operations.
These conclusions presuppose that Texaco’s exhausts caused the fire. The evidence, however, belies such a contention.
First, only the engine farthest from the fuel tank was running; thus, it was the only exhaust of the two that could possibly have been a source of ignition and it was located some six feet to the side of the bull plug. Moreover, both exhausts were about ten feet above the fuel tank, as well as being somewhat recessed, and there were radiator fans blowing vapors from the tank away from the exhausts. The exhausts also were insulated and had spark arrestors. The Reagan Equipment Company serviceman, Redding, had also serviced the engines the day of the fire, including examining the exhaust pipes. He stated that one could place his hand over the exhaust without burning it, indicating that the temperature was not sufficiently hot to ignite diesel fuel. After the fire he also examined the exhausts. He stated that there was no sign of any fire damage nor any sign of sparking. He stated that if there had been a spark that the spark arrestor had not caught, there would have been evidence of burned condition. Evidence was also presented regarding the combustion of diesel fuel. An expert witness testified that for diesel fuel (not diesel fuel vapors) to ignite, it must come into contact with some object that is at least 494 degrees fahrenheit in temperature.
Thus, the testimony of Redding was that a person could, albeit uncomfortably, touch the exhaust pipe of the running engine. Certainly such a temperature is well below the 494 degrees required of a source to ignite diesel fuel. Thus, if the exhaust pipe were the cause, it would have had to have been from the fuel vapors. The flash point of diesel fuel (the point at which the diesel fuel will give off flammable vapors) is 100 degrees. But the uncontroverted testimony of Redding was that there was no evidence of any sparking. Without a spark the vapors could not be ignited. The evidence, therefore, does not support a jury finding that Texaco was negligent through the use or placement of its generator exhausts.
The only evidence presented by Daptco in support of a theory that the exhausts caused the fire was from reports prepared by two Texaco employees, Gerard Victoriano and Clifford Journey. Victoriano was Texaco’s operator’s representative (the employee who oversaw Texaco’s interest in the drill operation or workover operation) on the platform at the time of the fire. After the fire Victoriano conducted an investigation and filled out an accident report. In this report Victoriano gave the following description of the accident: “While taking on fuel from supply boat the diesel tank was pressurized up. When [Arnold] tried to remove plug to check the level in the tank the plug flew off and diesel blew into the air and was ignited, probably by generator] exhaust or rig air compressor.” Daptco relies, in part, on this statement to prove Texaco’s negligence. However, at trial Victoriano testified that “I listed that as a possible source of ignition. When we did the investigation, we didn’t conclude anything as this is it____ [W]e could not narrow it down to say this is it. I certainly couldn’t.” Thus, at the time of his report Victoriano was unable to determine the cause of the ignition of the diesel fuel.
Daptco also presented evidence that Journey listed in his report that the fire was apparently caused by the generator exhaust. However, he testified that there were several possible ignition sources, and that he was not exactly sure what caused the fire.
Thus, while both Victoriano and Journey filed reports indicating that the generator was a possible source of ignition, neither was certain it was the source. We do not believe that this evidence supports a finding that Texaco was negligent through the operation of the generators or in their placement. The evidence of the employees’ reports is not only inconclusive, it also is only a mere scintilla of evidence that the generator exhausts caused the fire. When compared to the opposing evidence that the exhausts were not the cause of the fire, there is not substantial evidence to create an issue that only a jury could resolve. To allow the jury verdict to stand against Texaco on the basis of the two reports would be to allow the verdict to rest on speculation and conjecture.
Daptco propounds several other theories as a basis for finding Texaco negligent. In particular, Daptco argues that “[t]he negligence of Texaco, Inc. ... in failing to comply with or even be aware of the applicable Coast Guard regulations for fueling operations, and in failing to conduct safety meetings or insist on a properly vented diesel tank equipped with sigh guage [sic] and overflow line was a substantial cause of the fire and resultant death of Paul Arnold.” Even assuming the truth of Daptco’s assertions, the evidence does not support that Texaco’s failure to comply with the Coast Guard regulations or to conduct safety meetings was a factor contributing to the accident. The evidence conclusively showed that Texaco was not involved in the refueling operations. Instead, its two independent contractors, PWS and Daptco, were the sole responsible parties. The apparent approval by Texaco of the PWS fuel tank does not offer a basis of liability either. There was no evidence presented that the tank used was itself inherently dangerous, or of any requirements that Texaco could only allow certain types of fuel tanks to be used, and that the PWS tank was not one of those. Instead, the evidence showed that PWS brought its own fuel tank and had properly, without incident, refilled it almost every third day for a number of months. There is no conflict in the evidence regarding the fuel tank, and there is not substantial support in the record to find Texaco negligent on this basis.
III.
For the foregoing reasons, we REVERSE the district court’s denial of Texaco’s judgment notwithstanding the verdict and REMAND for entry of judgment in favor of Texaco.
. Texaco also argues that the district court erred in granting a directed verdict in favor of Platform Well Service, Inc., in dismissing both its claim for contractual indemnity on the basis of the Louisiana Oilfield Indemnity Act, La.Rev. Stat.Ann. § 9:2780, and its claim for breach of an express warranty of workmanlike performance contained in the Texaco-PWS drilling contract, and in failing to reduce further the jury verdict. Since we find that Texaco was not negligent, and reverse on that basis, there is no need to address these other assignments of error.
. Arnold was a green hand, with no previous oilfield experience. He had arrived at the platform for his first assignment with PWS on January 6; thus, he was at his second day of work.
. The distance between the exhausts and the fuel tank was never conclusively established. One estimate ranged from 7 to 10 feet and another ranged from 12 to 15 feet. In their briefs, Texaco approximates the distance as being 10 to 12 feet, and Daptco approximates it at 10 feet. The exact distance is not important for the purposes of this appeal.
. Gulf was originally sued by Taylor because it owned an interest in the mineral lease and in the production of the platform pursuant to an agreement between it and Texaco. To simplify matters, it was stipulated that Texaco was the owner of the platform, and it appears that at some point in the proceedings Gulf was dropped from the suit.
. Daptco, being cast in judgment for the full award at the time and seeking to stop the running of interest, satisfied the judgment, but reserved its right to seek reimbursement against Texaco should Daptco ultimately prevail on its motion to reconsider Texaco’s dismissal.
. The relevant portion of the amended minute order states:
Under the general rule, since Texaco did not retain control over the manner of performance of the workover operations on the platform, nor over the fueling operation in which Arnold was killed, Texaco cannot be held vicariously liable for the negligence of Daptco or Platform Well Service in the performance of those operations, nor directly liable for failing to prevent those independent contractors from performing those operations in a dangerous manner. However, there was sufficient evidence presented from which the jury might reasonably have concluded that Texaco was negligent in some other manner that proximately caused Arnold’s death. Specifically, the jury might reasonably have imposed liability on Texaco for: approving plans calling for the placement of the diesel tank too near to Texaco’s own generator exhaust manifold; failing to move its own generator exhaust manifold out of proximity to the diesel tank; failing to maintain adequately its own generator exhaust manifold; providing a defective generator exhaust manifold; or operating its generator, which had an exhaust manifold near the diesel tank, during fueling operations. The general rule does not preclude Texaco’s liability for any of these acts or omissions of Texaco concerning its own equipment on its own platform. Thus, Texaco is not entitled to judgment notwithstanding the jury verdict finding fault on its part, (footnote omitted).
. Texaco was the only party to appeal. Also, after the notice of appeal was filed, PWS’s insurer became insolvent. The Louisiana Insurance Guaranty Association, pursuant to state law, gave notice it would act on behalf of the insurer.
. As discussed in note 1, supra, Texaco raises other issues, but our finding that Texaco was not negligent, and therefore not liable, precludes the necessity of reaching them.
. As a means of comparison, the boiling point of water is 212 degrees.
. Daptco also argues that Texaco was negligent in directing the placement of the diesel fuel tank directly beneath the generator exhausts. This rationale is the same as that offered by the district court, above, which we have rejected.
. In fact, as soon as the PWS rig was placed on the platform the United States Geological Service and the Coast Guard conducted an inspection and found no unsafe conditions. Also, the Coast Guard made regular inspections of the platform and never issued any citations or made any comment concerning any noncompliance of Coast Guard regulations regarding the fuel tank.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_usc1sect
|
201
|
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".
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. George TURNER, Defendant-Appellee.
No. 14311.
United States Court of Appeals Seventh Circuit.
April 7, 1964.
Charles Donahue, Sol., U. S. Dept. of Labor, Washington, D. C., Herman Grant, Regional Atty., U. S. Dept. of Labor, Chicago, Ill., Bessie Margolin, Associate Sol., Robert E. Nagle, Jack H. Weiner, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.
Burl F. Nader, Libertyville, Ill., for appellee.
Before DUFFY, CASTLE and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
This suit was brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, pursuant to the written request of Martin Halma, a former employee of defendant. The suit sought to recover $488.20 in unpaid overtime compensation.
At the close of plaintiff’s case, the District Court granted the motion of the defendant for a directed verdict. In explanation of such action, the Court said: “In the light of that record, with the beneficial plaintiff saying on one oecasion that everything was square and then two months later making a claim, and then at the trial saying he doesn’t know how much is owing, I feel that you would be unable to go into the jury room and arrive at any amount. * * * ”
f Previously the Court had asked Mr. Halma several questions:
“The Court: How much money do you say now that Mr. Turner owes you?
“The Witness: What the letter said, your Honor.
“The Court: I say — read the question to the witness.
“(Question read by the reporter.)
“The Witness: I do not know.
“The Court: You don’t know how much money you have coming. That is all. You may step down.”
Defendant is a contract mail carrier for the United States Postoffice Department. During the period covered by this action, April 1, 1960 to July 15, 1961, he employed complainant Halma principally on a regularly scheduled route between McHenry, Illinois and Chicago. At first, Halma was paid a straight weekly salary. Statutory overtime wages were not paid to him for hours worked in excess of forty hours a week until after the period covered by this action.
The evidence presented by the Secretary to establish the number of hours work done by claimant showed that during the period April 1, 1960 to October 28, 1960, the schedule for the ChicagoMcHenry route called for departure from the McHenry postofiice at 6:40 p. m. and arrival at Chicago Suburban Truck Terminal at 9:30 p. m., with intermediate stops being made on the way. This was followed by a return trip leaving Chicago at 2 a. m. and arriving at McHenry at 5 a. m. This schedule was followed daily except Sundays and some holidays.
In following this schedule, claimant testified he would begin his work day with arrival at 5:30 p. m. at a DX Service Station where defendant’s tractor and trailer were kept. After gassing and oiling the tractor, he would drive approximately one and a half miles to McHenry postofiice where he loaded the mail that was to be loaded on the truck. Claimant’s scheduled departure time was 6:40 p. m. After arriving in Chicago, he would await his turn in line and unload the tractor and would then spot the vehicle in back of the postofiice loading dock. He would complete this about 10:05 p. m. He then started to work again at the scheduled time of 2 a. m. the following morning. After arrival at McHenry and unloading the mail, he returned the vehicle to the DX station, usually arriving there about 6 a. m.
There was additional testimony about extra hours worked due to breakdowns of the truck and other delays such as that caused by a dead battery. There was further testimony of hours worked in the period October 29, 1960 to February 9, 1961 where there were extra mail runs and some twenty-one extra trips were confirmed by postoffice memoranda as occurring during the 1960 Christmas holiday season. Other testimony covered the period from February 10, 1961 to July 15, 1961.
In an attempt to demonstrate the method for computing the wages due on the basis of overtime hours worked, the Secretary called as a witness one Max Packer who, for twenty-four years, had been a wage-hour investigator under the Fair Labor Standards Act and who had conducted some two thousand investigations including the investigation of defendant’s compensation practices. However, upon objection by defendant, the Court would not permit Mr. Packer to testify as to the computations he had made of wages due the claimant, nor was he allowed to explain to the jury how such computations may be made.
In the situation before us, we consider the evidence most favorable to the plaintiff. Sufficient evidence was received so that this case should have been submitted to the jury for its verdict. The claimant’s testimony, supported by other evidence, indicated that he had regularly worked 52 to 53^2 hours per week; 50 to 52 hours per week; and 48 to 50 hours per week during the three periods covered by this suit.
Undoubtedly there was some uncertainty as to the exact amount of damages, but it is well established that a plaintiff under the Fair Labor Standards Act may recover even if the exact amount due is not capable of mathematical ascertainment.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 was a case where the Supreme Court considered the proper determination of working time for the purposes of the Fair Labor Standards Act. The Court there said 328 U.S. at page 688, 66 S.Ct. at page 1192, 90 L.Ed. 1515: “The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” The Court further stated: “Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. * * The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. (Citing cases.)”
The District Court emphasized that claimant had acquiesced in the wages paid to him. However, this is in no manner controlling. It is well settled that statutory wages cannot be waived by agreement. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622.
The District Court, time and time again, sustained objections where Packer, the expert witness, was asked as to certain computations. One instance was: “Q. Can you explain to us how a computation for overtime is made when a person is paid $1.50 per hour? Mr. Nader: I am going to object. The Court: Sustain the objection. We are not conducting a class in labor law here or in labor investigation. We are trying to determine how much money, if any, the beneficial plaintiff has coming here.”
We see no objection to the question as asked. A jury cannot keep in mind all of the figures that might enter into a determination as to whether overtime payments were due. Computations and summaries based upon evidence before the Court, in many instances, would be very helpful to a jury.
An expert may testify to computations based on facts which are in evidence as an aid to the jury’s determination. In United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546, an expert accountant was permitted to testify to calculations of income and expenditures.
As examples of types of cases where expert testimony as to computations have been received are: United States v. Daisart Sportswear, 2 Cir., 169 F.2d 856, 863 (misusing priorities under § 301 of the Second War Powers Act and conspiring to violate the Emergency Price Control Act of 1942); Beaty v. United States, 4 Cir., 203 F.2d 652, 655 (income taxes owing as disclosed by testimony); Gendelman v. United States, 9 Cir., 191 F.2d 993, 996-997 (increase in net worth in an income tax fraud case). In a ease before this Court, the computations of an accountant were held admissible before a Special Master (in an action for an accounting of special assessments), First Nat. Bank and Trust Co. of Racine v. Village of Skokie, 7 Cir., 190 F.2d 791, 796.
The District Court was in error in directing judgment for the defendant. The jury should have been permitted to determine whether and to what extent claimant worked in excess of forty hours a week during the relevant periods. Then, as the Supreme Court said in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, at page 688, 66 S.Ct. 1187, at page 1193, 90 L.Ed. 1515: “It is enough under these circumstances if there is a basis for reasonable inference as to the extent of the damages.”
Reversed and remanded for a new trial.
. Fair Labor Standards Act, 29 U.S.C. §§ 201, 207, 216(c).
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:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Clarence LOTHRIDGE, Zorina Barnett, Defendants-Appellants.
No. 17822.
United States Court of Appeals Sixth Circuit.
Dec. 26, 1967.
Certiorari Denied Oct. 14, 1968.
See 89 S.Ct. 124.
Marshall C. Hill, Detroit, Mich., for appellants.
Kenneth G. McIntyre, Detroit, Mich., (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee.
Before PHILLIPS, PECK and McCREE, Circuit Judges.
ORDER
This is an appeal from a judgment of conviction, following jury trial, of the defendants-appellants under a multiple count indictment charging violations of narcotics statutes. Minimum sentences required by statute were imposed as to each defendant-appellant which are not under attack on this appeal. Additional sentences, in neither case of greater duration than the required minimum just referred to, were imposed under other counts, and it is the convictions under those counts which defendants-appellants here seek to have reviewed. Where a sentence under a count not challenged on appeal is not in excess of sentences imposed under other counts and provided to run concurrently with the former it -is unnecessary to consider the validity of such additional convictions on appeal. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); see also Zachary v. United States, 275 F.2d 793 (6th Cir. 1960). Accordingly,
It is ordered that the judgment of the District Court be and it is hereby affirmed.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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.
BRATTON v. UNITED STATES.
No. 1112.
Circuit Court of Appeals, Tenth Circuit.
Nov. 17, 1934.
Eben L. Taylor, of Tulsa, Okl. (Ben F. Williams, of Norman, Okl., and G. C. McDonald, of Tulsa, Okl., on the brief), for appellant.
Joe W. Howard, Asst. U. S. Atty., of Tulsa, OH. (C. E. Bailey, U. S. Atty., of Tulsa, Okl., on the brief), for the United States.
Before PHILLIPS and MeDERMOTT, Circuit Judges, and POLLOCK, District Judge.
MeDERMOTT, Circuit Judge.
.Appellant was convicted and sentenced to eighteen months in the penitentiary under an indictment which is set out in the margin..
Section 145 of the Criminal Code (18-USCA § 250) provides:
“Whoever shall, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demand or receive any money or other valuable thing, shall be fined not more than $2,000, or imprisoned not more than one year, or both.”
Section 146 (18 USCA § 251) provides:
“Whoever, having knowledge of the actual commission of the crime of murder or other felony cognizable by the courts of the United States, conceals and does not as soon as may be disclose and make known the same to some one of the judges or other persons in civil or military authority under the United States, shall be fined nokmore than $500, or imprisoned not more than three years, or both.”
Notwithstanding the distinct allegation that the appellant exacted and received $300.-00 as a consideration for concealing the offense, the District Attorney advises us that the indictment was returned under section 146 (18 USCA § 251), and points out that this must be true because the sentence imposed exceeds the limit imposed by section 145 (18 USCA § 250); it is also pointed out that, except for the allegation of a consideration, the language more nearly follows that section than the other one. If the indictment is under section 146, the averment of a consideration is surplusage; it is an allegation of the motive for concealment, and not an averment of an act of concealment; and section 146 does not make a consideration an element of the offense. If the indictment alleges two distinct offenses, it is duplicitous. Creel v. United States (C. C. A. 8) 21 F. (2d) 690. If the indictment leaves the defendant in fair doubt as to the offense charged, it fails to meet the test that an indictment should “leave no doubt in the minds of the accused and the court of the exact offense intended to be charged.” Evans v. United States, 153 U. S. 584, 587, 14 S. Ct. 934, 936, 38 L. Ed. 830; Rumely v. United States (C. C. A. 2) 293 F. 532, 547, certiorari denied 263 U. S. 713, 44 S. Ct. 38, 68 L. Ed. 520.
While non-essential detail in an otherwise good indictment does not invalidate it, where a grand jury indicts under one statute, a conviction may not be had under another by the device of discarding essential averments as surplusage. The facts alleged in this indictment .raise a substantial doubt as to the offense sought to be charged, for the outstanding act alleged — the taking of a bribe — is an essential averment under section 145 and not under section 146. Otherwise, the indictment more nearly follows the language of section 146. The point need not be pressed, for we are of the opinion that no offense under section 146 is alleged, and since the District Attorney concedes that the conviction was had and the sentence passed under that section, a reversal must follow.
Section 146 was enacted April 30, 1790 (1 Stat. 113, § 6), and as far as the researches of court and counsel disclose, has been before the courts but twice in the 144 years of its life. It provides that there must be both a concealment and a failure to disclose in order to constitute a criminal offense. The language is “conceals and does not as soon as may be disclose.” Some meaning must be given to the words “conceal and.” If it should be held that a failure to disclose is in itself a concealment, then a conviction may be had for a failure to disclose without more, and the words “conceal and” are thus effectively excised from the statute.
Following settled rules of construction, we must assume that Congress iiitended something by the use of the words “conceal and.” If any meaning is to be given them, an indictment must allege something more than mere failure to disclose — some affirmative act of concealment, such as suppression of the evidence, harboring of the criminal, intimidation of witnesses, or other positive act designed to conceal from the authorities the fact that a crime had been committed. Furthermore, some such interpretation is necessary to rescue the act from an intolerable oppressiveness and to eliminate a serious question of constitutional power. Whatever may have been the case in 1790, when federal felonies were few, the act if otherwise construed would be but another unworkable and unenforceable law in latter days. Take the ease here: The defendant was a state peace officer; he would be guilty of a felony, under any other interpretation, even if he turned his prisoner over to the proper state authorities and swore to a complaint, if he failed promptly to report the arrest to federal authority. The bystander who saw a federal felony committed would become a felon if he did not promptly report it, although federal officers apprehended the criminal on the spot. The guest at a club or a dinner in Eastern Oklahoma would lately have been a felon if he had not promptly reported to the nearest federal judge the fact that he observed another guest in possession of a beverage of proscribed alcoholic content. An intrepretation leading to such an intolerable conclusion should not lightly be imputed.
It' was so held in United States v. Farrar (D. C. Mass.) 38 F.(2d) 515, 517. There Judge Morton held that a purchaser of intoxicating liquors could not he convicted under this act, although he had knowledge of a felonious sale and did not report it, saying:
“The Act of April 30, 1790; as amended (18 USCA § 251), requires both concealment and failure to disclose. Under it some affirmative act toward the concealment of the felony is necessary. Mere silence after knowledge of the commission of the crime is not sufficient. The allegations of the indictment do not bring it within this statute. See Robinson v. State, 57 Ind. 113; Com. v. Tuckerman, 10 Gray (Mass.) 173.”
The Supreme Court of the United States affirmed. 281 U. S. 624, 50 S. Ct. 425, 74 L. Ed. 1078, 68 A. L. R. 892. While the Supreme Court did not mention this statute, Judge Morton's opinion called it to the attention of the high court, and if that court had believed that failure to disclose, without more, was a crime, then a reversal must have followed.
This indictment alleges no act of concealment. It is conceded that the allegation of the bribe is surplusage under this section of the statute, for if there is an affirmative act of concealment, and a failure to disclose, it is an offense whether paid for or not.. The consideration paid is the motive for, and not an act of, concealment. Laying that allegation to one side, the indictment alleges the appellant did “conceal the commission of said federal offense” from the federal authorities. This alleges, rather ineptly, a failure to disclose and nothing more. Certainly the two distinct elements of the offense cannot be made out of this one allegation.
Furthermore, no venue of any act of concealment is alleged. As far as the failure to disclose to federal authority is concerned, the venue is the place where the report should have been made. Rumely v. McCarthy, 250 U. S. 283, 39 S. Ct. 483, 63 L. Ed. 983; United States v. Lombardo, 241 U. S. 73, 36 S. Ct. 508, 60. L. Ed. 897; United States v. Commerford (C. C. A. 2) 64 F.(2d) 28. Even that is only inferentially ■ alleged, as it requires the defendant to know that the officers to whom the disclosure should be made have their offices in the district where the indictment was returned. If one could infer an affirmative act of concealment from the naked allegation of this indictment, or from the bribery, nowhere does the indictment intimate that such act took place in this district; it might well have been that the act of concealment took place a few miles away in the Eastern or Northern District. While failure to allege venue directly is not a jurisdictional defect in the sense that it will support a collateral attack (Knewel v. Egan, 268 U. S. 442, 45 S. Ct. 522, 69 L. Ed. 1036; United States v. Pridgeon, 153 U. S. 59, 14 S. Ct. 746, 38 L. Ed. 631), yet the federal cases, and some from the state courts, hold an indictment failing to allege venue is demurrable. Patterson v. United States (C. C. A. 6) 222 F. 599, 626; United States v. Christopherson (D. C., E. D. Mo.) 261 F. 225; United States v. Jenks (D. C., E. D. Pa.) 258 F. 763; United States v. Marx (D. C., E. D. Va.) 122 F. 964; Hughes on Fed. Prac. § 7035. In addition, a failure to state, with some degree of certainty, where the alleged offense took place renders the indictment open to the objection that it does not fairly apprise the accused of the facts charged, and denies him the right to a plea of former conviction or acquittal if later charged with the same offense. Skelley v. United States (C. C. A. 10) 37 F.(2d) 503. When it is recalled that the Sixth Amendment gives the accused a right to a trial in the “district wherein the crime shall have been committed,” a failure to allege that the crime was committed in the district is inexcusable.
The government challenges our right to notice the fatal defects in the indictment because the record discloses no formal exception to the order of the court overruling the demurrer to the indictment. We are cited to cases which hold that an exception is necessary to test the correctness of rulings on questions not arising on the record. If the point were well taken, this ease would fall under the rule that courts may notice plain and grievous errors which have deflected the course of justice. Williams v. United States (C. C. A. 10) 66 F.(2d) 868.
But counsel are in error as to the rule. Exceptions are necessary where it is sought to review errors in the proceedings which are not a part of the record proper; that is, exceptions are necessary in proceedings drawn onto the record by a bill of exceptions. They are not necessary where the error is disclosed by the record proper. Kansas City Life Ins. Co. v. Shirk (C. C. A. 10) 50 F.(2d) 1046; White v. United States (C. C. A. 10) 48 F.(2d) 178, 181. The pleading, process, verdict and judgment are a part of the record proper. Addis v. United States (C. C. A. 10) 62 F.(2d) 329, certiorari denied 289 U. S. 744, 53 S. Ct. 688, 77 L. Ed. 1491. An indictment is a pleading; objections thereto are properly raised by demurrer, and the demurrer is likewise a pleading; the ruling thereon is therefore disclosed by the record proper. Buessel v. United States (C. C. A. 2) 258 F. 811, where Judge Rogers explores the authorities at length. And so it is of a ruling on a plea of former jeopardy. United States v. La Franca, 282 U. S. 568, 51 S. Ct. 278, 75 L. Ed. 551.
It follows that the demurrer to the indictment should have been sustained. The judgment is, therefore,
Reversed.
The Grand Jurors of the United States of America, duly empaneled, sworn and charged in the District Court of the United States within and for the Northern District of Oklahoma, to inquire into and due presentment make of all offenses against the laws of the United States of America, committed and triable within said district, do, upon their oaths, find, present and charge that Harley J. Bratton and Homer Good, whose more true, full and correct names are to the Grand Jurors unknown, after having apprehended A. R. Blackburn, on or about the 15th day of April, A. D. 1933, while in the act of unlawfully, wilfully, wrongfully, and feloniously possessing about two gallons of alcohol at the Wainwright Drug Store, located at 910 East 6th Street in the City of Tulsa, Tulsa County, State of Oklahoma, a more accurate description of the exact location being to the Grand Jurors unknown, such place where said liquor was so had, kept and possessed being within the limits of the Indian Territory and a part thereof prior to the admission of the State of Oklahoma into the Union as one of the United States of America, and being then and there a place where the introduction and possession of such intoxicating liquors is and was prohibited and made a felony by Federal Statutes, and taking into custody said A. R. Blackburn and seizing said liquor and the automobile in which such liquor was possessed, and shortly thereafter releasing him and the automobile upon the promise of the said A. R. Blackburn to pay the sum of Three Hundred ($300) Dollars to the said defendants, nearly all of which was paid, in consideration that the aforesaid facts be concealed and not reported to the federal authorities for prosecution, did, unlawfully, wilfully, wrongfully and feloniously conceal the commission of said federal offense and such surrounding facts and circumstances from the judges, officials and all other departments of the government of the United States of America, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America.
Hill v. United States (C. C. A. 8) 15 F.(2d) 14; Hammert v. United States (C. C. A. 8) 14 F.(2d) 827; Sullivan v. United States (C. C. A 8) 7 F.(2d) 355, certiorari denied 270 U. S. 648, 46 S. Ct. 348, 70 L. Ed. 779; Edwards v. United States (C. C. A. 8) 7 F.(2d) 357.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
HARLIN v. MISSOURI
No. 77-6062.
Decided January 15, 1979
Per Curiam.
On appeal of his criminal conviction to the Supreme Court of Missouri, petitioner contended that his constitutional right to a jury drawn from a fair cross section of the community had been denied by provisions of Missouri law allowing any woman who so elects to be excused from jury service. See Mo. Const., Art. 1, §22 (b); Mo. Rev. Stat. §494.031 (2) (Supp. 1975). The record did not reflect that petitioner had raised this objection in timely fashion in the trial court, but because the trial court had considered and rejected the contention on its merits in connection with petitioner’s motion for a new trial, the Missouri Supreme Court reviewed the issue under its “plain error” rule. Relying on its decision in State v. Duren, 556 S. W. 2d 11 (1977), that court rejected petitioner’s contention that the challenged provisions are invalid because they systematically exclude women from the jury-selection process. 556 S. W. 2d 42, 44 (1977). The highest state court having reached and decided this issue, its judgment is subject to review in this Court. See Jenkins v. Georgia, 418 U. S. 153, 157 (1974). The petition for certiorari is granted. The motion for leave to proceed in forma pauperis is granted. The judgment below is vacated, and the case is remanded for reconsideration in light of Duren v. Missouri, ante, p. 357.
So ordered.
Mr. Justice Rehnquist dissents.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_district
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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 which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
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: 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_st_v_st
|
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 rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
AMERICAN LUMBER CORPORATION, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION.
No. 89-1340.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(b) Sept. 6, 1989.
Sept. 22, 1989.
Harold E. Kohn and Marguerite R. Goodman, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for appellant.
Michael J. Mangan and Ronald P. Schiller, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
Before MANSMANN, NYGAARD and ALDISERT, Circuit Judges.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this contract dispute, resolved by the district court’s grant of summary judgment to National Railroad Passenger Corporation (AMTRAK), the appellant American Lumber Corporation urges us to reverse the district court’s grant of summary judgment on the basis that the release signed by American Lumber’s assignor did not contemplate the current breach of contract action. Additionally, American Lumber urges us to reverse the district court’s denial of American Lumber’s motion to compel the production of information sought through a Freedom of Information Act request. We hold that the district court did not err in granting summary judgment in favor of AMTRAK on the basis of the release signed by American Lumber’s assignor. Furthermore, we conclude that, under the facts presented here, information provided by AMTRAK in response to a FOIA request is not subject to Rule 26 discovery.
I.
American Lumber Corporation is a wholesale distributor of building materials, including railroad ties and switch timbers. AMTRAK purchased ties and timbers in connection with a federally-funded improvement program administered by the Federal Railroad Administration. We are here concerned with five written contracts in which Roscoe Murphy Jr., Inc. (Murphy) agreed to sell a specific number of ties to AMTRAK for a set price. Murphy was awarded the contract under AMTRAK’s Minority Business Enterprise (MBE) program. Later AMTRAK learned that Murphy was engaged in a joint venture with American Lumber.
Murphy delivered ties to AMTRAK, which AMTRAK accepted, and invoiced AMTRAK at the contract price. All but one of the purchase orders contained a price revision clause which permitted the contract price to be adjusted only on the basis of changes in labor and material costs. In addition, the purchase orders contained an express prohibition on the modification of the contract except in writing signed by the contracting officer.
AMTRAK paid over 100 invoices submitted by Murphy at the contract price. Murphy then told AMTRAK’s Purchasing Department that his costs had increased and requested escalation pursuant to the price revision clause. Because Murphy complained of a cash flow problem, he convinced the AMTRAK personnel to pay his invoices at the escalated prices, while he obtained the necessary supporting documentation from the lumber mills. This scheme came to a halt, however, when the Accounts Payable Department refused to pay subsequent invoices because the submitted prices did not reflect the purchase order prices.
In 1978 and 1979, Murphy filed civil rights complaints against AMTRAK in the United States District Court for the Eastern District of Pennsylvania based on claims of racial discrimination in regard to AMTRAK’s methods of awarding contracts. On June 3, 1981, Murphy signed a release which was the result of a settlement between Murphy and AMTRAK in which Murphy agreed to withdraw all claims against AMTRAK in return for consideration of $36,500.
In September, 1983, American Lumber filed a complaint in the Court of Common Pleas of Philadelphia County against AMTRAK claiming to be Murphy’s assignee and third-party beneficiary of the Murphy-AMTRAK contracts. AMTRAK removed the action to the United States District Court for the Eastern District of Pennsylvania on January 1, 1986. On June 24, 1986, American Lumber filed for relief in United States Bankruptcy Court for the Eastern District of Pennsylvania. With the district court’s approval, AMTRAK filed a counterclaim against American Lumber alleging that its overpayment to Murphy occurred as a result of fraud, breach of contract, unjust enrichment and violation of the Racketeer Influenced Corrupt Organization (RICO) statute, 18 U.S. C.A. § 961 et seq. (West 1984).
During discovery, the district court granted numerous extensions to both parties — but more particularly to American Lumber — to file responses and amend pleadings. Additionally, the court extended the discovery deadline three times at American Lumber’s request. After the district court refused to grant the fourth extension, American Lumber issued a Freedom of Information Act (FOIA) request to AMTRAK. When AMTRAK submitted a list of documents it felt were exempt from FOIA disclosure, American Lumber filed a motion for sanctions on the ground that AMTRAK was intentionally withholding discovery material. The district court denied American Lumber’s motion for sanctions.
AMTRAK moved for summary judgment on grounds that (1) American Lumber’s claims were barred by a release executed by its assignor, Murphy, on June 3, 1981, and (2) American Lumber’s claims were barred by Clause 48 of the purchase orders which prohibited oral modification. The district court granted summary judgment for AMTRAK and American Lumber moved for reconsideration. American Lumber also moved to compel the production of documents by AMTRAK and to dismiss AMTRAK’s counterclaim against American Lumber. The district court denied these motions. With respect to AMTRAK’s counterclaim, the district court stayed all proceedings on the counterclaim without prejudice to AMTRAK seeking relief from the stay in bankruptcy court. This resulted in the entry of a final judgment. American Lumber appeals from the denial of its motions and the granting of the motion for summary judgment to AMTRAK.
Our review of the district court’s grant or denial of a motion for summary judgment is plenary. We must determine whether there exists a genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Review of the district court’s decision concerning discovery motions, however, is limited to a determination of whether the district court abused its discretion. Consequently, it is American Lumber’s burden as appellants to demonstrate that the district court’s failure to compel AMTRAK to produce the documents deprived American Lumber of critical evidence or otherwise resulted in fundamental unfairness. Wisniewski v.. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir.1987).
II.
American Lumber’s first contention is that the 1981 release of Murphy’s racial discrimination suit against AMTRAK does not bar American Lumber’s contract suit. American Lumber argues that the release was intended to bar only Murphy’s discrimination claims and does not apply to the contract claims. Conversely, AMTRAK contends the 1981 settlement was in the form of a general release which released all of Murphy’s claims: those currently being asserted as well as those which could be asserted by Murphy. Since American Lumber’s claims are those assigned to it by Murphy, AMTRAK argues, the claims which could have been asserted by Murphy were released by the 1981 settlement.
We must examine the language of the release to determine whether it is limited to a release of the racial discrimination claims, as American Lumber contends, or whether it is a general release of all claims, as AMTRAK contends.
The 1981 release states in pertinent part:
THIS IS A RELEASE * * * * * %
Roscoe Murphy, Jr. and Roscoe Murphy, Jr., Inc., ... do remise, release, quitclaim and forever discharge NATIONAL RAILROAD PASSENGER CORPORATION, its officers, directors, employees, representatives, agents predecessors, successors and assigns, from any and all manner of claims, actions, causes of action, damages, costs, expenses and compensation whatsoever which ROSCOE MURPHY, JR. and ROSCOE MURPHY, JR., INC., or either of them, asserted or could have asserted against NATIONAL RAILROAD PASSENGER CORPORATION ... in the legal actions captioned ROSCOE MURPHY JR., and ROSCOE MURPHY, JR. INC., v. NATIONAL RAILROAD CORPORATION, Nos. 78-4149 and 79-3766, pending in the United States District Court for the Eastern District of Pennsylvania, which actions are to be dismissed with prejudice.
[T]his release shall be complete and shall not be subject to any claim of mistake of fact and that it expresses a FULL AND COMPLETE STATEMENT of liability claimed and denied and ... is intended to avoid litigation and to be final.
ROSCOE MURPHY JR. and ROSCOE MURPHY, JR., INC. further agree ... that there is absolutely no agreement or reservation not clearly expressed herein, that the sum of money stated herein is all that both are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims.
Appendix at 166 (emphasis added).
The express language clearly states that Murphy released all claims which he asserted or could have asserted against AMTRAK in the lawsuits. Thus, we must determine whether the contract claims asserted by American Lumber could have been asserted by Murphy.
Initially, we note that the contract claims pressed here by American Lumber had fully ripened at the time Murphy executed the release. American Lumber’s complaint alleges, inter alia, that AMTRAK accepted lumber products (ties) from American Lumber during the period July, 1978 through January, 1981 and continues to use $750,-000 worth for which Murphy was not paid. With respect to those products, the record discloses that by letters dated June 23, September 9, and October 9, 1980 AMTRAK denied payment of the invoices submitted by Murphy because Murphy was behind in his deliveries and because the invoices did not reflect the contract purchase order price. Murphy was specifically told that “until such time as the contract is officially modified to reflect any price revisions, our Accounts Payable Department will not honor and, in fact, will return any invoice wherein the invoice price does not match the subject purchase order price.” Appendix at 141. Clearly, Murphy was fully aware by October, 1980, that AMTRAK was challenging his invoice submissions and Murphy could have brought a claim for breach of contract at that time.
The parties agree that Pennsylvania substantive law of contract interpretation applies to the terms of the release, while federal procedural law applies to the procedures involved in bringing and maintaining Murphy’s lawsuit in federal court. We turn here to federal procedural law and Murphy’s federal lawsuit. Under the Federal Rules of Civil Procedure, there was no procedural bar which would have prohibited Murphy from including the contract claims in his discrimination suit against AMTRAK. The liberal amendment of pleadings permitted by Fed.R.Civ.P. 15 would have allowed Murphy to amend his complaint to include the ripened contract claims. Following this policy of liberal amendment, we have permitted the amendment of complaints even years after the filing of the original lawsuit. See, e.g., Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984) (delay alone is an insufficient reason to deny amendment). The “touchstone is whether the non-moving party will be prejudiced if the amendment is allowed.” Howze, 750 F.2d at 1212. American Lumber does not allege — nor is there any evidence in the record — AMTRAK would have been prejudiced by Murphy amending his discrimination suit to include the contract claims of which both parties were fully cognizant at the time of the release.
Moreover, Rule 18 of the Federal Rules of Civil Procedure permits a party to join as many legal, equitable or even maritime claims as the party has against the opposing party. These claims can be independent or alternate claims to the original complaint. As AMTRAK notes, the parties to both the discrimination suit and the contract dispute are the same, the witnesses are the same and many of the underlying facts of both cases are the same. Clearly, from a standpoint of judicial economy, a joinder of the two actions would have been more convenient for both parties. We conclude that the present action could have been brought by Murphy prior to the release of his claims on June 3, 1981.
American Lumber asks us to distinguish between the release here and the release upheld by us in Three Rivers Motor Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir.1975) because the document here does not contain the language “general release” as in Three Rivers. Without the presence of the language, American Lumber contends, the only claims Murphy intended to release were the racial discrimination claims he asserted or could have asserted. We disagree with this narrow reading of Three Rivers which more properly turned on the general language of the document rather than on the title of it.
Three Rivers involved an anti-trust suit brought by Three Rivers Motors, a franchisee, against the Ford Motor Corporation. Several years prior to the suit at bar, Three Rivers complained that because another local competitor franchisee, Triangle Motors, operated in the same area, Three Rivers had suffered considerable operating losses. The president of Three Rivers began negotiations to resign the franchise with Ford, but did not wish to sacrifice the loss of the corporate investment in parts and accessories. Three Rivers succeeded in negotiating a settlement with Ford in which Ford agreed to buy Three Rivers’ inventory in return for the execution of a general release. Three Rivers, 522 F.2d 887. Three Rivers would then move to another location which was not in direct competition with another Ford franchise. A few years later, Three Rivers brought an anti-trust suit alleging that Ford had violated anti-trust law by entering into a price fixing arrangement to enable fleet customers to purchase their new vehicles from Triangle Motors, Three River’s old competitor. The question before us was whether the general release was broad enough to encompass the antitrust claims, thereby barring the action against Ford. 522 F.2d at 888. We concluded that “[ujnless the comprehensive language releasing all types of claims is to be read as much ado about nothing, the release must cover more than those claims arising from Ford’s repurchase of Three Rivers’ inventory.” 522 F.2d at 897. “The only reasonable conclusion is that the release was intended as a general settlement of accounts.” Id.
Returning to the release at issue here, we find the same general language present that existed in the Three Rivers’ release. Of significance is the language in the second paragraph which provides that “the sum of money stated herein is all that both [Murphy and Murphy, Inc.] are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims.” Unless we are to disregard the plain language of the release, we must conclude that the parties to the agreement intended that the release was to cover all claims Murphy had asserted against AMTRAK or could have asserted. Moreover, if Murphy himself had attempted to bring an action for breach of contract against AMTRAK after the June 3, 1981 release was signed, his action would have been barred. Since American Lumber, as Murphy’s assignee, can possess no greater rights than its assignor, its action is also barred. General Electric Credit Corporation v. Security Bank, 244 A.2d 920, 923 (D.C.App.1968) (“an assignee of a chose of action takes it subject to all defenses, including any valid set-off based on facts existing at the time of the assignment”).
American Lumber also argues that AMTRAK waived the statute of frauds provision (Clause 48) in the contract which prohibited oral modification of the contract when AMTRAK paid some of the invoices Murphy had submitted before protesting about his failure to follow the procedure for price revision. Because we have determined that the district court properly held that Murphy’s release of claims against AMTRAK bars American Lumber’s lawsuit, we have no need to decide this issue.
III.
American Lumber’s final argument is that the district court erred by denying American Lumber’s motion to compel the production of documents discovered in response to American Lumber’s Freedom of Information Act request. We note at the outset that the Supreme Court has generally looked with disfavor upon parties that have tried to use the FOIA to circumvent the discovery rules. A party’s contention that it can “obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA.” United States v. Weber Aircraft Corp., 465 U.S. 792, 801, 104 S.Ct. 1488, 1493, 79 L.Ed.2d 814 (1984). See also Baldrige v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (disclosure of exempt information by way of civil discovery would undermine the purpose of confidentiality envisioned by Congress); and, National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (the primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for discovery).
The district court did not merely accept AMTRAK’s statement that the records were exempt and therefore, not applicable to the lawsuit. The district court carefully scrutinized the documents in camera before determining that the information contained therein would not change AMTRAK’s responses to interrogatories. Consequently, the district court denied American’s motion on the merits, rather than on the basis of policy reasons. We cannot say that the district court abused its discretion by denying American’s motion in light of that determination.
IV.
We conclude that the district court did not err by granting summary judgment for AMTRAK on the basis that American Lumber’s assignor had released all claims against AMTRAK. Nor did the district court abuse its discretion by denying American Lumber’s motion for reconsideration or its motion to compel production. For the above reasons, we will affirm the judgment of the district court granting summary judgment for AMTRAK.
. Through the discovery process in this lawsuit, AMTRAK learned that Murphy had been paid $1,316,100 in excess of the original contract prices hut his actual cost increase had only been $364,941 leaving a balance due AMTRAK of $951,159.
. The operative portion of the Ford release stated:
of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, ... controversies, agreements, promises, variances, trespasses, damages, judgments, ... whatsoever in law, in admiralty or in equity, which against Ford, ... ever had, now have or which they or any of them hereafter can, shall or may have....
Three Rivers, 522 F.2d at 895.
. We cite to a District of Columbia case because the parties agree that District of Columbia law applies to the assignment of Murphy’s accounts receivable to American Lumber since the contract was created in the District of Columbia.
. In addition, American Lumber appeals from the district court’s denial of America Lumber’s motion to modify the order granting summary judgment to AMTRAK on the grounds that the price revision clauses in the contracts at issue were governed by market costs rather than the supplier's actual costs. Since we have already concluded that the district court properly determined that American Lumber’s claim is barred by the release, we do not need to address this issue.
American Lumber also appeals from the district court’s denial of its motion for reconsideration on the basis of newly discovered evidence. This argument is baseless in light of the district court’s decision which denied the motion on the merits because the evidence submitted by American was not "newly discovered”. We will not disturb the district court’s determination absent an abuse of discretion, which certainly did not occur here.
Question: Did the court rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_numresp
|
9
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Stephen STACKHOUSE, Appellant, v. Joseph MAZURKIEWICZ, Warden; Sgt. Knepp, C.O. II; William Quick, C.O. I; D.A. Leathers, C.O. III; A. Anderson, C.O. I; Jesse Rush, IV, C.O. II; Tim Yutzy, C.O. Work Boss; Kunes C.O. Work Boss; Carrie Fromm, Institutional Psychologist; Rodriguez, C.O. I.
No. 91-5239.
United States Court of Appeals, Third Circuit.
Submitted under Third Circuit Rule 12(6) Sept. 13, 1991.
Decided Dec. 11, 1991.
Rehearing Denied Jan. 9, 1992.
Stephen Stackhouse, pro se.
Ernest D. Preate, Jr., Atty. Gen., Linda C. Barrett, Deputy Atty. Gen., Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for appellees.
Before SLOVITER, Chief Judge, and GREENBERG and COWEN, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Stephen Stackhouse, a former Pennsylvania state prisoner at the State Correctional Institution at Rockview, brought a civil rights action in the district court against various prison officials. His complaint raised numerous claims which we need not describe in detail. We simply point out that in general they assert that he was denied due process of law in disciplinary proceedings and that he was subjected to cruel and unusual punishment. The defendants filed motions for summary judgment and for dismissal to which Stack-house did not respond as required by Middle District Rule 401.6. Consequently, the magistrate judge filed a report and recommendation that the motion to dismiss be granted and the district court by order of February 13, 1991, adopted the report and recommendation and dismissed the action. Neither the magistrate judge nor the court addressed the merits of the complaint. Stackhouse appeals.
While we are not unmindful of the problems of the district court in dealing with a large volume of litigation, we nevertheless conclude that under Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168 (3d Cir.1990), this action should not have been dismissed solely on the basis of the local rule without any analysis of whether the complaint failed to state a claim upon which relief can be granted, as provided in Fed.R.Civ.P. 12(b)(6). Local Rule 401.6 should be understood to facilitate the court’s disposition of motions rather than to impose a sanction for failure to prosecute or defend. Anchorage Associates, 922 F.2d at 174. In a similar situation involving a local rule in Anchorage Associates, we held that a district court should not have granted summary judgment solely on the basis that a motion for summary judgment was not opposed.
While we acknowledge that Fed.R.Civ.P. 12(b)(6) has no analog to the provision in Fed.R.Civ.P. 56(e), that if the adverse party does not respond to a motion for summary judgment the motion may be granted “if appropriate,” we do not think that this distinguishes the rules for present purposes. The fact is that if a motion to dismiss is granted solely because it has not been opposed, the case is simply not being dismissed because the complaint has failed to state a claim upon which relief may be granted. Rather, it is dismissed as a sanction for failure to comply with the local court rule.
In reaching our result, we do not suggest that the district court may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a dismissal without a merits analysis. There may be some cases where the failure of a party to oppose a motion will indicate that the motion is in fact not opposed, particularly if the party is represented by an attorney and in that situation the rule may be appropriately invoked. Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad.
We realize, of course, that we could make our own analysis of the complaint and, if we found that it failed to state a claim upon which relief could be granted, we could affirm on that basis. In fact we have done that and, while we are reluctant to comment on the merits of the case in its current posture, have concluded that it is possible that some aspects of the complaint might survive a motion to dismiss if addressed on the merits. In these circumstances, we conclude that the complaint should in the first instance be considered substantively by the district court.
The order of February 13, 1991, will be reversed and the matter will be remanded to the district court for further proceedings consistent with this opinion. The parties will bear their own costs on this appeal.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_respond2_1_4
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
Leona HARRIS, Appellant, v. H. G. SMITHY CO., Inc., et al.
No. 22833.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 12, 1970.
Decided June 15, 1970.
Mr. Ernest C. Dickson, Washington, D. C., for appellant.
Mr. Jerome S. Berg, Washington, D. C., for appellees. Mr. Lawrence E. Carr, Jr., Washington, D. C., was on the brief for appellees.
Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and JAMESON, Senior District Judge.
Sitting by designation pursuant to the provisions of Title 28, U.S. Code, Section 294(d).
BAZELON, Chief Judge.
This is an appeal from a judgment dismissing an action for personal injuries. Appellant is a tenant in an apartment building owned and managed by appellees. She was injured by slipping and falling on the terrazzo floor of the apartment house lobby on a rainy day. The trial court, sitting without a jury, concluded that the landlord had neither actual nor constructive notice of the wet and slippery condition of the floor, and hence had no duty to take corrective action. Because that conclusion rests on an erroneous interpretation of the controlling principle of law, we reverse and remand for a new trial.
A landlord who rents separate parts of his premises to a number of different tenants has a duty to use reasonable care to keep the common passageways free of dangerous conditions. Pessagno v. Euclid, 72 App.D.C. 141, 112 F.2d 577 (1940). A wet and slippery floor is clearly a dangerous condition. But reasonable care requires the landlord to correct the condition only after a reasonable opportunity for notice of the danger. C. W. Simpson v. Langley, 76 U.S.App.D.C. 365, 131 F.2d 869 (1942).
The ruling below was apparently based on the view that constructive notice of a wet and slippery lobby floor could arise only from evidence that the floor had actually been wet for a substantial period of time. The trial court found appellant’s case fatally defective for failure to show that for a substantial period of time before the fall there was water on the floor or traffic in the lobby.
In this case the evidence clearly shows that at the time of the accident, rain was falling and the lobby floor was wet. The trial court so found, concluding that there was no showing of the necessary notice because there was no evidence that numerous people had passed through the lobby before the accident, tracking in water. In our view, however, evidence of a substantial period of rain is sufficient to give a landlord constructive notice of the foreseeable hazards that may result from that rain, including the risk that water will be tracked into an apartment lobby and the floor will become slippery. See Doctors Hospital, Inc. v. Badgley, 81 U.S. App.D.C. 171,156 F.2d 569 (1946).
A landlord’s duty of care must be measured by a flexible standard, that reflects community expectations and meets the needs of contemporary urban life. Levine v. Katz, 132 U.S.App.D.C. 173, 175, 407 F.2d 303, 305 n.6 (concurring opinion). Modern apartment dwellers expect not merely a space in which to live, but a “well-known package of goods and services — a package which includes * * * proper maintenance.” Javins v. First National Realty Corp., 138 U.S.App.D.C. -, -, 428 F.2d 1071, 1074 (1970). Minimal standards of proper maintenance require the landlord to anticipate dangerous conditions that recur regularly, and to take some precautions.
If rain and the normal traffic of tenants regularly result in a slippery lobby floor, then a landlord cannot wait each time it rains for notice that the floor is wet. Apartment dwellers today are entitled to assume that management will take reasonable steps to ensure the safety and cleanliness of common areas in constant use, such as the front entrance lobby. Liability for negligence does not require notice of the particular puddle that caused the fall. It is sufficient to show notice of rain, combined with the probability that in rainy weather tenants will track in water and the lobby floor will become slippery. Harris v. Joffe, 28 Cal.2d 418, 170 P.2d 454 (1946); cf. Klein v. United States, 339 F.2d 512 (2d Cir. 1964); Rodenbur v. Kaufmann, 115 U.S.App.D.C. 360, 320 F.2d 679 (1963).
The instant case turns in part, therefore, on the question whether rain had been falling for a sufficient period of time before the accident to give the landlord constructive notice of the danger of a slippery lobby floor. The findings of the trial judge are ambiguous on this point, because in his view constructive notice required not only evidence of rain but also evidence of a wet floor for a substantial period of time before the accident. His treatment of the evidence, however, requires some comment.
The plaintiff testified that it was raining shortly before she fell, at about 1 p. m., but she did not testify that it had been raining earlier in the day. Weather bureau reports were introduced to show that it had been raining all day, but the trial judge noted that these reports were based on observations taken at the National Airport, ten miles from the site of the accident, and “it is a matter of common knowledge that it may rain in one part of the city and not in another.”
We think the trial judge’s approach to the weather reports was improper as a matter of law. Weather bureau reports are not conclusive, but they certainly constitute evidence of high quality, as the same judge earlier noted in Robinson v. Park Central Apartments, 248 F.Supp. 632, 636 (D.D.C. 1965). No evidence was introduced to rebut the evidence of morning rain, or to indicate that conditions at the apartment house that morning were different from those at the airport. The evidence was therefore sufficient to present to the trier of fact the issue whether there had been a substantial period of rain at the apartment house before the accident.
If the case had been tried to a jury, the court would have instructed the jury to decide (1) whether there was a sufficient period of rain to provide constructive notice of the danger of a slippery lobby floor, and (2) if so, whether appellees exercised reasonable care in responding to that danger. On a trial to a judge there are no instructions, of course, but the same questions of fact must be resolved.
There was evidence at trial that rubber mats are commonly used on floors of this type in rainy weather. Cf. Scott v. United States, 158 F.Supp. 810 (N.D.N. Y.1957); Pignatelli v. Gimbel Bros., 285 App.Div. 625, 140 N.Y.S.2d 23 (Sup. Ct.), aff’d, 309 N.Y. 901, 131 N.E.2d 578 (1955). Indeed, the building superintendent testified that he had asked the management to install rubber mats, but was told they would only be stolen. Therefore it was his practice simply to mop the lobby floor whenever he saw or was told it needed mopping.
It may well be that a practice of prompt and frequent mopping would suffice to guard against the danger of slippery wet floors. It is for the trier of fact to determine what constitutes reasonable care under the circumstances. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 121, 406 F.2d 653, 657 (1968). But the court below never inquired into the adequacy of appellee’s practices with respect to mops and rubber mats, because of its conclusion that appellee had no notice of the slippery condition of the floor and hence no duty to correct it. Since that conclusion was based on an erroneous principle of law, the case must be reversed and remanded for a new trial.
So ordered.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_appel1_1_3
|
F
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
SHOP & SAVE FOOD MARKETS, INC., Plaintiff-Appellant, v. PNEUMO CORPORATION, Abbott Realty Company, and P & C Food Markets, Inc., Defendants-Appellees.
No. 20, Docket 80-9053.
United States Court of Appeals, Second Circuit.
Argued Oct. 9, 1981.
Decided Jan. 20, 1982.
On Rehearing July 2, 1982.
John L. Primmer, St. Johnsbury, Vt., Robert D. Rachlin, Downs, Rachlin & Martin, St. Johnsbury, Vt., of counsel, for plaintiff-appellant.
Leslie W. Jacobs, Cleveland, Ohio, Charles L. Freed, Thompson, Hiñe & Flory, Cleveland, Ohio, Joseph E. Frank, Paul, Frank & Collins, Inc., Burlington, Vt., Francis D. Price, Jr., Syracuse, N. Y., of counsel, for defendants-appellees.
William F. Baxter, Asst. Atty. Gen., Robert B. Nicholson, George Edelstein, Dept, of Justice, Washington, D. C., of counsel, for amicus curiae United States.
Before FEINBERG, Chief Judge, MES-KILL, Circuit Judge, and PALMIERI, District Judge.
Hon. Edmund L. Palmieri, United States District Judge for the Southern District of New York, sitting by designation.
MESKILL, Circuit Judge:
Rehearing has been granted. The opinion filed on January 20, 1982, slip op. 883, is withdrawn and the following is substituted therefor.
Shop & Save Food Markets, Inc. (Shop & Save) appeals from a judgment of the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, granting summary judgment for defendants Pneumo Corporation (Pneumo), Abbott Realty Company (Abbott) and P & C Food Markets, Inc. (P & C), in an action asserting violations of Section 1 of the Sherman Act, 15 U.S.C. § 1 (1976). For the reasons set forth below, we affirm the judgment of the district court.
I
Shop & Save, a Vermont corporation, operates retail grocery stores in St. Johns-bury, Derby and Lyndonville, Vermont. Pneumo, a Delaware corporation, owns or controls the other defendants: P & C, a New York corporation which operates a chain of retail grocery stores in New England; and Abbott, a Vermont corporation, which manages property for Pneumo. Pneumo acquired Abbott and Cross Company (Cross), a wholesale grocery distributor, in 1972.
Prior to the events giving rise to this action, Shop & Save purchased virtually all of its groceries from Cross. From 1970 to 1977 Shop & Save subleased from Abbott the property where it operates its Lyndon-ville grocery store, paying a rental of $20,-000 per year. Abbott’s assets were transferred to P & C in 1977.
In July 1976, Shop & Save sought from Pneumo a long-term sublease with renewal options for the Lyndonville property. Thereafter, a protracted course of negotiations ensued, dictated in part by the parties’ competing business considerations. During this time, Shop & Save began to purchase a portion of its wholesale groceries from a competitor of Cross. Further, correspondence between the parties indicated that P & C would be opening a competing grocery store in Lyndonville.
Initially, Pneumo responded to Shop & Save’s request by offering to provide a long-term lease if Shop & Save agreed to continue to buy groceries from Cross. When Shop & Save refused to commit itself to purchases from Cross, Pneumo responded that it would not offer a lengthy sublease at the month-to-month rate because that figure was “far below” current “fair rental values.” Pneumo stated that if it had to risk the loss of Shop & Save’s wholesale purchases from Cross, it wanted “compensation.” Pneumo repeated its offer to provide a long-term lease if Shop & Save agreed to continue its purchases from Cross.
On December 16, 1976, Shop & Save reiterated to Pneumo that it was unwilling to commit itself to any wholesale purchases from Cross. Pneumo responded on January 12, 1977, with an offer of a long-term sublease at $31,500 per year plus 1.5 percent of Shop & Save’s annual sales above $1,500,-000. Thereafter, several offers and counteroffers were considered by the parties. Among these was an offer by Pneumo on January 24, 1977 that rent vary from $20,-000 to $31,500 per year depending upon the amount of groceries purchased from Cross. Shop & Save found the rental formula acceptable but was not satisfied with the lease term and renewal options. Accordingly, no final agreement was reached on the basis of the January 24 offer. Pneumo ultimately revoked its variable rent offer, and reiterated its flat rent offer, which Shop & Save accepted on May 5, 1977.
On February 21, 1978, Shop & Save filed a complaint charging, inter alia, that defendants had violated Section 1 of the Sherman Act, 15 U.S.C. § 1. Defendants moved for summary judgment on September 19, 1978. In opposing this motion, Shop & Save argued that it was forced to pay defendants a “penalty” rent for the Lyndonville property because it refused to purchase its wholesale groceries from Cross, and that defendants’ conduct constituted a tying arrangement and a group boycott or concerted refusal to deal, all of which are per se unlawful.
The district court, on July 21, 1980, granted summary judgment for the defendants on Shop & Save’s Section 1 Sherman Act claims. Judge Coffrin found that defendants’ alleged conduct did not constitute a group boycott or a concerted refusal to deal because the only relevant conduct which Shop & Save “point[ed] to [was] P & C’s determination to purchase wholesale groceries from Cross to the exclusion of other distributors. This [conduct] involved no other retailers — having failed to coerce [Shop & Save] to join — and we note that the Sherman Act does not prohibit individual companies from dealing exclusively with other individual companies.” J.App. at 223. The district court found in the alternative that even if defendants had conspired to coerce Shop & Save to agree not to purchase wholesale groceries from Cross’ competitors, Shop & Save had failed to allege an injury that was causally related to a group boycott or concerted refusal to deal. The district court also found that the alleged conduct did not constitute an illegal tying arrangement because there was no agreement in existence that involved two products. Shop & Save had acquired a lease for the Lyndonville premises and was free to purchase its wholesale groceries from any supplier.
II
The narrow issues presented on appeal are whether the district court erred in holding that defendants’ alleged conduct did not constitute a per se illegal group boycott or concerted refusal to deal, or a per se illegal tying arrangement. For the reasons set forth in Judge Coffrin’s thorough opinion, J.App. at 212-31, we affirm the grant of summary judgment on Shop & Save’s group boycott or concerted refusal to deal claim. We also agree with the district court that defendants’ alleged conduct does not constitute an illegal tying arrangement.
“[T]he vice of tying agreements lies in the use of economic power in [the tying] market to restrict competition on the merits in [the tied market].” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 11, 78 S.Ct. 514, 521, 2 L.Ed.2d 545 (1958); see Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 605, 73 S.Ct. 872, 878, 97 L.Ed. 1277 (1953). Therefore, as the Supreme Court and this Circuit have held, to prove a tying violation a plaintiff must establish, inter alia, the existence of two separate and distinct products, see Northern Pacific Railway Co. v. United States, 356 U.S. at 5-6, 78 S.Ct. at 518-519; Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1289 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974), that he was actually coerced by the seller into agreeing to buy the tied product, Unijax, Inc. v. Champion International, Inc., 683 F.2d 678 (2d Cir. 1982); Capital Tempoaries, Inc. v. Olsten Corp., 506 F.2d 658, 662-63 (2d Cir. 1974); Hill v. A-T-O, Inc., 535 F.2d 1349, 1355 (2d Cir. 1976), or at least into agreeing not to purchase the tied product from another, Northern Pacific Railway Co. v. United States, 356 U.S. at 5-6, 78 S.Ct. at 518-519, and that the illegal tying arrangement resulted in the actual foreclosure of competition in the tied product market, id. at 6, 78 S.Ct. at 519; International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20 (1947); Yentsch v. Texaco, Inc., 630 F.2d 46, 58 (2d Cir. 1980); Coniglio v. Highwood Services, Inc., 495 F.2d at 1292.
In this case, Shop & Save admits that no agreement was reached on Pneumo’s January 24 offer which provided for a variable rent depending upon the level of Shop & Save’s wholesale grocery purchases from Cross. Shop & Save asserts, however, that it has been forced to pay a penalty rent for the Lyndonville property. Shop & Save alleges that Pneumo’s exaction of this penalty rent constitutes an illegal tying arrangement. We disagree.
As stated above, a tying arrangement cannot exist unless the buyer was actually coerced by the seller into agreeing to buy the tied product or to refrain from purchasing the tied product from the seller’s competitors. Northern Pacific Railway Co. v. United States, 356 U.S. at 5-6, 78 S.Ct. at 518-519; Unijax, Inc. v. Champion International, Inc., 683 F.2d 678; Capital Temporaries, Inc. v. Olsten Corp., 506 F.2d at 662-63; Hill v. A-T-O, Inc., 535 F.2d at 1355. Absent this showing, there is lacking a definite nexus between the tying and the tied markets from which to conclude that the seller’s exercise of economic power in the tying market will “always or almost always tend to restrict competition and decrease output,” Broadcast Music, Inc. v. CBS, 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-1563, 60 L.Ed.2d 1 (1979), in the tied market. For example, in the present case, even if Shop & Save has to pay a “penalty” for the tying product, Shop & Save is free to purchase and in fact admits that it does purchase its wholesale groceries from competitors of Cross. Accordingly, because the seller is unable to use his power or leverage in the tying market to deny his competitors free access to the tied market, see Northern Pacific Railway Co. v. United States, 356 U.S. at 6, 78 S.Ct. at 519, an attempt to force a tie which results only in an agreement to pay a higher price for the tying product is not a tying violation.
In deciding whether to invoke the per se rule, we must be cognizant of the teachings of the Supreme Court that “easy labels do not always supply ready answers[,]” Broadcast Music, Inc. v. CBS, 441 U.S. at 8, 99 S.Ct. at 1556, and that “[i]t is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act[,]” United States v. Topco Associates, Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133-1134, 31 L.Ed.2d 515 (1972). The alleged unlawful conduct in this case may well give rise to a cause of action. However, it does not constitute a per se illegal tying arrangement. Neither does it constitute a per se illegal group boycott or concerted refusal to deal, for the reasons spelled out in Judge Coffrin’s opinion below, J.App. at 212-31.
Affirmed.
. Although Shop & Save also asserted claims under Section 2 of the Sherman Act, 15 U.S.C. § 2, Section 3 of the Clayton Act, 15 U.S.C. § 14, and a claim under the Vermont Consumer Fraud Act, Vt.Stat.Ann. tit. 9 §§ 2451 et seq., Shop & Save does not appeal from the grant of summary judgment for the defendants on these federal claims and the dismissal of the state claim.
. Shop & Save alleged in its complaint that it had accepted Pneumo’s January 24 offer but that in April 1977, before a sublease embodying these terms was signed, Pneumo revoked the offer. Shop & Save claimed that in the interim, it had purchased groceries from Cross with the understanding that the January 24 agreement was in effect. However, Shop & Save alleges no injury from this conduct. Accordingly, we need not decide whether an unlawful tying arrangement existed during this period.
. See note 1, supra.
. We express no opinion on whether an unlawful tying arrangement would have existed had an agreement been reached on the January 24 offer.
. As stated by this Court:
Tying arrangements are abhorred by the courts primarily because they foreclose a substantial quantity of business to competitors and extend preexisting economic power to new markets for no good justification .... Foreclosure implies actual exertion of economic muscle, not a mere statement of bargaining terms which, if they should be enforced by market power, would then incorporate an illegal tie.
American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 446 F.2d 1131, 1137 (2d Cir. 1971) (citation omitted), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972).
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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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. Robert P. MARCHAND, Jr., Appellant.
No. 1288, Docket 77-1131.
United States Court of Appeals, Second Circuit.
Argued June 9, 1977.
Decided Aug. 22, 1977.
Rehearing and Rehearing En Banc Denied Nov. 1, 1977.
Certiorari Denied Jan. 9, 1978.
See 98 S.Ct. 732.
Jeanne Baker, Cambridge, Mass., Alan M. Dershowitz, Cambridge, Mass. (Rosenberg, Baker & Fine, Cambridge, Mass., and Joseph S. Oteri, Martin G. Weinberg, and Oteri & Weinberg, Boston, Mass., of counsel), for appellant.
Jill A. Jacobson, Asst. U.S. Atty., District of Vermont (George W. F. Cook, U.S. Atty., District of Vermont, Rutland, Vt., of counsel), for appellee.
Before FRIENDLY, TIMBERS and MESKILL, Circuit Judges.
FRIENDLY, Circuit Judge:
Robert P. Marchand, Jr. appeals from his conviction, after a jury trial before Chief Judge Holden in the District Court for Vermont, on one count of an indictment charging the possession and distribution of 180 pounds of marijuana in violation of 21 U.S.C. § 841.
Apart from a serious question under the Fourth Amendment discussed in Part IV below, the appeal has been presented as if this were a case where there is substantial doubt that defendant is the person who committed the crime charged in the indictment. Marchand relies on an array of cases, somewhat weakened as a result of recent Supreme Court decisions, which had laid down stringent requirements to prevent “the awful risks of misidentification” by persons with relatively scant opportunity to observe the defendant, Brathwaite v. Manson, 527 F.2d 363 (2 Cir. 1975), rev’d, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). But, as the trial judge and the jury seem to have been well aware, that is not this case at all. The case is rather one of accomplice witnesses, one of whom had known the marijuana supplier for years. The jury could well have inferred that any difficulty these witnesses expressed about identification was due to unwillingness rather than inability to identify. It was a similar case of seeming unwillingness that led us, in United States v. De Sisto, 329 F.2d 929 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), to rule that previous identification or grand jury testimony of a trial witness could be used not simply for “impeachment” but as substantive evidence — a ruling which Congress has now translated into Federal Rule of Evidence 801(d)(1)(A) and (C). None of this means that Marchand did not have the right, accorded every criminal defendant, to a fair trial in accordance with governing rules of law. It does mean that statements in decisions involving dubious identifications by bystanders, law enforcement officers or victims should not be woodenly applied to the wholly different situation here and that the case offers ample occasion for recalling Judge Learned Hand’s observation in Dyer v. MacDougall, 201 F.2d 265, 269 (2 Cir. 1952), that a jury is free, on the basis of a witness’ demeanor, to “assume the truth of what he denies” although a court cannot allow a civil action, much less a criminal prosecution, to go to the jury on the basis of this alone.
I. A Chronological Summary
Marchand challenges his conviction on the grounds both of trial error and of insufficiency of the evidence properly admitted. Before considering these challenges it will be useful to summarize what admittedly occurred. When we include material that was not before the trial jury, we will so indicate.
Sometime before June 1971, Victor Roy, Jr. became acquainted with a man at bars in Amherst, Mass. When testifying before the grand jury, Roy identified this person as “Big Foot” or,“Bob”; at trial he insisted on the appellation “Big Foot”. In March or April, 1975, Roy met the same individual, again in a bar in Brattleboro, Vermont; he was with a girl whom Roy identified before the grand jury as Ann. The man gave Roy a telephone number, which Roy called occasionally. In May 1975, Roy, accompanied by Richard Perkins, met the individual at a Howard Johnson’s restaurant in Springfield, Mass., to discuss the purchase of marijuana. On two occasions within the following three weeks, Roy and Perkins made purchases of marijuana from Big Foot at the Springfield Howard Johnson’s.
During the period June 9-July 16, 1975, there were four one minute phone calls from Perkins’ number in Waitsfield, Vt., to the numbers listed in the name of Ann Curtis and Robert Marchand in Guilford, which is near Brattleboro, Vermont; there was proof that Bob Marchand was living with Ann Curtis at the time. On July 17 there was a four minute phone call from Perkins’ number to Marchand’s. The next day, July 18, Perkins and Roy drove to Brattleboro, waited for a while at the Howard Johnson’s restaurant there, met Big Foot and another male, and then drove out into the country, where 180 pounds of marijuana were transferred from Big Foot’s car to Perkins’. On this date there were three phone calls to Ann Curtis’ number in Guilford which were billed to Perkins’ number in Waitsfield. The first, from Perkins’ home phone, lasted three minutes. The other two — each lasting not over one minute — were from Brattleboro, where Perkins and Roy met Big Foot for the marijuana transaction. Perkins and Roy were arrested later in the day when they tried to sell the marijuana to an undercover agent.
Roy refused to make any statement to the arresting officer, Agent Handoga of the Drug Enforcement Administration (DEA). Within two weeks after the arrest, Perkins gave Agent Handoga a description of the seller as “a six foot one, 220 pound man with blond hair”, aged between 25 and 30, and “big features”, defined to include “a big nose, big hands, broad shoulders”. About a month later, Perkins who had some ability as a portraitist, drew a sketch which was designed to be a picture of the marijuana supplier.
Agent Handoga testified at the suppression hearing later referred to that in August 1975 he had received information from an undisclosed source that Marchand was the supplier. Accordingly the Government sought an indictment of Marchand.
In September 1975 Perkins testified before a grand jury. He stated that “he found out [Big Foot’s] name was Bob Marc-hand,” Roy did not appear before this grand jury and it was discharged before the investigation was complete, without the filing of an indictment against Marchand.
On April 26, 1976 Perkins was shown fifteen photographs by Agent Handoga and was asked to pick two that most closely resembled the people he had seen at the time of the marijuana transaction. He first picked three and later narrowed his choices to two. One was a photo of Marchand. Perkins testified at the suppression hearing that he did not feel he was being encouraged or pressured to select the photograph that he did but was not certain that the individual depicted was the supplier. Roy, according to his testimony at the suppression hearing, was in Colorado during this period. On his return to Vermont he was served with a subpoena to appear before the grand jury. Immediately before his appearance on July 1, 1976, Roy arrived at the office of the United States Attorney in Burlington and went to a small interview room accompanied by Agent Handoga and Assistant United States Attorney O’Neill. Roy informed the agent that he had received the marijuana from someone named “Bob” or “Big Foot”. Agent Handoga showed Roy a series of 14 photographs. On his first and second viewings he selected a photograph of someone he thought to be Jim Hathaway of Burlington; he was told he was in error. On a third viewing Roy selected a photograph of Marchand but added “this picture looks funny.” The agent then produced a larger photograph of Marc-hand, interjecting “Oh, here’s a Bob, what about this one?” Roy responded that the larger photograph “looks similar”. The agent then said “Ah, that’s Marchand.”
In the afternoon Roy testified before the grand jury. We have already covered much of this testimony. Important additions were a statement that he had known the person with whom he and Perkins had communicated in order to buy the marijuana as “Bob” and a confirmation that he had selected the photograph of the person he believed to be Big Foot. After hearing Agent Handoga present his own observations and Perkins’ testimony before the earlier grand jury, the second grand jury returned an indictment against Marchand on July 22, 1976. An arrest warrant issued on the same day.
In the interval between Roy’s appearance and the indictment, Timothy S. Hillman, a Massachusetts assistant district attorney who was to be called as a defense witness at trial for a reason that will later appear, came to Vermont. Marchand was a “civil client”. Hillman had had “occasion to hear that photographs of [his] . . . client had been shown to the Grand Jury” in Vermont. After talking with Roy, Hill-man received “the impression that Victor had spoken to some people about an incident involving himself and some marijuana and that during the conversation he had had [sic] that Bob had been mentioned and the whole thing involved some sort of a transaction at the University of Massachusetts.” He had also received information that before testifying before the grand jury Roy had been shown pictures of Marchand and possibly of Ann. Hillman got “the impression . . that the whole transaction went down at the U. Mass. Bar but whether or not the transaction went down with Bob or that is what he told him. I don’t know . . ..” He communicated all this to Marchand, who asked what he should do; Hillman gave Marchand directions how to get to Roy’s house and “told him to get himself a darned good criminal lawyer and to get investigators sent up right away, because I believed that he was in trouble.”
Some time after this, Marchand departed for the Miami area in Florida. Apparently the Government knew that he had, for it sent a photograph of Marchand to the Dade County, Florida, police and Agent Handoga spoke on the telephone to Detective Adcock of the Dade County police about Marchand.
This led to the final episode. At 7:30 a. m. on August 24, 1976, Special Agent Harris of the DEA office in Miami, accompanied by DEA Special Agent McGlassius and two Dade County detectives, Adcock and Sadler, went to the apartment of Robert Higgins in Lauderhill, Florida, to arrest Higgins pursuant to a federal arrest warrant on charges of sale and distribution of marijuana and conspiracy to import marijuana. The group was joined by a uniformed Lauderhill police officer outside the apartment, which had been under surveillance. Higgins answered the door and was placed under arrest. He informed the officers that another person was in one of the bedrooms. Marchand emerged, wearing only a pair of pants. Agent Harris asked one or more of the officers to ascertain his identity and make sure he was not armed. Marchand was allowed to return to his bedroom to don a shirt and was told that, although not under arrest, he could not leave the apartment but should remain seated in the dining room. Meanwhile Agent Harris had gone with Higgins to the latter’s bedroom to watch him dress. While Harris was there, Detective Adcock advised him that Marchand was a fugitive from the District of Vermont. This conclusion was based on previous telephone conversations with Agent Handoga, prior observations of a photograph that had been sent to Miami, and inspection of a driver’s license she had extracted from a wallet lying on the apartment’s dining room table. Agent Harris further verified Marchand’s identity by calling Agent Handoga in Vermont and then made the arrest. In the course of the arrest, Harris searched Marchand and removed a small address book and various papers and written notes from a rear pants pocket. One of the notes related to Marc-hand’s conversation with Hillman; we reproduce this in the margin.
II. The Suppression Motion
Marchand moved to suppress the photographic identification by Perkins and Roy and the note seized at the time of his arrest. Chief Judge Holden conducted a hearing and made findings of fact, on which we have relied in the previous section, and conclusions of law.
The court denied the motion to suppress Perkins’ photographic identification, overruling objections that the array included bearded individuals, some with long hair, whereas the person outlined in Perkins’ sketch was clean-shaven with short hair, that the array included two photographs of Marchand, and that Marchand’s was one of only two large photographs in the array.
With respect to Roy’s identification, the judge found that Roy had made no positive identification of Marchand and also that his identification, “such as it was” was “infected by suggestion.” Accordingly he granted the motion to suppress the evidence.
The judge also denied the motion to suppress the note seized on Marchand’s arrest. Since we agree with his conclusion but not with his reasons, it is unnecessary to set out the latter.
III. The Trial
Perkins and Roy both testified to the marijuana transaction substantially as set forth in Part I of this opinion. Since there is no dispute that the transaction occurred, there is no need to repeat this.
Perkins testified to having given Agent Handoga the description of “Big Foot” set forth in Part I and supplemented this with a consistent description of the supplier as looking “very large. Very healthy. Very short hair, like a football player would look after he had been working out . [and dressed in] shorts or casual pants and T shirt” and tanned and unbearded. Over objection the Government introduced the sketch Perkins had drawn. Although testifying that he had been “trying to draw a picture of the person who gave [him] the marijuana,” cross-examination elicited a statement that he had testified at the suppression hearing “when I was drawing it I didn’t really feel that it was anything,” and further
In my mind, I, when I was sketching it I just sat there for the longest time and didn’t really know what to draw and that was just a — I just remember he was a great big, blond-haired guy and he just had big features. And I just drew a big-blond-haired, you know, male features.
He also acknowledged his earlier statement that he “didn’t have a terribly good memory of [Big Foot] at the time he made the sketch” and said that when he was drawing it he “just [sat] there with a blank and just like I just drew it” and that when he finished it he was not satisfied that it was a fair and accurate picture of Big Foot. The jury was not bound, as counsel seems to believe, to credit Perkins’ disclaimer as against the excellence of his sketch; indeed it could have drawn quite a different inference. Comparison of the sketch with the photograph later selected by Perkins makes it almost impossible to suppose that Perkins had never seen the subject of the photograph.
When asked to make an in-court identification, Perkins was unable to do this, perhaps for the reasons indicated in fn. 12, perhaps for others. He testified that two by-standers and Marchand who stood before him “resemble Bob, Big Foot in some way”; he thought there was “a good possibility” that if Big Foot were standing in front of him, he would be able to make an identification. The jury may have been more impressed by his slip of the tongue shortly thereafter when he was being cross-examined in regard to the sketch (App. p. 333):
Q. Now at the time you made it, you didn’t have a very clear vision in your mind of what this Big Foot looked like, did you?
A. I never really did, except now when he was standing in front of me and it was always a fairly nervous type of arrangement. (Emphasis supplied.)
We do not see how this can mean anything else than that the man “standing in front of” Perkins, namely, the defendant Marc-hand, was Big Foot.
Perkins admitted making the photographic identification but defense counsel brought out that the pictures were selected as being “closest” to his recollection and that he had made no positive identification. The court refused to give an instruction precluding the jury from relying on Perkins’ photographic identification as substantive evidence of Marchand’s guilt.
The prosecutor also asked Perkins if he could remember Big Foot’s phone number. When he could not, she gave Perkins the toll records for his phone for June and July 1975 to refresh his recollection. Perkins chose the number subsequently proved to be that of Ann Curtis and Bob Marchand, stating, “this could be it,” though he added on cross-examination that he could not be certain this was Big Foot’s number.
The prosecutor called Roy in an effort to secure an in-court identification. Roy didn’t see Big Foot in the courtroom although “there’s probably a number of people here that might look vaguely like him.” On cross-examination Roy picked out four people, including Marchand, all of whom “looked like this Big Foot” but added that Marchand “is not him.” The prosecutor referred to Roy’s grand jury testimony where he had named Marchand as the supplier. Instead of reading this, she proceeded, without objection as follows:
Q. And were you telling the truth to the Grand Jury that day?
A. Well, as I said before, I was misleading the Grand Jury to believe, influences,—
Q. Isn’t it a fact, Mr. Roy, that you led the Grand Jury to think that you could identify Robert MARCHAND as the person who supplied you with the marijuana?
A. I guess that is what it came down to.
Q. And is that true, Mr. Roy?
A. Is it true that I misled the Grand Jury to believe that—
Q. Is it true that that is what you did, yes.
A. I would say, yes.
After acknowledging that the defendant was a friend, Roy was further questioned along the same lines:
Q. And yet you led a Grand Jury to believe that this person — this friend of yours, was the one who supplied you with marijuana, is that right?
A. Yes, that’s what it came out to be.
The prosecutor also questioned Roy about who had accompanied Big Foot when Roy resumed acquaintance with him at a Brattleboro bar. Roy first answered “a girl. I really don’t know [her name] but it could have been ANN.” When pressed about his somewhat more positive testimony before the grand jury, he couldn’t recall whether Big Foot was with a girl, and admitted that he had misled the grand jury. More questioning added to the confusion: Roy had indeed seen Marchand with Ann and knew that they were friends and probably were living in the same house. This led to the following exchange:
Q. Do you recall that you testified in the grand jury that you saw Bob or Big Foot your supplier, with Ann?
A. That is the way the grand jury testimony reads.
Q. And is that the same Ann you know as a friend or companion of Mr. Marchand?
******
A. The Ann that I was referring to in there was.
Q. It was the same one?
A. (Nodding)
On cross-examination, Roy stated if there was a girl with Big Foot, he had never seen her with Marchand.
Agent Handoga testified with respect to Perkins’ photographic identification. He said that Perkins had been asked to identify the two persons who had sold the marijuana, not the two photos that looked “most like” them.
The Government concluded its case with the testimony of Agent Harris as to the note seized from Marchand at the time of his arrest. The defense case was limited to the testimony of Hillman seeking to explain this.
We shall defer to Part IV of this opinion a description of the prosecutor’s summation and the charge and of defendant’s points about them.
After returning to the courtroom with a request to hear Roy's testimony, the jury brought in a verdict of guilty.
IV. The Refusal to Suppress the Note Seized on Marchand’s Arrest
We shall deal first with Marchand’s claim that seizure from his person at the time of his arrest of the note relating to Hillman’s meeting with Roy violated his rights under the Fourth Amendment since this issue is separable and, if defendant were right, a new trial would be required. If Marchand’s arrest was legal, the search of his pants was likewise so. As said in United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973):
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
However, counsel stoutly contends that the arrest was illegal since it was based on the driver’s license which Detective Adcock had obtained in the course of an unlawful search of the wallet that Marchand had left on Higgins’ dining room table.
If the arrest stemmed solely from the discovery of Marchand’s name on the driver’s license, we would be constrained to agree, particularly in light of the decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), rendered after this case was argued. But it did not. The trial court found that “Detective Adcock recognized the defendant from having seen his photograph” and that “She also recognized the defendant’s name” which she apparently had obtained from the driver’s license.
A preliminary point should be cleared up before we proceed further. In a letter submitted after the argument, defense counsel raised the claim that the photograph to. which the trial judge referred was on the driver’s license. The finding is not worded that way and the testimony of Agent Harris was that Detective Adcock “stated she had seen a picture of this person before. (emphasis supplied). Further, there was no evidence that there was a picture on Marchand’s driver’s license. However, there was evidence, already mentioned, that a photograph had been sent to Detective Adcock, “a specially trained, assigned and experienced officer,” Manson v. Brathwaite, supra, 432 U.S. at 115, 97 S.Ct. at 2253, and the judge permissibly found that she had seen this before the visit to Higgins’ apartment.
We have no doubt that the photograph constituted probable cause for arrest without the reinforcement afforded by the discovery of Marchand’s name. Here there was no need for the arresting officers to determine whether there was probable cause to believe that a crime had been committed and that a particular individual had committed it; that role had been performed by the indictment, Sciortino v. Zampa no, 385 F.2d 132 (2 Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968). All that was required was probable cause to believe that the defendant was the subject of the Vermont indictment. Recognition of a photograph sent by the law enforcement officers from Vermont, supplemented by the discovery of the defendant living in the home of- a Florida marijuana dealer, afforded such cause.
We thus face the question whether an arrest that would have been legal if effected on these bases alone became illegal because Detective Adcock improperly extracted Marchand’s driver’s license from the wallet lying on the dining room table, thereby learning his name and gaining added assurance. While we have found no federal authority squarely on this, we see no significant distinction between the question here presented and that arising where both legally and illegally obtained evidence have been offered to obtain a search warrant. The validity of the warrant was upheld under such circumstances in the leading case of James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150 (1969). There an officer responded to a report that several men were engaged in mechanical work on a car parked in a public street. When the officer arrived on the scene, he saw the men at work on one of two cars in the street and a third car in a garage, though a man in the garage shut the door quickly on perceiving the officer. When the officer returned four days later, the garage door was open. The new car he had seen there was almost completely stripped. The officer entered the garage and copied down the rear license plate number. A check revealed that the vehicle was stolen, and a search warrant for the garage was obtained. Judge Leventhal found that the action of the man in closing the garage door quickly upon the officer’s first visit, and the officer’s subsequent observation of a new car completely stripped — valid under the plain view doctrine — provided probable cause for a search of the garage irrespective of the further information gathered during the officer’s illegal entry. The court then stated:
When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. Wong Sun v. United States, [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441], in announcing the “fruit of the poisonous tree” doctrine, limited the exclusionary rule to evidence which the police could not trace to some “independent” and lawful source. While the Supreme Court has not specifically had occasion to consider whether this doctrine is applicable to a search warrant that issues on the basis of an affidavit setting forth information both lawfully and unlawfully obtained, other circuits have applied the “independent source” test. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admitted. 418 F.2d at 1151-52 (footnotes omitted).
This circuit had an early encounter with the problem in Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2 Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541 (1942). There, certain auto parts alleged to have been stolen from Ford Motor Co. had been ordered returned as illegally seized, see Weinberg v. United States, 126 F.2d 1004 (2 Cir. 1942). Before they were returned, FBI agents gave Ford a detailed list of the property seized. Ford replevined the property, which was seized by a New York deputy sheriff and stored in a warehouse. The Assistant U. S. Attorney thereupon visited the warehouse, examined the parts, and subsequently obtained a search warrant, which was executed before Parts Mfg. Co. could retake the goods. It moved that the FBI special agent be required to return the goods because the search was based on information obtained as a result of the illegal first search. Judge Clark found that the Government had sufficient information, independent of any that was obtained illegally, to validate the search warrant. He stated further “Actual examination of the property in the warehouse . . . simply confirmed what affiants already had reasonable cause to believe would be found.” Id. at 843. Such confirmation did not dictate return of the evidence.
We discussed the taint problem more recently in United States v. Capra, 501 F.2d 267 (2 Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975), in the context of a warrantless search. There, the district court upheld such a search of the defendant’s car on the grounds that one of the federal agents knew of defendant’s pri- or use of his car for narcotics transactions and therefore had probable cause to believe that the car was carrying contraband. We noted that even if this agent’s knowledge of defendant’s uses of his car was derived from an illegal wiretap sixteen months before, another agent present at the search had knowledge of defendant’s activities as a narcotics deliveryman that had been legally obtained from an informant, and held that such knowledge was sufficient to sustain a finding of probable cause. Id. at 280 n.12.
Other circuits have held squarely that the presence of illegal evidence in affidavits presented for a search warrant does not prevent a finding of probable cause sustainable on other grounds. See United States v. Sterling, 369 F.2d 799, 802 (3 Cir. 1966) (“[T]he law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources.”); United States v. Tarrant, 460 F.2d 701, 703-04 (5 Cir. 1972) (where legally obtained information established probable cause, the court need not consider attacks on the legality or sufficiency of other allegations in the affidavits); United States v. Koonce, 485 F.2d 374, 379 (8 Cir. 1973) (where affidavit by one officer cited statements of two informants that defendant possessed a stolen boat and indicated the location of the boat from defendant’s grand jury testimony, the court need not reach questions raised by search conducted by another officer); Chin Kay v. United States, 311 F.2d 317, 321-22 (9 Cir. 1962) (unnecessary to consider attacks on two paragraphs of affidavit since others sufficient to establish probable cause); Howell v. Cupp, 427 F.2d 36, 38 (9 Cir. 1970) (officer’s finding stolen property in defendant’s front seat provided probable cause for warrant to search trunk, not invalidated by previous illegal search of trunk which informed officers of the contents). Insofar as contrary dicta of the Sixth Circuit in United States v. Langley, 466 F.2d 27, 35 (1972), and United States v. Nelson, 459 F.2d 884, 889 (1972), may not be distinguishable as Mr. Justice Powell has thought them to be, see United States v. Giordano, 416 U.S. 505, 556 n.6, 94 S.Ct. 1820, 40 L.Ed.2d 341 (dissenting opinion), we continue to adhere to the majority view.
It is true, of course, that if the sole guiding beacon in a Fourth Amendment case were the maximization of deterrence, all evidence obtained by illegal means in any significant part would have to be suppressed, even though there was a sufficient lawful basis for securing it. But the Supreme Court’s decisions on other points of Fourth Amendment law demonstrate that it is not disposed to tilt the balance that far. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). On the basis of the attitude embodied in such decisions, the precedents here reviewed, and our own belief that a violation of the Fourth Amendment should not require exclusion of evidence that was obtainable without it, we uphold the denial of the motion to suppress the note found on Marchand in a search incident to what we consider to have been a lawful arrest.
Y. Alleged Trial Errors
(1) Alleged errors concerning Perkins’ pre-trial photographic identification and sketch.
Appellant mounts a number of attacks relating to Perkins’ photographic identification.
His first claim is that the array was impermissibly suggestive because “the neutral effect of multiple numbers was totally undercut by the fact that Marchand’s picture was the only one which recurred and that of the two large photographs his was the only one of a light-haired man.” (Brief, p. 52). The defense also criticizes the nine months delay in presenting the array, and the use of a photograph display rather than a lineup. We are not persuaded by any of these points. The small photograph of Marchand was somewhat marred by glare; also the larger photograph seems to depict him at a later age. See fn. 6 supra. Indeed, the photographs were sufficiently different to cause Perkins to select only one. Under such circumstances, over-representation of a defendant in the array does not make the procedure impermissibly suggestive, let alone give rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). In Simmons, the Court allowed in-court identifications based on a showing of at least six photos, primarily group photographs, with the defendant appearing several times. See United States v. Falange, 426 F.2d 930, 935 (2 Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 149, 27 L.Ed.2d 144 (1970) (inclusion of three photographs of defendant, taken years apart and at different angles, in an array of 16 pictures was not a denial of due process); United States v. Cunningham, 423 F.2d 1269, 1271-73 (4 Cir. 1970) (admission of testimony concerning photographic identifications was not impermissibly suggestive although seven of 14 photographs were of appellants, and the only color photographs were of appellants and a codefendant).
The differences of hair and skin col- or noted by Marchand were not of great significance since all but three of the pictures were on black and white film. Nor did the differences in size of the pictures cause impermissible suggestiveness. As we have recently said:
The due process clause does not require law enforcement officers to scour about for a selection of photographs so similar in their subject matter and composition as to make subconscious influences on witnesses an objective impossibility.
United States v. Bubar, 567 F.2d 192, - (2 Cir. 1977). See United States v. Magnotti, 454 F.2d 1140 (2 Cir. 1972) (full-view photograph of defendant in array with seven mug shots did not give rise to impermissible suggestion); United States v. Harrison, 460 F.2d 270 (2 Cir.), cert. denied, 409 U.S. 862, 93 S.Ct. 152, 34 L.Ed.2d
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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sc_casesource
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029
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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.
DENVER UNION STOCK YARD CO. v. PRODUCERS LIVESTOCK MARKETING ASSOCIATION.
No. 106.
Argued March 10, 1958.
Decided April 28, 1958.
Ashley Sellers argued the cause for petitioner in No. 106. With him on the brief were Winston S. Howard, Albert L. Reeves, Jr., John D. Conner and Jesse E. Baskette.
Neil Brooks argued the cause for petitioner in No. 118. With him on the brief were Robert L. Farrington and Donald A. Campbell.
Hadlond P. Thomas argued the cause and filed a brief for respondent.
Frederic P. Lee filed a brief for the American Stock Yards Association, as amicus curiae, urging reversal in No. 118.
Briefs of amici curiae urging affirmance were filed in No. 118 by George E. Merker, Jr. for the National Live Stock Producers Association, William G. Davisson for the Oklahoma Livestock Marketing Association et al., and Allen Lauterbach for the American Farm Bureau Federation.
Together with No. 118, Benson, Secretary of Agriculture, v. Producers Livestock Marketing Association, also on certiorari to the same Court.
Mr. Justice Douglas
delivered the opinion of the Court.
This litigation started with a complaint filed by respondent, a market agency at the Denver Union stockyard, with the Secretary of Agriculture, alleging that certain Regulations issued by Denver Union Stock Yard Company are invalid under the Packers and Stockyards Act, 42 Stat. 159, as amended, 7 U. S. C. § 181 et seq. The Regulations complained of provide:
“No market agency or dealer engaging in business at this Stockyard shall, upon Stock Yard Company property, or elsewhere, nor shall any other person upon Stock Yard Company property—
“(1) Solicit any business for other markets, for sale at outside feed yards or at country points, or endeavor to secure customers to sell or purchase livestock elsewhere; or
“(2) In any manner divert or attempt to divert livestock from this market which would otherwise normally come to this Stock Yard; or
“(3) Engage in any practice or device which would impair or interfere with the normal flow of livestock to the public market at this Stockyard.”
The complaint was entertained; and the Stock Yard Company admitted that it issued the Regulations and alleged that they were necessary to enable it “to furnish, upon reasonable request, without discrimination, reasonable stockyard services . . . and to enable the patrons of the Denver Union Stockyards to secure, upon reasonable request, without discrimination, reasonable stockyard services . . . .” The prayer in the answer was that the Stock Yard Company be granted an oral hearing and that the complaint be dismissed. Thereafter the Stock Yard Company filed a motion to require respondent to produce for examination certain books and records. Respondent opposed the motion, electing to stand upon the illegality of the Regulations as a matter of law. The Examiner certified the question to the Judicial Officer for decision, recommending that the proceeding be dismissed. The Judicial Officer dismissed the complaint, holding that he could not find the Regulations invalid on their face. 15 Agr. Dec. 638. The Court of Appeals reversed, holding that the Regulations are an unlawful restriction on the statutory rights and duties of stockyards and market agencies under the Act. 241 F. 2d 192. It remanded the case to the Secretary of Agriculture with directions to issue a cease and desist order against the issuance or enforcement of the Regulations. The case is here by certiorari which we granted in view of the public importance of the issue raised. 353 U. S. 982.
The Act defines “market agency” as “any person engaged in the business of (1) buying or selling in commerce live stock at a stockyard on a commission basis or (2) furnishing stockyard services.” § 301 (c). The Act also provides that “no person shall carry on the business of a market agency ... at such stockyard unless he has registered with the Secretary . . . .” § 303. Respondent is registered not only with the Denver Union Stock Yard Co. but with other stockyards as well. One impact of the Regulations on respondent is therefore clear: having registered with this Stock Yard Company it may not, in the “normal marketing area” of the Denver yard (which is defined in the Regulations to embrace a vast area in Colorado ), solicit business for, or divert it to, other markets. The market agency registered with the Denver Stock Yard Co. must, while working in the “normal marketing area” of that yard, solicit or do business exclusively for it and for none of the other stockyards with which it is registered.
Yet § 304 of the Act makes it “the duty” of every market agency “to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.” Section 301 (b) defines stockyard services to mean “services or facilities furnished at a stockyard in connection with the receiving, buying or selling on a commission basis or otherwise, marketing, feeding, watering, holding, delivery, shipment, weighing, or handling, in commerce, of live stock.” And § 307 prohibits and declares unlawful “every unjust, unreasonable, or discriminatory regulation or practice.”
The words “at such stockyard” as used in § 304 obviously mean, as applied to a “market agency,” every stockyard where that “market agency” is registered. From the Act it seems plain, therefore, that the duty of respondent would be to furnish a producer in the Denver area stockyard service at Kansas City, if the producer so desired. Stockyards and market agencies are made public utilities by the Act. Stafford v. Wallace, 258 U. S. 495, 516; Swift & Co. v. United States, 316 U. S. 216, 232. Their duty is to serve all, impartially and without discrimination. The Regulations bar both the market agency and the stockyard from performing their statutory duty. A market agency registered with Denver could not by force of the challenged Regulations furnish producers in the Denver area stockyard services at Kansas City or at any other stockyard where the agency is also registered. The conflict seems clear and obvious; and no evidence could make it clearer. The case is as simple to us as that of a utility that refuses to sell any power to a customer if the customer buys any power from a competitor; as clear as an attempt by a carrier by rail to deny service to one who ships by truck. Cf. Northern Pacific R. Co. v. United States, 356 U. S. 1; International Salt Co. v. United States, 332 U. S. 392.
When an Act condemns a practice that is “unfair” or “unreasonable,” evidence is normally necessary to determine whether a practice, rule, or regulation transcends the bounds. See Associated Press v. Labor Board, 301 U. S. 103; Chicago Board of Trade v. United States, 246 U. S. 231; Sugar Institute v. United States, 297 U. S. 553. But where an Act defines a duty in explicit terms, a hearing on the question of statutory construction is often all that is needed. See Securities and Exchange Comm’n v. Ralston Purina Co., 346 U. S. 119 (public offering); Addison v. Holly Hill Co., 322 U. S. 607 (area of production). It is, of course, true that § 310 of the Act provides for a “full hearing” on a complaint against a “regulation” of a stockyard. That was also true of the Act involved in United States v. Storer Broadcasting Co., 351 U. S. 192. But we observed in that case that we never presume that Congress intended an agency “to waste time on applications that do not state a valid basis for a hearing.” Id., at 205.
The critical statutory words in the present ease are from § 304 providing, “It shall be the duty of every stockyard owner and market agency to furnish upon reasonable request, without discrimination, reasonable stockyard services at such stockyard.” The Secretary’s emphasis in the argument was on the words “reasonable stockyard services.” By analogy to the antitrust cases, a case is built for fact findings essential to a determination of what is “reasonable.” See Standard Oil Co. v. United States, 221 U. S. 1; Chicago Board of Trade v. United States, supra. Certainly an evidentiary hearing would be necessary if, for example, a method of handling livestock at a particular stockyard was challenged as unreasonable. See Morgan v. United States, 298 U. S. 468; Morgan v. United States, 304 U. S. 1; United States v. Morgan, 307 U. S. 183. But that argument is misapplied here. It misconceives the thrust of the present Regulations, which are aimed at keeping market agencies registered at Denver from doing business for producers, who are in the “normal marketing area” of the Denver yard, at any other market. These Regulations bar them from rendering, not some stockyard services at the other yards, but any and all other stockyard services for those producers, except at Denver. “No” stockyard services cannot possibly be equated with “reasonable” stockyard services under this Act.
The argument contra is premised on the theory that stockyard owners, like feudal barons of old, can divide up the country, set the bounds of their domain, establish “no trespassing” signs, and make market agencies registering with them their exclusive agents. The institution of the exclusive agency is, of course, well known in the law; and the legal problem here would be quite different if the Act envisaged stockyards as strictly private enterprise. But, as noted, Congress planned differently. The Senate Report proclaimed that these “great public markets” are “public utilities.” S. Rep. No. 39, 67th Cong., 1st Sess. 7. The House Report, in the same vein, placed this regulation of the stockyards on a par with the regulation of the railroads. H. R. Rep. No. 77, 67th Cong., 1st Sess. 10. It was against this background that Chief Justice Taft wrote in Stafford v. Wallace, supra, at 514:
“The object to be secured by the act is the free and unburdened flow of live stock from the ranges and farms of the West and the Southwest through the great stockyards and slaughtering centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still as live stock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market.”
He went on to say that the Act treats the stockyards “as great national public utilities,” id., at 516. His opinion echoes and re-echoes with the fear of monopoly in this field.
We are told, however, that the economics of the business has changed, that while at the passage of the Act most livestock purchases were at these stockyards, now a substantial portion — about 40 percent, it is said — takes place at private livestock markets such as feed yards and country points. From this it is argued that the present Regulation is needed to keep the business in the public markets, where there is regulation and competition, and out of the private markets where there is no competitive bidding and regulation. If the Act does not fit the present economics of the business, a problem is presented for the Congress. Though our preference were for monopoly and against competition, we should “guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194.
We take the Act as written. As written, it is aimed at all monopoly practices, of which discrimination is one. When Chief Justice Taft wrote of the aim of the Act in terms of the ends of a monopoly, he wrote faithfully to the legislative history. The Senate Report, supra, at 7, stated “It has been demonstrated beyond question that the history of the development of this industry has been the history of one effort after another to set up monopoly.” The present Regulations, it seems, have had a long ancestry.
Affirmed.
The Regulation goes on to state the applicability of the foregoing provisions.
“The normal marketing area from which livestock would normally come to the public market at this Stockyard, and which is the area to which this subdivision (c) shall apply, is defined as all of the state of Colorado except that part listed as follows:
“The area lying east of the line beginning with the westerly boundary of the County of Sedgwick where it intersects the Nebraska state line; thence south along the county line of Sedgwick and Phillips counties; thence west and south along the western boundary of Yuma county to its intersection with U. S. Highway 36; thence west to Cope and south along Colorado Highway 59 to Eads, Colorado; thence westerly along Highway 96 to Ordway; thence south on Highway 71 to Timpas; thence southwesterly via Highway 350 to Trinidad; thence south to New Mexico state line.
“The provisions of paragraph (e) do not apply on livestock solely used for breeding purposes.”
The authority of the Judicial Officer was delegated by the Secretary of Agriculture (10 Fed. Reg. 13769; 11 Fed. Reg. 177A-233; 18 Fed. Reg. 3219, 3648; 19 Fed. Reg. 11) pursuant to the Act of April 4, 1940, 54 Stat. 81, 5 U. S. C. § 516a et seq.
The Court of Appeals had jurisdiction to review the case under 64 Stat. 1129, 5 U. S. C. § 1032.
For the definition of the “normal marketing area” see note 1, supra.
Whether the Regulations as applied to “dealers” are valid is a question we do not reach.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Henry Grady YOUNG, Jr., Appellant.
No. 77-1346.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 12, 1977.
Decided Jan. 11, 1978.
Michael P. Shea, St. Charles, Mo., argued and filed brief, for appellant.
Stephen B. Higgins, Asst. U. S. Atty. (argued), and Barry A. Short (former U. S. Atty.), St. Louis, Mo., filed brief, for appellee.
Before LAY, BRIGHT, and HENLEY, Circuit Judges.
BRIGHT, Circuit Judge.
Henry Grady Young, Jr., appeals his conviction under 18 U.S.C. § 659 (1970) for knowing possession of property stolen from an interstate shipment. He argues that the district court erred in overruling his motion for acquittal at the close of the Government’s case. We affirm.
At approximately 9:30 p. m. on February 2, 1977, police officer Arthur Williams was investigating a tractor-trailer unit suspiciously parked on a St. Louis street. As he approached the scene in his unmarked police car, he observed appellant Young standing on a nearby corner. Young, upon seeing the car approaching, immediately ran down the sidewalk past a Chevrolet automobile parked approximately thirty feet away from the trailer, slamming the trunk shut as he ran by. Before the trunk was closed, Williams observed two large cardboard boxes inside. Williams apprehended both Young and Nathaniel Franklin, who was standing in the rear of the trailer. A search of the Chevrolet trunk revealed two cartons, each containing four Panasonic Citizens Band AM/FM radios. Further investigation disclosed that the radios had been removed from the tractor-trailer, that Franklin owned the Chevrolet, and that Franklin and Young had spent the evening together. Young and Franklin were tried together and convicted by a jury.
On appeal, Young argues that the Government’s evidence was insufficient to sustain the “possession” element of the charge against him. He further argues that for purposes of this appeal we should consider only the evidence presented by the Government in its case in chief.
The law is to the contrary. In deciding whether the Government’s evidence is sufficient to withstand a motion for acquittal, this court may examine the record as a whole, including evidence put on by the defendant. United States v. Davis, 542 F.2d 743, 746 (8th Cir.), cert. denied, 429 U.S. 1004, 97 S.Ct. 537, 50 L.Ed.2d 616 (1976); United States v. Geelan, 509 F.2d 737, 742 (8th Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975). A conviction can rest solely on circumstantial evidence, which is intrinsically as probative as direct evidence. United States v. Lambros, 564 F.2d 26 (8th Cir. 1977); United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977).
The evidence, viewed as a whole, was sufficient to warrant a verdict of guilty. The jury could reasonably infer from Young’s running to the vehicle and closing the lid that he exercised joint possession of the car and the stolen merchandise. Young’s testimony at trial that he had spent the evening with Franklin was inconsistent with his earlier statements to F.B.I. agents, a fact the jury could have considered in judging Young’s credibility.
We affirm the conviction.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Morris J. MEYER, Petitioner v. UNITED STATES of America and Ezra Taft Benson, Secretary of Agriculture of the United States, Respondents.
No. 10892.
United States Court of Appeals Seventh Circuit.
March 8, 1954.
Writ of Certiorari Denied June 7, 1954.
See 74 S.Ct. 872.
John J. Toohey, Chicago, Ill., for peuyoner
J. Stephen Doyle, Jr., Sp. Asst, to Atty. Gen., Neil Brooks, Associate Sol., Donald Campbell, Atty., U. S. Department of Agriculture, Washington, D. C, Gilbert A. Horn, U. S. Department of Agriculture, Chicago, Ill., for respondent.
Before DUFFY, LINDLEY and SWAIM, Circuit Judges. .
PER CURIAM.
Petitioner seeks a review of an order of the Judicial officer of the s. De. partment of Agriculture acting for the Secretary of Agriculture, suspending petitioner’s registration under the Packers and stockyards Act, 7 U.S.C.A. § 181 et seq., as a dealer in livestock in the Union Stockyards, Chicago, Illinois.
The issues here involved are identical to those decided by this court in Celia v. United States of America, 7 Cir., 208 F. 2d 783. Based upon the authority of our decision in the Celia case, the order here-in of the Judicial Officer, acting for the Secretary of Agriculture, is
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
Ferrari S.P.A. ESERCIZIO Fabriche Automobili E Corse, Plaintiff-Appellee, v. Carl ROBERTS, d/b/a Roberts Motor Company, Defendant-Appellant.
No. 90-5734.
United States Court of Appeals, Sixth Circuit.
Argued March 25, 1991.
Decided Sept. 5, 1991.
Ed E. Williams, III, Robert D. Van de Vuurst, Baker, Worthington, Crossley, Stansberry & Woolf, Johnson City, Tenn., Albert Robin, Jonathan I. Blackman (argued), Lawrence B. Friedman (briefed), Cleary, Gottlieb, Steen & Hamilton, New York City, for plaintiff-appellee.
W.F. Shumate (argued and briefed). Bobby Bishop, Jr., Steven K. Bowling, Richard S. Wirtz, Knoxville, Tenn., for defendant-appellant.
Before KENNEDY and RYAN, Circuit Judges, and FEIKENS, Senior District Judge.
The Honorable John Feikens, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
RYAN, Circuit Judge.
This is a trademark infringement action brought pursuant to the Lanham Act, 15 U.S.C. § 1051, et seq. The principal issue is whether the district court correctly concluded that plaintiff Ferrari enjoyed unregistered trademark protection in the exterior shape and appearance of two of its automobiles and, if so, whether defendant Roberts’ replicas of Ferrari’s designs infringed that protection, in violation of section 43(a) of the Lanham Act. More narrowly focused, the issues are:
—Whether Ferrari’s automobile designs have acquired secondary meaning;
—Whether there is a likelihood of confusion between Ferrari’s cars and Roberts’ replicas;
—Whether the appropriated features of Ferrari’s designs are nonfunctional; and
—Whether the injunction granted by the district court is excessively broad.
We must also decide whether the district court, 739 F.Supp. 1138, properly rejected Roberts’ request for a jury trial.
We hold that the district court properly decided all of the issues and, therefore, we shall affirm.
I.
The Facts
Ferrari is the world famous designer and manufacturer of racing automobiles and upscale sports cars. Between 1969 and 1973, Ferrari produced the 365 GTB/4 Day-tona. Because Ferrari intentionally limits production of its cars in order to create an image of exclusivity, only 1400 Daytonas were built; of these, only 100 were originally built as Spyders, soft-top convertibles. Daytona Spyders currently sell for one to two million dollars. Although Ferrari no longer makes Daytona Spyders, they have continuously produced mechanical parts and body panels, and provided repair service for the cars.
Ferrari began producing a car called the Testarossa in 1984. To date, Ferrari has produced approximately 5000 Testarossas. Production of these cars is also intentionally limited to preserve exclusivity: the entire anticipated production is sold out for the next several years and the waiting period to purchase a Testarossa is approximately five years. A new Testarossa sells for approximately $230,000.
Roberts is engaged in a number of business ventures related to the automobile industry. One enterprise is the manufacture of fiberglass kits that replicate the exterior features of Ferrari’s Daytona Spy-der and Testarossa automobiles. Roberts’ copies are called the Miami Spyder and the Miami Coupe, respectively. The kit is a one-piece body shell molded from reinforced fiberglass. It is usually bolted onto the undercarriage of another automobile such as a Chevrolet Corvette or a Pontiac Fiero, called the donor car. Roberts marketed the Miami Spyder primarily through advertising in kit-car magazines. Most of the replicas were sold as kits for about $8,500, although a fully accessorized “turnkey” version was available for about $50,-000.
At the time of trial, Roberts had not yet completed a kit-car version of the Miami Coupe, the replica of Ferrari’s Testarossa, although he already has two orders for them. He originally built the Miami Coupe for the producers of the television program “Miami Vice” to be used as a stunt car in place of the more expensive Ferrari Testa-rossa.
The district court found, and it is not disputed, that Ferrari’s automobiles and Roberts’ replicas are virtually identical in appearance.
Ferrari brought suit against Roberts in March 1988 alleging trademark infringement, in violation of section 43(a) of the Lanham Act, and obtained a preliminary injunction enjoining Roberts from manufacturing the replica cars. The injunction was later amended to permit Roberts to recommence production of the two models.
Five months later, Roberts filed a voluntary petition in bankruptcy. Despite the Chapter 11 proceedings, the bankruptcy court, in a carefully limited order, lifted the automatic stay and permitted Ferrari to continue to prosecute this action. Prior to trial, the district court denied Roberts’ request for a jury, and the case was tried to the court resulting in a verdict for Ferrari and a permanent injunction enjoining Roberts from producing the Miami Spyder and the Miami Coupe.
II.
Section 43(a) of the Lanham Act creates a civil cause of action for trademark infringement. In relevant part, section 43(a) provides:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(1) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ....
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
The protection against infringement provided by section 43(a) is not limited to “goods, services or commercial activities” protected by registered trademarks. It extends as well, in certain circumstances, to the unregistered “trade dress” of an article. “Trade dress” refers to “the image and overall appearance of a product.” Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806, 812 (5th Cir.1989). It embodies “that arrangement of identifying characteristics or decorations connected with a product, whether by packaging or otherwise, intended to make the source of the product distinguishable from another and to promote its sale.” Mr. Gasket Co. v. Travis, 35 Ohio App.2d 65, 72 n. 13, 299 N.E.2d 906, 912 n. 13 (1973).
Ferrari’s Lanham Act claim in this case is a “trade dress” claim. Ferrari charges, and the district court found, that the unique and distinctive exterior shape and design of the Daytona Spyder and the Tes-tarossa are protected trade dress which Roberts has infringed by copying them and marketing his replicas.
Roberts asserts that there has been no infringement under section 43(a) for a number of reasons: (1) the design of Ferrari’s vehicles are protected only under design patent law, see 35 U.S.C. § 171, and not the Lanham Act; (2) there is no actionable likelihood of confusion between Ferrari’s vehicles and Roberts’ replicas at the point of sale; and (3) the “aesthetic functionality doctrine” precludes recovery.
We shall take up each argument in turn.
III.
To prove a violation of section 43(a), Ferrari’s burden is to show, by a preponderance of the evidence:
1) that the trade dress of Ferrari’s vehicles has acquired a “secondary meaning,”
2) that there is a likelihood of confusion based on the similarity of the exterior shape and design of Ferrari’s vehicles and Roberts’ replicas, and
3) that the appropriated features of Ferrari's trade dress are primarily nonfunctional.
See Kwik-Site Corp. v. Clear View Mfg. Co., Inc., 758 F.2d 167, 178 (6th Cir.1985).
A.
Secondary Meaning
To acquire a secondary meaning in the minds of the buying public, an article of merchandise when shown to a prospective customer must prompt the affirmation, “That is the article I want because I know its source,” and not the negative inquiry as to “Who makes that article?” In other words, the article must proclaim its identification with its source, and not simply stimulate inquiry about it.
West Point Mfg. Co. v. Detroit Stamping Co., 222 F.2d 581, 595 (6th Cir.) (citation omitted), cert. denied, 350 U.S. 840, 76 S.Ct. 80, 100 L.Ed. 749 (1955). Arguably, secondary meaning in this case can be presumed from Roberts’ admissions that he intentionally copied Ferrari’s designs. Roberts told Vivian Bumgardner, an investigator who recorded her conversations with Roberts, that “we put this whole body right on it and it looks just like a real car, I mean they can’t tell by looking.... We build and sell the same car, reproduce it.” The intent to copy was also shown by Roberts’ use of the distinctive Ferrari prancing horse logo on the front parking lights of the Daytona Spyder and in advertising brochures. The original Miami Coupe brochure even copied the Ferrari name by referring to the Roberts’ car as the “Miami Testarossa.” The evidence of intentional copying shows the strong secondary meaning of the Ferrari designs because “[tjhere is no logical reason for the precise copying save an attempt to realize upon a secondary meaning that is in existence.” Audio Fidelity, Inc. v. High Fidelity Recordings, Inc., 283 F.2d 551, 558 (9th Cir.1960).
Ferrari, however, need not rely on a presumption of secondary meaning because the evidence at trial showed that the exteri- or design of Ferrari’s vehicles enjoyed strong secondary meaning. Lawrence Crane, Art Director of Automobile magazine, testified that the shape of a Ferrari “says Ferrari to the general populous (sic)” and that “because it’s so instantly recognizable ... we’ve used even just portions of Ferraris, the Testarossa, for instance, and people recognize it, and our sales are changed.” William Moore, Editor of Kit Car Illustrated, and a witness for Roberts, conceded that car replica manufacturers frequently copy Ferraris because the “special image” associated with Ferrari creates a market for cars which look like Ferraris. The testimony of Crane and Moore was supported by survey data which indicated that of survey respondents shown photographs of Ferrari’s cars without identifying badges, 73% properly identified a photograph of Daytona Spyder as manufactured by Ferrari and 82% identified the Testarossa as a Ferrari product. Such survey evidence, combined with intentional copying and the widespread publicity surrounding Ferraris, convinced the court in a separate action brought by Ferrari against Roberts’ former partner to enjoin him from producing replicas of the Daytona Spyder identical to those produced by Roberts, that the Ferrari vehicle design has a secondary meaning:
In light of defendants’ close intentional copying, their failure to introduce any evidence to show that such copying was for any purpose but to associate themselves with the reputation and marketability of the Ferrari DAYTONA SPY-DER, the large amount of recognition of said design with Ferrari shown in continuous magazine articles and books about the DAYTONA SPYDER long after the cessation of its manufacture, the showings of the Ferrari DAYTONA SPYDER at vintage car shows, the highly publicized sales of said car by Ferrari customers, and the percentages of recognition in both the plaintiff’s and the defendants’ surveys, ... the court finds the evidence thorough and convincing that the Ferrari DAYTONA SPYDER design has achieved a strong secondary meaning.
Ferrari S.P.A. v. McBurnie, 11 U.S.P.Q.2d 1843, 1846-47 (S.D.Cal.1989).
Ferrari’s vehicles would not acquire secondary meaning merely because they are unique designs or because they are aesthetically beautiful. The design must be one that is instantly identified in the mind of the informed viewer as a Ferrari design. The district court found, and we agree, that the unique exterior design and shape of the Ferrari vehicles are their “mark” or “trade dress” which distinguish the vehicles’ exterior shapes not simply as distinctively attractive designs, but as Ferrari creations.
We also agree with the district court that Roberts’ admission that he intentionally copied Ferrari’s design, the survey evidence introduced by Ferrari, and the testimony of Crane and Moore amount to abundant evidence that the exterior design features of the Ferrari vehicles are “trade dress” which have acquired secondary meaning.
Roberts argues strongly that section 43(a) provides no trademark infringement protection for the exterior design of a product because “automobile designs are to be protected from copying only pursuant to the design patent statute,” and Ferrari, during the period relevant to this case, had not protected the Daytona Spyder or the Testarossa with a design patent. We disagree.
Courts have consistently rejected Roberts’ argument that the availability of design patent protection precludes applicability of the Lanham Act for products whose trade dress have acquired strong secondary meaning. Actionable harm results from either infringing a design patent or copying a product with secondary meaning. Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 466 (2d Cir.), cert. denied, 350 U.S. 832, 76 S.Ct. 67, 100 L.Ed. 743 (1955). See also Audio Fidelity, 283 F.2d at 555. As the court explained in Rolls-Royce Motors, Ltd. v. A & A Fiberglass, Inc., 428 F.Supp. 689, 692-93 (N.D.Ga.1977):
There is no doubt that the plaintiffs’ Classic Grill and Flying Lady are attractive objects. As such, they may be deserving of copyright or design patent protection. Their entitlement to trademark recognition, however, depends not on their eye appeal but on their characteristic of identifying the manufacturer of Rolls-Royce motor cars.
Likewise, the distinctive appearance of a Ferrari’s exterior shape, as evidenced at trial by surveys and the testimony of car magazine editors and others, entitles Ferrari to Lanham Act protection. This trademark protection does not unduly extend the seventeen-year monopoly guaranteed by the patent laws because the two sources of protection are totally separate:
[TJrademark rights, or rights under the law of unfair competition, which happen to continue beyond the expiration of a design patent, do not “extend” the patent monopoly. They exist independently of it, under different law and for different reasons. The termination of either has no legal effect on the continuance of the other.
Application of Mogen David Wine Corp., 328 F.2d 925, 930, 51 CCPA 1260 (1964). Patent and trademark law are completely distinct fields:
The protection accorded by the law of trademark and unfair competition is greater than that accorded by the law of patents because each is directed at a different purpose. The latter protects inventive activity which, after a term of years, is dedicated to the public domain. The former protects commercial activity which, in our society, is essentially private.
Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210, 1215 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976).
The dissent disagrees that patent and trademark law are distinct fields of law. The dissent, citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); and Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), argues that Ferrari’s designs are not protected because unpat-ented goods may be freely copied. In the cases cited in the dissenting opinion, the Supreme Court examined state unfair competition laws to determine whether federal patent law preempted their application. In all three cases, the Court held that a state, through its unfair competition laws, could not extend patent protection to otherwise unprotected designs because such protection conflicted with the federal policy of substantially free trade in unpatented design and utilitarian concepts. See Bonito Boats, 489 U.S. at 152-54, 109 S.Ct. at 978-79.
These cases, however, do not affect the applicability of the Lanham Act in this case. First, the Court in Compco expressly noted that a defendant can copy at will if the design is “not entitled to a design patent or other federal statutory protec-tion_” Compco, 376 U.S. at 238, 84 S.Ct. at 782 (emphasis added). Thus, Roberts cannot copy at will because “other federal statutory protection,” the Lanham Act, applies. Second, these cases involved only the preemption of state unfair competition law by federal patent law, not the scope of federal trademark or unfair competition law. Because trademark law and patent law address different concerns, and because of the narrow focus of the Supreme Court’s inquiry in Compco and Sears, courts have explicitly held that these decisions do not preclude Lanham Act protection of designs. Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204 (2d Cir.1979); Rolls-Royce Motors, 428 F.Supp. 689.
Thus, Lanham Act protection is available to designs which also might have been covered by design patents as long as the designs have acquired secondary meaning. Dallas Cowboys Cheerleaders, 604 F.2d at 204-05; Truck Equip. Serv., 536 F.2d 1210; Mogen David, 328 F.2d 925; Rolls-Royce, 428 F.Supp. 689. Ferrari’s designs have clearly acquired secondary meaning and thus were entitled to protection.
B.
Likelihood of Confusion
1.
District Court’s Findings
This court has held that in determining likelihood of confusion in a Lanham Act case, the court should consider the following factors: strength of the plaintiff’s mark; relatedness of the goods; similarity of the marks; evidence of actual confusion; marketing channels used; likely degree of purchaser care; defendant’s intent in selecting the mark; and likelihood of expansion of the product lines. Frisch’s Restaurants, Inc. v. Elby’s Big Boy, 670 F.2d 642, 648 (6th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982). A party claiming infringement need not show all, or even most, of these factors in order to prevail. Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th Cir.1988). A district court’s findings regarding each factor are reviewed for clear error, but the further determination of likelihood of confusion based on those factors is a legal conclusion reviewed de novo. Frisch’s Restaurants, 670 F.2d at 651.
The district court found, based upon an evaluation of the eight Frisch factors, that the similarity of the exterior design of the Ferrari vehicles and the Roberts replicas was likely to confuse the public. The court noted that while no evidence was offered on two of the factors, evidence of actual confusion and likelihood of expansion of the product lines, two others, marketing channels and purchaser care, favored Roberts and the remaining factors “radically favor[ed] Ferrari.” Summarized, the district court’s findings on the Frisch “likelihood of confusion” factors are as follows:
Factors Favor
1. Strength of the mark Ferrari
2. Relatedness of the goods Ferrari
3. Similarity of the marks Ferrari
4. Evidence of actual confusion No evidence
5. Marketing channels used Roberts
6. Likely degree of purchaser care Roberts
7. Roberts’ intent in selecting “mark” Ferrari
8. Likelihood of expansion of product lines. No evidence
Recalling that the claimed mark involved here is the trade dress — the exterior shape and design of the Ferrari vehicles — it is clear that Ferrari’s mark is very strong. The strength of the mark is its distinctiveness and Ferrari’s designs are unquestionably distinctive. The survey evidence we have discussed, as well as the testimony that the shape of the plaintiff’s vehicles “says Ferrari,” is evidence of that distinctiveness. Indeed, Roberts’ purposeful effort to copy the Ferrari designs is strong circumstantial evidence of the distinctiveness of the originals.
There is no dispute about the relatedness of the goods factor. The products produced by both parties are sports cars.
Likewise, the similarity of the marks— the exterior designs of the vehicles — is indisputable. Ferrari offered survey evidence which showed that 68% of the respondents could not distinguish a photograph of the McBurnie replica, upon which Roberts’ Miami Spyder is based, from a photograph of the genuine Ferrari Daytona Spyder. In these photographs, the cars were shown without identifying insignia. Drawings for Roberts’ cars show identifying insignia, an “R” on the parking lens and vent window, but the cars produced at the time of trial did not include the “R”. Because the survey respondents saw photographs of the McBurnie cars, and because all of the identifying insignia were removed, the survey has limited value in showing the likelihood of confusion between the Roberts and Ferrari vehicles if displayed with identifying emblems. The survey, however, does show that the trade dress of the two car designs, the shapes and exteriors, were quite similar. An examination of the photographs of the cars which are in evidence confirms the striking similarity of the dress of the originals and the replicas. They are virtually indistinguishable.
Finally, Roberts conceded that his intent in replicating the exterior design of Ferrari’s vehicles was to market a product that looked as much as possible like a Ferrari original, although Roberts made no claim to his customers that his replicas were Ferraris. “ '[The] intent of [a party] in adopting [another’s mark] is a critical factor, since if the mark was adopted with the intent of deriving benefit from the reputation of [the plaintiff,] that fact alone may be sufficient to justify the inference that there is confusing similarity.’ ” Frisch’s Restaurants, 670 F.2d at 648 (emphasis in original) (quoting Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 263 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980)); see also Mastercrafters, 221 F.2d at 467. This is especially true in cases, such as this one, where the defendant sold a comparatively cheap imitation of an expensive, exclusive item. As the court in Rolex Watch explained:
By selling the bogus watches, only one inference may be drawn: the Defendants intended to derive benefit from the Plaintiffs reputation. This inference is no less reasonable when weighed against the Defendants’ assertion that in selling these watches, they did not fail to inform the recipients that they were counterfeits.
Rolex Watch, U.S.A., Inc. v. Canner, 645 F.Supp. 484, 492 (S.D.Fla.1986). Intentional copying, however, is not actionable under the Lanham Act “absent evidence that the copying was done with the intent to derive a benefit from the reputation of another.” Zin-Plas Corp. v. Plumbing Quality AGF Co., 622 F.Supp. 415, 420 (W.D.Mich.1985). “Where the copying by one party of another’s product is not done to deceive purchasers and thus derive a benefit from another’s name and reputation, but rather to avail oneself of a design which is attractive and desirable, a case of unfair competition is not made out.” West Point Mfg., 222 F.2d at 586. In this case, where Ferrari’s design enjoyed strong secondary meaning and Roberts admitted that he designed his cars to look like Ferrari’s, the intent to copy was clear.
We conclude that aside from the presumption of likelihood of confusion that follows from intentional copying, Ferrari produced strong evidence that the public is likely to be confused by the similarity of the exterior design of Ferrari’s vehicles and Roberts’ replicas.
2.
Roberts’ Objections
Roberts disagrees with the legal significance of the district court’s findings of likelihood of confusion. He argues that for purposes of the Lanham Act, the requisite likelihood of confusion must be confusion at the point of sale — purchaser confusion— and not the confusion of nonpurehasing, casual observers. The evidence is clear that Roberts assured purchasers of his replicas that they were not purchasing Ferrar-is and that his customers were not confused about what they were buying.
Roberts also argues that actionable confusion may not be inferred from intentional copying when the intentional copying involves the design of a product as opposed to the copying of a trademark, trade name or trade dress. Implicit, of course, is Roberts’ related argument that the exterior shape and design of the Ferrari cars is not, and cannot be, a trademark or trade dress. We disagree with these contentions.
a.
Confusion as to Source
Roberts is correct that, for the most part, similarity of products alone is not actionable; there must also be confusion as to the origin of the product. West Point Mfg., 222 F.2d at 589; see also Fisher Stoves, Inc. v. All Nighter Stove Works, Inc., 626 F.2d 193, 195 (1st Cir.1980). Similarity of products, however, does become actionable when the similarity leads to confusion as to source and the public cares who the source of the product is.
[Ojne who claims that another is guilty of unfair competition in copying his product, must show that the consuming public is primarily concerned in the producer, rather than in the product itself; ... the only obligation of the copier is to identify its product lest the public be mistaken into believing that it was made by the prior patentee.
West Point Mfg., 222 F.2d at 589. Thus, in West Point Mfg., there was no unfair competition where the plaintiff had not shown that the public cared who produced the clamp; no secondary meaning had attached to the plaintiff’s clamp. West Point, however, does not hold that similarity of appearance may never state a claim. In fact, the West Point court explicitly recognized that a different case would exist where there is strong secondary meaning:
Appellee cites Wesson v. Galef [286 F. 621 (D.C.N.Y.1922) ] as sustaining its contention that the exact copying of the features of appellee’s clamp resulted in unfair competition. That case is distinguishable. There, the ensemble of plaintiff's revolver, a Smith & Wesson, had come to mean the product of the manufacture of plaintiff, an old and well-known firm. In fact, few products in the past have been better known than the Smith & Wesson, along with the Colt revolver. The mere mention of their names in former times has inflamed the imagination of youths dreaming of deeds of derring-do; and these guns have been known to generations of soldiers, sportsmen, and police officers, as well as to their quarry. The Smith & Wesson revolver had many peculiar features which had made it known to the public as the product of the manufacturer of those guns. The barrel, for instance, was squared at the frame end, which was unnecessary. This was copied, as well as its peculiar profile. A stop on the left to hold the chamber when it was swung out of position was exactly imitated in shape. Other well-known characteristics of the gun were also copied. In view of these circumstances, the court found that the purpose of the imitation was to sell the copy as a Smith & Wesson revolver. In the instant case, there is no evidence to support any such findings.
Id. at 597. In contrast to West Point, Roberts copied the nonfunctional features of an item having great secondary meaning.
Because consumers care that they are purchasing a Ferrari as opposed to a car that looks like a Ferrari, and because Roberts’ replicas look like Ferraris, Ferrari presented an actionable claim as to confusion of source.
b.
Confusion at Point of Sale
Roberts argues that his replicas do not violate the Lanham Act because he informed his purchasers that his significantly cheaper cars and kits were not genuine Ferraris and thus there was no confusion at the point of sale. The Lanham Act, however, was intended to do more than protect consumers at the point of sale. When the Lanham Act was enacted in 1946, its protection was limited to the use of marks “likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services.” In 1967, Congress deleted this language and broadened the Act’s protection to include the use of marks “likely to cause confusion or mistake or to deceive.” Thus, Congress intended “to regulate commerce within [its control] by making actionable the deceptive and misleading use of marks in such commerce; [and] ... to protect persons engaged in such commerce against unfair competition_” 15 U.S.C. § 1127. Although, as the dissent points out, Congress rejected an anti-dilution provision when recently amending the Lanham Act, it made no effort to amend or delete this language clearly protecting the confusion of goods in commerce. The court in Rolex Watch explicitly recognized this concern with regulating commerce:
The real question before this Court is whether the alleged infringer has placed a product in commerce that is “likely to cause confusion, or to cause mistake, or to deceive.” ... The fact that an immediate buyer of a $25 counterfeit watch does not entertain any notions that it is the real thing has no place in this analysis. Once a product is injected into commerce, there is no bar to confusion, mistake, or deception occurring at some future point in time.
Rolex Watch, 645 F.Supp. at 492-93 (emphasis in original). The Rolex Watch court noted that this interpretation was necessary to protect against the cheapening and dilution of the genuine product, and to protect the manufacturer’s reputation. Id. at 495; see also Mastercrafters, 221 F.2d at 466. As the court explained:
Individuals examining the counterfeits, believing them to be genuine Rolex watches, might find themselves unimpressed with the quality of the item and consequently be inhibited from purchasing the real time piece. Others who see the watches bearing the Rolex trademarks on so many wrists might find themselves discouraged from acquiring a genuine because the items have become too common place and no longer possess the prestige once associated with them.
Rolex Watch, 645 F.Supp. at 495; see also Mastercrafters, 221 F.2d at 466. Such is the damage which could occur here. As the district court explained when deciding whether Roberts’ former partner’s Ferrari replicas would be confused with Ferrari’s cars:
Ferrari has gained a well-earned reputation for making uniquely designed automobiles of quality and rarity. The DAY-TONA SPYDER design is well-known among the relevant public and exclusively and positively associated with Ferrari. If the country is populated with hundreds, if not thousands, of replicas of rare, distinct, and unique vintage cars, obviously they are no longer unique. Even if a person seeing one of these replicas driving down the road is not confused, Ferrari’s exclusive association with this design has been diluted and eroded. If the replica Daytona looks cheap or in disrepair, Ferrari's reputation for rarity and quality could be damaged. ...
Ferrari, 11 U.S.P.Q.2d at 1848. The dissent argues that the Lanham Act requires proof of confusion at the point of sale because the eight factor test used to determine likelihood of confusion focuses on the confusion of the purchaser, not the public. The dissent submits that three of the factors, marketing channels used, likely degree of purchaser care and sophistication, and evidence of actual confusion, specifically relate to purchasers. However, evidence of actual confusion is not limited to purchasers. The survey evidence in this case showed that members of the public, but not necessarily purchasers, were actually confused by the similarity of the products. Moreover, the other five factors, strength of the mark, relatedness of the goods, similarity of the marks, defendant’s intent in selecting the mark, and likelihood of product expansion, do not limit the likelihood of confusion test to purchasers.
Since Congress intended to protect the reputation of the manufacturer as well as to protect purchasers, the Act’s protection is not limited to confusion at the point of sale. Because Ferrari’s reputation in the field could be damaged by the marketing of Roberts’ replicas, the district court did not err in permitting recovery despite the absence of point of sale confusion.
3.
Product Confusion
Roberts argues that the exterior design features of the Ferrari vehicles are not entitled to Lanham Act protection because only packages in which products are marketed, not products themselves, are covered as protected trade dress. In many cases, the policy of fulfilling consumer demand mandates that trade dress, including packaging and labeling, but not products, are protected from imitation:
Appellant could not prevent appellee from using railroad sounds in a record, but should be able to prevent duplication of a “form of dress ... primarily adopted for purposes of identification and individuality,” and “unrelated to basic consumer demands in connection with the product” ..., as distinguished from basic consumer demands or preferences, or attention directed to the container rather than to the product itself.
“[T]he label or ornament is a relatively small and incidental affair, which would not exist at all, or at least would not exist in that shape but for the intent to deceive; whereas the instrument sold is made as it is, partly at least, because of a supposed or established desire of the public for instruments in that form.”
Audio Fidelity, 283 F.2d at 556-57 (citations omitted). In this case, where the exterior shape and design of the car is a “form of dress ... primarily adopted for purposes of identification and individuality,” the interest in free competition of cars
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:
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songer_oththres
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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".
PAN AMERICAN PETROLEUM CORPORATION, Appellant, v. KANSAS-NEBRASKA NATURAL GAS COMPANY, Inc., Appellee.
No. 16583.
United States Court of Appeals Eighth Circuit.
Jan. 12, 1962.
Byron M. Gray, Topeka, Kan., for appellant; Wilbur W. Heard and John F. Jones, Tulsa, Okl., on the brief.
Ezekiel G. Stoddard, Washington, D. C., for appellee; James D. Conway and Elmer J. Jackson/ 'Hastings, Neb., on the brief.
Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.
VOGEL, Circuit Judge.
This is an appeal from a judgment allowing appellee, Kansas-Nebraska Natural Gas Company, Inc., recovery of alleged overpayments for natural gas purchased from Pan American Petroleum Corporation, appellant.
Appellee is a Kansas corporation engaged in the purchase, production, transmission, distribution and sale of natural gas in the states of Kansas, Nebraska and Colorado. It concededly comes within the definition of a natural-gas company (15 U.S.C.A. § 717a(6)) in the Natural Gas Act, 15 U.S.C.A. §§ 717-717w, as amended, hereinafter referred to as the Act.
Appellant is a Delaware corporation engaged in the production and sale of natural gas in interstate commerce from wells in the Kansas Hugoton Field.
The amount in controversy exceeds $10,000, exclusive of interest and costs. (28 U.S.C.A. § 1332(a) as amended.)
The case, tried to the court upon the pleadings and a written stipulation of facts, involved sales of natural gas from the Hugoton Field to appellee for transportation and resale by the latter in interstate commerce. These sales were made pursuant to three separate contracts dated October 8, 1949, March 28, 1950, and March 11, 1952, which provided for wellhead prices of 70 per MCF (thousand cubic feet), 7.50 per MCF and 100 per MCF respectively. The pressure base under each contract was 16.4 p. s. i. a. (pounds per square inch absolute). The contract of March 28, 1950, stipulated as being representative of all three contracts, provided for wellhead prices of gas for five years from date of first delivery at 70 per MCF at 16.4 p. s. i. a.; for the second five years at 80. Included also was the following provision:
“If the Kansas Corporation Commission, the Federal Power Commission, or any other governmental agency, whether State or Federal, having competent jurisdiction, at any time during the term of this contract fixes or determines a higher price for gas in the Kansas Hugoton Field than is set forth in this Section 1, (a), (b) and (c), the Buyer shall pay Seller the price thus fixed or determined, provided, however, that the price to be paid by Buyer to Seller shall at no time during the contract period hereof be less than the price set out * *
Subsequently, the Kansas Corporation Commission, by order dated December 2, 1953, set a minimum price of 110 per MCF measured at a standard pressure base of 14.65 p. s. i. a. for natural gas at the wellhead from the Hugoton Field. In January, 1954, appellee and Cities Service Gas Company instituted review proceedings of this order in a Kansas state court. Appellee, however, to avoid expense and upon assurances that Cities Service would continue the suit, withdrew without prejudice from the review action. Before final decision of the Kansas Supreme Court in these review proceedings, appellee, by letter dated February 18, 1954, and speaking of the 110 order, notified appellant as follows:
“During the period of appeal and pending final judicial determination of said Order, beginning January 1, 1954, Kansas-Nebraska Natural Gas Company, Inc., intends to pay for all gas purchased by it in the Kansas Hugoton Field in compliance with said Order. This compliance, however, is made to avoid any penalties or actions under the laws of Kansas for any violation, and all payments made to you in compliance with said Order, pending its final judicial determination will be paid to you under protest and as involuntary payments on our part, all without prejudice to our rights.
Should the said order be modified or declared to be invalid either in whole or in part, any and all over-payments made to you by virtue thereof shall be due and owing Kansas-Nebraska Natural Gas Company, Inc. In event of any such overpayments, the amount shall be withheld from subsequent payments in the event you have not made full settlement of any overpayment.”
The checks given by appellee and accepted by appellant for gas thereafter purchased referred to the above letter and noted that payment was being made subject to the terms thereof. On March 3, 1954, as a result of the 11^ order, appellee applied for permission from the Kansas Corporation Commission to increase its rates for the sale of natural gas, which permission was granted. A similar application was subsequently made to, and granted by, the FPC effective as of January 1, 1955.
On June 7, 1954, Phillips Petroleum Co. v. State of Wisconsin was decided by the Supreme Court of the United States, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. Thereby the jurisdiction of the FPC under the Act was, for the first time, extended to include the regulation of sales of natural gas by independent producers, such as appellant, who resell in interstate commerce. Pursuant to this decision, the FPC on July 16, 1954, issued its order No. 174 requiring, inter alia, that: (1) All natural gas companies subject to the Act obtain a certificate of public convenience and necessity before engaging in any transportation or sale of natural gas; (2) under § 4 of the Act (15 U.S.C.A. § 717c) the filing of schedules show all rates and charges incident thereto; and (3) by regulation, no independent producer make any change in rates in effect on and after June 7, 1954, without first filing a change in rates pursuant to § 4(d) of the Act (15 U.S.C.A. § 717c(d)). The rules and regulations adopted by such order were made applicable on and after June 7, 1954, the date of the Phillips decision, supra.
In accordance with this order, appellant in November, 1954, tendered to the FPC its rate schedule of gas sold appellee under the October 8, 1949, March 29, 1950, and March 11, 1952, contracts; a copy of said contracts; a copy of the Kansas ll<f order and a copy of the billing for gas sold appellee during May, 1954. Appellant simultaneously mailed appellee copies thereof, stating that they had been-filed with the FPC in compliance with the latter’s order No. 174-A.
Thereafter by letter dated March 8, 1955, the FPC advised appellant that its rate filings “have been accepted for filing” and:
“This acceptance for filing shall not be construed, as a wrnver of the requirements of Section 7 of the Natural Gas Act, as amended; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission in any proceeding now pending or hereafter instituted by or against your company.” (Emphasis supplied.)
The only information appellee had of the FPC’s acceptance of appellant’s rate filings was the latter’s letter of May 10, 1955, with an enclosure of a copy of the FPC’s letter of acceptance. Apparently this information was furnished appellee in conformity with a letter dated November 23, 1954, wherein appellee requested data as to the steps taken by appellant in compliance with Order No. 174-A.
In 1957 the State of Kansas enacted a 1% severance tax on natural gas to become effective July 1, 1957. In regard thereto, appellee informed appellant that pursuant to the original gas-purchase contracts it would share one-half of this tax burden, but that first, since such would constitute an increase in rate, appellant, under FPC regulations, was required to file such increased rate with the FPC before it would become effective.
In conformity with the applicable FPC regulations, appellant on June 28, 1957, by letter submitted an increased rate schedule of 11.055?! which reflected appellee’s share of said severance tax. This letter of transmittal contained a “Comparison of prices prior to and subsequent to such change in price (cents per MCF)”, showing an 11(6 base price per MCF as of June 30, 1957, and as of July 1, 1957, a total price per MCF of 11.055?!. By letter to the appellant dated August 19, 1957, the FPC notified the former of the acceptance of such new rate for filing. The letter also contained a cautionary paragraph similar to the one contained in the letter of March 8, 1955, supra. Appellee was notified of the FPC’s action in this regard by appellant’s letter of August 29, 1957.
The review proceedings instituted by appellee and Cities Service, spoken of earlier, resulted in a decision of the Kansas Supreme Court on December 8, 1956, sustaining the 11 order. Cities Service Gas Co. v. State Corporation Commission of Kansas, 180 Kan. 454, 304 P.2d 528. This decision was reversed by the Supreme Court of the United States. Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355. Thereafter, on April 11,1959, the Kansas Supreme Court held that the result of the reversal in Cities Service, supra, was to render the Kansas 11(6 order void ab initio. Cities Service Gas Co. v. State Corporation Commission of Kansas, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed.2d 77. The Kansas severance tax had earlier been held invalid by the Kansas Supreme Court. State ex rel. Dole v. Kirchner, 1958, 182 Kan. 622, 322 P.2d 759.
By letters dated January 23, 1958, and February 18, 1958, appellee, relying upon the judicially determined invalidity of the severance tax and Kansas 11(6 order, advised appellant and other sellers of gas from the Hugoton Field that future payments would be calculated on the basis of the contract rates effective January 7, 1954, and would not include reimbursement for any share of the severance tax; also, that pursuant to its letter of February 18, 1954, refunds for the excess payments involuntarily made under the invalid 11?! order would be requested. Upon appellant’s denial of appellee’s claim for recovery of such alleged overpayments, this suit was commenced. No claim is being made for recovery of appellee’s share of the Kansas severance tax. Appellant filed a counterclaim for recovery of the difference, plus interest, between the amounts paid to it after January 1, 1958, and the amounts it alleges should have been paid to it under the rate of 11.055(6.
It was stipulated that appellee took no action before the FPC in relation to any of the rate filings mentioned above, nor did it seek to stay the effectiveness of the Kansas 11?! order except by its earlier participation in the action by Cities Service Gas Company.
The trial court handed down an oral decision from the bench, subsequently making formal Findings and Conclusions. It found, inter alia, that:
“ * * * the Kansas 11(6 Order was void ab initio and never had any legal validity because at the time the Order was issued and at all times thereafter the Federal Power Commission had, under the Natural Gas Act, the exclusive jurisdiction over such sales and the Kansas State Corporation Commission had no jurisdiction over such sales”
and
“ * * * there was no determination by the FPC that 11.055(6 was a reasonable rate or the legal rate * * *»
In its Conclusions the court, after noting jurisdiction under 28 U.S.C.A. § 1332, observed:
“The interpretation and enforcement of the contracts between the parties on file with the FPC and granting relief to Plaintiff [appellee] does not require this Court to determine the reasonableness of the rates on file with the FPC nor to determine what constitutes reasonable rates”
and
“Plaintiff’s action to recover the overpayments -made under compulsion of the Kansas 110 Order does not constitute a collateral attack on any order or determination of the FPC and does not attack or challenge any rate schedules on file with the FPC. Plaintiff’s action merely requires the proper interpretation under the law of what constituted the legal rates under its contracts filed as rate schedules and the enforcement of such rate schedules as so properly interpreted.”
The court, relying upon United Gas Pipe Line Co. v. Mobile Gas Service Corp., 1956, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, and United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 1958, 358 U.S. 103, 79 S.Ct. 194, 3 L.Ed.2d 153, held:
“ * * * The legally effective rate under each rate schedule was the price which Defendant was entitled to receive and Plaintiff was obligated to pay on June 7, 1954 under the terms of each contract, and not the 110 per Mcf price that was actually being paid under compulsion of the Kansas lijé Order.
******
“The supplemental rate filings made by Defendant in July 1957 pursuant to Order No. 197 did not constitute 11.0550 per Mcf as the legally valid rate under the three rate schedules. The supplemental filings merely authorized an increase in the contractual rates effective as of June 7, 1954, by permitting Plaintiff to pay and Defendant to receive, in addition to those rates, the amount of one-half of the Kansas state severance tax of 1%. Since Plaintiff was actually paying 115! per Mcf at that time under compulsion of the invalid Kansas 110 Order (pending ultimate judicial determination of the validity of that Order), the 1% severance tax was measured on the basis of 110 per Mcf, making the tax 0.1100 per Mcf and making Plaintiff’s share .0550 per Mcf. In accepting such supplemental filings there was no determination by the FPC that 11.0550 was a reasonable rate or the legal rate under the contracts filed as rate schedules.”
In so holding the court noted:
“The instant contract contains a specific rate or rates. By reason of an invalid order of the Kansas Commission, a higher rate has been collected. The order fixing the invalid rate was void from its beginning. To this Court, therefore, it would seem to be unjust to permit the defendant to retain the amounts thus unlawfully collected.”
Accordingly, judgment was given for .appellee for the full amount of the alleged overpayments, $20,831.82 plus interest and appellant’s counterclaim was dismissed.
Appellant’s assignments of error are concerned essentially with the alleged infringement by the trial court of the exclusive primary jurisdiction of the FPC. It points out initially that appellee’s action can succeed only as an enforcement action under § 22 of the Act (15 U.S.C.A. § 717u). In this regard appellant contends that while the court disclaimed making any collateral attack upon the filed rate with the FPC but, rather, stated the action to be one to enforce filed rate schedules (§22 supra), yet the court noted the derivation of its jurisdiction to be 28 U.S.C.A. § 1332 (diversity and amount).
Appellant contends that by the Commission accepting the tendered rates for filing which were based upon the Kansas 11^ order and the severance tax, such rates became the “effective” or “legal” filed rates and could be changed only by FPC action under § 5(a) of the Act (15 U.S.C.A. § 717d(a)). From this they reason that the only way the action could be questioned would be by the review procedure provided by § 19 of the Act (15 U.S.C.A. § 717r as amended), and that appellee, not having utilized such appeal procedure, is now precluded from questioning collaterally the FPC “orders” here involved on grounds that the latter are now res judicata,. They further contend that the trial court, by “nullifying” the orders of the FPC accepting the 11(£ and 11.055^ rates, has usurped the power of the Courts of Appeals under § 19 of the Act.
First, with reference to the question of jurisdiction, it is noted that the requirements of 28 U.S.C.A. § 1332 as to diversity of citizenship and amount involved are fully satisfied. Unless the provisions of the Natural Gas Act bar jurisdiction of the district court, the action has been properly brought and the court acquired and maintained jurisdiction of the parties and of the subject matter in suit. We think the answer is found in the recent case of the Supreme Court of the United States, Pan American Petroleum Corp. v. Superior Court of Delaware, 1961, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584. The sole issue there was whether the Delaware Superior Court could take jurisdiction of a case which was bottomed on circumstances identical with those involved herein. The Delaware Supreme Court had sustained its lower court’s finding of jurisdiction, stating that the claims of Cities Service “ * * * are not founded upon any liability created by the Natural Gas Act, but upon a private contract deriving its force from state law.” (Emphasis in the original.) Columbian Fuel Corp. v. Superior Court of Delaware, Del.1960, 158 A.2d 478, 482. In affirming the Delaware court, Mr. Justice Frankfurter said, at page 663 of 366 U.S., at page 1307 of 81 S.Ct.:
“The rights as asserted by Cities Service are traditional common-law claims. They do not lose their character because it is common knowledge that there exists a scheme of federal regulation of interstate transmission of natural gas.”
At page 664 of 366 U.S., at page 1308 of 81 S.Ct.:
“ * * * We are not called upon to decide the extent to which the Natural Gas Act reinforces or abrogates the private contract rights here in controversy. The fact that Cities Service sues in contract or .quasi-contract, not the ultimate validity of its arguments, is decisive.”
We conclude here that the District Court had jurisdiction of the controversy under 28 U.S.C.A. § 1332.
Appellant next refers to §§ 4 and 5 of the Act (15 U.S.C.A. §§ 717c and 717d) as giving specific authority to the FPC with respect to rates and argues that the action of the District Court was an invasion of the FPC’s “exclusive and primary jurisdiction”. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 1956, 350 U.S. 332, 341, 76 S.Ct. 373, 379, 100 L.Ed. 373, the Supreme Court said:
“ * * * These sections [§§ 4 and 5 of the Act] are simply parts of a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission upon a finding that they are unlawful. The Act merely defines the review powers of the Commission and imposes such duties on natural gas companies as are necessary to effectuate those powers; it purports neither to grant nor to define the initial rate-setting powers of natural gas companies.
“The powers of the Commission are defined by §§ 4(e) and 5(a). The basic power of the Commission is that given it by § 5 (a) to set aside and modify any rate or contract which it determines, after hearing, to be ‘unjust, unreasonable, unduly discriminatory, or preferential.’ This is neither a ‘rate-making’ nor a ‘rate-changing’ procedure. It is simply the power to review rates and •contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them. * * * The scope and purpose of the Commission’s review remain the same — to determine whether the rate fixed by the natural gas company is lawful.”
At page 343 of 350 U.S., at page 380 of 76 S.Ct.:
“ * * * The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act.”
In the instant case, the jurisdiction of the FPC to determine the lawfulness of the rates involved has not been brought to bear. There has been no request for a hearing before the FPC, either on its own motion or on the motion of anyone else, to have determined the lawfulness of the rates under the “just and reasonable” standard of § 4(e) (15 U.S.C.A. § 717c(e)). The court here was not asked to adjudicate any violation of the Act or to enforce any liability created thereby under § 22 of the Act (15 U.S. C.A. § 717u), supra. Appellee’s claims for refund because of alleged overpayment are not founded on any liability created by the Act but arise solely out of the contracts between the parties, which they had a perfect right to make and which are binding upon them, unaffected by the Act unless there has been a finding on the part of the FPC that the rates were unlawful as being unjust and unreasonable. Such a finding by the FPC could only be made after a hearing initiated on its own motion or by that of interested parties.
■ Appellant nevertheless argues that by the FPC’s acceptance of the tendered rates based partially on the Kansas 110 order and the 1% severance tax, these rates became “effective or legal” and effectively changed the contract rate between the parties. Answer to this contention is in the letter from the FPC dated March 8, 1955, and subsequent letters accepting rate filings by the appellant, wherein the FPC stated, “ * * * acceptance for filing shall not be construed as a waiver * * *; nor shall it be construed as constituting approval of any rate, charge, classification, or any rule, regulation or practice affecting such rate or service contained in the rate filing ; nor shall such acceptance be deemed as recognition of any claimed contractual right or obligation associated therewith; and such acceptance is without prejudice to any findings or orders which have been or may hereafter be made by the Commission * * No order was issued and no approval was given and no determination of any kind was made by the FPC.
It should also be remembered that the contracts between the parties specifically provided that if the Kansas Corporation Commission, the FPC, or any other governmental agency, whether state or federal, having competent jurisdiction, should determine a higher price for gas, such higher price would be paid. When the Kansas 11 ^ order was made, the appellee took the position by letter that it would pay the increased rate but that if such order was subsequently declared invalid, such overpayments were to be due appellee. Checks in payment of gas thereafter carried the notation that payment was being made subject to the terms of such letter.
When the Supreme Court of the United States in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1958, 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355, held the Kansas 11¢ order unlawful and the Supreme Court of Kansas, in Cities Service Gas Co. v. State Corporation Commission of Kansas, 1959, 184 Kan. 540, 337 P.2d 640, certiorari denied 361 U.S. 836, 80 S.Ct. 89, 4 L.Ed. 2d 77, held in accordance with such decision that the Kansas llfá order was void db initio, the effect was that the order became a complete nullity. Being a nullity, it could not modify the contract rates between the parties. The effect could only have been to leave the parties where they were prior to the unlawful order — in other words, bound by the contract rates to which they had agreed in 1949, 1950 and 1952. A parallel of reasoning is applicable to the Kansas 1% severance tax subsequently held invalid by the Kansas Supreme Court, State ex rel. Dole v. Kirchner, supra.
In dealing with a similar problem involving an order of the Oklahoma Commission establishing a minimum rate, which order was found to be invalid, the Court of Appeals for the Third Circuit in Natural Gas Pipeline Co. of America v. F. P. C., 1958, 253 F.2d 3, 7, certiorari denied sub nom. Dorchester Corp. v. Natural Gas Pipeline Co., 357 U.S. 927, 78 S.Ct. 1372, 2 L.Ed.2d 1370, said:
“* * * When the United States Supreme Court found Oklahoma’s action to have been unlawful and set the state commission order aside, there was no longer even the semblance of a valid law, or lawful order which could modify the contract rate. The contract rate, therefore, under the mandate of the Supreme Court must be held to have been the rate effective on June 7, 1954.”
The Tenth Circuit, in Cities Service Gas Co. v. F. P. C., 1958, 255 F.2d 860, certiorari denied sub nom. Magnolia Petroleum Co. v. Cities Service Gas Co., 358; U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73, in-dealing with the same Kansas order with which we are here concerned, said:
“ * * * The Act recognizes the rights of the parties to set rates by individual contract and abrogates none of the usual contract rights except for the reviewing powers granted the Commission upon hearing. * * * (255 F.2d at 864.)
******
« * * * jn present case, as in the Mobile case, no hearing has been held to determine the propriety of the filed rate. When the United-States Supreme Court struck down-the Kansas order, there was no longer a valid order which could modify the contract rate, and the contract rate was the rate effective on June-7, 1954. See Natural Gas Pipeline Co. of America v. Federal Power Commission, supra.” (255 F.2d 865.) (Emphasis supplied.)
Support for the proposition that the Natural Gas Act is not inconsistent with agreements between the parties for repayments in the event certain increases in rates are held void is found in Natural Gas Pipeline Co. of America v. Harrington, 5 Cir., 1957, 246 F.2d 915, certiorari denied 356 U.S. 957, 78 S.Ct. 992, 995, 2 L.Ed.2d 1065. Therein recovery was sustained for the difference between the contract rate and the price paid under order of the Oklahoma Corporation Commission, which order was subsequently held to be invalid, as was the Kansas. Ilf! order here.
The Supreme Court, in holding that the Natural Gas Act does not give the right to gas companies to abrogate their contract obligations and increase at will their price of gas by filing new rate schedules, subject only to the FPC’s approval under § 4(e) (15 U.S.C.A. § 717c (e)), stated in United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., supra, 1958, 358 U.S. 103, 113-114, 79 S.Ct. 194, 200:
“ * * * This concern [protection of the public from excessive rates as well as the financial stability of natural gas companies] was surely a proper one for Congress to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603 [64 S.Ct. 281, 88 L.Ed. 333], and we think that it did .so not only by preserving the ‘integrity’ of private contractual arrangements for the supply of natural gas, [United Gas Pipe Line Co. v. Mobile Gas Service Corp.] 350 U.S. [332], at 344 [76 S.Ct. 373, at 380, 100 L.Ed. 373] (subject of course to .any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review.”
Appellant has cited cases dealing with the Interstate Commerce Commission as .authority for the proposition that “it would destroy the purpose of the Interstate Commerce Act to permit a court to reach behind the rate on file with the Commission and collaterally revise the rate properly on file with the Commission”, stating that this doctrine has been followed without deviation and citing Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 1907, 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553; T. I. M. E., Inc. v. United States, 1959, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. The answer to that attempt to draw a parallel between the Interstate Commerce Act and the Natural Gas Act is found in Mobile, supra, at pages 338 and 339 of 350 U.S., at page 378 of 76 S.Ct., where the Supreme Court said:
“In construing the Act [the Natural Gas Act], we should bear in mind that it evinces no purpose to abrogate private rate contracts as such. To the contrary, by requiring contracts to be filed with the Commission, the Act expressly recognizes that rates to particular customers may be set by individual contracts. In this respect, the Act is in marked contrast to the Interstate Commerce Act, which in effect precludes private rate agreements by its requirement that the rates to all shippers be uniform, a requirement which made unnecessary any provision for filing contracts. See Armour Packing Co. v. United States, 209 U.S. 56 [28 S.Ct. 428, 52 L.Ed. 681], The Commission in its brief recognizes this basic difference between the two Acts and notes the differing natures of the industries which gave rise to it. The vast number of retail transactions of railroads made policing of individual transactions administratively impossible; effective regulation could be accomplished only by requiring compliance with a single schedule of rates applicable to all shippers. On the other hand, only a relatively few wholesale transactions are regulated by the Natural Gas Act and these typically require substantial investment in capacity and facilities for the service of a particular distributor. Recognizing the need these circumstances create for individualized arrangements between natural gas companies and distributors, the Natural Gas Act permits the relations between the parties to be established initially by contract, the protection of the public interest being afforded by supervision of the individual contracts, which to that end must be filed with the Commission and made public.” (Emphasis supplied.)
Inasmuch as there has been no hearing before the FPC to determine the lawfulness of the rates specified in the contracts between the parties, and no orders have been made by the FPC approving, rejecting or in any way affecting such rates, the “integrity” of the private contractual arrangements between the parties, as referred to by the Supreme Court in Memphis, supra, remains unaffected. The action of the District Court here has preserved that integrity.
Appellant’s contention that the doctrine of res judicata is applicable cannot be maintained as the FPC issued no orders and made no determinations. Appellant’s further claim that the trial court usurped the power of the Courts of Appeals under § 19 of the Act (15 U.S.C.A. § 717r as amended) is for the same reason without merit.
Affirmed.
. Order No. 174 was subsequently amended pertinent to this appeal. . - by Nos. 174-A' and 174-B in matters not
. Apparently the court here has reference to the contract stipulated as being representative of all three contracts.
. § 22. “The District Courts of the United States * * * shall have exclusive jurisdiction of violations of this chapter or the rules,
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-3-3
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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 issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
ROCK TRANSPORT PROPERTIES CORPORATION, New York Trap Rock Corporation and Mellon National Bank and Trust Company, Plaintiffs-Appellees, v. The HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.
No. 113, Docket 34920.
United States Court of Appeals, Second Circuit.
Argued Oct. 15, 1970.
Decided Oct. 27, 1970.
Edward C. Kalaidjian, New York City (Thacher, Proffitt, Prizer, Crawley & Wood, New York City, and Dwight B. Demeritt, Jr., New York City on the brief), for appellees.
Daniel A. Sullivan, New York City (Bigham Englar Jones & Houston, and Alexander Peltz, New York City on the brief), for appellant.
Before CLARK, Associate Justice, and LUMBARD, Chief Judge, and KAUFMAN, Circuit Judge.
Associate Justice, United States Supreme Court, Retired, sitting by designation.
CLARK, Justice, Retired:
This appeal tests the validity of a judgment entered against Hartford Fire Insurance Company on two insurance policies issued by it on April 1, 1965, for a one-year period. The judgment awarded damages and interests covering the “constructive total loss” of eleven scows and the partial loss of a twelfth one owned by the Rock Transport Properties Corporation and chartered by the New York Trap Rock Corporation, the insured.
New York Trap Rock Corporation was the bareboat charterer and operator of the scows in moving rip rap from its quarry on the Hudson River to Port Jefferson on the north shore of Long Island. The damage was done to the scows as the rip rap was removed from them by cranes at Port Jefferson. The cranes were equipped with digger buckets weighing from 4 to 8 tons each which would pick up the rip rap from the scows and transfer it to trucks. In this operation the buckets would sometimes be dropped on the decks of the scows and would often hit the scows’ cargo boxes. At times rip rap weighing from 8 to 14 tons would inadvertently fall from the buckets onto the decks. The resulting damage was not occasioned by a single such accident occurring at a specific time but was rather an accumulation of accidents the consequences of which could not be foreseen. However, the insured had, beginning on May 26, 1965, reported a number of the accidents to Johnson and Higgins, the broker designated by both parties to maintain records of losses, damages and expenses, who in turn had reported them to Hartford. By January 1966 the number of notices of serious damage numbered some sixteen. Surveys of the damage were begun in January and completed prior to April 1, 1966, at all of which both the insured and Hartford were represented. Hartford initially disclaimed liability on the ground that the damage was. attributable to ordinary wear and tear. However in its amended answer filed May 8, 1968, it also interposed the defense of untimeliness of notice. At trial the jury found against Hartford on the insurance coverage. It also found that the cost of necessary repairs to restore the scows to sound condition exceeded their insured value, that their salvage value was $247,500 and that the loss to the partially damaged scow was $9278.00. The court then proceeded to answer the three relevant legal questions agreed upon by the parties: (1) Did the insured forfeit the right to recovery on the policies by failing to give timely notice of the accidents? (2) Did the insured forfeit the right to claim a constructive total loss by failing to abandon or at least tender abandonment of the scows? And (3) What rate of return was applicable to the pre-verdict, pre-judgment and post-judgment interest? The distinguished trial judge answered the first two questions in the negative and allowed interest at the same rate allowed by New York law upon a loan or forbearance of any money, goods or things in action. General Obligations Law § 5-501(1) (1968); j[14-a New York State Banking Law. The trial judge also filed a clear and concise opinion on the case, 312 F.Supp. 341 (S.D.N.Y.1970), which we adopt in toto.
The opinion as to the first question, however, only discusses the purpose clause of the notice provision of the insurance policies and while we believe its holding correct beyond any question, we wish to add alternative grounds that compel the same conclusion. The provision specifically provides that “notice shall be given to these underwriters as soon as possible so that their own surveyor may attend any survey held to determine the extent of the damage or loss and the cost of repairing the same.” As the learned judge points out, the manifest purpose of the parties controls the interpretation of the contract provisions. As he indicates, the contract here, “with rather unusual clarity, expressly states that plaintiffs are required to give defendant notice ‘as soon as possible’ so that defendant ‘could have his [sic] own surveyor attend any survey held to determine the extent’ of the damage.” Id. at 346. The notice provision, therefore, must be construed only to require notice sufficient to allow Hartford’s surveyor to be represented at all of the damage surveys. The trial judge found that it was undisputed that the insured sent Hartford notices of the accidents prior to the survey of any of the scows, that the latter was represented by a surveyor at the time each survey was conducted on each scow and that all of the scows were jointly surveyed before the insurance policies expired. And he properly concluded that the notice requirement of the policies was therefore fully met.
In addition we wish to point out that the insured in a series of notices advised Hartford of specific accidents beginning as early as May 24, 1965. Meetings were held in June and July, 1965, with the brokers at which the recurring accident claims were discussed. While Hartford had no one present from its offices the brokers were the joint representatives for claim purposes. While Hartford took no action on any of these meetings or notices on the ground that none of them individually exceeded $5000.00 in damage, it is admitted that 212 claim letters were filed with it by the insured. These indicate themselves that the losses were heavy and serious. Indeed Hartford conducted surveys on every scow on which damage was reported. At the request of the insured Hartford met with it on January 26, 1966, to discuss the claims. Hartford disclaimed liability after this meeting on the ground of no coverage despite the fact that its right to attend the surveys depended entirely on the continued coverage of the policies and notice of claims thereunder. At no time was there any question raised as to the timeliness of the notices of loss until the amended answer was filed in May, 1968. In a long line of decisions such a course of action raises questions of estoppel and waiver. See Brink v. Hanover Fire Ins. Co., 80 N.Y. 108, 113 (1880); Dobson v. Hartford Fire Ins. Co., 86 App.Div. 115, 83 N.Y.S. 456 (4th Dept. 1903), aff'd, 179 N.Y. 557 (1904); American Merchant Marine Ins. Co. v. Margaret M. Ford Corp., 269 F. 768 (2 Cir. 1920), and Della-Posta v. New York Casualty Co., 276 App.Div. 770, 771, 92 N.Y.S.2d 523 (2d Dept. 1949). Also see Couch on Insurance 2d, § 26: 305. Having accepted, with the insured’s cooperation, the surveys and other benefits of the notice provision of the policies, Hartford is es-topped to deny the insured’s compliance with that provision.
Likewise, Hartford specifically disclaimed liability under the policies on the sole ground that the damage to the scows resulted from inevitable wear and tear consequent upon the carriage of rip rap. By electing to so disclaim on the merits Hartford waived the notice requirement of the policy. See John Alt Furniture Co. v. Maryland Casualty Co., 88 F.2d 36, 39 (8 Cir. 1937); Hartford Fire Ins. Co. v. Daniels, 201 F.2d 787, 789 (9 Cir. 1953); Nationwide Life Ins. Co. v. Shands, 355 F.2d 103 (5 Cir. 1966); Appell v. Liberty Mutual Ins. Co., 22 A.D.2d 906, 255 N.Y.S.2d 545 (2d Dept. 1964), aff’d, 17 N.Y.2d 519, 267 N.Y.S.2d 516 (1966).
We have nothing to add to the discussion of the other points in the District Court’s opinion and the judgment is affirmed.
. Rock material which includes crusher run, shovel run and capstone varying from dust to stones ten to fourteen tons in weight.
. It was agreed between the insured and Hartford that the later waived surveys in connection with damages up to $5000.00.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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sc_casesourcestate
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25
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
McGOWAN et al. v. MARYLAND.
No. 8.
Argued December 8, 1960.
Decided May 29, 1961.
Harry Silbert argued the cause for appellants. With him on the brief were A. Jerome Diener and Sidney Schlachman.
John Martin Jones, Jr., Special Assistant Attorney General of Maryland, argued the cause for appellee. With him on the brief was C. Ferdinand Sybert, Attorney ' General.
[Note: This opinion applies also to No. 36, Two Guys From Harrison-Allentown, Inc., v. McGinley, District Attorney, Lehigh County, Pennsylvania, et al., post, p. 582; No. 67, Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., post, p. 599; and No. 11, Gallagher, Chief of Police of Springfield, Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al., post, p. 617.]
Mr. Chief Justice Warren
delivered the opinion of the Court.
The issues in this case concern the constitutional validity of Maryland criminal statutes, commonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities on Sunday. The questions presented are whether the classifications within the statutes bring about a denial of equal protection of the law, whether the laws are so vague as to fail to give reasonable notice of the forbidden conduct and therefore violate due process, and whether the statutes are laws respecting an establishment of religion or prohibiting the free exercise thereof.
Appellants are seven employees of a large discount department store located on a highway in Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md. Ann. Code, Art. 27, § 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs. It now further provides that any retail establishment in Anne Arundel County which does not employ more than one person other than the owner may operate on Sunday.
Although appellants were indicted only under § 521, in order properly to consider several of the broad constitutional contentions, we must examine the whole body of Maryland Sunday laws. Several sections of the Maryland statutes are particularly relevant to evaluation of the issues presented. Section 492 of Md. Ann. Code, Art. 27, forbids all persons from doing any work or bodily labor on Sunday and forbids permitting children or servants to work on that day or to engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works of necessity and charity. Section 522 of Md. Ann. Code, Art. 27, disallows the opening or use of any dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition to the exceptions noted above, Md. Ann. Code, Art. 27, § 509, exempts, for Anne Arundel County, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusement park, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of Md. Ann. Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday. However, this section, and immediately succeeding ones, provide various immunities for the Sunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State — particularly in Anne Arundel County. See Md. Ann. Code, Art. 2B, § 28 (a).
The remaining statutory sections concern a myriad of exceptions for various counties, districts of counties, cities and towns throughout the State. Among the activities allowed in certain areas on Sunday are such sports as football, baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey, swimming, softball, boating, fishing, skating, horseback riding, stock car racing and pool or billiards. Other immunized activities permitted in some regions of the State include group singing or playing of musical instruments; the exhibition of motion pictures; dancing; the operation of recreation centers, picnic grounds, swimming pools, skating rinks and miniature golf courses. The taking of oysters and the hunting or killing of game is generally forbidden, but shooting conducted by organized rod and gun clubs is permitted in one county. In some of the subdivisions within the State, the exempted Sunday activities are sanctioned throughout the day; in others, they may not commence until early afternoon or evening; in many, the activities may only be conducted during the afternoon and late in the evening. Certain localities do not permit the allowed Sunday activity to be carried on within one hundred yards of any church where religious services are being held. Local ordinances and regulations concerning certain limited activities supplement the State’s statutory scheme. In Anne Arundel County, for example, slot machines, pinball machines and bingo may be played on Sunday.
Among other things, appellants contended at the trial that the Maryland statutes under which they were charged were contrary to the Fourteenth Amendment for the reasons stated at the outset of this opinion. Appellants were convicted and each was fined five dollars and costs. The Maryland Court of Appeals affirmed, 220 Md. 117, 151 A. 2d 156; on appeal brought under 28 U. S. C. § 1257 (2), we noted probable jurisdiction. 362 U. S. 959.
I.
Appellants argue that the Maryland statutes violate the “Equal Protection” Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation. Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday.
The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552; Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580; Lindsley v. Natural Carbonic Cas Co., 220 U. S. 61; Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96.
It would seem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day — that a family which takes a Sunday ride into the country will need gasoline for the automobile and may find pleasant a soft drink or fresh fruit; that those who go to the beach may wish ice cream or some other item normally sold there; that some people will prefer alcoholic beverages or games of chance to add to their relaxation; that newspapers and drug products should always be available to the public.
The record is barren of any indication that this apparently reasonable basis does not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. See Salsburg v. Maryland, 346 U. S. 545, 552-553; Kotch v. Board of River Port Pilot Comm’rs, supra. Likewise, the fact that these exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection since there would appear to be many valid reasons for these exemptions, as stated above, and no evidence to dispel them.
Secondly, appellants contend that the statutory arrangement which permits only certain Anne Arundel County retailers to sell merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks et cetera is contrary to the “Equal Protection” Clause because it discriminates unreasonably against retailers in other Maryland counties. But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here. See Salsburg v. Maryland, supra.
Thirdly, appellants contend that this same statutory provision, Art. 27, § 509, violates the “Equal Protection” Clause because it permits only certain merchants within Anne Arundel County (operators of bathing beaches and amusement parks et cetera) to sell merchandise customarily sold at these places while forbidding its sale by other vendors of this merchandise, such as appellants' employer. Here again, it would seem that a legislature could reasonably find that these- commodities, necessary for the health and recreation of its citizens, should only be sold on Sunday by those vendors at the locations where the commodities are most likely to be immediately put to use. Such a determination would seem to serve the consuming public and' at the same time secure Sunday rest for those employees, like appellants, of all other retail establishments. In addition, the enforcement, problems which would accrue if large retail establishments, like appellants’ employer, were permitted to remain open on Sunday but were restricted to the sale of the merchandise in question would be far greater than the problems accruing if only beach and amusement park vendors were exempted. Here again, there has been no indication of the unreasonableness of this differentiation. On the record before us, we cannot say that these statutes do not provide equal protection of the laws.
II.
Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of “merchandise essential to, or customarily sold at, or incidental to, the operation of” bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants’ employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. See United States v. Harriss, 347 U. S. 612, 617-618. Under these circumstances, there is no necessity to guess at the statute’s meaning in order to determine what conduct it makes criminal. Connally v. General Construction Co., 269 U. S. 385, 391. Questions concerning proof that the items appellants sold were customarily sold at, or incidental to the operation of, a bathing beach .or amusement park were not raised in the Maryland Court of Appeals, nor are they raised here. Thus, we cannot consider the matter. Whitney v. California, 274 U. S. 357, 362-363.
III.
The final questions for decision are whether the Maryland Sunday Closing Laws conflict with the Federal Constitution’s provisions for religious liberty. First, appellants contend here that the statutes applicable to Anne Arundel County violate the constitutional guarantee of freedom of religion in that the statutes’ effect is to prohibit the free exercise of religion in contravention of the First Amendment, made applicable to the States by the Fourteenth Amendment. But appellants allege only economic injury to themselves; they do not allege any infringement of their own religious freedoms due to Sunday closing. In fact, the record is silent as to what appellants’ religious beliefs are. Since the general rule is that “a litigant may only assert his own constitutional rights or immunities,” United States v. Raines, 362 U. S. 17, 22, we hold that appellants have no standing to raise this contention. Tileston v. Ullman, 318 U. S. 44, 46. Furthermore, since appellants do not specifically allege that the statutes infringe upon the religious beliefs of the department store’s present or prospective patrons, we have no occasion here to consider the standing question of Pierce v. Society of Sisters, 268 U. S. 510, 535-536. Those persons whose religious rights are allegedly impaired by the statutes are not without effective ways to assert these rights. Cf. N. A. A. C. P. v. Alabama, 357 U. S. 449, 459-460; Barrows v. Jackson, 346 U. S. 249, 257. Appellants present no weighty countervailing policies here to cause an exception to our general principles. See United States v. Raines, supra.
Secondly, appellants contend that the statutes violate the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment. If the purpose of the “establishment” clause was only to insure protection for the “free exercise” of religion, then what we have said above concerning appellants’ standing to raise the “free exercise” contention would appear to be true here. However, the writings of Madison, who was the First Amendment’s architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority. Thus, in Everson v. Board of Education, supra, the Court permitted a district taxpayer to challenge, on “establishment” grounds, a state statute which authorized district boards of education to reimburse parents for fares paid for the transportation of their children to both public and Catholic schools. Appellants here concededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion. We find that, in these circumstances, these appellants have standing to complain that the statutes are laws respecting an establishment of religion.
The essence of appellants’ “establishment” argument is that Sunday is the Sabbath day of the predominant Christian sects; that the purpose of the enforced stoppage of labor on that day is to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of universal rest is to induce people with no religion or people with marginal religious beliefs to join the predominant Christian sects; that the purpose of the atmosphere of tranquility created by Sunday closing is to aid the conduct of church services and religious observance of the sacred day. In substantiating their “establishment” argument, appellants rely on the wording of the present Maryland statutes, on earlier versions of the current Sunday laws and on prior judicial characterizations of these laws by the Maryland Court of Appeals. Although only the constitutionality of § 521, the section under which appellants have been convicted, is immediately before us in this litigation, inquiry into the history of Sunday Closing Laws in our country, in addition to an examination of the Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether the Maryland Sunday law in question is one respecting an establishment of religion. There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive changes from the earliest forms, still retains its religious character.
Sunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century. In 1237, Henry III forbade the frequenting of markets on Sunday; the Sunday showing of wools at the staple was banned by Edward III in 1354; in 1409, Henry IV prohibited the playing of unlawful games on Sunday; Henry VI proscribed Sunday fairs in churchyards in 1444 and, four years later, made unlawful all fairs and markets and all showings of any goods or merchandise; Edward VI disallowed Sunday bodily labor by several injunctions in the mid-sixteenth century; various Sunday sports and amusements were restricted in 1625 by Charles I. Lewis, A Critical History of Sunday Legislation, 82-108; Johnson and Yost, Separation of Church and State, 221. The law of the colonies to the time of the Revolution and the basis of the Sunday laws in the States was 29 Charles II, c. 7 (1677). It provided, in part:
“For the better observation and keeping holy the Lord’s day, commonly called Sunday: be it enacted . . . that all the laws enacted and in force concerning the observation of the day, and repairing to the church thereon, be carefully put in execution; and that all and every person and persons whatsoever shall upon every Lord’s day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor or business or work of their ordinary callings upon the Lord’s day, or any part thereof (works of necessity and charity only excepted); . . . and that no person or persons whatsoever shall publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods, or chattels, whatsoever, upon the Lord’s day, or any part thereof. . . .” (Emphasis added.)
Observation of the above language, and of that of the prior mandates, reveals clearly that the English Sunday legislation was in aid of the established church.
The American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the Plymouth Colony proscribed servile work, unnecessary travelling, sports, and the sale of alcoholic beverages on the Lord’s day and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, “And to the end the Sabbath may be celebrated in a religious manner. ...” A 1653 enactment spoke of Sunday activities “which things tend much to the dishonor of God, the reproach of religion, and the profanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God. . . .” Lewis, op. cit., supra, at pp. 160-195, particularly at 167, 169. These laws persevered after the Revolution and, at about the time of the First Amendment’s adoption, each of the colonies had laws of some sort restricting Sunday labor. See note, 73 Harv. L. Rev. 729-730, 739-740; Johnson and Yost, op. cit., supra, at pp. 222-223.
But, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor. In the middle 1700’s, Blackstone wrote, “[T]he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.” 4 Bl. Comm. 63. A 1788 English statute dealing with chimney sweeps, 28 Geo. III, c. 48, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that “persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants. ...” 3 Records of the Colony of Rhode Island and Providence Plantations 31. The New York law of 1788 omitted the term “Lord’s day” and substituted “the first day of the week commonly called Sunday.” 2 Laws of N. Y. 1785-1788, 680: Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed. Note, 73 Harv. L. Rev., supra, at pp. 729-730.
More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come. In England, during .the First World War, a committee investigating the health conditions of munitions workers reported that “if the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. ... On economic and social grounds alike this weekly period of rest is best provided on Sunday.”
The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations, Note, 73 Harv. L. Rev. 730-731; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers’ Chamber of Trade, and the National Union of Shop Assistants. 308 Parliamentary Debates, Commons 2158-2159.
Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system. Note, 73 Harv. L. Rev. 732-733; Note, 12 Rutgers L. Rev. 506. Some of our States now enforce their Sunday legislation through Departments of Labor, e. g., 6 S. C. Code Ann. (1952), § 64^5. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted.
Moreover, litigation over Sunday closing laws is not novel. Scores of cases may be found in the state appellate courts relating to sundry phases of Sunday enactments. Religious objections have been raised there on numerous occasions but sustained only once, in Ex parte Newman, 9 Cal. 502 (1858); and that decision was overruled three years later, in Ex parte Andrews, 18 Cal. 678. A substantial number of cases in varying postures bearing on state Sunday legislation have reached this Court. Although none raising the issues now presented have gained plenary hearing, language used in some of these cases further evidences the evolution of Sunday laws as temporal statutes. Mr. Justice Field wrote in Soon Hing v. Crowley, 113 U. S. 703, at p. 710:
“Laws setting aside Sunday as a day of rest are upheld, not from any right of the. government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States.”
While a member of the California Supreme Court, Mr. Justice Field dissented in Ex parte Newman, supra, at pp. 519-520, 528, saying:
“Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and ' sustained by science. . . . The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted.”
This was quoted with approval by Mr. Justice Harlan in Hennington v. Georgia, supra, who also stated:
“It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease.” Id., at 304.
And Mr. Chief Justice Fuller cited both of these passages in Petit v. Minnesota, supra.
Before turning to the Maryland legislation now here under attack, an investigation of what historical position Sunday Closing Laws have occupied with reference to the First Amendment should be undertaken, Everson v. Board of Education, supra, at p. 14.
This Court has considered the happenings surrounding the Virginia General Assembly’s enactment of “An act for establishing religious freedom,” 12 Hening’s Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment’s meaning. See the opinions in Everson v. Board of Education, supra. In 1776, nine years before the bill’s passage, Madison co-authored Virginia’s Declaration of Rights which provided, inter alia, that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience. ...” 9 Hening’s Statutes of Virginia 109, 111-112. Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing “maintaining any opinions in matters of religion, jorbearing to repair to church, or the exercising any mode of worship whatsoever” (emphasis added), were repealed, and all dissenters were freed from the taxes levied for the support of the established church. Id., at 164. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment. This hope was finally realized when “A Bill for Establishing Religious Freedom” was passed in 1785. In this same year, Madison presented to Virginia legislators “A Bill for Punishing . . . Sabbath Breakers” which provided, in part:
“If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary houshold offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.”
This became law the following year and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar laws were in force in other States, when Madison stated at the Virginia ratification convention:
“Happily for the states, they enjoy the utmost freedom of religion. . . . Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. ... I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom.”
In 1799, Virginia pronounced “An act for establishing religious freedom” as “a true exposition of the principles of the bill of rights and constitution,” and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia’s statute banning Sunday labor stood.
In Reynolds v. United States, 98 U. S. 145, the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon’s attack on a statute making bigamy a crime. The Court said:
“In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, ‘it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.’ 12 Hening’s Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.” Id., at 165.
In the case at bar, we find the place of Sunday Closing Laws in the First Amendment’s history both enlightening and persuasive.
But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment’s background proves helpful. The First Amendment states that “Congress shall make no law respecting an establishment of religion. . . .” U. S. Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part:
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” (Emphasis added.) I Annals of Congress 434.
We are told that Madison added the word “national” to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment’s proscription of establishment may be found in that debate.
In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, “no religion shall be established by law.” I Annals of Congress 729. Mr. Gerry “said it would read better if it was, that no religious doctrine shall be established by law.” Id., at 730. Mr. Madison “said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . . He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform.” Id., at 730-731.
The Amendment, as it passed the House of Representatives nine days later, read, in part:
“Congress shall make no law establishing religion. . . .” Records of the United States Senate, 1A-C2 (U. S. Nat. Archives).
It passed the Senate on September 9, 1789, reading, in part:
“Congress shall make no law establishing articles of faith, or a mode of worship.....” Ibid.
An early commentator .opined that the “real object of the amendment was ... to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” 3 Story, Commentaries on the Constitution of the United States, 728. But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a “broad interpretation ... in the light of its history and the evils it was designed forever to suppress. . . .” Everson v. Board of Education, supra, at pp. 14-15. It has found that the First and Fourteenth Amendments afford protection against religious establishment far more extensive than merely to forbid a national or state church. Thus, in McCollum v. Board of Education, 333 U. S. 203, the Court held that the action of a board of education, permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms, to be contrary to the “Establishment” Clause.
However, it is equally true that the “Establishment” Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U. S. 333; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.
Thus, these broad principles have been set forth by this Court. Those cases dealing with the specific problems arising under the “Establishment” Clause which have reached this Court are few in number. The most extensive discussion of the “Establishment” Clause’s latitude is to be found in Everson v. Board of Education, supra, at pp. 15-16:
“The 'establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious
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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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