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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.
MISSOURI STATE LIFE INS. CO. v. PATER.
(Circuit Court of Appeals, Seventh Circuit.
December 4, 1926.)
No. 3795.
1. Insurance <§=>668(12) — Whether Insured committed suicide held, under evidence, for jury.
In action on accident policy, question whether insured committed suicide held, under evidence, for jury.
2. Insurance <§=>646(3) — Burden of proving death of insured by accidental means is on plaintiff.
In action on accident insurance policy, plaintiff has burden of proving death by accidental means.
3. Insurance <§=>668(6) — Materiality of statement of applicant for accident insurance as to other insurance held, under evidence, for jury.
Whether statement of applicant for accident insurance that he had no other accident or health insurance materially affected acceptance of risk held, under evidence, for jury.
4. Insurance <§=>668(7) — Whether statement of applicant for accident insurance concerning prior health affected risk held for jury.
Whether statement of applicant for accident insurance concerning prior health materially affected acceptance of risk held, under evidence, question for jury.
5. Insurance <§=>668(7) — Whether applicant for accident insurance falsely represented that his habits were temperate held question for jury.
Truth or falsity of statement of applicant for accident insurance concerning his use of liquor held', under evidence, for jury.
In Error to the District Court of the United States for the District of Indiana.
Action by Mamie K. Pater against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Claris Adams, of St. Louis, Mo., and D. H. Ortmeyer, of Evansville, Ind., for plaintiff in error.
Frank H. Hatfield and Louis L. Roberts, both of Evansville, Ind., for defendant in error.
Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.
ALSCHULER, Circuit Judge.
The judgment assailed is predicated on a contract of insurance dated March 7,1923, providing for indemnities of $50 weekly, and $15,000 in case of death, where the injury or death results wholly from accidental means, not including “suicide, sane or insane.” One of the policy conditions was that eopy of the application appearing thereon, dated March 6, was made part of the contract. In the application appear these questions and answers:
“J. What accident or health insurance have you in other companies or associations? None.”
“N. Are your habits temperate? Yes.”
“P. Have you within the past five years had medical or surgical advice or treatment, or any departures from good health? If so, state when and what? 1921; broken ribs; complete recovery.”
“S. Do you agree that the falsity of any answer in this application for a policy shall bar the right to recover thereunder, if such answer is made with intent to deceive, or materially affects either the acceptance of the risk or the hazard assumed by the company? Yes.”
Insured died the following September 23 from a self-inflicted knife stab. Plaintiff, in error predicates its contention of nonliability upon the claim that insured committed suicide; also that the above-quoted answers were false and intended to deceive, or materially affected the acceptance of the risk or the hazard whieh the company assumed.
That there appears in the evidence much tending to support the conclusion of suicide must be conceded. Insured and his wife, beneficiary under the policy, were in their kitchen doing the work after the evening meal. He was wiping the dishes, and the last article wiped was a short, pointed paring knife. The wife in her testimony stated that, turning from him, she heard him say, “Here goes,” and then, looking at him, she saw blood on his shirt, and him in the act of laying down the knife, and taking a few steps, falling, and dying shortly thereafter. The post mortem showed a knife wound about two inches deep, whieh penetrated the heart sufficiently to cause death. There was evidence tending to show that he had sustained business reverses, was drinking, and had threatened self-destruction.
On the other hand, it was testified that he was generally in excellent health and spirits ; that, notwithstanding some previous business troubles, he was in fair/ shape, his wife and her mother having advanced considerable money to save the hardware business in which he had been long" engaged, making him the manager of it; that his relations with his wife and their several young children were most happy; that he was temperate, and of a jovial, playful disposition, frequently playing games with his own and other children of the neighborhood. A number of witnesses testifled to Ms quite frequent practice of taking a knife or other sharp instrument in Ms hands, and in the presence of others moving it toward his body, and just before contact turning Ms hand about and striking himself with his fist, exclaiming, “Here goes,” or some similar exclamation, but all in play, and for the purpose of frightening those who happened to be about, calling the performance the “Dutch Act,” but with notMng to indicate intent to harm himself; that such things would be done both in store and at home; and that in general he was much given to mock heroics and “play acting.”
We are of the opinion that upon the record thé question of suicide was one of fact for the jury, whose conclusion therein we do not feel at liberty to disturb. To be sure, appellee had the burden of showing that the death was caused through accidental means; but, under the circumstances, rejecting the theory of suicide leaves no alternative but the conclusion of death through accidental means.
Bespeeting the answer to question J, to the effect that he had no accident or health insurance in other companies or associations, it appeared in evidence that just before the date of the application he had written a letter to some other concern, calling attention to the fact that he had had a cold or an attack of flu, wMeh had disabled Mm for about a week, and asking for blanks to claim indemnity therefor. The blanks were evidently furnished, and there was introduced in evidence such a blank, apparently signed by him, setting forth such illness, and saying he had been treated by a physician, but that he had recovered. There was also in evidence Ms receipt for $22.14, wMch evidently was paid him by this other concern on March 19, given to what was called Business Men’s Indemnity Association, reciting a policy therein and payment “on account of disability caused by sickness on or about February 22, 1923.” The statement of claim mentioned the policy as bearing date May 5, 1922. There was no other evidence-as to the nature of the insuring concern or the amount or nature of the policy. It was stipulated that an action on that policy, begun by appellee, was pending; but the widow testified she did not know whether or not the policy was in force, and it does not appear whether that action is predicated on the death of the insured, or on the same or some other illness. We gather from the record that the policy was not an accident, but a health policy. . It may well be that the deceased in good faith may have answered as he did, thinking that, since it was a health policy, and the one in question an accident policy, or, as he termed it, a “life” .policy, they did not in any way conflict.
But can the court say, as a matter of law, that the answer “materially affects the acceptance of the risk or the hazard assumed by the company”? Appellant contends that, the answer being untrue, the'conclusion of materiality and hazard follows as a matter of law. If so, why this clause ? The clause is not to be treated as though it were not present, and as if in its place were the frequently found clause, unqualified, that falsity of any answer in the application would void the policy. Courts have had frequently to deal with such clauses. It is possible to imagine circumstances under which a court might be warranted in saying that reasonable minds could not differ on the conclusion of the materiality of a concealed fact respecting other insurance. But where, as here, the prior policy was manifestly of a different class, and, under the evidence, may have been for no considerable amount, and possibly not even in force when appellant’s policy issued, the question of its effect upon the acceptance of the risk or the hazard assumed by the company, as well as the good faith of the deceased in maHng the answer, was for the jury.
And likewise ás to the answer to ques-P, respecting his prior health, as bearing on the acceptance of the risk, or the extent of the hazard assumed by the company, and of his good faith in making the answer. Again, one can imagine a case where a court might be warranted in concluding that reasonable minds would not differ upon the inference to be drawn, had certain falsely represented facts respecting prior health been truthfully stated, as, for instance, had he deliberately concealed that he was a subject of severe and serious epileptic attacks which strongly predispose to accidents. But the situation here is so manifestly different that it was for the jury to determine whether, and to what extent, the answer complained of influenced the acceptance of the risk or hazard. Indeed, under the facts here appearing it might, with some show of reason, be said that reasonable minds would not differ on the conclusion that his week’s indisposition, through what he called a cold and the flu, wherefrom he had probably recovered at the time of the application, would in any manner have influenced the company against writing the policy, or have affected the rate or the hazard. It is in tMs connection worthy of note that so apparently unimportant was considered the matter of applicant’s physical condition that no personal examination of him appears to have been required or made prior to issuing him the policy.
Respecting answer to question N, stating his habits to be temperate, whether the answer was true or false was clearly for the jury. There was evidence that liquor he had drunk was poisonous, and made him sick on several occasions; but his physician and others testified he was temperate, and it appeared that a post mortem revealed nothing which would indicate his addiction to liquor drinking.
The jury was fairly charged on all the propositions involved, and no complaint is made on that score.
The judgment must be and is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_stid
|
28
|
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.
Robert COLE, Appellant, v. Robert PARRATT, Appellee.
No. 82-1399.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 7, 1982.
Decided Sept. 13, 1982.
Robert Cole, pro se.
Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for appellee.
Before ROSS and McMILLIAN, Circuit Judges, and DAVIES, Senior District Judge.
The Honorable Ronald N. Davies, United States Senior District Judge for the District of North Dakota, sitting by designation.
PER CURIAM.
Robert Cole appeals from the denial of his petition for a writ of habeas corpus. We affirm.
In 1974, Cole was convicted of robbery in a Nebraska state trial court. At that time, he was also adjudged an habitual criminal on the basis of two prior convictions in 1956 and 1962; this resulted in an enhanced sentence. The conviction and sentence were affirmed on direct appeal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
Cole subsequently sought post-conviction relief in state court, alleging, inter alia, that because the 1956 conviction used in the habitual criminal proceeding was constitutionally defective, his adjudication as an habitual criminal was invalid. No objection to the use of the prior conviction had been raised at the habitual criminal proceeding. The Nebraska Supreme Court denied relief, concluding that Cole’s failure to challenge the validity of the 1956 conviction of the habitual criminal hearing waived the issue and precluded him from raising it collaterally in a post-conviction proceeding. State v. Cole, 207 Neb. 318, 298 N.W.2d 776, 778 (1980).
In June 1981, Cole initiated the present federal habeas corpus action, again asserting that the use of the allegedly unconstitutional 1956 conviction rendered his adjudication as an habitual criminal invalid. The federal magistrate to whom the case was referred concluded that Cole, by failing to object to the use of the challenged conviction, had waived the alleged constitutional defect. Because Cole had not demonstrated that his failure to object was justified by “cause” and had resulted in “actual prejudice,” Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the magistrate recommended that the petition be dis-
missed. The district court adopted the magistrate’s report and entered an order dismissing the action. This appeal followed.
We agree that Cole’s failure to contest the use of the 1956 conviction at the state habitual criminal hearing, as required, precludes federal habeas review of his constitutional claim. Absent a showing of cause for noncompliance with a state’s contemporaneous-objection rule and a demonstration of actual prejudice resulting from the alleged constitutional deprivation, the failure of trial counsel to raise a constitutional issue in state court will bar the defendant from raising the issue in a federal habeas corpus action. Wainwright v. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; see Graham v. Mabry, 645 F.2d 603, 605-06 (8th Cir. 1981); Parton v. Wyrick, 614 F.2d 154, 157 (8th Cir.), cert. denied, 449 U.S. 846, 101 S.Ct. 131, 66 L.Ed.2d 56 (1980).
Cole has not advanced a specific reason for his attorney’s failure to contest the use of the 1956 conviction. Counsel on this appeal speculates that because relevant records of the 1956 conviction are unavailable, proof of Cole’s constitutional claim at the habitual criminal hearing was not possible. This impossibility, counsel argues, constitutes adequate “cause” for the failure to raise the constitutional issue at the habitual criminal proceeding. We cannot agree. While the unavailability of these records would undoubtedly have compounded the difficulty in reviewing Cole’s constitutional claim, there is nothing to indicate this difficulty would have actually precluded effective consideration of the claim by the state court. A finding of “cause” in these circumstances would undermine the reasoning of Sykes. See 433 U.S. at 90, 97 S.Ct. at 2508.
In sum, we agree with the district court that Cole has shown no cause of his noncompliance with state procedures during the habitual criminal proceeding. Accordingly, the order dismissing his petition for a writ of habeas corpus is affirmed.
. Cole contends the guilty plea upon which his 1956 conviction was founded was not shown by the record to have been voluntarily and intelligently made.
. The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska.
. Cole also contends the unavailability of the records of his 1956 conviction constitutes an “unconscionable breakdown” in state proceedings which obviates the need to demonstrate cause. This argument is based on Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978), which involved a habeas petitioner’s attempt to assert a fourth amendment claim that had not been raised at his state criminal trial. The Second Circuit concluded that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded federal habeas review of the issue. It suggested, however, that where the state provides the process by which a defendant can litigate a fourth amendment claim, “but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, [federal habeas relief] may still be warranted.” 568 F.2d at 840.
Even assuming we were to apply this reasoning in the context of this case, Cole’s argument is without merit. Decisions applying Gates have found “unconscionable breakdowns” in state processes in circumstances where a defendant was actually denied the opportunity to present a constitutional claim to the state court. See Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980); Cruz v. Alexander, 477 F.Supp. 516 (S.D.N.Y.1979), appeal dismissed, 622 F.2d 573 (2d Cir. 1980). In contrast, while the unavailability of records in connection with the 1956 conviction would have compounded the difficulty in reviewing Cole’s constitutional claim, it did not actually deprive him of the opportunity to present that claim in state court.
. Because Cole has not satisfied the “cause” requirement by Sykes, it is unnecessary to determine whether he was actually prejudiced by use of the 1956 conviction. See Graham v. Mabry, 645 F.2d 603, 608 n.3 (8th Cir. 1981).
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:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellant, v. Frank S. CANNONE et al., Appellees. UNITED STATES of America, Appellant, v. Raymond D. MASCIARELLI and Lawrence Schultz, Appellees.
No. 142, Docket 75-1201.
United States Court of Appeals, Second Circuit.
Argued Sept. 4, 1975.
Decided Sept. 26, 1975.
Rehearing and Rehearing En Banc Denied Feb. 17, 1976.
Eugene Welch, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N. D. N. Y., of counsel), for appellant.
Dante M. Scaccia, Syracuse, N. Y. (Love, Balducci & Scaccia, Syracuse, N. Y.), for appellees Masciarelli and McGrath.
James P. Shanahan, Syracuse, N. Y., for appellee Lawrence Schultz.
Before SMITH, HAYS and MESKILL, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
The United States appeals from an order entered by Judge Port in three criminal cases pending in the United States District Court for the Northern District of New York, requiring the pretrial disclosure of the names (and addresses) of all the government’s witnesses and providing for the exclusion of the testimony of those witnesses not duly identified. The defendants contend that the order was within the court’s discretion, and most of them also claim that the order is not appealable. The government contends that the order is appealable and that the court lacked authority to enter the order or, in the alternative, that the issuance of the order constituted an abuse of discretion. We hold that the order is appealable, that the court had authority to enter it, but that the record does not establish that under the circumstances of this case the order was within the allowable scope of the court’s discretion. We reverse and remand.
Two indictments and twelve defendants are involved in this appeal. One indictment contains three' counts charging eleven persons. Ten of these persons are charged in count one with conducting an illegal gambling business in violation of 18 U.S.C. §§ 2 and 1955 and in count two with conspiring to conduct such a business in violation of 18 U.S.C. § 371. The third count of the first indictment charges one of the ten and an eleventh with obstruction of justice by beating a grand jury witness in violation of 18 U.S.C. §§ 2 and 1503. The second indictment charges one of the defendants charged in the first indictment and a twelfth with unlawful use of interstate wire communication facilities in the business of betting, in violation of 18 U.S.C. §§ 2 and 1084(a). The four counts included in the two indictments have been ordered apportioned among three trials: a trial of the first two counts of the first indictment, a trial of the third count of the first indictment, and a trial of the single count of the second indictment.
On March 11, 1975, after various discovery motions relating to statements, recordings, and similar matters, a discovery order was entered in which the court inadvertently included an order for pretrial discovery of the names (and addresses) of the government’s witnesses. The government promptly moved that this provision be reconsidered and stricken. In support of its motion, the government emphasized that two of the defendants were already charged with beating a grand jury witness, and it submitted to the court for in camera inspection materials purportedly evidencing two additional instances of attempts to influence witnesses. In opposition to the motion, the defendants contended that disclosure of the identity of the government’s witnesses was necessary to the preparation of an adequate defense and that the accusation that two of the defendants had beaten a grand jury witness was unfounded. On April 18, 1975, after examining the materials submitted by the government, the court denied the government’s motion, but, at the government’s request, on May 1, 1975, the court amended its March 11 order by adding the provision that the testimony of any government witness whose identity was not disclosed would be excluded at trial. The government appealed the amended order on May 8, 1975.
The first question raised is the appealability of the order. We agree with the Sixth Circuit that such an order is appealable under 18 U.S.C. § 3731 because of its provision for the sanction of exclusion. See United States v. Battisti, 486 F.2d 961 (6th Cir. 1973).
The next question is whether the district court had the discretion to enter an order requiring the government to disclose the identity of its witnesses. As the government concedes, nowhere in the United States Code or the Federal Rules of Criminal Procedure are district courts explicitly authorized or forbidden to order pretrial disclosure of government witnesses in non-capital cases. As far as this question is concerned, however, we reject the government’s contention that the trial court had no general discretion to require the disclosure of the identity of the government’s witnesses. See United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973):
It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice. “A federal court has the responsibility to supervise the administration of criminal justice in order to ensure fundamental fairness.” United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970). It would be ill-advised to limit improvidently this inherent power for fear of misuse. The firing point of the legal system is with the trial judge who is best situated to administer the law and protect the rights of all. Such discretion is not limitless, but appellate review provides a proper check. Therefore, we are not disposed to hold that the district court may never order the government to divulge names of prospective witnesses.
The general discretion of district courts to compel the government to identify its witnesses is acknowledged widely, although the source of this discretion is subject to some disagreement.
The government’s arguments in support of its contention that district courts lack general discretion to compel the disclosure of the identity of government witnesses are not persuasive. First, apparently relying on the maxim inclusio unius est exclusio alterius, the government argues that Congress’ requirement of pretrial disclosure of the identity of government witnesses in capital cases under 18 U.S.C. § 3432 demonstrates that Congress intended no such disclosure in non-capital cases. At most, however, even assuming Congress to be a totally consistent body, the enactment of § 3432 and of no other specific provisions for pretrial disclosure of government witnesses indicates that Congress did not intend that district courts be compelled to order such disclosure in non-capital cases — an indication which is by no means inconsistent with district courts possessing the discretionary power to order such disclosure.
The government’s second argument is equally dubious. The government contends that 18 U.S.C. § 3500(a) and a parallel provision in Fed.R. Crim.P. 16(b), which prohibit the compulsory pretrial disclosure of statements of government witnesses, somehow evidence Congress’ intent that district courts not have the discretion to compel the pretrial disclosure of the names of government witnesses. Ironically, however, application here of the maxim inclusio unius est exclusio alterius, implicitly invoked by the government in its first argument, supports the argument that Congress elected not to restrict the courts’ power to compel pretrial disclosure of the identity of government witnesses (in non-capital cases).
The government’s final line of argument is perhaps the most dubious of all. It centers on two of Congress’ recent alterations of the proposed amendments to the Federal Rules of Criminal Procedure. Specifically, Congress deleted Proposed Rule 16(a)(1)(E), 62 F.R.D. 305 (1974), which would have mandated pretrial disclosure of the names of government witnesses upon defense demand, and made a conforming change in Proposed Rule 16(d)(1), 62 F.R.D. 307 (1974), which would have enabled the government in some instances to obtain a protective order against disclosure demands made pursuant to Proposed Rule 16(a)(1)(E). 121 Cong.Rec. H 7681 (daily ed. July 28, 1975). The government argues first that the fact that these amendments were initially proposed indicates that district courts at that point did not have the authority to compel disclosure of the identity of government witnesses. This argument is clearly without merit. In the first place, the contemporaneous opinions of the sponsors of these proposed amendments are not legally determinative of the present power of district courts. Secondly, the proposed amendment provided for a general right to discovery of government witnesses on the part of defendants, not discretionary judicial power to compel such discovery. And even if it had provided for discretionary power of this sort, often legislatures codify non-statutory law or recodify ambiguous statutory law. Without a trace of misgivings about this first argument, the government proceeds to make the additional one that Congress’ deletion of Proposed Rule 16(a)(1)(E) somehow buttresses the government’s contention that district courts do not have the authority to compel pretrial disclosure of the identity of its witnesses. Once again, the government appears to manifest the belief that the current opinions of Congress are in some way determinative of the legal power of federal courts. Perhaps, the government ignores the fact that, although Congress has acted on the proposed amendments to the Rules, these amendments, with one immaterial exception, will not take effect until December 1, 1975. Even if these amendments were assumed to be currently in effect and even if Congress were assumed to have the power under the Constitution to restrict the courts’ authority to require pretrial disclosure of government witnesses, the courts would probably at this date still possess this authority. The government argues that much weight should be given to a statement made by Senator McClellan, in connection with the deletion of Proposed Rule 16(a)(1)(E), to the effect that the courts’ power to compel discovery of government witnesses should be limited to that required by the constitutional rights of defendants. 121 Cong.Rec. S 14301 (daily ed. July 30, 1975). If, however, weight is to be given to any statements as indications of Congressional intent, more significance should be accorded the relevant portion of the clearly more authoritative Joint Explanatory Statement of the Committee of Conference which states:
A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contacts directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy.
121 Cong.Rec. H 7683 (daily ed. July 28, 1975) (emphasis added). Thus, the Committee appears to express a desire that courts not be required to force disclosure of the identity of government witnesses, not a desire that courts not have the discretionary power to force such disclosure.
For a similar discussion of the government’s arguments in support of its contention that district courts lack the general authority to compel pretrial disclosure of the identity of government witnesses, see United States v. Jackson, 508 F.2d 1001, 1005-07 (7th Cir. 1975), petition for rehearing denied, 508 F.2d 1001 (7th Cir. 1975).
While district courts have authority to compel pretrial disclosure of the identity of government witnesses, their use of this authority is reviewable for abuse of discretion. Thus, the final question raised by this appeal is whether, given the particular circumstances of this case, the court was within the allowable scope of its discretion when it ordered disclosure of the identity of the government’s witnesses. For the reasons hereinafter expressed, we find that the record does not demonstrate that it was.
Brief consideration of some of the consequences of pretrial disclosure of the identity of government witnesses illuminates the need to afford courts the discretion to determine whether such disclosure should be compelled. The most potent argument for compulsory disclosure of the identity of the prosecution’s witnesses is that, without the benefit of such disclosure, the defense may be substantially hampered in its preparation for trial. At a minimum, pretrial ignorance of the identity of the prosecution’s witnesses tends to detract from the effectiveness of the defense’s objections and cross-examination. Although continuances, which tend to mitigate the detrimental effects of unpreparedness, are sometimes obtainable, not only are they merely a partial solution to the problem of unpreparedness but, in addition, their prolongation of trials is of course costly to both the government and the defendant. While, primarily for these reasons, disclosure of the identity of government witnesses is often desirable, intimidation of witnesses and subornation of perjury are not unknown, United States v. Percevault, 490 F.2d 126, 131 (2d Cir. 1974); nor, for that matter, is actual injury to witnesses. Accordingly, in some instances, the concealment of the identity of government witnesses is appropriate. Presumably, the question whether in a particular case the benefits of such concealment outweigh its costs can generally be dealt with much more reliably after, rather than before, the case has materialized. Consequently trial judges need discretion in this area.
In United States v. Richter, supra at 174-75, the Ninth Circuit explicitly addressed the problem of supervising the discretionary power of district courts to compel disclosure of the identity of government witnesses. The court in Richter held that, although this power is not encompassed within Fed.R. Crim.P. 16, but rather is “inherent” in the courts, it should, nevertheless, be utilized as if it were governed by Rule 16(b). Accordingly, the court concluded, first, that a motion for disclosure of the identity of government witnesses should only be considered “upon a showing of materiality to the preparation of [the defendant’s] defense and that the request is reasonable,” (Fed.R. Crim.P. 16(b)) and, second, that the government should be able to oppose such disclosure by moving for a protective order similar to that provided for under Rule 16(e). United States v. Richter, supra at 175:
Following these procedures will insure that there is an adequate basis for requesting such discovery and will afford the government a known method for resisting the request. Furthermore, the procedures will produce a record which will enable and facilitate appellate review when it is claimed that the trial judge abused his considerable discretion.
The court in Richter then proceeded to the consideration of the case before it. The court held that the record was insufficient to establish that the trial judge had not abused his discretion in ordering the pretrial disclosure of the identity of certain government witnesses since the only justification for the judge’s ruling reflected in the record was a defendant’s “mere statement” “that discovery was reasonable and was necessary in order to prepare properly for trial.” Id. The court clearly would have been satisfied only if the record had evidenced that the defendant had supplemented his conclusory claim with a specific showing that disclosure was both material to the preparation of his defense and reasonable in light of the circumstances surrounding his case.
Here, as appeared to be the case in Richter, to justify its request for disclosure of the identity of government witnesses, the defense made only an abstract, conclusory claim that such disclosure was necessary to its proper preparation for trial. In the instant case, the district court clearly abused its discretion in granting such discovery. Here the government advanced specific grounds for denying the defense’s requests for discovery of the identity of the government’s witnesses. It is not even necessary to consider the materials which the government submitted to the court for in camera inspection; for purposes of this opinion, it is enough that the government reminded the court that two defendants had already been indicted for obstructing justice by beating a grand jury witness since the government’s advancement of this fact for the court’s consideration was sufficient to put the desirability of the discovery order into issue. The indictment of the two defendants for this crime necessarily involved a finding by a grand jury of probable cause to believe that the crime had been committed. The district court, nevertheless, granted the defense’s discovery request without any meaningful explanation. Conceivably, the court could have rationally based its decision on one of two grounds: either that the defense’s need for the disclosure outweighed the possible dangers accompanying disclosure (/. e., subornation of perjury, witness intimidation, and injury to witnesses) or that no such dangers existed despite the government’s protestations to the contrary. But the defense presented the court with no specific evidence of the existence, much less the extent, of its need for disclosure to counter the government’s evidence of the need for concealment; nor does the record reflect either that the court sua sponte made any specific inferences in this regard or that the court concluded that the danger claimed by the government was negligible. To uphold the court’s ruling under these circumstances would virtually preclude the possibility of any meaningful supervision of the district courts’ power of granting (as opposed to denying) motions for the pretrial discovery of the identity of government witnesses. Here, where a specific showing of need for concealment by the government was not challenged by a specific showing of need for disclosure by the defendant, an unannounced conclusion either that the government’s opposition to disclosure was groundless or that the expected benefit of discovery outweighed its expected cost is not sufficient. Accordingly, we hold that the district court in the instant case committed reversible error in sustaining without meaningful explanation the defense’s motion for pretrial discovery of the identity of the government’s witnesses despite both the presence of specific evidence of the need for concealment and the absence of specific evidence of the need for disclosure.
Reversed and remanded.
. Defendant-appellee Schultz concedes the order’s appealability. Appellee’s brief at 3-4.
. The court expressly conceded the inadvertence of the order for pretrial discovery of the identity of the government’s witnesses. Transcript of hearing on April 14, 1975 at 15.
. 18 U.S.C. § 3731 provides in pertinent part:
An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy
* * * * * *
The provisions of this section shall be liberally construed to effectuate its purposes.
. See, e. g., United States v. Jackson, 508 F.2d 1001, 1005-07 (7th Cir.), petition for rehearing denied, 508 F.2d 1001 (7th Cir. 1975) (upholding, on basis of trial court’s “inherent power,” dismissal of indictment on grounds of government’s refusal to comply with pretrial order to identify its witnesses); United States v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973), aff’d, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 21 (1974) (expressly recognizing district court’s discretion under Fed.R. Crim.P. 16 to compel pretrial disclosure of identity of government witnesses); United States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972) (expressly recognizing district court’s general discretion to compel pretrial disclosure of government witnesses); 8 J. Moore, Federal Practice, fl 16.03[3] at 16-26 (2d ed. 1965) (trial courts’ “inherent power” to compel pretrial disclosure of government witnesses in the possible absence of authority to do so under Fed.R. Crim.P. 16) & fl 16.05[4] at 16-58 (noting “ ‘grey area’ [under Fed.R. Crim.P. 16(b) ] respecting pretrial discovery of the identity . . of government witnesses”); see United States v. Baum, 482 F.2d 1325, 1331 n. 3 (2d Cir. 1973) (obligation on part of prosecution to disclose identity of its witnesses absent justification for concealment); United States v. Fink, 502 F.2d 1, 7 (5th Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975) (“the question of the extent of defense discovery, at least that discovery which requires judicial assistance, is a matter within the discretion of the trial court”); cf. Will v. United States, 389 U.S. 90, 99, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (acknowledging district courts’ power to require disclosure of identity of “some” government witnesses in response to defense’s motion for bill of particulars pursuant to Fed.R. Crim.P. 7(f); but see United States v. Conder, 423 F.2d 904, 910 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970) (expressly declaring that identity of government witnesses is not discoverable under Fed.R. Crim.P. 16(b) and strongly implying that courts do not in general have authority to compel disclosure of such information).
. United States v. Jackson, supra note 4, at 1007; United States v. Anderson, supra note 4, at 693; United States v. Richter, supra at 174-75; United States v. Cole, supra note 4, at 198; 8 J. Moore, Federal Practice, fl 16.03[3] at 16-26 (2d ed. 1965).
. Even the conceivability of the court having justifiably discounted totally the government’s contention of a need for the pretrial concealment of the identity of its witnesses is doubtful, for the government’s contention was predicated, not on merely its own accusations, but rather on an indictment issued by a grand jury. While by no means conclusive, the issuance of an indictment is certainly probative of the likely validity of its charges, which, if valid in the case of the third count of the first indictment in the instant case, would in turn clearly be probative of the government’s assertion of a need to conceal the identity of its witnesses.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. James Dean CALLIS, Defendant-Appellant.
No. 17935.
United States Court of Appeals Sixth Circuit.
Feb. 29, 1968.
Dale Quillen, Nashville, Tenn., for appellant.
Gilbert S. Merritt, Jr., Nashville, Tenn., for appellee.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and McALLISTER, Senior Circuit Judge.
PER CURIAM.
Appellant was convicted of entering a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, with intent to commit larceny of money in the possession of the bank.
Appellant claims that there was error on the part of the District Court in calling upon his counsel, In the presence of the jury, to state whether he desired to have the jury excused for the purpose of his making objections or requests for any additional instruction. The claimed error is based on the ground that this action of the court prejudiced the jury. Appellant further contends that the trial court erred in refusing to charge the jury, as requested by appellant, that certain witnesses, by name, Thomas Boner and Luther Martin, were accomplices.
Rule 30 of the Federal Rules of Criminal Procedure provides:
“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”
Appellee points out that the foregoing rule does not provide that the trial judge must excuse the jury, before he finds out that counsel wants the jury excused, in order that he may make objections out of the presence of the jury. The rule provides that the jury must be excused on the request of any party, but not that it be excused before a party requests such action.
As to the refusal of the court to charge the jury, as requested by appellant, that Boner and Martin were accomplices, it is admitted that the District Court correctly charged the jury as to the treatment to be accorded testimony of accomplices ; but the court explained to counsel out of the presence of the jury that the evidence was unclear on the question of the status of the witnesses as accomplices. It further explained that the two witnesses had not been indicted, and remarked that “if someone has not entered a plea of guilty, and I say he’s an accomplice, well then I’ve convicted him myself, haven’t I?”
Appellant refers to the law of Tennessee, where, it is contended, the rule prevails that uncorroborated testimony of an accomplice is insufficient to support a conviction. This, however, is a federal case and the rule is different. In federal cases the uncorroborated testimony of an accomplice is sufficient to support a conviction. While the court did not charge that the witnesses in question were accomplices because it was not clear to it that they were, it nevertheless instructed the jury that an accomplice is one who unites with another person in the commission of a crime voluntarily and with common intent; that an accomplice is not incompetent as a'’ witness because of participation in the crime' charged, but that his testimony, if believed by the jury, might be of sufficient, weight to sustain a verdict of guilty even though not corroborated or supported by other evidence. The court, however, went on to charge that the jury should keep in mind that the testimony of an accomplice is to be received with caution and weighed with great care, and that they should not convict a defendant upon the unsupported testimony of an accomplice unless they believe such testimony to be true beyond a reasonable doubt. This cautionary instruction is in keeping with the better practice.
We are of the view that there was no reversible error in the trial court’s conduct of the trial or in its instructions; and the judgment of the District Court is accordingly affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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 "utilities". Your task is to determine what subcategory of business best describes this litigant.
NORTH CAROLINA ELECTRIC MEMBERSHIP CORPORATION; Haywood Electric Membership Corporation; Pitt & Greene Electric Membership Corporation; Four County Electric Membership Corporation; Piedmont Electric Membership Corporation; Halifax Electric Membership Corporation; Randolph Electric Membership Corporation; Harkers Island Electric Membership Corporation; Brunswick Electric Membership Corporation; Jones-Onslow Electric Membership Corporation; French Broad Electric Membership Corporation; Wake Electric Membership Corporation; Tri-County Electric Membership Corporation; Lumbee River Electric Membership Corporation; South River Electric Membership Corporation; Carteret-Craven Electric Membership Corporation; Central Electric Membership Corporation, Appellants, v. CAROLINA POWER & LIGHT COMPANY; South Carolina Electric & Gas Co., Appellees.
No. 81-1057.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1981.
Decided Dec. 7, 1981.
Rehearing and Rehearing En Banc Denied Feb. 19, 1982.
Edward E. Hall, Washington, D. C. (Wallace E. Brand, Sean T. Beeny, Brand & Hall, Washington, D. C., Thomas Bolch, Raleigh, N. C., on brief) for appellants.
Robert S. Medvecky, Washington, D. C. (Michael B. Early, New York City, Stephen G. Kozey, Reid & Priest, Washington, D. C., James T. Williams, Jr., Reid L. Phillips, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N. C., on brief), for appellee South Carolina Electric & Gas Co.
Robert C. Howison, Jr., Edward S. Finley, Jr., Hunton & Williams, Raleigh, N. C., William Warfield Ross, Toni G. Allen, Lewis M. Popper, Wald, Harkrader & Ross, Washington, D. C., on brief, for appellee Carolina Power & Light Co.
Before HAYNSWORTH, Senior Circuit Judge, and BUTZNER and HALL, Circuit Judges.
K. K. HALL, Circuit Judge:
Sixteen rural electrical cooperatives and the North Carolina Electric Membership Corporation (NCEMC) sued two utility companies, Carolina Power & Light Company (Carolina Power) and South Carolina Electric & Gas (S.C. Electric), charging monopolization of electric power markets in violation of the Sherman Act, 15 U.S.C. §§ 1, 2. During discovery, the district court ruled that defendants would not be required to produce any documents relating to legislative lobbying activities because such documents were protected by the Noerr-Pennington doctrine. At plaintiffs’ request, the court certified its ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We hold that the Noerr-Pennington exemption from anti-trust liability does not extend to discovery of evidence, and therefore we reverse.
The Anti-Trust Allegations
Plaintiff cooperatives distribute electrical power to retail customers in rural areas throughout North Carolina. The"-coophratives obtain most of their wholesale or “bulk power” from generating facilities owned by S.C. Electric and Carolina Power. Because of their dependence upon the two large utilities, the plaintiffs are unable to control the costs of purchasing bulk power. Thus they formed the NCEMC to investigate the possibilities of reducing costs by building separate generating facilities or purchasing bulk power elsewhere. Despite years of investigation, the NCEMC has been unable to develop alternative sources of power. Blaming this failure upon the utilities, the plaintiffs filed an anti-trust action in 1977 alleging that S.C. Electric and Carolina Power illegally blocked their attempts to generate or purchase power elsewhere.
During discovery, plaintiffs requested production of “each document relating to existing, contemplated or proposed state legislation affecting the area in which an electric utility may market electric power and each document relating to conteifiplated or proposed federal legislation regulating the supply of electric power- imbuS or power exchange services.” The defendants objected on the grounds that the information was “constitutionally protected and absolutely privileged.” In an order dated October 18, 1979, the district court ruled that the defendants did not have to produce the legislative material.
Plaintiffs then subpoenaed a nonparty, requesting similar political materials. The defendants filed a motion for a protective order based upon the October 18 ruling. On April 30,1980, the district judge issued a protective order encompassing (1) any documents which “directly concern the passage or implementation of proposed or existing state or federal legislation;” (2) proposed drafts of legislation; (3) letters and documents from publicity campaigns waged by the utilities to secure passage of legislation, and (4) memoranda of negotiations and discussions directly related to petitioning activities. :)
The district court based its decision upon the Noerr-Pennington doctrine. The court held that “unbridled discovery” would “chill” the exercise of defendant’s first amendment rights, and such a chilling effect would be reason enough to prevent discovery. However, the court acknowledged that its application of Noerr-Pennington was broad, and that there was a serious question about the scope of the doctrine. Thus the court certified the order for interlocutory appeal on the issue of whether the Noerr-Pennington exemption from anti-trust violations prevents discovery of material relating to legislative activity.
The Noerr-Pennington Doctrine
The Noerr-Pennington doctrine is an outgrowth of two anti-trust cases in the 1960s, Eastern Railroad Conference v. Noerr Freight Co., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The Noerr case came about when the railroads attempted to beat back the competition of the trucking companies in Pennsylvania by conducting adverse publicity campaigns and by petitioning the legislature for anti-trucking statutes. Forty-one trucking companies brought suit, alleging that the railroad association was violating the monopoly provisions of the Sherman Act. The Supreme Court held that activities designed to influence legislation, including publicity campaigns, afe protected by the first amendment right to petition.
Five years later the Supreme Court decided Pennington. In that case the United Mine Workers (UMW) sued a small mine operator for royalty payments and the operator cross claimed, alleging that the UMW and the large operators conspired to force small operators out of business in violation of federal anti-trust laws. At trial, Pennington presented evidence that the UMW and the large mine operators had jointly approached the Secretary of Labor and the Tennessee Valley Authority in furtherance of their scheme. The Supreme Court held that the district court should have instructed the jury that this legislative petitioning was not illegal. Significantly, the court stated in a footnote that the evidence may be admitted as proof of prior or subsequent transactions, if not unduly prejudicial, as long as the jury was properly instructed.
Thus the Noerr-Pennington doctrine, as it has evolved, is an affirmative defense which exempts from anti-trust liability any petitioning activity designed to influence legislative bodies or governmental agencies. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-511, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972).
Noerr-Pennington and Discovery
Appellants argue that the NoerrPennington doctrine applies only as a defense to the plaintiff’s anti-trust action, and not as a bar to discovery of relevant materials. Moreover, they assert that the first amendment offers no rationale for prohibiting discovery of materials in an anti-trust case. Appellees counter that the district court acted within its discretion in limiting discovery and that the discovery bf inadmissible materials will have a “chilling” effect upon defendant’s future exercise of first amendment rights. We agree~with -appellants that Noerr-Pennington does--not_apply to discovery.
First, Noerr-Pennington is by definition an exemption from anti-trust liability, and not a bar to discovery of evidence. A& noted above, the court in Pennington held that evidence of legislative activity, if relevant, must be accompanied by an instruction which limits the jury’s consideration to non-legislative activities. 381 U.S. at 670, 85 S.Ct. at 1593. That holding presumes the admissibility of relevant evidence. If the evidence is arguably admissible, certainly it should be discoverable.
Second, the appellee’s contention that the discovery of this material would have a chilling effect is without merit. In Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), the Supreme Court ordered production of a memorandum from a producer’s “behind the scenes” planning conference for a television news special. The Court held that such discovery would not have a chilling effect upon the news organization’s first amendment rights. If discovery into the internal affairs of a news organization does not have a chilling effect, then neither would discovery in this case.
Finally, we think that the district court has too narrowly limited Fed.R.Civ.P. 26. There is no authority for fitting the NoerrPennington doctrine into the “privilege” exception to the rule. Nor is there any question that discovery of this material may lead to admissible evidence. Indeed, the. Pennington decision allows at least som<; of that evidence to be admitted at trials, if accompanied by a proper jury instruction: Thus the limitations placed upon plaintiffs’ discovery are outside the discretionary control of the district court, and therefore invalid.
REVERSED.
. While the cooperatives are limited to distribution of power at the retail level, the defendant utilities generate power for sale at wholesale and also distribute power at the retail level to municipal customers.
. The plaintiffs have a two-facetted anti-trust claim. First, they allege that the defendants have fixed artificially low bulk power prices, thereby making development of independent generating stations uneconomical. Second, they contend that the utilities have prevented the cooperatives from purchasing power elsewhere by horizontally controlling the market. The plaintiffs contend that the utilities have refused them access to power exchange markets which are necessary for emergency sources of power should the cooperatives develop alternative supplies.
. The subpoena was issued in the federal district court for the District of South Carolina, and not the Middle District of North Carolina where the litigation began. The protective order was subsequently issued in the Middle District of North Carolina.
. The relevant passage from Pennington reads: “It would of course still be within the province of the trial judge to admit this evidence, if he deemed it probative and not unduly prejudicial, under the ‘established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced to show the purpose and character of the particular transactions under scrutiny.’ ” 381 U.S. at 670, n.3, 85 S.Ct. at 1593, n.3.
. Rule 26 states in pertinent part:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
. Our decision in this case is not to be construed as a limitation upon the district court’s discretion to confine discovery to reasonable bounds or to sustain objections to the production of specific documents pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "utilities". What subcategory of business best describes this litigant?
A. nuclear power plants
B. other producers of power
C. telephone
D. other utilities
E. unclear
Answer:
|
songer_interven
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellant, v. William B. DONNELL, Appellee.
No. 18638.
United States Court of Appeals Eighth Circuit.
Aug. 8, 1967.
Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., for appellant; Norman H. Anderson, Atty. Gen., Jefferson City, Mo., was with him on the brief.
P. Pierre Dominique, Jefferson City, Mo., for appellee.
Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACK-MUN, MEHAFFY, LAY and HEANEY, Circuit Judges, Sitting En Banc.
MATTHES, Circuit Judge.
The crucial question presented in this habeas corpus proceeding is whether Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963), is to be applied retrospectively to the ease of William B. Donnell, an indigent Missouri prisoner, whose conviction in 1960 was affirmed by the Supreme Court of that state in November, 1961. State v. Donnell, 351 S.W.2d 775 (Mo.1961). The district court, Judge Oliver, decided the retroactivity issue in favor of Donnell and entered an order which determined that he was entitled to the relief sought in his application for writ of habeas corpus, but which suspended issuance of the writ for a period of ninety days in order to afford the State of Missouri an opportunity to reprocess Donnell’s appeal. Donnell v. Swenson, 258 F.Supp. 317, 335-36 (W.D. Mo.1966). Swenson, as warden of the Missouri State Penitentiary, has appealed from that order.
Judge Oliver demonstrated in an exhaustive and fully documented opinion that the rule promulgated in Douglas has been given retrospective application by the Supreme Court and other federal and state courts. Donnell v. Swenson, supra at 329-332. In view of Judge Oliver’s full discussion of all the relevant authorities it would be a needless exercise here to survey the law he so thoroughly explored.
At the outset we observe that no question is presented as to the exhaustion of Donnell’s state remedies. He filed a motion to vacate the sentence pursuant to Missouri Rule 27.26. Mo.Sup.Ct. (Crim.) R. 27.26. From the denial of this motion Donnell perfected an appeal through appointed counsel. The Supreme Court of Missouri, after due consideration of all constitutional allegations attacking the validity of the sentence, affirmed. State v. Donnell, 387 S.W.2d 508 (Mo. 1965).
The validity of Donnell’s attack upon his conviction turned in the first instance upon the resolution of the paramount question whether the long-standing Missouri practice of disposing of appeals of nonrepresented indigent defendants comported with the constitutional standards enunciated in Douglas. That issue was squarely presented in Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), where we held, after full consideration of the Missouri system, that “[d] espite Missouri’s forward treatment of indigents under the former practice, * * * [that] procedure failed to conform to the concept formulated by the Supreme Court in Douglas.” 363 F.2d at 157. In deciding Bosler we were not required to, and did not decide, the applicability of the Douglas rule to convictions in Missouri which had become final prior to the decision in Douglas (March 18, 1963). We did demonstrate, however, that Douglas applied to Bosler for the reason that his appeal was pending at the time Douglas was decided. 363 F.2d 157-158.
On application of the State of Missouri the Supreme Court summarily granted certiorari and affirmed per curiam. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (March 13, 1967). The Supreme Court in its opinion rejected without discussion the contention that the Missouri practice, unlike the California appellate review proceedings, afforded an adequate means of fully protecting the rights of indigent defendants.
Although the Supreme Court in Bosler did not intimate that Douglas would be given retroactive effect to preDouglas Missouri convictions, that question was, in our view, settled by Hester v. Swenson, 386 U.S. 261, 87 S.Ct. 1039, 18 L.Ed.2d 49 (March 13, 1967) and Deckard v. Warden, Missouri State Penitentiary, 386 U.S. 284, 87 S.Ct. 1041, 18 L.Ed.2d 50 (March 13, 1967), decided contemporaneously with Swenson v. Bosler, supra. The convictions of Hester and Deckard, Missouri prisoners, had been affirmed by the Missouri Supreme Court prior to the advent of Douglas. State v. Hester, 331 S.W.2d 535 (Mo. February 8, 1960); State v. Deckard, 354 S.W.2d 886 (Mo. February 12, 1962). Subsequently Hester and Deckard sought habeas corpus relief from the Supreme Court of Missouri on the ground that they had been deprived of the services of counsel on appeal from the judgment of conviction. Following denial of such relief, they applied to the Supreme Court of the United States for certiorari. The Attorney General of Missouri opposed the granting of certiorari on the same premise advanced in Swenson v. Bosler, supra, i. e., that the Missouri appellate process was sufficient to protect the rights of indigent defendants. The Supreme Court, however, in each case summarily granted the petition for writ of certiorari, vacated the judgment, and remanded to the Supreme Court of Missouri for further consideration in light of Swenson v. Bosler, supra; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).
In view of the course charted by the Supreme Court we have no alternative but to retroactively apply the principles of Douglas to the case before us. We are mindful, of course, that our decision may have profound consequences on the orderly processes of criminal law administration. The Attorney General of Missouri has estimated that seventy-five pre-Douglas appeals will require reprocessing. The Supreme Court has given due weight to the effect on the administration of justice of a retroactive application of new constitutional standards. See, e. g., Stovall v. Denno, supra, 87 S.Ct. at 1969; Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, supra, 382 U.S. at 418-419, 86 S. Ct. 459; Linkletter v. Walker, 381 U.S. 618, 637-638, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Although this circumstance deserves careful consideration, the Supreme Court manifestly viewed the deprivation of the constitutional right to counsel on appeal as paramount to the difficulties inherent in reprocessing appeals of convictions.
The order appealed from is affirmed.
FLOYD R. GIBSON, Circuit Judge, did not participate in the disposition of this appeal.
. In addition to those authorities cited by Judge Oliver, the Supreme Court on several other occasions has summarily reversed pre-Douglas convictions in light of Douglas. See, e. g., Head v. State of California, 374 U.S. 509, 83 S.Ct. 1883, 10 L.Ed.2d 1047 (1963) ; Jones v. State of California, 374 U.S. 501, 83 S.Ct. 1S78, 10 L.Ed.2d 1045 (1963) ; Harris v. California, 374 U.S. 499, 83 S.Ct. 1870, 10 L.Ed.2d 1044 (1963) ; Tiller v. California, 372 U.S. 771, 83 S.Ct. 1107, 10 L.Ed.2a 140 (1963).
. See also Tettamble v. Missouri, 386 U.S. 265, 87 S.Ct. 1034, 18 L.Ed.2d 42 (March 13, 1967), reversing per curiam, State v. Tettamble, 394 S.W.2d 375 (Mo.1965), a post-Douglas decision.
. Recent opinions of the Supreme Court, moreover, firmly reiterate its holding that an indigent defendant is entitled to the appointment of counsel to assist him in his first appeal and that appointed counsel must function in the effective role of an advocate. Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1896, 18 L.Ed.2d 493 (May 8, 1967) ; Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (May 8, 1967). More recently in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967), the Supreme Court, in giving prospective application only to the exclusionary rule promulgated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), reflected at length upon some of the criteria governing retroactive operation of constitutional rules:
“It is true that the right to the assistance of counsel has been applied retroactively at stages of the prosecution where denial of the right must al-
most invariably deny a fair trial, for example, at the trial itself, Gideon v. Wainwriglit, 372 U.S. 335, or at some forms of arraignment, Hamilton v. [State of] Alabama, 368 U.S. 52, [83 S.Ct. 792, 9 L.Ed.2d 799] or on appeal Douglas v. [People of State of] California, 372 U.S. 353, [83 S.Ct. S14, 9 L.Ed.2d 811.] ‘The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent.’ ” 388 U.S. at 297, 87 S.Ct. at 1970.
. This information appears in an article entitled “Criminal Briefs; Rules Changed” by Howard L. McEadden, head of the Criminal Division in the Missouri Attorney General’s Office, appearing in the June, 1967 issue of the Journal of the Missouri Bar.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
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songer_casetyp1_7-3-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
UNITED STATES of America, Third-Party Plaintiff-Appellant, v. SAN FRANCISCO ELEVATOR COMPANY, Third-Party Defendant-Appellee.
No. 72-2524.
United States Court of Appeals, Ninth Circuit.
Feb. 28, 1975.
William E. Gwatkin (argued), U. S. Dept, of Justice, San Francisco, Cal., for appellant.
Ernest M. Thayer, San Francisco, Cal., (argued), for appellee.
Honorable Martin D. Van Oosterhout, Senior Circuit Judge, Eighth Circuit, sitting by designation.
OPINION
Before VAN OOSTERHOUT, BROWNING and SNEED, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by third-party plaintiff United States of America from that part of the judgment of the district court limiting its recovery from third-party defendant San Francisco Elevator Company for indemnity to $300,000, although provable damages were established at $370,000 plus attorneys’ fees. We reverse and hold that the United States is entitled to indemnity from San Francisco Elevator in the full amount the United States was required to pay in a maritime wrongful death action by a San Francisco Elevator employee.
In 1966 the United States and Todd Shipyard Corporation (Todd) entered into a master ship repair contract for repair of a navy refrigerator ship, the USS ALUDRA, which was moored at the United States Naval Air Station in Alameda, California. One of the repairs provided for in the contract was the repair of a vertical cargo elevator in the ship. This job was subcontracted to third-party defendant San Francisco Elevator. The master or prime contract between the United States and Todd contained an indemnity and hold harmless clause which provided:
“(c) The contractor indemnifies and holds harmless the Government, its agencies and instrumentalities, the vessel and its owners, against all suits, actions, claims, costs or demands (including, without limitation, suits, actions, claims, costs or demands resulting from death, personal injury and property damage) to which the Government, its agencies and instrumentalities, the vessel or its owner may be subject or put by reason of damage or injury (including death) to the property or person of any one other than the Government, its agencies, instrumentalities and personnel, the vessel or its owner, arising or resulting in whole or in part from the fault, negligence, wrongful act or wrongful omission of the Contractor, or any subcontractor, his or their servants, agents, or employees; provided, that the Contractor’s obligation to indemnity under this paragraph (c) shall not exceed the sum of $300,000 on account of any one accident or occurrence in respect of any one vessel.”
The subcontract between Todd and San Francisco Elevator also contained an indemnity clause which provided:
“GOVERNMENT CONTRACTS — If this purchase order is issued under a government contract, whether or not such government contract is specifically referred to in this purchase order, the seller agrees to indemnify and hold harmless the buyer from any liability, claims of liability and expense under said government contract arising out of seller’s failure to perform in accordance with this purchase order and seller agrees that such liability and the amount thereof may be negotiated by buyer in accordance with the terms of said government contract or determined in accordance therewith, and seller agrees to be bound thereby.
12. If deceased sustained injuries as alleged . . . such injuries were solely and proximately caused by the faulty and negligent performance of [San Francisco] Elevator Co. in breach of its contractual warranties, express or implied, of a safe place to work and [provide] workmanlike services.
LIABILITY AND INSURANCE— the seller agrees to save the buyer harmless from all claims for personal injuries, including death, and all damage to property arising out of any cause whatsoever and resulting directly or indirectly from the seller’s performance hereunder. Workmen engaged in the performance hereof shall at all times be considered employees of the seller.”
The United States was not made a party to the subcontract.
On April 25, 1960, Steven R. Bigham, an employee of San Francisco Elevator, was killed while working as an elevator mechanic on the vertical cargo elevator on the ship. The decedent’s heirs filed suit in admiralty against the United States and Todd alleging that the decedent’s death was caused by the negligence of both Todd and the United States and by the unseaworthiness of the USS ALUDRA. The United States cross-claimed against Todd claiming indemnity rights pursuant to the prime contract clause. The United States also brought a separate third-party complaint directly against San Francisco Elevator asserting its right to indemnity pursuant to San Francisco Elevator’s breach of its implied warranty to perform workmanlike service.
The Consolidated cases were, tried in admiralty to the court. The court found that Bigham’s death was caused by the unseaworthiness of the ALUDRA and the negligence of both the United States and San Francisco Elevator. Damages were assessed against the United States at $370,000. The propriety of the court’s findings as to negligence are not before us. On the basis of the limited indemnity provision in the prime contract, recovery against Todd in favor of the United States was limited to $300,000. San Francisco Elevator was ordered to indemnify Todd in accordance with the provisions of the subcontract. The court further found that the negligence of the United States did not prevent San Francisco Elevator from performing its contractual duties in a workmanlike manner and that there was a warranty of workmanlike service running from San Francisco Elevator to the United States which it breached by performing its repair work negligently. Accordingly, the court initially awarded indemnity to the United States (third-party plaintiff) in the full amount the United States was required to pay the decedent’s estate plus attorneys’ fees. However, in a subsequent Order and Supplemental Findings of Fact the court held that the indemnity limiting clause in the Todd-United States prime contract included by reference subcontractors and was applicable to the United States’ third-party action against San Francisco Elevator. Thus, the United States’ recovery against San Francisco Elevator was limited to $300,000, together with taxable costs. The sole question presented for review by this court is whether the indemnity provisions of the prime or subcontract involved limit the indemnity rights of the United States in its third-party action against San Francisco Elevator Company.
In Ryan Stevedoring Company v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) the Supreme Court held that stevedores who go aboard a vessel by the owner’s consent on an arrangement to perform a service for the ship’s benefit impliedly warrant to the ship owner that they will accomplish their task in a workmanlike manner. The Court emphasized that the implied “Warranty of Workmanlike service” finds its origin in contract, rather than tort, and is “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” Id. at 133-34, 76 S.Ct. at 237. See Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). The cited and other Supreme Court cases have involved injuries to longshoremen employed by stevedoring companies. The circuit courts of appeal are in agreement, however, that the workmanlike warranty applies to non-stevedore maritime contractors and subcontractors. See United New York Sandy Hook Pilots Ass’n v. Rodermond Industries, Inc., 394 F.2d 65 (3d Cir. 1968) (subcontractors); H & H Ship Service Co. v. Weyerhaeuser Line, 382 F.2d 711 (9th Cir. 1967) (ship repair contractor); Lusich v. Bloomfield S. S. Co., 355 F.2d 770 (5th Cir. 1966) (ship repair contractor); American Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525 (4th Cir. 1964) (shipyard contractor); Booth S. S. Co. v. Meier & Oelhaf Co., 262 F.2d 310 (2d Cir. 1958) (engine repair contractor). Moreover, even though the warranty in question is contractual in origin, Ryan, supra, the nature of the obligation of a contractor to indemnify a shipowner does not depend upon the existence of privity of contract between the shipowner and contractor. Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960). See Whisenant v. Brewster-Bartle Operating Co., 446 F.2d 394, 401 (5th Cir. 1971); DeGioia v. United States Lines Co., 304 F.2d 421, 425-26 (2d Cir. 1962). In Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct. 445, 448, 3 L.Ed.2d 413 (1959) the Court said:
“We think this case is governed by the principle announced in the Ryan case. The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel’s owners are parties to the contract or not.” (Emphasis added.)
Furthermore, the concurrent negligence of the shipowner is not necessarily a bar to recovery of indemnity. If the contractor breaches its warranty, and the breach proximately causes liability on the part of the shipowner, then the shipowner is entitled to indemnity unless its own negligent conduct is “sufficient to preclude recovery.” Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). “ ‘Conduct sufficient to preclude recovery’ means only conduct on the part of the shipowner which prevents the [contractor’s] workmanlike performance.” Brock v. Coral Drilling Co., 477 F.2d 211, 217 (5th Cir. 1973). In this respect, the trial court in the case at bar made a finding that “the negligence of the United States did not prevent the defendant elevator company from doing a workmanlike job.”
From the law as set out, supra, we conclude that San Francisco Elevator, as the ship repair contractor, owed an independent duty to the shipowner, United States, to perform in a workmanlike manner. The third-party complaint against San Francisco Elevator stated a claim based on the breach of this warranty and was not limited to contractual rights. Although contractual in nature, this independent duty to perform in a workmanlike manner does not require privity of contract between San Francisco Elevator and the United States. San Francisco Elevator owed an independent duty to the United States to perform in a workmanlike manner by virtue of its undertaking to repair the elevator aboard the ship. Failure to so perform was a breach of an independent duty owed to the United States for which the latter is entitled to indemnity for its losses.
We cannot agree, however, with the district court’s ruling that the indemnity limiting clause in the prime contract between Todd and the United States limits, the United States’ indemnity rights over against San Francisco Elevator. Nor does the indemnity provision in the subcontract between Todd and San Francisco Elevator limit San Francisco Elevator’s obligation to indemnify the United States. The indemnity action against San Francisco Elevator is independent from any contractual obligation owed by Todd to indemnify the United States pursuant to the prime contract. Furthermore, San Francisco Elevator’s agreement to indemnify Todd for its losses in no way affects San Francisco Elevator’s independent duty to the United States to perform in a workmanlike manner. This was a direct action by a shipowner against an independent contractor for indemnification pursuant to maritime law. The lack of privity between the shipowner and the contractor does not bar those indemnification rights.
Appellee San Francisco Elevator contends that the only indemnity rights the United States has arise from its position as a third-party beneficiary to the subcontract between San Francisco Elevator and Todd. Similarly, San Francisco Elevator argues that it is a third-party beneficiary to the prime contract and is entitled to the benefit of the indemnity limiting clause. The Supreme Court and this circuit have recognized that shipowners are within “the zone of modern law that recognizes rights in third-party beneficiaries” when a stevedore breaches its warranty of service. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct. 438, 2 L.Ed.2d 491 (1959); Arista CIA DeVapores, S. A. v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). The shipowner, however, may recover indemnification whether it is strictly a third-party beneficiary or not. La Capria v. Compagnie Maritime Beige, 427 F.2d 244, 247 (2d Cir. 1970); DeGioia v. United States Lines Company, 304 F.2d 421, 426 (2d Cir. 1962). In any event, the United States was not a third-party beneficiary of the indemnity provision of the subcontract between Todd and San Francisco Elevator. That contract provides only that “[San Francisco] agrees to indemnify and hold harmless [Todd] from any liability . under [the] government contract arising out of [San Francisco Elevator’s] failure to perform in accordance with the terms of said government contract . . . This provision of the contract was made for the benefit of Todd and not the United States. Similarly, San Francisco Elevator was not the beneficiary, intended or otherwise, of the indemnity limiting provision of the prime contract. Said provision provides only that “The Contractor’s obligation to indemnity under this paragraph (e) shall not exceed the sum of $300,000 on account of any one accident or occurrence in respect of any one vessel.” (Emphasis added.) Nothing in this clause could be construed to extend the $300,000 limitation to subcontractors. The limitation clearly applies only to Todd. The district court based its decision on liability on its finding that “there was an implied warranty of workmanlike service by the elevator company running to the United States which was breached; that being so, the United States is entitled to damages that the plaintiff may have sustained and is entitled to receive against the United States.” The warranty exists independently of the contractual provisions here involved between the parties. Neither San Francisco Elevator or the United States were third-party beneficiaries of the prime or subcontract indemnity provisions. Accordingly, the order of the district court limiting San Francisco Elevator’s indemnity obligation to the United States must be reversed.
As a part of its costs in defending the wrongful death suit the United States submitted a bill for attorneys’ fees of $21,194.90. It is well settled admiralty law that a shipowner is entitled to recover attorneys’ fees where it has been successful in obtaining a judgment on its third-party indemnity action. Arista CIA DeVapores v. Howard Terminal, 372 F.2d 152, 154 (9th Cir. 1967). See Brock v. Coral Drilling, Inc., 477 F.2d 211, 217 (5th Cir. 1973); Kelloch v. S & H Subwater Salvage, Inc., 473 F.2d 767, 771 (5th Cir. 1973). The district court recognized this to be the law but found it unnecessary to pass on the reasonableness of the claimed fees because of the erroneous view that the United States’ right to indemnity was limited to $300,000.
We hold the United States is entitled to recover from San Francisco Elevator the full amount of the judgment rendered against it and in addition reasonable attorneys’ fees incurred in defending itself in the wrongful death suit brought by plaintiffs. The determination of the amount of attorneys’ fees allowable shall be determined by the district court on remand.
Reversed and remanded.
. The third-party complaint was brought as an admiralty and maritime claim pursuant to Rule 14(c), F.R.Civ.P. With respect to the nature of the claim, the complaint provided in pertinent part:
. Various notices of appeal were timely filed by the parties. However, San Francisco Elevator’s appeal on the issue of liability was voluntarily dismissed in February 1973 and the United States has chosen not to pursue its appeal on the negligence issue.
. The basis for the warranty for workmanlike service in maritime contracts is found in Ryan Stevedoring Co. v. Pan-Atlantic S.S., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), in which the Court held that a warranty of workmanlike service ran from a stevedoring company to a shipowner and that such a warranty amounted to an agreement to hold the shipowner harmless.
. In its Appellee’s Brief, San Francisco Elevator attempts to challenge the Government’s right to indemnity at all because of its concurrent negligence in creating an unseaworthy ship. However, San Francisco Elevator has not appealed or cross-appealed the district court’s determination that the negligence of the United States did not prevent San Francisco Elevator from performing its duties in a workmanlike manner. Thus, the correctness of that holding is not here before us.
. The “Ryan doctrine” was apparently abrogated by the 1972 amendments to the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 901 et seq. See 33 U.S.C. § 905(b). ■ However, the amendments are not retroactive and the injuries to the decedent in this case occurred prior to the effective date of those amendments.
. See footnote 1, supra.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. Donald Mark NATHAN, Defendant-Appellant.
No. 86-5246.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 21, 1986.
Decided April 9, 1987.
Rehearing and Rehearing En Banc Denied June 1,1987.
Herbert S. Moncier (argued), Ann C. Short (Court-appointed), Knoxville, Tenn., for defendant-appellant.
John W. Gill, U.S. Atty., Nancy Palmer (argued), Knoxville, Tenn., for plaintiff-appellee.
Before MERRITT, WELLFORD and NORRIS, Circuit Judges.
WELLFORD, Circuit Judge.
Defendant, Donald Mark Nathan, appeals his conviction for interstate transportation of three securities taken by fraud in violation of 18 U.S.C. § 2314. For the reasons that follow, we AFFIRM the conviction of defendant.
I. FACTUAL BACKGROUND
Nathan, who was a stockbroker with Prudential-Bache (“Pru Bache”) in Knoxville, Tennessee, was indicted by the government for interstate transportation in 1984 of three checks allegedly “taken by fraud,” which were drawn on the account of Pru Bache and payable to Robert L. Shirley. The theory of the prosecution was that Nathan, while with Pru Bache, removed $75,000 from Shirley’s account and deposited the money in his own account for his personal use.
Charles West, a C.P.A., who managed the personal finances of Robert Shirley, used the defendant as a broker for Shirley’s stock account. The account was a command account that could be drawn upon by request or by writing a check upon the account. Along with Shirley, West had access to the funds in the account.
West received two unrequested $25,000 checks drawn upon Pru Bache’s bank account and payable to Shirley in February of 1984. When West questioned the defendant, he was told that the checks had been issued erroneously by Pru Bache when another broker had listed the wrong account number on a check request form. West returned the checks to the defendant for redeposit to correct the error.
West again questioned the defendant when he received the February statement for Shirley’s account, showing two $25,000 debit entries and no corresponding credit entry showing the return of the funds. The defendant responded that the $50,000 had been used to purchase certificates of deposit for Shirley from a bank in Gatlinburg and that the certificates would be kept at Pru Bache for safekeeping. West later learned that no certificates had ever been purchased.
West did not recall ever receiving a third $25,000 Pru Bache check, but in mid-March, he had asked Nathan to transfer $25,000 from Shirley’s account to Shirley’s wife’s account. When the transfer was not reflected on the March account statement, the defendant told West that it was a bookkeeping error. West later learned that no such transfer of funds was ever made by the defendant.
In May, 1984, the defendant left Pru Bache to work for another brokerage firm, Cralin and Company in Florida. At Nathan’s request, the Shirley accounts were transferred with him. After the defendant went to Cralin, he telephoned West and told him that the balances for Shirley’s account now reflected the return of the $75,000.
Shortly after this phone call from the defendant, West received a call from the manager of the Cralin branch where the defendant was employed. Following this conversation, West contacted Pru Bache concerning the missing $75,000. As a result of his discussions with Pru Bache, $75,000 plus interest was refunded to Shirley. The defendant sent a letter to West postmarked September 8, 1984, in which the defendant stated that he had covered the losses of another account with Shirley’s money.
West testified that he had never given direct or indirect permission to the defendant to deposit checks payable to Shirley into Nathan’s account, to use any of Shirley’s money to pay off losses in someone else’s brokerage account, or to loan any of Shirley’s money to someone else. Shirley confirmed that he had not written and had not authorized anyone to write the endorsements “Robert Shirley” and “Don Nathan” which appear on the back of the three checks. He also stated that he had never authorized any loans from his account at Pru Bache. Shirley indicated that the missing $75,000 was first brought to his attention by West. He did not remember when West reported this, but believed it was after his accounts were transferred to Cralin and soon after West discovered the problem.
Carolyn Denny, a special FBI agent, conducted two interviews of the defendant in September 1984. She took notes of these interviews on FBI 302 forms. The defendant voluntarily provided his own two page statement setting forth his version of the events regarding the three $25,000 Pru Bache checks. During the interviews, the defendant admitted that he had written both the “Robert Shirley” endorsement and the “Don Nathan” endorsement. He further admitted that he had deposited each of these checks into his personal checking account.
The defendant was the Pru Bache account executive also responsible for the account of Tom Perry, who maintained his stock and commodities account and also a separate commodities account in the defendant’s name. The commodities account (the “Nathan/Perry” account) was claimed by Nathan to be a nominee account; he contended that Perry directed the trading in the account and received all the benefit of the account. The defendant admitted that the nominee account was set up to circumvent Stock Exchange and SEC regulations concerning trades by a single individual. The funds in the account in Perry’s name had been provided by Ken Graham. Perry managed the investments in the account in exchange for 10% of any profits.
In early February 1984, the Perry commodities account and the “Nathan/Perry” commodities account lost approximately $25,000 due to the failure to close out positions. Perry was trading in his commodities accounts more than the margin requirements permitted. (Perry thought he had a system to “beat” the market.) Nathan told Perry that payment of the losses had to be made very quickly due to margin payment deadlines. Perry replied that Graham was a millionaire and would supply the money but that he was out of town for a few days. Since Graham was unavailable, he and Perry attempted unsuccessfully to make trades to gain back Perry’s losses.
Nathan claimed that within an hour of informing Perry of the losses, he received a phone call from West requesting that $25,-000 be withdrawn from Shirley’s money market account. Nathan could not be sure but believed that he hand carried the first check, dated February 15, 1984, to West who then returned it to him. Nathan claimed that based on casual remarks by West and Perry, he assumed that this $25,-000 check was to be used to cover the losses in the Perry accounts as an informal loan from Shirley to Perry. There was no evidence that West ever specifically told the defendant that the money was to be used for Perry.
Nathan deposited the first $25,000 check into his personal checking account. He then purchased a cashier’s check payable to Pru Bache which he used to pay the losses from Perry’s commodities trading, since Pru Bache would not accept personal or third party checks.
A few days later, Nathan recalls that West again called Pru Bache and requested a second $25,000 withdrawal from Shirley’s account. This telephone request was received by another broker who passed West’s message on to the defendant. He then processed the check request form for the $25,000. Nathan mailed the check to West, who subsequently returned it in an envelope with other documents. Although West gave no specific instructions, Nathan claimed that he assumed that West intended this check to also be used to cover losses from the Perry account. Regarding the $25,000 transfer from Shirley’s account to his wife’s account, Nathan again stated that he assumed that West intended the funds to cover Perry’s trading losses.
Nathan deposited the third $25,000 check into his personal checking account and used a portion of the proceeds to purchase a $15,000 cashier’s check payable to Ken Graham. This cashier’s check was to cover Graham’s withdrawal request.
Nathan denied that he had used any of the $75,000 from Shirley’s account for his own personal benefit. Instead, he claimed that it was not until mid-April, 1984, that he realized his misinterpretation of West’s intentions regarding Shirley’s $75,000. The defendant admitted that he did not discuss this “misunderstanding” with West until many months later when he wrote him a letter concerning the transaction.
Pru Bache’s Knoxville, Tennessee branch office manager, Kosofsky, testified that in late February 1984, he had the defendant write a memo for the file explaining the trading in the Perry commodities account and the “Nathan/Perry” commodities account:
During the weeks of 1/31/84 thru 2/10/84, I executed commodity trades in accounts 87118 [“Nathan/Perry” Account] and 01536 [Perry Account]. The trades for 01536 were all done following my solicitation of the client. The trades in 87118 are, of course, in my own account____
Perry denied that he had ever authorized the defendant to open a nominee account on his behalf in Nathan’s name and stated that he had never seen the statements for either the securities or commodities “Nathan/Perry” account or for the Don and Pat Nathan stock account. Perry did not discuss the problems in his Pru Bache accounts with Kosofsky. Nathan’s motion for a bill of particulars was granted on a limited basis. Later, defendant unsuccessfully submitted a motion questioning the sufficiency of the government’s bill of particulars.
II. PRETRIAL DIVERSION
Prior to his indictment, defendant unsuccessfully requested pretrial diversion and was informed that the United States Attorney’s Office for the Eastern District of Tennessee did not recognize pretrial diversion. Defendant then filed a Petition for Review of Denial of Pretrial Diversion with the district court, which was denied.
Defendant requests judicial review of the prosecution’s, denial of pretrial diversion. For support of this position, Nathan cites United States v. Hicks, 693 F.2d 32, 33 (5th Cir.1982), cert. denied, 459 U.S. 1220, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983). The Hicks court held that there should be a hearing on alleged violations by the defendant of the diversion agreement in order “to make sure that the government had lived up to its side of the bargain.” Id. We do not find this case to be authority for defendant’s position here. Nathan argues that if some court review of a prosecutor’s refusal to grant pretrial diversion is not allowed, then a prosecutor might arbitrarily or discriminatorily refuse diversion.
The government asserts, on the other hand, that court review of a prosecutor’s decision whether or not to prosecute would be an unconstitutional breach of the separation of powers between the judicial and executive branches of government, an impermissible intrusion into the prosecutor’s discretionary function. United States v. Renfro, 620 F.2d 569, 574 (6th Cir.), cert. denied, 449 U.S. 902, 101 S.Ct. 274, 66 L.Ed.2d 133 (1980); United States v. Dangler, 556 F.Supp. 195, 198 (N.D.Ohio 1983). In Hicks, it was held that the defendant had no right to pretrial diversion. Hicks, 693 F.2d at 34.
There is no basis in this case for judicial interference with the prosecutor’s discretion and authority to decide whether or not to pursue pretrial diversion. The defendant’s motion was accordingly properly denied.
III. GRAND JURY PROCESS
The defendant asserts that the district court denied the defendant minimum due process by not holding a hearing on the motion for production of grand jury records and the motion to dismiss the indictment due to grand jury abuse. The motions alleged that the government improperly subpoenaed two Pru Bache employees who subsequently turned over requested documents in order to avoid appearances before the grand jury.
In United States v. Smith, 687 F.2d 147, 152 (6th Cir.1982), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983), we held that the United States Attorney did not overreach his authority by requesting the issuance of a grand jury subpoena and by suggesting a voluntary production of a handwriting exemplar as a permissible alternative to a grand jury appearance by the witness. The court held that “[i]n order for this court to order a dismissal of an indictment as part of its supervisory powers, there must be a ‘showing of demonstrated and longstanding prosecutorial misconduct’ as well as a showing of ‘prejudice to the defendant.’ ” Id. at 152-53. See also United States v. Griffith, 756 F.2d 1244, 1249 (6th Cir.), cert. denied, — U.S. -, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985).
The government’s action in permitting the employees to submit documents in lieu of a grand jury appearance is the kind of conduct held not to be unconstitutional nor impermissible in Smith. The defendant, moreover, made no showing of prejudice due to any prosecutorial misconduct. Therefore, Nathan’s due process rights were not violated by the denial of a hearing in this regard.
IV. MOTION FOR PARTICULARS
The defendant asserts that the prosecution never defined the nature of the alleged fraudulent taking of the securities. Nathan contends that the prosecution introduced proof during trial of three types of fraud: (1) forging the endorsement of a security, (2) theft of Shirley’s money for the defendant’s own personal use, and (3) false representations, dishonesty and deceit by the defendant in obtaining the securities. The bill of particulars, however, specified fraud by means of the forged endorsement. Appellant asserts therefore that the proof at trial was at variance with the bill of particulars and that a new trial should be ordered. Nathan also argues that the jury instruction should have incorporated only the allegations of the bill of particulars as elements of the offense.
In United States v. Fruehauf Corp., 577 F.2d 1038 (6th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), we discussed the standard for whether a variance between the particulars alleged in the indictment and the proof at trial is prejudicial. The court stated:
A variance is not to be regarded as material where it is not of a character which could have misled the defendant at the trial, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629 [630], 79 L.Ed. 1314 [(1935)]; or where it involves no element of surprise prejudicial to the efforts of the defendant to prepare his defense, United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374 [379], 86 L.Ed. 383, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222 [(1942)]; or where it does not affect substantial rights. Rule 52(a), F.R. of Crim.P.; cf. United States v. Haskins, 345 F.2d 111, 114 (C.A.6 [1965]). “Whether or not a variance is prejudicial is a judgment that must be made on the facts of each case.” United States v. Russano, 257 F.2d 712, 715 (C.A.2 [1958]).
Id. at 1057 (quoting United States v. Mills, 366 F.2d 512, 514 (6th Cir.1966)).
We hold that the proof at trial did not vary materially from the bill of particulars charge and, therefore, variance, if any, was not prejudicial. Failure to include the specifics of the bill of particulars in the jury charge was not error under the circumstances. See United States v. Thetford, 676 F.2d 170, 183 (5th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 790, 74 L.Ed.2d 996 (1983); United States v. Francisco, 575 F.2d 815, 819 (10th Cir.1978); United States v. Radetsky, 535 F.2d 556, 565-67 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); Pipkin v. United States, 243 F.2d 491, 494 (5th Cir.1957). We are satisfied that the defendant was fully apprised of the nature of the fraud involved which included deceit, misrepresentation, and false endorsement. We find the variance in the proof, if any, did not affect defendant’s substantial rights. We therefore decline to set aside the convictions on the basis of this challenge.
V. EVIDENCE OF OTHER MISCONDUCT
Defendant contends that it was reversible error to permit evidence which indicated he was guilty of uncharged misconduct in respect to stock trading and the handling of customer accounts. The evidence in question involved a memo written by defendant, testimony of the Pru Bache branch manager, and testimony by Perry about unauthorized trades in his account by Nathan, particularly the “Nathan/Perry” account. This evidence, however, was unquestionably relevant and material with respect to showing the background and circumstances of Nathan’s conduct at Pru Bache with regard to the checks which were the subject matter of the indictment. The evidence contradicted defendant’s contentions about lack of any fraudulent intent, and about the expected benefit or lack thereof, derived by Nathan in respect to his dealing in the “Nathan/Perry” account and his need to utilize the check proceeds in question due to losses incurred. We believe the evidence involved material admissions by Nathan with respect to his course of dealing at Pru Bache and bore directly upon his credibility, particularly regarding his intent at the times in question. We therefore find no reversible error in the admission of this evidence. In further support of our ruling, we note the absence of objection by defendant to some of the evidenee which he now claims to be unduly prejudicial. See F.R.E. 103(a)(1).
VI. DISCOVERY OF FBI NOTES
Defendant vigorously asserts that the failure to disclose to him FBI interview notes, the so-called 302 forms, was significantly prejudicial and should mandate a setting aside of the guilty verdicts. The interview notes of government witnesses, taken by FBI agent Denny, are referred to as “statements” by defendant. Since the agent testified that the 302s are an accurate reflection of what the interviewee said, and because she had reviewed these notes or reports before the testimony, Nathan maintains that the FBI 302 reports come within the requirements of the Jencks Act, 18 U.S.C.A. § 3500, and should have been produced.
Following Denny’s testimony at trial, defense counsel moved for production of the agent’s notes on the grounds that they were “Jencks statements of witnesses who were interviewed”, (2) they were Jencks statements of the agent, and (3) they had been used to refresh the agent’s recollection (see Defendant/Appellant Brief, p. 22). The district court held, without a hearing, that the materials were not Jencks “statements” and were not then required to be turned over to defendant’s counsel. Later, defendant’s counsel again moved for these materials in controversy after the further testimony of West, Denny, and Perry.
Defendant contends further that failure to have a hearing in respect of his motions for production at trial was reversible error since he was denied the opportunity to examine the notes. He relies on an additional ground for production, that agent Denny was present during the prosecution’s pretrial interviews with these same witnesses regarding the same subject matter of the 302 reports. The district court found, however, that Denny did not read the notes back to the witnesses, nor have the witnesses read the notes, “nor in any way confirm that the notes were an accurate verbatim recording of the witnesses’ statements.”
One purpose of the Jencks Act is to prevent “the undiscriminating production of agent’s summaries of interviews regardless of their character or completeness.” Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959). Indeed, it would “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 investigator’s selections, interpretations and interpolations.” Id. This risk does not exist, however, “where a witness has adopted or approved” the agent’s notes. Goldberg v. United States, 425 U.S. 94, 107, 96 S.Ct. 1338, 1346, 47 L.Ed.2d 603 (1976).
We have previously held that an FBI report of a witness’ statement is producible if the notes from the interview were read back to and verified by the witness and if the report summarized the notes without material variation. United States v. Chitwood, 457 F.2d 676, 678 (6th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 141, 34 L.Ed.2d 103 (1972). Under § 3500(e)(2) a substantially verbatim recital of an oral statement made by a witness will suffice if recorded contemporaneously. United States v. McKeever, 271 F.2d 669, 674-75 (2d Cir.1959). In Padin, we upheld the denial of production of a DEA agent’s debriefing report summarizing a witness’ interview because only parts of the interview were recorded and because the witness never adopted the report by signing it, reading it, or having it read to her. United States v. Padin, 787 F.2d 1071, 1077-78 (6th Cir.), cert. denied, — U.S. -, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986). Also, testimony was given that the agent exercised editorial discretion in the report by recording only statements to which he assigned importance. Id. at 1078. The trial court’s ruling on such matters is subject to a clearly erroneous standard. Chitwood, 457 F.2d at 678.
Even though Agent Denny expressly testified that she accurately summarized all of the witness’ statements in her reports, the fact remains that the witness never saw the report or had it read to them for adoption. Any biases or preconceptions of the agent while taking notes and completing the 302 reports would not necessarily have been corrected when the witnesses were subsequently interviewed by the prosecutors in the presence of the agent. The only method to ensure that the agent’s notes accurately detailed the witness’ statements is to follow the procedure detailed in Chitwood of having each witness read or verbally approve the applicable statement when read to him. See Goldberg v. United States, 425 U.S. at 110-11 n. 19, 96 S.Ct. at 1348 n. 19. Therefore, since the notes were never shown, read or explained to the witnesses, they were never adopted as a statement and are not producible under § 3500(e)(1). Padin, 787 F.2d at 1078; United States v. Hogan, 763 F.2d 697, 704 (5th Cir.1985); United
States v. Goldberg, 582 F.2d 483, 487 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979); United States v. Harris, 542 F.2d 1283, 1292 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).
Nor do the reports appear to be substantially verbatim recitals of a witness’ oral statements. After careful inspection of the documents, we are not prepared to find the district court’s decision to disallow production of the statements to be clearly erroneous. See Padin, 787 F.2d at 1078; Hogan, 763 F.2d at 703.
Neither do the documents become Jencks Act material simply because the agent may have used them to refresh her recollection prior to taking the stand. Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 994, 86 L.Ed. 1322 (1942), overruled on other grounds, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Soto, 711 F.2d 1558, 1561-62 (11th Cir.1983); United States v. Atkinson, 513 F.2d 38, 41 (4th Cir.1975); Spurrier v. United States, 389 F.2d 367, 368 (5th Cir.1967), cert. denied, 391 U.S. 922, 88 S.Ct. 1814, 20 L.Ed.2d 658 (1968); McGill v. United States, 270 F.2d 329, 330-31 (D.C.Cir.1959), cert. denied, 362 U.S. 905, 80 S.Ct. 615, 4 L.Ed.2d 555 (1960); Tillman v. United States, 268 F.2d 422, 424-25 (5th Cir.1959); Needelman v. United States, 261 F.2d 802, 806-07 (5th Cir.1958), cert. dismissed, 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980 (1960); Lambert v. United States, 261 F.2d 799, 802 (5th Cir.1958).
Denny’s testimony regarding her interviews with Nathan did relate to the subject matter of her notes and her report and bore upon what Nathan had related to her previously in response to Denny’s questions about his activity. Nathan’s interview reports were, however, turned over to the defense prior to trial. Even if the notes and other witness reports were found to relate to Denny’s testimony, the language of § 3500(b), however, requires production of “any statement of the witness ... which relates to the subject matter as to which the witness has testified.” (Emphasis added). The problem is whether the 302 forms or the notes of the FBI agent concerning her interviews in and of themselves might constitute a “statement” within the meaning of the Act. The reports clearly state “This document contains neither recommendations nor conclusions of the FBI.” Also, the notes merely appear to be questions and brief notations of answers. We have already discussed reasons that persuade us that the 302 forms and notes are not statements of Nathan or other witnesses, which are required to be discovered. We have difficulty construing the interview notes and reports as a “statement” of FBI agent Denny. Assuming, however, that they were so construed, we would next determine whether the error in refusing to turn this information over to defendant’s counsel was harmless beyond a reasonable doubt after a careful reexamination of the material and in light of the entire record. See Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
If the notes were used by the agent to refresh her recollection of the interviews with Nathan, then perhaps the agent might properly have been called upon to produce the notes for purposes of proper cross-examination. See Fed.R.Evid. 612(2). See generally United States v. Larranaga, 787 F.2d 489, 501 (10th Cir. 1986); United States v. Howton, 688 F.2d 272, 276 (5th Cir.1982); United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982).
Our examination reveals that the materials in question were not exculpatory in nature; they involved inconsistent versions of events and the giving of conflicting reasons by Nathan for his actions and inactions upon questioning by the FBI.
Assuming, without deciding this difficult question, that the district court abused his discretion in not ordering the prosecution to turn over the material under Fed.R.Evid. 612, we are satisfied, nevertheless, that the error, if any, was harmless after consideration of the abundant proof of defendant’s guilt in the record and taking into account the totality of the circumstances. Rose, 106 S.Ct. at 3105-07; Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In this instance we have read carefully the sealed notes and reports, and have compared them with the testimony of Denny. We therefore AFFIRM the district court’s judgment.
. An FBI 302 is a form routinely used to memoralize an FBI interview of a witness.
. The statute, 18 U.S.C.A. § 2314 (1970), has several paragraphs. The bill of particulars of the government appears to specify paragraph one as the offense charged. The language "taken by fraud" and “converted” is used. The bill of particulars states that "the securities described in Counts 1, 2, and 3 of the Indictment were taken by fraud in that the defendant, without the knowledge or consent of the person to whom these checks were lawfully payable, converted said checks to his own use by endorsing and depositing the checks to his own bank account.” (Emphasis added). Paragraph one of § 2314 reads:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
. The Jencks Act sets out in pertinent part:
§ 3500. Demands for production of statements and reports of witnesses
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified____
(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
. The district court did, however, conduct an in camera examination of the requested materials, and found that they contained "impressions of the interviewing FBI agent.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_respond1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
BRIGGS v. HUNT, ELLIS & CO. et al. Petition of BRIGGS.
(Circuit Court of Appeals, First Circuit.
February 2, 1926.)
Nos. 1927, 1937.
1. Bankruptcy <§=¿>465 — Appeal dismissed! on same matter coming before court on petition to revise.
Appeal from decree affirming order of referee in bankruptcy limiting time for filing reclamation claims will be dismissed, where matter is also before the court on petition to revise the same decree.
2. Bankruptcy <§=¿>446 — Question of authority to enter order not considered on petition of one not adversely affected.
Question of authority of referee in bankruptcy before adjudication to limit time to file reclamation petitions will not be considered; no right of petitioner, so far as disclosed, being adversely affected, he not alleging that he was thereby prevented from filing any such petitions, and it appearing that he did file two within the time limited.
Appeal from and Petition to Revise the Proceedings of the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
In the matter of Hunt, Ellis & Co. and others, bankrupts. Walter S. Briggs appeals from a decree affirming an order of the referee, and files petition to revise the same decree.
Appeal and petition dismissed.
Mark M. Horblit, of Boston, Mass. (Herbert A. Baker and Horblit & Wasserman, all of Boston, Mass., on the brief), for appellant and petitioner.
Daniel J. Lyne, of Boston, Mass., pro se.
Lee M. Friedman, of Boston, Mass. (Friedman, Atherton, King & Turner, of Boston, Mass., on the brief), for other appellees and respondents.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
No. 1927 is an appeal from a decree of the federal District Court for Massachusetts affirming an order of a referee in bankruptcy limiting the time for filing reclamation claims in a bankruptcy matter where, before adjudication, composition had been offered and accepted by a majority of the creditors, but as yet not approved by the court.
No. 1937 is a petition to revise in matters of law the same decree from which the appeal was taken in the previous case.
The matter is.properly before us on petition to revise, and the appeal should be dismissed.
It appears that on August 10,1925, an involuntary petition in bankruptcy was filed against William Hunt and L. Guy Dennett, copartners carrying on a stock and brokerage business under the name of Hunt, Ellis & Co.; that on October 12, 1925, the alleged bankrupts filed a petition for composition; that on October 13, 1925, the ease, with the petition, requesting a meeting of creditors to consider the offer of composition, was referred to the referee in bankruptcy, “to take such further proceedings therein as are authorized by the act and as in his judgment .may be necessary or advisable for the preservation of the estate or business of the alleged bankrupt, including the appointment of receivers and appraisers, if necessary; to hear and determine all matters of fact relating to said meeting and the proposed offer in composition; to call such meetings, give such notices, and make such further orders as may be necessary in the premises while said petition and offer in composition are pending, and to file his report under this order within 40 days hereafter”; that on October 17, 1925, notice of a meeting to consider the composition was duly given; that' at said meeting held October 30, 1925, on motion of counsel for the alleged bankrupts, the referee fixed December 30, 1925, as the time on or before which claims in the nature of reclamation or in the nature of impressing funds with a trust must be filed, which order was later reduced to writing, notice of which was mailed to all creditors on November 4, 1925; that said order, after setting out the name of the ease and the motion of counsel, the time when and the circumstances under which the oral order was made, reads as follows:
“It is hereby ordered that the time on or before which persons in interest herein may herein file any proceeding in reclamation, in the nature of reclamation or in the nature of impressing with trust securities or funds within the jurisdiction of this court, be and the same hereby is fixed at December 30, 1925, being sixty (60) days from the date hereof and it is further ordered that all persons in interest failing on or before such date to file any such claim be forever thereafter barred from filing the same herein.”
On November 11, 1925, the present petitioner filed a petition to review said order by the District Judge, and on November 23, 1925, the District Judge, having reviewed the order, entered a decree dismissing the pefcition and affirming the order of the referee. No order of 'adjudication has been entered, and the petition for composition is still pending before the referee. It further appears that the petitioner had, within the time fixed by said order, filed in said proceeding two or more petitions for reclamation.
The contention on the part of the petitioner is that the court erred in affirming the order of the referee on the ground that the latter had no authority to enter the order before adjudication.
We are unable to see wherein the petitioner, in view of the facts set out in his petition, is in any way aggrieved by the order. The petition does not allege that he has been prevented by the order from filing such reclamation petitions as he deemed necessary, and the answer to the petition discloses that he has “within the time fixed therefor by said order filed two petitions in the nature of reclamation, one on December 1, and the other on December 30, 1925.”
We listened with interest to the extended arguments of counsel and have spent much time examining the eases called to our attention as bearing on the question argued, but as no right of the petitioner, so far as the facts disclose, is adversely affected by the order, we do not feel called upon to consider it.
It may be doubtful whether the order properly construed operates further than to preclude the filing of reclamation claims in the bankruptcy proceeding after the date fixed by the order and to bar proceedings against the receiver individually in ease he turned over the estate to the bankrupts with knowledge of outstanding reclamation claims which had not been seasonably filed, a composition having been confirmed. It would seem, however, that to this extent it would operate to preclude the filing of claims thereafter and as a bar, and that the District Court had jurisdiction to enter such an order. It will be sufficient to consider the question whether the District Court, after a petition for composition has been filed, either before or after adjudication, has jurisdiction to enter an order barring reclamation claims as against the debtor, not presented within the time limited, when a case presenting the question is before us.
It is one thing to say that adverse claimants to property in the custody of the bankruptcy court may have their rights determined in that court, pending a composition, and quite another to say that a bankrupt debtor may, distribution of the estate being suspended by a pending composition, compel such adverse claimants to have their rights in the property determined in that court or be thereafter barred.
In No. 1927, Briggs v. Hunt, Ellis & Co., the appeal is dismissed without costs. No. 1937, Walter S. Briggs, Petitioner, the petition is vdismissed, with costs to the respondents.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_issue_1
|
02
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
KEENEY, SUPERINTENDENT, OREGON STATE PENITENTIARY v. TAMAYO-REYES
No. 90-1859.
Argued January 15, 1992
Decided May 4, 1992
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Souter, and Thomas, JJ., joined. O'Connor, J., filed a dissenting opinion, in which Blackmun, Stevens, and Kennedy, JJ., joined, post, p. 12. Kennedy, J., filed a dissenting opinion, post, p. 24.
Jack L. Landau, Deputy Attorney General of Oregon, argued the cause for petitioner. With him on the briefs were Charles S. Crookham, Attorney General, Dave Frohnmayer, Former Attorney General, Virginia L. Linder, Solicitor General, and Brenda J. Peterson and Rives Kistler, Assistant Attorneys General.
Steven I Wax argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Dane R. Gillette and Joan Killeen Haller, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Grant Woods of Arizona, Larry EchoHawk of Idaho, Marc Racicot of Montana, Frankie Sue Del Papa of Nevada, Robert J. Del Tufo of New Jersey, Lacy H. Thornburg of North Carolina, Ernest D. Preate, Jr., of Pennsylvania, Charles W. Burson of Tennessee, and Kenneth O. Eikenberry of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice White
delivered the opinion of the Court.
Respondent is a Cuban immigrant with little education and almost no knowledge of English. In 1984, he was charged with murder arising from the stabbing death of a man who had allegedly attempted to intervene in a confrontation between respondent and his girlfriend in a bar.
Respondent was provided with a defense attorney and interpreter. The attorney recommended to respondent that he plead nolo contendere to first-degree manslaughter. Ore. Rev. Stat. § 163.118(l)(a) (1987). Respondent signed a plea form that explained in English the rights he was waiving by entering the plea. The state court held a plea hearing, at which petitioner was represented by counsel and his interpreter. The judge asked the attorney and interpreter if they had explained to respondent the rights in the plea form and the consequences of his plea; they responded in the affirmative. The judge then explained to respondent, in English, the rights he would waive by his plea, and asked the interpreter to translate. Respondent indicated that he understood his rights and still wished to plead nolo contendere. The judge accepted his plea.
Later, respondent brought a collateral attack on the plea in a state-court proceeding. He alleged his plea had not been knowing and intelligent and therefore was invalid because his translator had not translated accurately and completely for him the mens rea element of manslaughter. He also contended that he did not understand the purposes of the plea form or the plea hearing. He contended that he did not know he was pleading no contest to manslaughter, but rather that he thought he was agreeing to be tried for manslaughter.
After a hearing, the state court dismissed respondent’s petition, finding that respondent was properly served by his trial interpreter arid that the interpreter correctly, fully, and accurately translated the communications between respondent and his attorney. App. 51. The State Court of Appeals affirmed, and the State Supreme Court denied review.
Respondent then entered Federal District Court seeking a writ of habeas corpus. Respondent contended that the material facts concerning the translation were not adequately developed at the state-court hearing, implicating the fifth circumstance of Townsend v. Sain, 372 U. S. 293, 313 (1963), and sought a federal evidentiary hearing on whether his nolo contendere plea was unconstitutional. The District Court found that the failure to develop the critical facts relevant to his federal claim was attributable to inexcusable neglect and that no evidentiary hearing was required. App. to Pet. for Cert. 37, 38. Respondent appealed.
The Court of Appeals for the Ninth Circuit recognized that the alleged failure to translate the mens rea element of first-degree manslaughter, if proved, would be a basis for overturning respondent’s plea, 926 F. 2d 1492, 1494 (1991), and determined that material facts had not been adequately developed in the state postconviction court, id., at 1500, apparently due to the negligence of postconviction counsel. The court held that Townsend v. Sain, supra, at 317, and Fay v. Noia, 372 U. S. 391, 438 (1963), required an evidentiary hearing in the District Court unless respondent had deliberately bypassed the orderly procedure of the state courts. Because counsel’s negligent failure to develop the facts did not constitute a deliberate bypass, the Court of Appeals ruled that respondent was entitled to an evidentiary hearing on the question whether the mens rea element of first-degree manslaughter was properly explained to him. 926 F. 2d, at 1502.
We granted certiorari to decide whether the deliberate bypass standard is the correct standard for excusing a habeas petitioner’s failure to develop a material fact in state-court proceedings. 502 U. S. 807 (1991). We reverse.
Because the holding of Townsend v. Sain that Fay v. Noia’s deliberate bypass standard is applicable in a case like this had not been reversed, it is quite understandable that the Court of Appeals applied that standard in this case. However, in light of more recent decisions of this Court, Townsend’s holding in this respect must be overruled. Fay v. Noia was itself a case where the habeas petitioner had not taken advantage of state remedies by failing to appeal — a procedural default case. Since that time, however, this Court has rejected the deliberate bypass standard in state procedural default cases and has applied instead a standard of cause and prejudice.
In Francis v. Henderson, 425 U. S. 536 (1976), we acknowledged a federal court’s power to entertain an application for habeas even where the claim has been procedurally waived in state proceedings, but nonetheless examined the appropriateness of the exercise of that power and recognized, as we had in Fay, that considerations of comity and concerns for the orderly administration of criminal justice may in some circumstances require a federal court to forgo the exercise of its habeas corpus power. 425 U. S., at 538-539. We held that a federal habeas petitioner is required to show cause for his procedural default, as well as actual prejudice. Id., at 542.
In Wainwright v. Sykes, 433 U. S. 72 (1977), we rejected the application of Fay’s standard of “knowing waiver” or “deliberate bypass” to excuse a petitioner’s failure to comply with a state contemporaneous-objection rule, stating that the state rule deserved more respect than the Fay standard accorded it. 433 U. S., at 88. We observed that procedural rules that contribute to error-free state trial proceedings are thoroughly desirable. We applied a cause-and-prejudice standard to a petitioner’s failure to object at trial and limited Fay to its facts. 433 U. S., at 87-88, and n. 12. We have consistently reaffirmed that the “cause-and-prejudice” standard embodies the correct accommodation between the competing concerns implicated in a federal court’s habeas power. Reed v. Ross, 468 U. S. 1, 11 (1984); Engle v. Isaac, 456 U. S. 107, 129 (1982).
In McCleskey v. Zant, 499 U. S. 467 (1991), we held that the same standard used to excuse state procedural defaults should be applied in habeas corpus cases where abuse of the writ is claimed by the government. Id., at 493. This conclusion rested on the fact that the two doctrines are similar in purpose and design and implicate similar concerns. Id., at 493-494. The writ strikes at finality of a state criminal conviction, a matter of particular importance in a federal system. Id., at 491, citing Murray v. Carrier, 477 U. S. 478, 487 (1986). Federal habeas litigation also places a heavy burden on scarce judicial resources, may give litigants incentives to withhold claims for manipulative purposes, and may create disincentives to present claims when evidence is fresh. 499 U. S., at 491-492. See also Reed v. Ross, supra, at 13; Wainwright, supra, at 89.
Again addressing the issue of state procedural default in Coleman v. Thompson, 501 U. S. 722 (1991), we described Fay as based on a conception of federal/state relations that undervalued the importance of state procedural rules, 501 U. S., at 750, and went on to hold that the cause-and-prejudice standard applicable to failure to raise a particular claim should apply as well to failure to appeal at all. Ibid. “All of the State’s interests — in channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors — are implicated whether a prisoner defaults one claim or all of them.” Id., at 750. We therefore applied the cause-and-prejudice standard uniformly to state procedural defaults, eliminating the “irrational” distinction between Fay and subsequent cases. 501 U. S., at 751. In light of these decisions, it is similarly irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim, and to apply to the latter a remnant of a decision that is no longer upheld with regard to the former.
The concerns that motivated the rejection of the deliberate bypass standard in Wainwright, Coleman, and other cases are equally applicable to this case. As in cases of state procedural default, application of the cause-and-prejudice standard to excuse a state prisoner’s failure to develop material facts in state court will appropriately accommodate concerns of finality, comity, judicial economy, and channeling the resolution of claims into the most appropriate forum.
Applying the cause-and-prejudice standard in cases like this will obviously contribute to the finality of convictions, for requiring a federal evidentiary hearing solely on the basis of a habeas petitioner’s negligent failure to develop facts in state-court proceedings dramatically increases the opportunities to relitigate a conviction.
Similarly, encouraging the full factual development in state court of a claim that state courts committed constitutional error advances comity by allowing a coordinate jurisdiction to correct its own errors in the first instance. It reduces the “inevitable friction” that results when a federal habeas court “overturn[s] either the factual or legal conclusions reached by the state-court system.” Sumner v. Mata, 449 U. S. 539, 550 (1981).
Also, by ensuring that full factual development takes place in the earlier, state-court proceedings, the cause-and-prejudice standard plainly serves the interest of judicial economy. It is hardly a good use of scarce judicial resources to duplicate factfinding in federal court merely because a petitioner has negligently failed to take advantage of opportunities in state-court proceedings.
Furthermore, ensuring that full factual development of a claim takes place in state court channels the resolution of the claim to the most appropriate forum. The state court is the appropriate forum for resolution of factual issues in the first instance, and creating incentives for the deferral of factfind-ing to later federal-court proceedings can only degrade the accuracy and efficiency of judicial proceedings. This is fully consistent with, and gives meaning to, the requirement of exhaustion. The Court has long held that state prisoners must exhaust state remedies before obtaining federal habeas relief. Ex parte Royall, 117 U. S. 241 (1886). The requirement that state prisoners exhaust state remedies before a writ of habeas corpus is granted by a federal court is now incorporated in the federal habeas statute. 28 U. S. C. §2254. Exhaustion means more than notice. In requiring exhaustion of a federal claim in state court, Congress surely meant that exhaustion be serious and meaningful.
The purpose of exhaustion is not to create a procedural hurdle on the path to federal habeas court, but to channel claims into an appropriate forum, where meritorious claims may be vindicated and unfounded litigation obviated before resort to federal court. Comity concerns dictate that the requirement of exhaustion is not satisfied by the mere statement of a federal claim in state court. Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits. Cf. Picard v. Connor, 404 U. S. 270, 275 (1971).
Finally, it is worth noting that applying the cause-and-prejudice standard in this case also advances uniformity in the law of habeas corpus. There is no good reason to maintain in one area of habeas law a standard that has been rejected in the area in which it was principally enunciated. And little can be said for holding a habeas petitioner to one standard for failing to bring a claim in state court and excusing the petitioner under another, lower standard for failing to develop the factual basis of that claim in the same forum. A different rule could mean that a habeas petitioner would not be excused for negligent failure to object to the introduction of the prosecution’s evidence, but nonetheless would be excused for negligent failure to introduce any evidence of his own to support a constitutional claim.
Respondent Tamayo-Reyes is entitled to an evidentiary hearing if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure. We also adopt the narrow exception to the cause-and-prejudice requirement: A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing. Cf. McCleskey v. Zant, 499 U. S., at 494; Murray v. Carrier, 477 U. S., at 496.
The State concedes that a remand to the District Court is appropriate in order to afford respondent the opportunity to bring forward evidence establishing cause and prejudice, Brief for Petitioner 21, and we agree that respondent should have that opportunity. Accordingly, the decision of the Court of Appeals is reversed, and the cause is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
With respect to respondent’s claim that the plea form and plea proceeding were not adequately translated, the Court of Appeals concluded that state postconviction proceedings afforded petitioner ample opportunity to contest the translations, that the material facts surrounding these issues were adequately developed, and that the state court’s findings were adequately supported by the record. The Court of Appeals therefore held that a federal evidentiary hearing on that claim was not required. 926 F. 2d, at 1602.
Justice O’Connor asserts that Townsend v. Sain, 372 U. S. 293 (1963), insofar as relevant to this case, merely reflected existing law. The claim thus seems to be that the general rule stated by the Court in Townsend governing when an evidentiary hearing must be granted to a federal habeas corpus petitioner, as well as each of the Court’s six criteria particularizing its general pronouncement, reflected what was to be found in prior holdings of the Court. This is a very doubtful claim. Surely the Court at that time did not think this was the case, for it pointedly observed that prior cases had not settled all aspects of the hearing problem in habeas proceedings and that the lower federal courts had reached widely divergent and irreconcilable results in dealing with hearing issues. Id., at 310, and n. 8. Hence it deemed it advisable to give further guidance to the lower courts. It also expressly stated that the rules it was announcing “must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen[, 344 U. S. 443 (1953)].” Id., at 312. This was necessary because Brown was inconsistent with the holding of Townsend regarding habeas petitioners who failed to adequately develop federal claims in state-court proceedings. See Brown v. Allen, 344 U. S. 443, 465 (1953) (federal court may deny writ without rehearing of facts “where the legality of [the] detention has been determined, on the facts presented,” by the state court) (emphasis added); id., at 463 (writ should be refused, without more, if federal court satisfied from the record that “state process has given fair consideration to the issues and the offered evidence”) (emphasis added). We have unequivocally acknowledged that Townsend substantially changed the availability of evidentiary hearings in federal habeas proceedings. See Smith v. Yeager, 393 U. S. 122, 125 (1968) (per curiam).
It is not surprising, then, that none of the cases cited by Justice O’Con-nor remotely support Townsend’s requirement for a hearing in any case where the “material facts were not adequately developed at the state-court hearing” due to petitioner’s own neglect. 372 U. S., at 313. Finally, it is undeniable that Fay v. Noia’s deliberate bypass standard overruled prior procedural default cases, and it is no less true that Townsend’s adoption of that standard as a definition of “inexcusable neglect” made new law.
Justice O’Connor puts aside our overruling of Fay v. Noia’s standard in procedural default cases on the ground that in those cases the cause- and-prejudice standard is just an acceptable precondition to reaching the merits of a habeas petitioner’s claim, but insists that applying that standard to cases in which the petitioner defaulted on the development of a claim is not subject to the same characterization. For the reasons stated in the text, we disagree. Moreover, Justice O’Connor’s position is considerably weakened by her concession that the cause-and-prejudice standard is properly applied to a factually undeveloped claim which had been exhausted but which is first asserted federally in a second or later ha-beas petition.
Contrary to Justice O’Connor’s view, post, at 17, we think it clear that the Townsend Court thought that the same standard used to deny a hearing in a procedural default ease should be used to deny a hearing in cases described in its fifth circumstance. It is difficult to conceive any other reason for our borrowing the deliberate bypass standard of Fay v. Noia, particularly if, as the dissent seems to say, post, at 17, Townsend relied on, but did not repeat, the analysis found in Fay v. Noia. Yet the dissent insists that the rejection of Fay v. Noia’s analysis in our later cases should have no impact on a case such as we have before us now.
“An application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State . ..28 U. S. C. § 2254(b).
It is asserted by Justice O’Connor that in adopting 28 U. S. C. § 2254(d) Congress assumed the continuing validity of all aspects of Townsend, including the requirement of a hearing in all fifth circumstance cases absent a deliberate bypass. For several reasons, we disagree. First, it is evident that § 2254(d) does not codify Townsend’s specifications of when a hearing is required. Townsend described categories of cases in which evidentiary hearings would be required. Section 2254(d), however, does not purport to govern the question of when hearings are required; rather, it lists exceptions to the normal presumption of correctness of state-court findings and deals with the burden of proof where hearings are held. The two issues are distinct, and the statute indicates no assumption that the presence or absence of any of the statutory exceptions will determine whether a hearing is held.
Second, to the extent that it even considered the issue of default, Congress sensibly could have read Townsend as holding that the federal habeas corpus standard for cases of default under Townsend’s fifth circumstance and cases of procedural default should be the same. Third, § 2254(d) does not mention or recognize any exception for inexcusable neglect, let alone reflect the specific standard of deliberate bypass. In the face of this silence, it should not be assumed that if there is to be a judicially created standard for equitable default, it must be no other than the deliberate bypass standard borrowed by Townsend from a decision that has since been repudiated.
We agree with Justice O’Connor that under our holding a claim invoking the fifth circumstance of Townsend will be unavailing where the cause asserted is attorney error. Murray v. Carrier, 477 U. S. 478 (1986), and Coleman v. Thompson, 501 U. S. 722 (1991), dictate as much. Such was the intended effect of those cases, but this does not make that circumstance a dead letter, for cause may be shown for reasons other than attorney error. We noted in Murray, a procedural default case, that objective factors external to the defense may impede counsel’s efforts to comply and went on to say: “Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel, see Reed v. Ross, 468 U. S., at 16, or that ‘some interference by officials,’ Brown v. Allen, 344 U. S. 443, 486 (1953), made compliance impracticable, would constitute cause under this standard.” 477 U. S., at 488. Much of the same may be said of cases where the petitioner has defaulted on the development of a claim.
Nor, to the extent it is relevant to our decision in this case, is Justice O’Connor’s argument that many forms of cause would fall under other Townsend circumstances persuasive. For example, the third and sixth circumstances of Townsend speak to the denial by a court of full and fair hearing; however, a situation where facts were inadequately developed because of interference from officials would fall naturally into the fifth circumstance.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify 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.
JOHNSON v. UNITED STATES
No. 99-5153.
Argued February 22, 2000
Decided May 15, 2000
Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined, and in which Kennedy, J., joined in part. Kennedy, J., filed an opinion concurring in part, post, p. 713. Thomas, J., filed an opinion concurring in the judgment, post, p. 715. Scalia, J., filed a dissenting opinion, post, p. 715.
Rita C. LaLumia argued the cause for petitioner. With her on the briefs were Leah J. Prewitt, David F. Ness, Jeffrey T Green, and Joseph S. Miller.
Paul R. Q. Wolfson argued the cause for the United States. With him on the brief were Solicitor General Wax-man, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Richard A. Friedman.
Edward M. Chikofsky and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.
Justice Souter
delivered the opinion of the Court.
The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U. S. C. § 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary.
I
In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, Congress eliminated most forms of parole in favor of supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. See Gozlon-Peretz v. United States, 498 U. S. 395, 400-401 (1991). The sentencing court was authorized to impose a term of supervised release to follow imprisonment, with the maximum length of the term varying according to the severity of the initial offense. See 18 U. S. C. §§ 3583(a), (b). While on supervised release, the offender was required to abide by certain conditions, some specified by statute and some imposable at the court’s discretion. See § 3583(d). Upon violation of a condition, 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V) authorized the court to “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision .. . ,” Such was done here.
In October 1993, petitioner Cornell Johnson violated 18 U. S. C. § 1029(b)(2), a Class D felony. In March 1994, the United States District Court for the Eastern District of Tennessee sentenced him to 25 months’ imprisonment, to be followed by three years of supervised release, the maximum term available under § 3583(b) for a Class D felony. Johnson was released from prison on August 14, 1995, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by § 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission.
The District Court revoked Johnson’s supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on § 3583(h), a subsection added to the statute in 1994, see Violent Crime Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat. 2017. Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of .§ 3583(e)(3) (set out infra, at 704).
Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson’s position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F. 3d 437 (CA6 1993). It nonetheless affirmed the District Court, judgt. order reported at 181 F. 3d 105 (1999), reasoning that the application of § 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson’s violation of the conditions of supervised release, which occurred after the 1994 amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United States v. Abbington, 144 F. 3d 1003, 1005 (CA6), cert. denied, 525 U. S. 933 (1998)). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of § 3583(h) was retroactive and at odds with the Ex Post Facto Clause. We granted certiorari to resolve the conflicts, 528 U. S. 950 (1999), and now affirm.
II
The heart of the Ex Post Facto Clause, U. S. Const., Art. I, § 9, bars application of a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed . . . .” Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of Corrections v. Morales, 514 U. S. 499, 506-507, n. 3 (1995).
A
The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of § 3583(h) not retroactive at all: revocation of supervised release “imposes punishment for defendants’ new offenses for violating the conditions of their supervised release.” United States v. Page, 131 F. 3d 1173, 1176 (1997). On this theory, that is, if the violation of the conditions of supervised release occurred after the enactment of § 3583(h), as Johnson’s did, the new law could be given effect without applying it to events before its enactment.
While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimpris-onment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United States v. Wyatt, 102 F. 3d 241, 244-245 (CA7 1996) (rejecting double jeopardy challenge on ground that sanctions for violating the conditions of supervised release are part of the original sentence); United States v. Beals, 87 F. 3d 854, 859-860 (CA7 1996) (noting that punishment for noncriminal violations must be justified by reference to original crimes), overruled on other grounds, United States v. Withers, 128 F. 3d 1167 (1997); United States v. Meeks, 25 F. 3d 1117, 1123 (CA2 1994) (noting absence of constitutional procedural protections in revocation proceedings). Cf. Gagnon v. Scarpelli, 411 U. S. 778, 782 (1973) (“Probation revocation... is not a stage of a criminal prosecution”)- For that matter, such treatment is all but entailed by our summary affirmance of Greenfield v. Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court), summarily aff’d, 390 U. S. 713 (1968), in which a three-judge panel forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. We therefore attribute postrevocation penalties to the original conviction.
B
Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under § 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., Lynce v. Mathis, 519 U. S. 433, 439 (1997); Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See id., at 270.
The Government offers nothing indicating congressional intent to apply § 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of § 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was. intended to take effect. See Rivers v. Roadway Express, Inc., 511 U. S. 298, 304-307 (1994). Neither is there any indication of retroactive purpose in the omission of an express effective date from the statute. The omission simply remits us to the general rule that when a statute has no effective date, “absent a clear direction by Congress to the contrary, [it] takes effect on the date of its enactment.” Gozlon-Peretz, 498 U. S., at 404.
Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that § 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute’s enactment, simply because the violation was the occasion for imposing the sanctions. But Congress gave us no clear indication to this effect, and we have already rejected that theory; the relevant conduct is the initial offense. In sum, there being no contrary inrent, our longstanding presumption directs that § 3583(h) applies only to eases in which that initial offense occurred after the effective date of the amendment, September 13,1994.
Given this conclusion, the case does not turn on whether Johnson is worse off under § 3583(h) than he previously was under § 3583(e)(3), as subsection (h) does not apply, and the ex post facto question does not arise. The case turns, instead, simply on whether § 3583(e)(3) permitted imposition of supervised release following a recommitment.
f — I H — I
• Section 3588(e), at the time of Johnson’s conviction, authorized a district court to
“(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice;
“(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and . . . modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
“(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission ....”
The text of subsection (e)(3) does not speak directly to the question whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration. And if we were to concentrate exclusively on the verb “revoke,” we would not detect any suggestion that the reincarceration might be followed by another term of supervised release, the conventional understanding of “revoke” being simply “to annul by recalling or taking back.” Webster’s Third New International Dictionary 1944 (1981). There are reasons, nonetheless, to think that the option of further supervised release was intended.
First, there are some textual reasons, starting with the preceding subsection (e)(1). This is an unequivocal provision for ending the term of supervised release without the possibility of its reimposition or continuation at a later time. Congress wrote that when a court finds that a defendant’s conduct and the interests of justice warrant it, the court may “terminate a term of supervised release and discharge the person released,” once at least a year of release time has been served. If application of subsection (3) had likewise been meant to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. It could have provided that upon finding a defendant in violation of the release conditions the court could “terminate a term of supervised release” and order the defendant incarcerated for a term as long as the original supervised release term. But that is not what Congress did. Instead of using “terminate” with the sense of finality just illustrated in subsection (1), Congress used the verb “revoke” and so at the. least left the door open to a reading of subsection (3) that would not preclude further supervised release after the initial revocation.' In fact, the phrasing of subsection (3) did more than just leave the door open to the nonpreclusive reading.
As it was written before the 1994 amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . .” So far as the text is concerned, it is not a “term of imprisonment” that is to be served, but all or part of “the term of supervised release.” But if “the term of supervised release” is being served, in whole or part, in prison, then something about the. term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a “terminated” order of supervised release, one that is “revoked” continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincar-ceration is over?
Without more, we would have to admit that Congress had used “revoke” in an unconventional way in subsection (3), but it turns out that the unconventional sense is not unheard of. See United States v. O’Neil, 11 F. 3d 292, 295-296 (CA1 1993). Webster’s Third New International Dictionary (our edition of which was issued three years before the 1984 Act) reveals that “revoke” can mean “to call or summon back,” without the implication (here) that no further supervised release is subsequently possible. It gives “recall” as a synonym and comments that “RECALL in this sense indicates a calling back, suspending, or abrogating, either finally as erroneous or ill-advised or tentatively for deliberation ....” Ibid The unconventional dictionary definition is not, of course, dispositive (although the emphasis placed upon it by Justice Scalia might suggest otherwise, see post, at 718-719). What it does do, however, is to soften the strangeness of Congress’s unconventional sense of “revoke” as allowing a “revoked” term of supervised release to retain vitality after revocation. It shows that saying a “revoked” term of supervised release survives to be served in prison following the court’s reconsideration of it is consistent with a secondary but recognized definition, and so is saying that any balance not served in prison may survive to be served out as supervised release.
A final textually based point is that the result of recognizing Congress’s unconventional usage of “revoke” is far less remarkable even than the unconventional usage. Let us suppose that Congress had legislated in language that unequivocally supported the dissent, by writing subsection (3) to provide that the judge could “revoke” or “terminate” the term of supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U. S. C. § 3583(a). This section provides that “[t]he court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment . . . .” Thus, on the dissent’s reading, when Johnson’s supervised release was revoked and he was committed to prison, the District Court “impos[ed] a sentence to a term of imprisonment.” See, e. g., App. 36, 39. And that sentence was, as already noted, imposed for his initial offense, the Class D felony violation of § 1029(b)(2). See supra, at 699-701. Nor would it be mere formalism to link the second prison sentence to the initial offense; the gravity of the initial offense determines the maximum term of reimprisonment, see § 3583(e)(3), just as it controls the maximum term of supervised release in the initial sentencing, see § 3583(b). Since on the dissent’s understanding the resentencing proceeding would fall literally and sensibly within the terms of § 3583(a), a plain meaning approach would find authority for reimposition of supervised release there. Cf. United States v. Wesley, 81 F. 3d 482, 483-484 (CA4 1996) (finding that § 3583(a) grants power to impose a term of supervised release following reimprisonment at re-sentencing for violation of probation).
There is, then, nothing surprising about the consequences of our reading. The reading also enjoys the virtue of serving the evident congressional purpose. The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty. See,, e. g., United States v. Johnson, ante, at 59 (“Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration”). The Senate Report was quite explicit about this, stating that the goal of supervised release is “to ease the defendant’s transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release.” S. Rep. No. 98-225, p. 124 (1983).
Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. See id., at 125 (“In effect, the term of supervised release provided by the bill takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it”). Congress aimed, then, to use the district courts’ discretionary judgment to allocate supervision to those releasees who needed it most. But forbidding the reimposition of supervised release after revocation and reimprisonment would be fundamentally contrary to that scheme. A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that “every releasee who does need supervision will receive it,” ibid., seems very unlikely to have meant to compel the courts to wash their hands of the worst cases at the end of reimprisonment.
The idea that a sentencing court should have authority to subject a reincarcerated prisoner to further supervised release has support, moreover, in the pre-Guidelines practice with respect to nondetentive monitoring, as illuminated in United States v. O’Neil, 11 F. 3d 292 (CA1 1993). The Sentencing Guidelines, after all, "represent an approach that begins with, and builds upon,” pre-Guidelines law, see USSG, ch. 1, pt. A, intro, comment. 3, and when a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law. Cf. INS v. Cardoza-Fonseca, 480 U. S. 421, 432-434 (1987) (examining practice under precursor statute to determine meaning of amended statute).
Two sorts of nondetentive monitoring existed before the introduction of supervised release: probation and parole. Of these pre-Guidelines options, the one more closely analogous to supervised release following imprisonment was parole, which by definition was a release under supervision of a parole officer following service of some term of incarceration. Courts have commented on the similarity. See, e. g., Meeks, 25 F. 3d, at 1121 (“[Supervised release is essentially similar to parole”); United States v. Paskow, 11 F. 3d 873, 881 (CA9 1993) (“Supervised release and parole are virtually identical systems”).
In thinking about this ease, it is striking that the provisions of the former parole scheme dealing with the consequences of violating parole conditions repeatedly used the verb “revoke.” See, e. g., 18 U. S. C. § 4214(d)(5) (1982 ed.) (repealed 1984, Pub. L. 98-473, §§ 218(a)(5), 235, 98 Stat. 2027, 2031) (revocation of parole); 21 U. S. C. § 841(c) (1982 ed.) (repealed 1984) (revocation of special parole). And yet there seems never to have been a question that a new term of parole could follow a prison sentence imposed after revocation of an initial parole term. See, e. g., 28 CFR § 2.52(b) (1999) (following revocation of parole, Sentencing Commission will determine whether reparole is warranted); O’Neil, supra, at 299; United States Parole Comm’n v. Williams, 54 F. 3d 820, 824 (CADC 1995) (noting “the established pre-Guidelines sentencing principle that parole is available unless expressly precluded” (citation and internal quotation marks omitted)). Thus, “revocation” of parole followed by further imprisonment was not a mere termination of a limited liberty that a defendant could experience only , once per conviction, and it is fair to suppose that in the absence of any textual bar “revocation” of parole’s replacement, supervised release, was meant to leave open the possibility of further supervised release, as well.
As seen already, “revoke” is no such bar, and we find no other. The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(8) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to § 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See § 3583(e)(3). But nothing in these specific provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.
In sum, from a purely textual perspective, the more plausible reading of § 3583(e)(3) before its amendment and the addition of subsection (h) leaves open the possibility of supervised release after reincarceration. Pre-Guidelines practice, linguistic continuity from the old scheme to the current one, and the obvious thrust of congressional sentencing policy confirm that, in applying the law as before the enactment of subsection (h), district courts have the authority to order terms of supervised release following reimprisonment.
The judgment of the Court of Appeals for the Sixth Circuit is
Affirmed.
The current version of § 3583(e)(3) reads slightly differently, but for reasons discussed below, we focus on the law in effect at the time of Johnson’s initial crime.
Of the 11 Circuits to consider the issue, 9 had reached this conclusion. See, e. g., United States v. Koehler, 973 F, 2d 132 (CA2 1992); United States v. Malesic, 18 F. 3d 205 (CA3 1994); United States v. Cooper, 962 F. 2d 339 (CA4 1992); United States v. Holmes, 954 F. 2d 270 (CA5 1992); United States v. Truss, 4 F. 3d 437 (CA6 1993); United States v. McGee, 981 F. 2d 271 (CA7 1992); United States v. Behnezhad, 907 F. 2d 896 (CA9 1990); United States v. Rockwell, 984 F. 2d 1112 (CA10 1993); United States v. Tatum, 998 F. 2d 893 (CA11 1993). Two, the First and the Eighth, found that § 3583(e)(3) did grant district courts such power. See United States v. O’Neil, 11 F. 3d 292 (CA1 1993); United States v. Schrader, 973 F. 2d 623 (CA8 1992).
See, e. g., United States v. Eske, 189 F. 3d 636, 539 (CA7 1999); United States v. Lominac, 144 F. 3d 308, 312 (CA4 1998); United States v. Dozier, 119 F. 3d 239, 241 (CA3 1997); United States v. Collins, 118 F. 3d 1394, 1397 (CA9 1997); United States v. Meeks, 25 F. 3d 1117, 1124 (CA2 1994) (addressing § 3583(g)). In contrast to these cases, the First and Eighth Circuits, relying on their broader construction of § 3583(e)(3), concluded that application of § 3583(h) did not violate the Ex Post Facto Clause. See United States v. Sandoval, 69 F. 3d 531 (CA1 1995) (unpublished), cert. denied, 519 U. S. 821 (1996); United States v. St. John, 92 F. 3d 761 (CA8 1996).
Indeed, the Sentencing Guidelines identify the effective date of § 3583(h) as September 13, 1994. United States Sentencing Commission, Guidelines Manual §7B1.3, comment., n. 2 (Nov. 1998) (USSG). So, too, have the federal courts. See, e. g., United States v. Hale, 107 F. 3d 526, 529, n. 3 (CA7 1997).
The failure to specify an effective date evidences at least arguable diffidence on this point. Another section of the same Act that added § 3583(h) amended 18 U. S. C. §3553 to limit the applicability of some statutory minimum sentences. See § 80001,108 Stat. 1985. That amendment, the section made explicit, “shall apply to all sentences imposed on or after the 10th day beginning after the date of enactment of this Act.” § 80001(c), 108 Stat. 1986.
We took a similar approach in Cisneros v. Alpine Ridge Group, 508 U. S. 10 (1993). The respondents in that case were private developers who had entered into contracts with the Department of Housing and Urban Development. When the Department sought to recalibrate payments it owed under the contracts, the developers sued, and the Ninth Circuit ruled that the Department’s proposed method of calculating payments was prohibited by the contracts. Congress subsequently passed legislation explicitly authorizing that method of calculation. The developers resisted application of that legislation to their contracts on the grounds that it retroactively deprived them of vested contractual rights, in violation of the Due Process Clause. We ruled (disagreeing with the Ninth Circuit’s earlier holding) that the Department’s methodology was acceptable under the contracts as signed. Finding the governmental action permitted by the old law, we declined to consider the constitutional consequences of a legislative attempt to change the applicable law.
The dissent offers an erudite explanation of the different senses of the two words, intending to demonstrate that Congress displayed “an admirably precise use of language,” by using “revoke” to mean “annul” and “terminate” to indicate that “[t]he supervised release is treated as fulfilled, and the sentence is complete.” Post, at 717 (opinion of Scalia, J.). That is virtuoso lexicography, but it shows only that English is rich enough to give even textualists room for creative readings. This one encounters serious difficulties; the very same section of the statute (as in effect at the time of Johnson’s offense) provides that if the person released is found in possession of a controlled substance, “the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” 18 U. S. C. § 3588(g) (1988 ed.).
Justice Scalia, post, at 721, thinks the “term” survives only as a measure of duration, but of course the statute does not read “require the person to serve a term in prison equal to all or part of the term of supervised release ...
While this sense is of course less common, the most recent editions of the most authoritative dictionaries do not tag it as rare or obsolete. The Oxford English Dictionary gives five examples of this usage, albeit hardly recent ones: three are drawn from the late 16th century and the most recent from 1784. 13 Oxford English Dictionary 838 (2d ed. 1989). But the OED is unabashedly antiquarian; of its examples for the more common meaning of “revoke,” the most recent dates from 1873. Ibid. Webster’s, it should be noted, includes the less common meaning, without antiquarian reproach, in its third edition. Webster’s Third New International Dictionary 1944 (1981).
As Justice Scalia remarks, in relying on an uncommon sense of the word, we are departing from the rule of construction that prefers
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_treat
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
In re SMATLAK et al. REZABEK v. SMATLAK et al.
No. 6644.
Circuit Court of Appeals, Seventh Circuit.
Oct. 28, 1938.
George B. Cohen, of Chicago, 111., for appellant.
Otto L. Kolar, of Chicago, 111., for appellees.
Before EVANS, MAJOR, and TREANOR, Circuit Judges.
EVANS, Circuit Judge.
Joseph Rezabek, a creditor, assails the discharge in bankruptcy of Rudolph and Marie Smatlak, individually and as co-partners, who are husband and wife. Rudolph went through bankruptcy some nine years ago, but he did not then seek a discharge of his debts. ‘
The issues were referred to a special master who filed an exhaustive report wherein he recommended the discharge. The court confirmed the report and the discharge was granted.
The objector accuses bankrupts of (a) having knowingly and fraudulently failed to schedule real property belonging to them, and (b) with having made false oaths in reference to their schedules, etc.
The referee’s report is attacked because in reaching his conclusion he placed the burden of proving the concealment of assets, and false statement in reference thereto, upon the objector. With frankness and candor, referee stated how he reached his conclusion. We quote therefrom:
“The burden of proof herein rests upon the objecting creditor. He must show by clear and satisfactory evidence that the bankrupts are the real owners of the properties involved herein or that they have a. secret interest in such properties.”
In support thereof, he cited In re Dauchy, D.C., 122 F. 688, Id., 2 Cir., 130 F. 532. He further said:
“There are many suspicious circumstances in this case. The testimony of the bankrupts’ daughter Lillian Blanche was-not, to my mind, altogether satisfactory. In some particulars, her testimony was-vague, uncertain and contradictory. * * As above stated, there are many inconsistencies shown in the testimony of the bankrupts and their children * * * and the inconsistencies found herein — such as they are — cannot, to my mind, take the place of proof by the objecting creditor that the bankrupts have, in fact, a secret interest in the various properties. The burden is upon the objector to show such secret interest and, in my opinion, he has-not done so.
“I have given this case my most thoughtful consideration, and I cannot say-that the bankrupts’ explanations are altogether unsatisfactory or that a case has-been made out by the objecting creditor,, even though I may still have some suspicions, in my mind, about the bona fidesof some of the transactions, but suspicions, cannot take the place of proof.”
In 1926, after the announcement of the-above cited In re Dauchy opinion, subsection 7 of section 14b of the Bankruptcy-Act was amended, 11 U.S.C.A. § 32(c) (7). to read as follows:
“Provided, That if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which, under this paragraph (b), would prevent his discharge in bankruptcy, then the burden of proving that he has not committed any of such acts shall be upon the bankrupt,”
The italicized words constitute the amendment. The referee discussing this amendment said:
“I am not unmindful of the fact that by the amendment of 1926 to the National Bankruptcy Act, it is provided that if upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed an act which would bar his discharge, then the burden of proving that he has not committed such act shall be upon the bankrupt. Yet, as stated by Remington (paragraph 3410.50) it is difficult to see where such amendment adds anything to the rules of evidence already existing as to discharges. The opposing creditor has the burden of proof as to each element necessary to be proved. Thus, where the ground of opposition is the commission of the crime of concealing assets, each element of the crime must be proved and be proved by the requisite degree of proof. Remington on Bankruptcy, paragraph 3408.”
It is apparent from a reading of the referee’s report that he misconstrued and misapplied subsection 7. The amendment was enacted for some purpose, and we must give to it some effect. The referee evidently concluded the amendment did not change the existing law, and the objector, not the debtor, carried the burden throughout.
The proper construction of this statute as amended calls for the objector to assume the burden, in the first instance, and to show “reasonable grounds for believing” that the bankrupt had made a false statement in respect to his assets. His burden is not to prove the fraudulent concealment of assets or the false oath by bankrupt. He must show only that there are reasonable grounds for believing the existence of facts which bar a bankrupt’s discharge.
When the objector has shown to the satisfaction of the court the “reasonable grounds for believing,” the burden then shifts to the bankrupt to prove that he has not committed the acts charged in the objection.
The expression “to the satisfaction of the court” does not leave it to the whimsical or capricious judgment of the fact finder, but supplies a test or standard of persuasiveness which has a well-accepted meaning. Shanberg v. Saltzman, 1 Cir., 69 F.2d 262.
The question before us is therefore narrowed to an inquiry into the facts to ascertain whether a “reasonable ground for believing” has been shown. If so, then the referee erred in continuing to place on the objector the burden of showing “by clear and satisfactory evidence that the bankrupts are the real owners of the property” or as he stated in another place, “The opposing creditor has the burden of proof as to each element to be proved. Thus, where the ground of opposition is the commission of the crime of concealing assets, each element of the crime must be proved and be proved by the requisite degree of proof.”
A study of the evidence leaves no doubt as to the showing of “reasonable ground for believing” that false testimony was given and property left out of the bankrupts’ schedules.
Four pieces of property were involved. Parcel one is an improved property, a large brick building, with a tavern and dance hall and three floors containing twenty rooms used as a rooming house. The property originally stood in the name of bankrupt, Marie Smatlak, and was acquired in 1925. In 1927, she conveyed it to Stella Targos, and on foreclosure sale, it was in 1929, returned to Marie Smatlak.
In 1930 it was conveyed by Marie Smatlak and her husband to Rudolph Janek, who held the property until Jajiuary 5r 1935, when he conveyed it to Blanche Ann Smatlak, a -daughter of bankrupts. Blanche was at the time about twenty-three years of age, and was employed in_a beauty parlor establishment. The property was worth $20,000. She paid Janek the sum he had put into the property when he acquired it from her mother, so bankrupts assert, and to do so she borrowed from one Jirka. Blanche rents the property to her mother for $100 per month. Neither Janek nor Jirka appeared. Objector claims Janek is a mythical character who never existed and seven witnesses gave testimony which supported this opinion. Rezabek lent money to the bankrupts so that they might send their boys to college.
As to the other parcels, it is sufficient to say that parcel four was conveyed to the son John, September 15, 1930, when he was 19 and title remained in him until February 24, 1932, when he transferred it to his sister who was then 17 years of age.
Parcel number two stood in Marie Smatlak’s name on April 10, 1928, and she' conveyed it to one Puzej and Puzej, on July 11, 1931, conveyed it to Blanche Lillian Smatlak who was then 18 years of age or less. A month later the property was conveyed by Lillian to-Rudolph Janek, the alleged mythical character, and the title stood in his name at the time of the bankruptcy proceedings.
Title to parcel No. 3 reached John R. Smatlak, the son, ■ August 27, 1930, from one Felix Las in exchange for certain \ property given to Johri by his mother. John was a minor attending school.
Title remained in John until April 24, 1932, when he conveyed it to his sister who was 17.
All the properties have been handled by bankrupts during all this time as though they owned them. The insurance was payable to the bankrupts. The interest and principal payments on the mortgages were made by bankrupts.
In July, 1936, the father testified that Blanche was '25 years old. In July, 1937, the brother testified that his sister, Blanche, was then 24, and his sister Mildred was 21. Mildred, who received her property shortly before she was. 17, stated that she had worked as a grocery clerk for three years prior to that time. Her brother stated she worked for one- year.
The conveyance of parcel two to Blanche and her conveyance to Rudolph Janek were both' during, her minority. Both daughters testified that they obtained the cash with which to make payments from boxes wherein they kept their savings. No papers, checks, leases, or other written documents corroborate their testimony. The testimony given by daughter Blanche is illuminating except as 'to her age. She says:
“My name is Lillian Blanche A. Smatlak *. * *. I own the equity of 2860 West Cermak Road and acquired it through Mr. Janék. I gave him $3,000.00 for it. * * * I lease the store to John. I have a written lease with my father but I think John’s lease has run out. I had transactions with Janek in 1931 covering some of the lots in question here. I use the two names, Blanche and Lillian because I work in a Jewish neighborhood and whenever anything happens in the shop they are always ready to sue and so I use two different names over there. I got the lots in 1931 from Mr. Puzej. I do not remember how much I paid him. I don’t know where he. got it. I do not know whether he got it from my mother or not. Janek is over. 40 years of age. He does not speak very well. * * * He did not leave his address when he left. I made no effort to find him. I do not know his business. * * * At the time I took the property from Janek I had no contract in writing. My father and brother handled the transaction. * * * The money I received from my mother I put in the property paying taxes and repairs, and I also paid the Building Loan. I am in arrears with the Building Loan. I do not know how I stand. My sister takes the money down or I go myself. * * * I did not handle the transaction regarding the mortgage. My brother did. I do not know what the situation is. * * * In 1931 I sold the lots to Janek for a couple of hundred dollars. I do not know how much money I had at the time I purchased these lots. My father brought the paper over to me. On the former hearing of this case on the examination I testified that my father brought the paper over. * * * I also testified on the former hearing I did not, know what papers I signed. * * * ”
Equally illuminating as to character and dependability is the testimony of bankrupt, Rudolph. He at the same.time effectually disposed of the testimony of his wife, his co-bankrupt. He said:
“I brought in Mr. Lukes in 1930. Lukes had an unrecorded deed. My wife was .involved so we thought vye would convey it to Lukes. The Building Loan would not take Lukes so my wife’s cousin, Rudolph Janek stepped in. We were warned not to put anything in the paper about Janek * * *. That was the reason Janek’s name had to be kept off the records. * * * Janek has the title to one of the lots in Cicero that came to him from Blanche Lillian. He still has it because Blanche probably owes him some money. * * * My wife was all mixed up when she was examined here. * * * She did not know what she was talking about.”
Objector openly charged that Rudolph Janek was a mythical personage and yet was the medium by which bankrupt, Marie Smatlak, transferred property owned by her to her daughter. Witnesses said there was a party by that name, a brother of bankrupt Marie Smatlak, who lived in the “old country.”
The objector Rezabek, who is also a Bohemian, testified that Janek is “short for John” and that bankrupt Rudolph Smatlak called his son Janek. Supporting this charge that Janek was a fictional character were seven witnesses, one a brother of the bankrupt and others quite familiar with the home life of the bankrupts at whose house, so bankrupts assert, Janek stayed for some time. Their testimony was negative in that the seven witnesses stated they never saw him at the house or elsewhere. In opposition thereto, besides the testimony of the bankrupts, there were two witnesses who stated that they witnessed his signature to a deed. However, these parties said they were introduced to him and did not know of their own knowledge the party introduced was Rudolph Janek.
The hearings before the master were continued several times and covered a considerable period. Neither Janek nor Jirka were produced at any hearing. Their absences were unexplained, save Rudolph said Janek “got mad and went to Wisconsin.”
From the foregoing it must appear that the objector established a clear case of “reasonable ground for believing” the existence of fraudulent concealment, and the burden was then transferred to the bankrupts to prove that no omissions were made by them in their inventories.
What the referee’s findings would have been had the burden been properly placed —on the bankrupts — only the referee can say. We can not. He should be permitted to make findings with the burden of proof on the bankrupts. He has frankly expressed himself as being in deepest doubt even with the objector unduly loaded with a heavy burden and with the bankrupts relieved of the load which the law placed upon them. We deem it best to permit the master to make new findings after placing the burden where it belongs. ín so doing, the referee should be permitted to investigate further the existence of Janek and in fact insist that Janek’s identity be established or disproved and not left to conjecture, fancy or suspicion. At the same time he may receive any other evidence which may throw light on the controverted question.
The order is reversed with costs with directions to proceed as herein indicated.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_casetyp1_7-3-6
|
B
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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 - property disputes".
OLIVER et al. v. UNITED STATES et al.
No. 13309.
Circuit Court of Appeals, Eighth Circuit.
June 24, 1946.
Igoe, Carroll, Keefe & Cobum, Richmond C. Coburn, and Thomas L. Croft, all of St. Louis, Mo., and Robert V. Niedner, of St. Charles, Mo., for appellants.
Adams, Adams & Adams and Arthur N. Adams, Sr., all of Kansas City, Mo., and Cobbs, Logan, Roos & Armstrong, Wm. H. Armstrong, and J. Terrell Vaughan, all of St. Louis, Mo., for appellee Kansas City Title Ins. Co.
J. Edward Williams, Acting Head, Lands Division, of Washington, D.C., and Harry C. Blanton, U. S. Atty., of Sikeston, Mo., and Roger P. Marquis and Miss Wilma C. Martin, Attys., Department of Justice, both of Washington, D. C., for appellee United States.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
This is one of the so-called Weldon Springs cases which arose out of the efforts of the War Department to acquire by purchase a site in St. Charles County, Missouri, for the location of an ordnance plant. After having accepted approximately 270 contracts with individual landowners for the purchase of their lands, the War Department conceived the idea that the contracts were prohibited by statute, and acting upon this assumption caused condemnation proceedings to be instituted in the name of the, United States against all landowners whose contracts had not been fully executed. The appellants were parties to one of the contracts which the United States attempted to repudiate and were defendants in one of the ensuing condemnation proceedings. United States v. Certain Lands in St. Charles County, Mo., etc., D.C., 60 F.Supp. 741; Oliver et al. v. United States, 8 Cir., 155 F.2d 73.
The facts and questions of law common to all the condemnation actions may be found in the opinions of the Supreme Court and of this court in Muschany et al. v. United States, 324 U.S. 49, 65 S.Ct. 442, 89 L.Ed. 744; United States v. Muschany et al., 8 Cir., 139 F.2d 661; and Oliver et al. v. United States, supra. It is enough to say here that the cases cited determined that appellants’ contract with the United States for the sale of their land was valid; that 'the purchase price stipulated in the contract fixed the amount of the award to be made in the condemnation action brought by the United States; that this purchase price included the sum which the appellants agreed to accept in payment for their lands, plus five per cent of that amount to cover the commission of an agent employed by the War Department to negotiate the purchase contracts, and plus one and one-half per cent of the same amount to cover the charges of the Kansas City Title Insurance Company for preparing at the landowners’ expense certificates of title and a deed showing good title in the United States upon conveyance by appellants to the United States; and that with the consent of all parties an arrangement, carried out in the settlement of all contracts not repudiated, was adopted whereby one voucher payable to the vendors was issued for the total of all items included in the stipulated purchase price.
After the decision of the Muschany case by the Supreme Court, the United States paid into the court the sum of $70,000, the purchase price stipulated in appellants’ contract, and judgment was entered fixing that sum as the award in the condemnation action. At the suggestion of the United States an order was also entered requiring claimants to a share in the award to file their intervening petitions. The Kansas City Title Insurance Company filed its intervention claiming a share in the award as the owner of one and one-half per cent of the amount stipulated in the purchase contract. This appeal is from the judgment of the District Court allowing the Title Company’s claim. The United States is not interested in the result.
In the District Court the Title Company introduced in evidence parts of the records in the Muschany and Oliver cases, supra, on which the conclusions and findings in those cases were made. The appellants offered no evidence. They objected to the jurisdiction of the District Court to entertain appellee’s claim on the grounds: (1) that only those who have an estate in lands taken by condemnation may share in the award in the condemnation proceeding; and (2) that there was no diversity of citizenship as between appellee and appellants. They also contended that the evidence on behalf of appellee was not sufficient to show that appellants had agreed to pay, appellee for its services.
We think the evidence was sufficient to establish the employment of the appellee by the appellants for the examination and certification of appellants’ title to the land. Appellants were required by their contract for the sale of their land to employ the appellee for this purpose, and they are bound by the decision in the Muschany case, which was a test case for the determination of the validity and the interpretation of this contract.
Appellants’ objections to the jurisdiction of the District Court are without merit. In the ordinary condemnation case the award in favor of the owners of the land condemned stands in lieu of the land. In such cases it goes without saying that only those who had an estate in the land have an interest in the fund which takes its place. In the present case, however, the fund to be distributed by the court included not only compensation to the owners of the land, but in addition, funds payable by appellants to the Kansas City Title Insurance Company for its services to them. A Federal court having acquired possession of a fund in the course of a proceeding within its jurisdiction also has jurisdiction of the conflicting claims to ownership of the fund, regardless of the citizenship of the claimants. Loy v. Alston, 8 Cir., 172 F. 90, 95. By Rule 24(a) (3) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, one claiming a share in a fund in court is entitled as of right to intervene in distribution proceedings for the protection of his interest. Appellants’ argument that Rule 24(a) (3) is not applicable in the present case, because of the provisions of Rule 81(a) (7) that the Rules of Civil Procedure do not apply in proceedings for condemnation, must be denied because the present action does not involve proceedings for condemnation within the meaning of the Rule relied on. It is true that the funds to be distributed came into the hands of the court as the result of proceedings for condemnation. But those proceedings were terminated before the present action began.
The judgment of the District Court is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
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songer_casetyp1_7-3-5
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
Frances Hull BROWN, Individually and as Administratrix of the Estate of Robert Ervin Brown, Deceased, Appellant, v. Robert FINCH, Secretary of Health, Education and Welfare, Appellee.
No. 13982.
United States Court of Appeals, Fourth Circuit.
Argued May 8„ 1970.
Decided June 18, 1970.
Clyde C. Randolph, Jr., Winston-Salem, N. C. (Doris G. Randolph and Randolph & Randolph, Winston-Salem, N. C., on brief), for appellant.
J. Howard Coble, Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee.
Before BOREMAN and WINTER, Circuit Judges, and WOODROW WILSON JONES, District Judge.
PER CURIAM.
Frances Hull Brown (plaintiff), individually and as administratrix of the estate of Robert Ervin Brown (claimant), appeals from the district court’s holding that there was substantial evidence to support the Secretary’s denial of claimant’s social security disability benefits claim. Plaintiff was substituted as party-plaintiff when claimant died during the pendency of this action.
If there is substantial supporting evidence on the record as a whole for the Secretary’s decision, that decision will not be overturned. Laws v. Celebrezze, 368 F.2d 640 (4 Cir. 1966). Here, there is medical evidence which indicates that, although claimant’s August 9, 1960, heart attack restricted his activities to some extent, it did not result in heart enlargement, irregular heart rhythm, heart murmurs or significant heart impairment. Claimant stated to the Veterans’ Administration physician that his doctor had told him he could do eight hours of light work per day. In short, there is ample evidence to support the hearing examiner’s finding that claimant made a normal and satisfactory recovery from his heart attack and that the residuals of this condition would not have prevented claimant from engaging in substantial gainful activity.
On this record the Secretary’s denial of disability benefits will not be disturbed. The judgment below is
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
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songer_crmproc2
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited.
In The Matter of RAFDO ENTERPRISES, INC., d/b/a The Black Orchid, a Corporation, Bankrupt. J. B. COHEN, d/b/a Consolidated Service Bureau, Appellant, v. James E. KENNEDY, Trustee in Bankruptcy of Rafdo Enterprises, Inc., Appellee.
No. 13467.
United States Court of Appeals Seventh Circuit.
Jan. 10, 1962
Joseph W. Grady, Chicago, 111., for appellant.
Sherwin 0. Simon, Chicago, 111., for appellee.
Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judg.es.
CASTLE, Circuit Judge.
A petition and amended petition was filed by appellant to recover $625.00 from the Trustee in Bankruptcy, the appellee here. A hearing was had before the Referee in Bankruptcy who made and entered findings of fact and conclusions of law, and an order denying said petition and amended petition. On petition for review the District Court confirmed the order of the referee denying the petitions. This appeal is from said order.
The record shows that on March 14,. 1961 the trustee filed his report and account affixing thereto numerous schedules, including Schedule “F” entitled “Uncollected Accounts Receivable to be offered for sale at final meeting of creditors.” Said Schedule “F” listed the names of debtors, the amounts of their indebtedness and the cause of non-collection such as “skip”, “payment promised”, “contested”, “denies liability”, etc. The said final report also detailed the efforts that had been made on behalf of the trustee to collect these delinquent accounts. A notice of the final meeting of the creditors was issued on April 12, 1961 advertising that the uncollected accounts receivable would be offered for sale on April 27, 1961. On said date the sale was had by competitive bidding in open court and the appellant bid the amount of $625.00 “for the Trustee’s right, title and interest in and to the accounts” upon acceptance of which a draft order was issued authorizing the trustee to execute such documents as might be necessary in transferring and setting over to appellant all of the trustee’s right, title and interest in and to the uncollected accounts receivable without any warranty or guaranty.
On May 8, 1961 the appellant presented his petition to vacate the sale and the paragraphs which are important in this case are paragraphs 3 and 4 of said petition, which are:
“3. Your petitioner represents that a great bulk of the accounts receivable have denied.any obligation or else insisted upon a set off, counter-claim or recoupment in excess of the amount of the accounts receivable.”
“4. Your petitioner represents that it is inequitable to allow such a sale to stand.”
A hearing was held on said petition and the referee denied the petition. The hearing was then continued to May 24, 1961 and an amended petition was filed which set up substantially the same matters as were set up in the original petition only in a little more detail. The referee entered his formal order on May 24, 1961 denying the petitions and incorporating therein his findings and legal conclusions upon which the denial was based. On May 31 a petition for review was filed upon which the referee’s certificate issued on June 15, 1961 setting a hearing for June 19 before the trial judge. On June 23, the District Court handed down its opinion affirming the referee on due consideration of the record.
The accounts offered for sale were available for inspection. The records of the bankrupt and correspondence of the trustee were available for inspection. The final report filed in the proceedings indicated the precariousness of the uncollected accounts. The sale was without warranty and without guaranty, and there was competitive bidding for the trustee’s right, title and interest only.
Appellant complains of the trustee’s failure to file a formal answer to appellant’s petitions. But such argument does not merit consideration here. Appellant proceeded to a hearing on the merits of the petitions without objection and failed to raise this issue before the referee or before the trial court on review. Appellant is in no position to protest for the first time on appeal. Not only have we had occasion to point out in In re Tucker Corporation, 7 Cir., 256 F.2d 808, 811 that:
“Pleadings in bankruptcy often are not as formal as in other types of litigation. The Trustee did not make a demand for a more particular statement. We think no one was misled as to the issues which the claimants were tendering”
but also Rule 61, Federal Rules of Civil Procedure (28 U.S.C.A.) requires that we disregard any error or defect in a proceeding which does not affect the substantial rights of the parties.
The referee made findings of fact left undisturbed by the trial court. Such findings are presumptively correct and will not be set aside unless clearly erroneous. Gold v. Gerson, 9 Cir., 225 F.2d 859, 861. In the instant case the findings are amply supported by the record and the District Court did not err in its conclusions.
The judgment order of the District Court is affirmed.
Affirmed.
Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_initiate
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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 what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellant. v. Terry Wayne DENSON, Stephen Orlando and Joseph James Janish, Defendants-Appellees. In re UNITED STATES of America, Petitioner.
Nos. 78-2102, 78-2508.
United States Court of Appeals, Fifth Circuit.
Feb. 5, 1979.
Rehearing En Banc Granted March 30, 1979.
Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., Joel L. Selig, Dept, of Justice, Washington, D.C., for U. S. in 78-2102.
Robert C. Bennett, Houston, Tex., for Denson.
Michael Ramsey, Houston, Tex., for Orlando.
Michael A. Andrews, Houston, Tex., for Janish.
E. W. Barnett, B. J. Bradshaw, Leroy Jeffers, Houston, Tex., Tom Mills, Jr., Dallas, Tex., amicus curiae, for Nat’l Assn, of Criminal Defense Lawyers, Inc.
J. A. Canales, U. S. Atty., Houston, Tex., Dennis J. Dimsey, Drew S. Days, Asst. Atty. Gen., Civil Rights Div., John E. Huerta, Brian K. Landsberg, Dept, of Justice, Washington, D.C., for U. S. in both cases.
Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.
JAMES C. HILL, Circuit Judge:
In No. 78-2508 the Government petitions for a writ of mandamus ordering the District Court to correct allegedly illegal sentences entered in this action on May 19, 1978. In No. 78-2102 the Government has filed a notice of appeal in an effort to challenge the same allegedly illegal sentences through the alternative procedure of a direct appeal. The substantive issue presented is whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for a conviction under 18 U.S.C.A. § 241 in a case in which the victim of the constitutional deprivation was killed. The procedural issue presented is whether a direct appeal or a petition for a writ of mandamus is the appropriate vehicle for the Government to challenge the sentences. After careful consideration of the record, the litigants’ briefs, the briefs of amici curiae, the litigants’ oral arguments, and the applicable law, we dismiss the appeal as improper and deny the petition for a writ of mandamus.
I.
We need not recount the evidence of this horrible crime adduced at this trial or at the prior state proceedings, since the issues presented here are legal and procedural. The relevant procedural history which we need consider to resolve the issues before us is not disputed. On October 20, 1977, a federal grand jury returned a four-count indictment charging former Houston police officers Terry Wayne Denson, Stephen Orlando, Joseph James Janish, and Louis Glenn Kinney with violations of 18 U.S.C.A. §§ 241, 242, and 371. Count One of the indictment charged Denson, Orlando, Janish, and Kinney with conspiring to injure, oppress, threaten, and intimidate Joe Luna Torres, Jr., in the free exercise of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 241. Count One averred that on May 6, 1977, Janish, Denson, Kinney, and Orlando struck Torres while he was handcuffed, and that Denson pushed Torres into the Buffalo Bayou in Houston. This Count further alleged that the conspiracy resulted in Torres’ death. Count Two of the indictment charged that Denson, Orlando, Janish, and Kinney, while acting under color of law, willfully struck Torres, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. § 242. Count Three alleged that Denson, aided and abetted by Orlando, Janish, and Kinney, willfully assaulted Torres by pushing him into the Buffalo Bayou, thereby depriving him of his constitutional right not to be deprived of liberty without due process of law, in violation of 18 U.S.C.A. §§ 2 and 242. Count Three further asserted that this act resulted in Torres’ death. Count Four charged that Denson, Orlando, and Kinney conspired to violate 18 U.S.C.A. § 1510 by preventing one Carless E. Elliott from communicating information about violations of 18 U.S.C.A. §§ 241 and 242 to an agent of the Federal Bureau of Investigation, in violation of 18 U.S.C.A. § 371. On October 28, 1977, the Defendants entered pleas of not guilty to the charges against them. A jury trial commenced on January 23, 1978. On January 31, 1978, the District Court granted defendant Kinney’s motion for a severance. On February 8, 1978, the jury found Defendants Denson, Orlando, and Janish guilty on Counts One and Two of the indictment and not guilty on Counts Three and Four.
Sentencing was held on March 28, 1978. On Count One of the indictment, the District Court sentenced each Defendant to ten years’ imprisonment, suspended execution of that sentence, and ordered the Defendants placed on supervised probation for five years. On Count Two, the District Court sentenced each Defendant to one year’s imprisonment. The District Court ordered the sentences on Counts One and Two to be served consecutively. After the sentence was announced, the following exchange took place between counsel for the United States and the District Court:
Mr. McDonald: If I may be heard, there is some question about whether or not a probated sentence—
The Court: I have resolved that question to my own satisfaction.
We will be in recess.
On April 5, 1978, the Government filed a motion to correct sentence. In this motion, the Government contended that the District Court’s orders suspending execution of its ten-year sentences and placing the Defendants on probation exceeded its authority under 18 U.S.C.A. § 3651. The Defendants filed a response to the Government’s motion on April 11, 1978. In its memorandum and order dated April 17, 1978, the District Court denied the Government’s motion. The District Court’s reasoning is set forth in the following paragraph taken from its opinion:
The language ‘imprisonment (or imprisoned) for any term of years or for life’ in 18 U.S.C. § 241 is identical to the language in 18 U.S.C. § 1111 (defining second degree murder), id. § 2031 (defining rape), and id. § 1201 (defining kidnapping). The Administrative Office of the United States Courts reports that, nationwide, 4 convicted of second degree murder, 33 convicted of rape, and 6 convicted of kidnapping in 1977 received probation. Annual Report of the Director, Administrative Office of the United States Courts, 1977. In 1976, those receiving probation after conviction of these offenses were 2 (second degree murder), 20 (rape), and 5 (kidnapping), id, 1976. In 1975, the numbers were 3 (second degree murder), 28 (rape), and 10 (kidnapping). Id., 1975. Thus throughout the nation, the Federal Judiciary has interpreted the language ‘imprisonment (or imprisoned) for any term of years or for life’ to be consistent with the language of 18 U.S.C. § 3651 authorizing the granting of probation. Probation is prohibited when a punishment of death or life imprisonment is mandatory. See United States v. Woods, 484 F.2d 127, 139 (4th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875.
On May 17, 1978, the Government filed a notice of appeal from the April 17, 1978, order denying its motion to correct sentence. The notice of appeal indicated that the Government also intended to seek relief by way of a writ of mandamus.
On May 19, 1978, the District Court entered Judgment and Probation/Commitment Orders for Defendants Denson, Orlando, and Janish. These Orders effectuated the sentences which had been announced from the bench on March 28, 1978. The District Court also issued a second memorandum and order, the asserted purpose of which was
to set forth upon the record the reasons which stem from the unprecedented procedural posture of this case, for the order, which is a part hereof, staying, to the extent that this court has power to stay, the running of all time periods pertaining to an appeal on the merits in this case until such time as the question of the validity of the sentence of this court has been finally determined.
In this Memorandum and Order, the District Court set forth an additional basis for the sentences it had imposed. After summarizing the procedures followed and the arguments of the litigants, the District Court stated:
In an attempt to depoliticize what has become an almost intolerable situation of attempts to interfere with the independence of the court, this court has not heretofore articulated the most cogent reason for the sentences imposed. That reason is that the Government entered into a plea agreement with one of the former police officers not on trial in this case that if he would testify against those on trial here, he would be permitted to plead guilty to the same actions upon which the jury found these Defendants guilty under a different statute carrying a maximum penalty of one years’ [sic] imprisonment and further that in his case the Government would recommend probation.
On May 23, 1978, the Government filed an amended notice of appeal from the order denying its motion to correct sentence and from the orders of probation entered on May 19, 1978. On May 30, 1978, Defendants Denson, Orlando, and Janish filed notices of appeal from the judgments entered against them. On July 14, 1978, the Government filed its petition for a writ of mandamus. This Court stayed the Defendants’ appeal pending the outcome of the Government’s attacks on the sentences.
II.
We first consider whether 18 U.S.C.A. § 3651 authorizes a suspended sentence and probation for these convictions under 18 U.S.C.A. § 241.
A.
Section 3651 authorizes federal courts to suspend imposition or execution of sentences only “[u]pon entering a judgment of conviction of any offense not punishable by death or life imprisonment.” Webster’s Third International Dictionary (16th ed. 1971) and Black’s Law Dictionary (Rev. 4th ed. 1968) both define “punishable” as meaning deserving of, liable of, or capable of being punished by law or right. See also Annotation, 35A Words and Phrases 171 (1963). The ordinary plain meaning of Section 3651, then, is that federal courts are without authority to suspend the imposition or execution of punishment and to grant probation to defendants, such as these Defendants, who are convicted of offenses for which death or life imprisonment may be imposed as a sentence.
The meaning of the phrase “any offense not punishable by death or life imprisonment” in Section 3651, in our view, “is so self-evident that it hardly admits of argument.” United States v. Watkinds, 6 F. 152, 161 (C.C.D.Or.1881). This case is appropriate for application of the, “plain meaning” rule of statutory interpretation— “a most basic principle of statutory construction.” Tidewater Oil Co. v. United States, 409 U.S. 151, 178, 93 S.Ct. 408, 424, 34 L.Ed.2d 375 (1972) (Stewart, J., dissenting). The United States Supreme Court explained this rule in one of its early cases:
Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words . in search of an intention which the words themselves did not suggest.
United States v. Wiltberger, 18 U.S. 76, 96, 5 Wheat. 76, 5 L.Ed. 37 (1920). See generally Raven v. Panama Canal Co., 583 F.2d 169 (5th Cir. 1978); Barbee v. United States, 392 F.2d 532 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1849, 20 L.Ed.2d 855 (1968). More recently, the Supreme Court has said of this rule: “[tjhere is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct. 852, 857, 15 L.Ed.2d 827 (1966), quoting, United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 534, 84 L.Ed. 1345 (1940). We believe that the District Court has “depart[ed] from the plain meaning of [the] words [of Section 3651] in search of an intention which the words themselves [do] not suggest.” United States v. Wiltberger, 18 U.S. at 96. We further believe that there is no ambiguity in the language of the statute that would justify such a departure. Nor do we find anything in the legislative history of the statute or in the general theory of probation which would warrant disregarding the natural meaning of the statutory language.
There is nothing in the legislative history of Section 3651 to suggest that its plain meaning is to be disregarded. For many years there were no federal statutes governing probation. Federal courts frequently “exercised a form of probation either by suspending sentence or by placing the defendants under state probation officers or volunteers.” United States v. Murray, 275 U.S. 347, 354, 48 S.Ct. 146, 148, 72 L.Ed. 309 (1928). However, in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) (the “Killitts” case), the Supreme Court held that federal courts had no authority to suspend sentence. In response to this decision, Congress in 1925 passed the Federal Probation Act, 18 U.S.C.A. §§ 3651-3656.
The purpose of the Act was explained in United States v. Murray, 275 U.S. at 357-358, 48 S.Ct. at 149:
The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. Experience has shown that there was a real locus poenitentiae between the conviction and certainty of punishment, on the one hand, and the actual imprisonment and public disgrace of incarceration and evil association on the other. If the case was a proper one, great good could be done in stopping punishment by putting the new criminal on probation. The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act always directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.
The legislative history of the Federal Probation Act is extensive. See, e. g., 54 Cong.Rec. 3637, 4373 (1917); 65 Cong.Rec. 9188, 11076-11078 (1924); 66 Cong.Rec. 5199-5201, 5204-5205 (1925); H.R.Rep.No. 423, 68th Cong., 1st Sess. (1924); H.R.Rep. No.1377, 68th Cong., 2nd Sess. (1925); Hearing on S. 1092 before a Subcommittee of the Committee on the Judiciary, United States Senate, 64th Cong., 1st Sess. (1916); Hearing on S. 1042 and S. 1729 before a Subcommittee of the Committee on the Judiciary, United States Senate, 68th Cong., 1st Sess. (1924). This legislative record is discussed in great detail in Roberts v. United States, 320 U.S. 264, 268-270, 64 S.Ct. 113, 88 L.Ed. 41 (1943), and in United States v. Murray, 275 U.S. at 354-355, 48 S.Ct. 146, which need not be repeated here. Suffice it to say that our study of these legislative materials and of the judicial decisions considering them reveals nothing warranting an interpretation of Section 3651 differing from its natural meaning.
The legislative records appear to be of limited usefulness because no direct express statements concerning the phrase in question were made. During the legislative debates, only two references were made to the provision in the bill limiting the probationary powers of the federal courts to cases in which the defendants were convicted of crimes “not punishable by death or life imprisonment.” During the House debates, Representative Hersey commented that the bill “does not apply to death sentences or life imprisonment.” 65 Cong.Rec. 11076 (1924). And Representative Woodrum observed:
[t]his bill goes further than any law I have seen in a State court. It has no limitation whatever on the age, gravity of the offense — except it must not be punished with death — or the number of times that the defendant may have been before that or some other court for violation of the laws of the United States.
66 Cong.Reg. 5205 (1925). Neither of these remarks is an attempt to define the phrase “not punishable by death or life imprisonment.” Rather these remarks are shorthand, imprecise ways of referring to the statutory exception. Neither remark warrants disregarding the plain meaning of the statutory language.
In addition, in amending Section 3651 in 1948, 1958, 1970, and 1972, Congress made no suggestion that it should be given a different interpretation. See H.R.Rep.No. 304, 80th. Cong., 1st Sess., at A173-A174 (1947); P.L. 85-463, reprinted in [1958] U.S. Code Cong. & Admin.News, pp. 258, 2689-2691; P.L. 85-741, reprinted in [1958] U.S. Code Cong. & Admin.News, pp. 976-977, 3841-3843; P.L. 91-492, reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 1270-1271, 4324 — 4331; P.L. 92-293, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 166-167, 2257-2263.
The current revision of the Criminal Code Reform Act of 1977 (S. 1437) is further indication that Section 3651 means what it says. Section 2101 of that bill would authorize the imposition of a sentence to a term of probation in all cases, unless the case involves a “Class A felony,” or an offense for which probation has been expressly precluded, or the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense. The accompanying Senate Report provides that “subsection (a)(1) excludes Class A felony offenders from receiving a sentence of probation, thus excluding, as does current law, those offenders subject to a penalty of life imprisonment or death.” S.Rep.95-905, 95th Cong., 1st Sess. 899 (1977) (emphasis added).
Nor do the basic principles underlying a sentence to probation require this Court to reject the plain meaning of Section 3651. The purpose of probation, as defined by the Supreme Court in Roberts v. United States, 320 U.S. at 272, 64 S.Ct. at 117, is
to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose the institutional punishment for his original offense in the event that he abuse this opportunity.
See also generally United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928). Because probation is “an authorized mode of mild and ambulatory punishment,” it is an inadequate sentence for the more serious criminal offenses. It was appropriate for Congress to authorize the federal courts to order probation only for those convicted of the less serious crimes, and it was reasonable for Congress to draw the line at those few offenses subject to a maximum punishment of death or life imprisonment.
The legislative history of the 1968 amendment to 18 U.S.C.A. § 241 increasing its maximum punishment to life imprisonment in death cases indicates that Congress did not intend the federal courts to grant probation in such cases. Before 1968, the maximum punishment for a violation of 18 U.S.C.A. § 241 was 10 years’ imprisonment and a $5,000 fine, even if death resulted. In that year Congress amended both 18 U.S.C.A. §§ 241 and 242 to provide for a maximum sentence of life imprisonment for violations resulting in death. See Pub.L. 90-284, reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 89-111, 1837-1867. The legislative history of these amendments indicates congressional dissatisfaction with maximum sentences of 10 years’ imprisonment for violations of 18 U.S.C.A. § 241 resulting in death. The Senate Report provides:
[t]he maximum penalties [of 18 U.S.C. §§ 241 and 242] are inadequate for cases in which bodily injury or death has occurred. Section 241 provides a maximum penalty of a $5,000 fine or a 10-year prison sentence or both. .
The penalties prescribed in the bill are graduated in accordance with the seriousness of the results of violations, ranging from misdemeanor penalties when no one is harmed, to $10,000 fines and 10 years imprisonment when there is physical injury, and life imprisonment when death occurs.
S.Rep.No.721, 90th Cong., 1st Sess., p. 6 (1967), U.S.Code Cong. & Admin.News, [1968] , p. 1841. During the Senate debate, Senator Hart stated:
H.R. 2516 increases the maximum penalties for violation of 18 United States Code 241 and 242. Currently the maximum penalties under these two sections are too lenient where a death has occurred.
114 Cong.Rec. 318 (1968). See also 114 Cong.Rec. 9590 (1968) (Remarks of Rep. Ryan); 113 Cong.Rec. 22772 (1967) (remarks of Rep. Gilbert); 114 Cong.Rec. 669 (1968) (remarks of Sen. Scott). After the 1968 amendment, all defendants convicted of a violation of 18 U.S.C.A. § 241 resulting in death, except those in the present case, received sentences of life imprisonment. See United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977) (sentences for two of three defendants reduced to 25 years’ imprisonment on retrial); United States v. Harvey, 526 F.2d 529 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976); United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975); United States v. Pacelli, 491 F.2d 1108 (2d Cir. 1974), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974).
Finally, the weight of relevant judicial authority supports our construction of Section 3651. Our research has revealed only one case, State v. Taylor, 151 Fla. 296, 9 So.2d 708 (1942) (en banc), in which a court was presented with the precise question at issue here. The Taylor case involved a state statute which, like Section 3651, authorized a trial court to grant probation to a defendant except in the case of an offense “punishable by death or life imprisonment.” The Florida Supreme Court concluded: “[t]he word ‘punishable’ may be defined as ‘capable of being punished by law or right.’ ” Id. at 708. The Florida court held that under the statute a trial court could not grant probation to a person convicted of second degree murder — an offense for which a term of life imprisonment could be imposed under state law — even though a lesser term of incarceration was allowable. See also United States v. Remling, 548 F.2d 1274 (6th Cir. 1977); Coon v. United States, 360 F.2d 550 (8th Cir. 1966); The Thrasher, 173 F. 258 (9th Cir. 1909); United States v. Carubia, 377 F.Supp. 1099 (E.D.N.Y.1974); United States v. Watkinds, 6 F. 152 (C.C.D.Or.1881). See generally Annotation, 35A Words and Phrases 171-73 (1963) and cases cited.
Taylor, then, is directly contrary to the ruling of the District Court in the present case. That case is particularly persuasive because “[wjhen Congress passed the Probation Law ... it must be understood to have intended the system so established to be construed in the same sense as it had been in the states from which it was borrowed.” United States v. Lecato, 29 F.2d 694, 695 (2d Cir. 1928) (Hand, J.), quoted with approval in Birnbaum v. United States, 107 F.2d 885, 887 (4th Cir. 1939). Cf. Metropolitan Railroad Co. v. Moore, 121 U.S. 558, 572, 75 S.Ct. 1334, 30 L.Ed. 1022 (1887).
Federal courts have attributed this meaning to the word “punishable” in somewhat analogous contexts. For example, in In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107 (1890); the Supreme Court considered a federal statute that established a United States court in the Indian Territory having jurisdiction over all offenses “not punishable by death or by imprisonment at hard labor.” The Supreme Court concluded that “the words, ‘punishable ... by imprisonment at hard labor,’ in the act . embrace offenses which, although not imperatively required by statute to be so punished, may, in the discretion of the court, be punished by imprisonment in a penitentiary.” Id. at 268, 10 S.Ct. at 764. A similar interpretation has been afforded the phrase “punishable by death or life imprisonment” in the Juvenile Delinquency Act, 18 U.S. C.A. § 5031. See, e. g., United States v. Quinones, 353 F.Supp. 1325, 1327 (D.P.R. 1973), aff’d, 516 F.2d 1309 (1st Cir. 1975), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975). In Coon v. United States, 360 F.2d 550 (8th Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 145, 17 L.Ed.2d 100 (1966), the United States Court of Appeals for the Eighth Circuit held a federal statute which provided that “an indictment for any offense punishable by death may be found at any time without limitation” encompassed any offense for which the death penalty may be imposed.
The District Court rejected the plain meaning of Section 3651 and adopted an interpretation that is supported by neither legal authority nor the practice in the federal judicial system. The District Court held that under Section 3651, “[pjrobation is prohibited when a punishment of death or life imprisonment is mandatory ” (emphasis in the original). The only legal authority cited by the District Court in support of its interpretation of Section 3651 is United States v. Woods, 484 F.2d 127 (4th Cir. 1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974). Woods does not support the proposition for which it was cited. The defendant in Woods was convicted of first degree murder under 18 U.S.C.A. § 1111. The United States Court of Appeals for the Fourth Circuit held that she could not be sentenced pursuant to 18 U.S.C.A. § 4208(a)(2), now 18 U.S.C.A. § 4205(b)(2), under which she would be eligible for parole at any time a parole board might determine. By its terms, Section 4208(a)(2) did not apply to any offense for which a mandatory penalty was provided. The Court of Appeals held that because a life sentence under 18 U.S.C.A. § 1111 is mandatory, the District Court was without authority to impose a sentence under Section 4208.
Woods dealt with 18 U.S.C.A. § 4208(a)(2); the case had nothing to do with 18 U.S.C.A. § 3651. From its citation to page 139 of the Woods opinion, the District Court here apparently relied upon the following statement in that opinion relating to 18 U.S.C.A. § 3651: “We note that 18 U.S.C. § 3651 prohibits either probation or a suspended sentence for crimes punishable by life imprisonment, such as first degree murder . . . .” We believe that this language is entirely consistent with our construction of Section 3651. It does not support the proposition that probation is prohibited only for those convicted of a crime for which a life sentence is the mandatory punishment. The Court of Appeals was simply listing first degree murder as one of those crimes punishable by life imprisonment. In any event, this language is merely obiter dictum. We believe that the Woods case actually undermines the District Court’s interpretation of Section 3651, because it demonstrates that when Congress wants to withhold certain sentencing benefits only from those convicted of crimes with mandatory sentences, it does so explicitly.
Apparently, only one court, the Supreme Court of Colorado, has interpreted the word “punishable” in the same fashion as the District Court here. See Jaramillo v. District Court, 480 P.2d 841 (Colo.1971) (en banc). The defendant in Jaramillo, a 17-year-old youth, was charged with aggravated robbery, an offense carrying a possible punishment of “not less than four years, or for life.” The Colorado Supreme Court considered the applicability of a state statute providing that any person under eighteen years of age who commits a felony shall be treated as a delinquent child, except for crimes of violence “punishable by death or life imprisonment.” It ruled that the juvenile court had exclusive jurisdiction over this offense. The court stated that it had studied and “puzzled” over what it thought were all the applicable authorities and had found itself “as much in the dark as to the legislative intent as when [it] commenced.” Id. at 842. The court concluded that “ ‘punishable by death or life imprisonment’ does not embrace offenses which
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_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.
GOADBY, Albert T. v. PHILADELPHIA ELECTRIC COMPANY, Pennsylvania Public Utility Commission, Carter, Lewis J., Bloom, Robert K., O’Bannon, Helen B., Johnson, Michael, Goode, W. Wilson, Individually and in their capacity as members of The Pennsylvania Public Utility Commission, Bartle, Harvey, III, Individually and in his capacity as Attorney General for the Commonwealth of Pennsylvania, Commonwealth of Pennsylvania. Appeal of PHILADELPHIA ELECTRIC COMPANY, in No. 80-2461 GOADBY, Albert T. v. PHILADELPHIA ELECTRIC COMPANY, Pennsylvania Public Utility Commission, Carter, Lewis J., Bloom, Robert K., O’Bannon, Helen B., Johnson, Michael, Goode, W. Wilson, Individually and in their capacity as members of The Pennsylvania Public Utility Commission, Bartle, Harvey, III, Individually and in his capacity as Attorney General for the Commonwealth of Pennsylvania, Commonwealth of Pennsylvania Appeal of PENNSYLVANIA PUBLIC UTILITY COMMISSION, in No. 80-2503.
Nos. 80-2461, 80-2503.
United States Court of Appeals, Third Circuit.
Argued Dec. 2, 1980.
Decided Jan. 9, 1981.
Rehearing and Rehearing In Banc Denied March 26, 1981.
Harold E. Kohn, David H. Marion (argued), Robert A. Swift, Robert J. La Rocca, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for appellant Philadelphia Electric Co.; John G. Kaufman, Edward J. Hughes, and Kaufman & Hughes, Norris-town, Pa., of counsel.
Larry Gesoff (argued), Barry J. Gross-man, Asst. Counsels, Joseph J. Malatesta, Jr., Chief Counsel, Harrisburg, Pa., for appellant Pennsylvania Public Utility Commission.
Rosenstein & Romano, Ronald I. Rosenstein and Joseph L. Romano (argued), Norristown, Pa., for appellee.
Before ALDISERT, GARTH and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
The question before the court in this appeal brought under 28 U.S.C. § 1292(a)(1) by the Pennsylvania Public Utilities Commission (PUC) and the Philadelphia Electric Company (PECO) is whether the district court erred in granting a preliminary injunction restraining the construction and operation of a high-voltage electrical line crossing the property of Albert T. Goadby. We reverse the grant of the injunction and we remand these proceedings to the district court with directions to enter an order dismissing that portion of the complaint seeking an injunction because we determine that there is an adequate remedy at law.
I.
The appellee, Albert T. Goadby, owns about three acres of mature woodland in Montgomery County, Pennsylvania, having purchased the first of three contiguous parcels in 1957. Goadby has lived on the premises during all times relevant to this lawsuit. The property is subject to a right-of-way for a 230 Kv transmission line erected by the Pennsylvania Power and Light Company (PP&L) in 1927.
In 1971, PECO notified Goadby that it intended to build a 500 Kv transmission line across his property, parallel to the existing PP&L line, as part of a link between two PECO substations. PECO’s transmission line will be on the opposite side of the PP&L line from Goadby's house, approximately 200 feet from the structure at its nearest point. The proposed line will cross the property aerially; no transmission tower will be erected on the six-tenths acre right-of-way.
According to the appellants, the new line will provide a vital connection among Pennsylvania, New Jersey, and Maryland power systems, allowing regional sharing of electricity. In addition, PECO demonstrated an immediate need for the line to buttress and augment its sources of electricity to prevent service curtailments and blackouts. PECO also noted that the transmission line will permit it to acquire low cost coal-generated electricity from western Pennsylvania. The PUC made extensive findings regarding the need for the project in decisions made in 1978 and 1979, and concluded that “the proposed line is clearly needed now if PECO is to fulfill its statutory obligation to supply reliable electric service to its customers.” App. at 121e; see also id. at 72e-73e.
In 1973, after its board of directors passed resolutions condemning rights-of-way for the proposed route of the line, PECO filed an application for certificates of public convenience relating to the affected real estate. In April, 1974, the PUC held an evidentiary hearing regarding Goadby’s land. At that hearing, Goadby’s attorney questioned witnesses concerning the scope and validity of the proposed right-of-way. On May 17, 1978, after reviewing the record, the PUC granted PECO the certificates of public convenience, finding that the utility’s proposed exercise of eminent domain was necessary for the public welfare. Id. at 91e. Neither Goadby nor any other party appealed this decision.
New regulations promulgated by the PUC in 1978 forced PECO to file another application with the PUC, this time for site approval of the line. As required by regulation, PECO gave personal notice to all interested governmental units and gave notice to the public by newspaper publication. Goadby did not respond, but Franconia Township notified the PUC that it opposed the line for various reasons. The PUC conducted an evidentiary hearing focused on the safety and routing of the transmission line, including the effects of electromagnetic fields. Based on all the testimony, the PUC again approved the application, finding, inter alia, that “[b]oth the ground level electric field and the magnetic flux density of the line, using the most extreme theoretical conditions, are well below danger levels.... [T]he proposed line ... will present no danger to the public’s health or safety.” Id. at 121e-22e. Again, neither Goadby nor any other party appealed from the PUC’s decision, and construction of the power line began in January, 1980.
II.
After ignoring his right to appeal the PUC’s decisions, Goadby initiated the first of an extensive series of court proceedings on May 13, 1980, the day before the right-of-way on his property was scheduled for clearing, by filing a complaint in equity against PECO in the Montgomery County Common Pleas Court. In addition to damages, Goadby asked for an injunction halting construction of the transmission line over his property. Goadby raised two major arguments: first, that PECO violated Pennsylvania law by condemning only a right-of-way and not a fee simple; and second, that the proposed right-of-way violated 15 Pa.Stat.Ann. § 1322(B)(1), which prohibits utilities from condemning certain types of rights-of-way within 300 feet of a dwelling. See Goadby v. Philadelphia Elec. Co., No. 80-8312, typescript op. at 4 (Montgomery Co. C.P. June 4, 1980), reprinted in app. at 111e. On June 3, 1980, Goadby filed a second complaint in equity against both PECO and PP&L alleging a conspiracy to construct the transmission line in violation of the easement granted to PP&L in 1927.
At some point after filing his state court complaint, Goadby introduced the contention that the proposed power line would endanger his health. Specifically, Goadby maintained that the transmission line would create an electromagnetic field encompassing his house and that prolonged exposure to the field would cause various physical ailments. Goadby’s theory was that the existence of this field and its associated dangers amounted to a de facto taking of his entire property.
On June 4, 1980, following a hearing, the state trial court dismissed the first complaint and denied a preliminary injunction requested by Goadby in the second action. The court held that PECO’s condemnation of a right-of-way complied with Pennsylvania law. Id. at 5-6, app. at 112e-13e. In addition, the court observed that Goadby had the opportunity to challenge the scope and validity of the condemnation at his hearing before the PUC in 1974, and that in any event he has an adequate remedy at law for just compensation for the taking. Id. at 6-8, app. at 113e-15e.
Goadby appealed both decisions to the Pennsylvania Commonwealth Court and requested that Court to enter a supersedeas enjoining construction of the transmission line pending appeal. After a hearing, the Commonwealth Court denied Goadby’s supersedeas application on June 23, 1980, noting that Goadby had an opportunity to object to the safety of the transmission line in his hearing before the PUC but failed to take advantage of it. Goadby v. Philadelphia Elec. Co., Nos. 1433 C.D. 1980 and 1434 C.D. 1980, typescript op. at 1-2 (Pa. Commw.Ct. June 23, 1980), reprinted in app. at 134e-35e. In addition the court found that the harm to PECO and the public should the transmission line be delayed outweighed any potential harm to Goadby. Id. at 2, app. at 135e. Goadby then applied for a supersedeas to the Pennsylvania Supreme Court and for entry of a temporary restraining order to the United States Supreme Court. Both were denied. App. at 143e, 144e.
By June 6,1980, PECO had requested the Montgomery County Common Pleas Court to appoint a board of view to determine what damages Goadby may deserve for the six-tenths acre right-of-way condemned by PECO. At the viewer’s proceeding, which has not yet taken place, Goadby may properly claim greater damages than the value of the right-of-way on the theory that the electromagnetic field generated by the transmission line will diminish the value of his remaining property. See Shano v. Fifth Avenue & High Street Bridge Co., 189 Pa. 245, 42 A. 128 (1899).
Notwithstanding the availability of legal remedies in the Pennsylvania court system, and notwithstanding that the board of view proceedings have not yet taken place, Goad-by sought relief in federal court under 42 U.S.C. § 1983, alleging a deprivation of property without due process of law. Prior to the present proceeding he twice applied to the district court for a temporary restraining order enjoining construction and operation of the transmission line, and twice Judge Daniel H. Huyett, III, denied relief, holding that Goadby had an adequate remedy at law and that he could have challenged the scope and validity of the taking before the PUC in the 1974 hearing. App. at 78. Goadby appealed to this court and to the United States Supreme Court for an injunction. Both courts denied the request. Thereafter Goadby requested that the district court hold a preliminary injunction hearing.
Judge Clarence W. Newcomer, presiding for the district court, heard Goadby’s request for a preliminary injunction on September 29 and 30, 1980, and announced the court’s opinion and order in open court on October 2, 1980. Although the court rejected as utterly without merit most of Goad-by’s arguments, it concluded that he had been denied an opportunity to challenge the scope of PECO’s right-of-way in the 1974 hearing and that he would suffer irreparable harm if construction were allowed to continue. The trial court based its decision on the ground that in 1974 PECO and the PUC should have known that the electromagnetic field created by the power line would endanger Goadby’s health, and that because he was not so informed by the defendants, he was denied a meaningful opportunity to challenge the dimensions of the right-of-way before the PUC. The court enjoined construction of the power line on Goadby’s property “until ... he has been heard in the appropriate administrative hearing of the Public Utility Commission to state his claims regarding the encroachment of an electromagnetic field on land — or his claims have been heard in this court.” Goadby v. Philadelphia Elec. Co., 504 F.Supp. 812, at 818 (E.D.Pa.1980), reprinted in app. at 117. The defendants appeal from this order. In the interim, this court has stayed that part of the district court’s injunction barring construction of the line on Goadby’s property, but not the injunction against its operation. On October 20, 1980, Circuit Justice William J. Brennan, Jr. refused to vacate this stay.
III.
Because it cannot be doubted that the sovereign’s right of eminent domain may be delegated to Pennsylvania electric light and power companies, Brown v. Radnor Township Elec. Light Co., 208 Pa. 453, 57 A. 904 (1904); see 15 Pa.Stat.Ann. § 1322; and because the relief for the exercise of that right is the award of damages, Pennsylvania Constitution Articles 1 § 10, and 10 § 4, the ultimate question here turns on the amount of a monetary award to Goadby. At bottom then, this case centers on whether the damages sustained by Goad-by from the power line are limited to the six-tenths acre right-of-way, or a larger portion, if not all, of his property.
A.
The relationship of monetary damages to proof of irreparable harm is always central to the question of granting a preliminary injunction by a federal court. This court has repeatedly emphasized “the elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury.” National Land & Investment Co. v. Specter, 428 F.2d 91, 97 (3d Cir. 1970); see also A.O. Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir. 1976). We have explained that preliminary injunctive relief is not available when adequate monetary damages are available:
[T]he requisite is that the feared injury or harm be irreparable — not merely serious or substantial. “The word means that which cannot be repaired, retrieved, put down again, atoned for.... Grass that is cut down cannot be made to grow again; but the injury can be adequately atoned for in money. The result of the cases fixes this to be the rule: the injury must be of a peculiar nature, so that compensation in money cannot atone for it .. .. ” Gause v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728 (1857). “Irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate.” Danielson v. Local 275, Laborers Union, 479 F.2d 1033, 1037 (2d Cir. 1973).
A.O. Smith Corp. v. FTC, 530 F.2d at 525. See E. Re, Equity and Equitable Remedies 1018-20 (1975).
In deciding that Goadby had demonstrated irreparable harm, the district court focused on the relative hardship to each side. The court noted that the “[pjlaintiff is not a wealthy man — his land is his only valuable asset. ... [PECO and the PUC have] failed to reveal to [the] plaintiff the possible nature of the injury he is to endure.” 504 F.Supp. at 818, app. at 116. The court did not hold that PECO had taken a de facto fee nor did it hold that the taking itself was illegal. It rejected these claims as “utterly without merit.” Id. at 816, app. at 112. It merely held that Goadby had been denied and now is entitled to an opportunity to challenge the scope of the taking.
Faced with the record in this case, it was imprudent for the district court to find irreparable harm, the sine qua non of any preliminary injunction. Goadby can have his claim reduced to money damages in the state court system. Indeed, Goadby has accepted an open-ended bond from PECO, securing payment for the contemplated taking. Moreover, he has the opportunity of challenging the condemnation of any part of his land in a separate proceeding provided by Pennsylvania law. The Commission’s order of May 17, 1978, which approved PECO’s taking of a 150 foot right-of-way over Goadby’s property, was reviewable, 42 Pa.Cons.Stat.Ann. § 763(a)(1), but Goadby took no appeal. Even so, Goadby still has the opportunity to press his claim before the Commission by filing a complaint under 66 Pa.Cons.Stat.Ann. § 701 requesting the rescission of PECO’s certificate of public convenience on the ground that more than a 150 foot right-of-way was taken. See 66 Pa.Cons.Stat.Ann. § 703(g). If the Commission denies a petition for rehearing or reconsideration, Goadby can appeal the denial to the Pennsylvania Commonwealth Court. See Department of Transportation v. PUC, 3 Pa.Cmwlth. 554, 555, 284 A.2d 330, 332 (1971); 42 Pa.Cons.Stat.Ann. § 763(a)(1). If the Commission grants rehearing, it will either find the taking to be more than 150 feet wide, in which case Goadby will be entitled to money damages for the taking, or the Commission will deny Goadby’s claim, in which case he can appeal this denial to the Commonwealth Court. If he chooses not to appeal he will receive money damages for a 150 foot-wide right-of-way. In any event, Goadby may have his electromagnetic field argument translated into monetary damages that will be neither difficult to ascertain nor inadequate. Accordingly, he has not suffered irreparable injury and therefore is not entitled to a preliminary injunction.
B.
But we perceive an even more fundamental error in the district court’s determination. It ignored the basic tenet of equity jurisprudence: if an adequate remedy at law exists, equitable relief will not be granted. See United States v. American Friends Service Comm., 419 U.S. 7, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974) (per curiam); O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677, 38 L.Ed.2d 674 (1974); Iacona v. United States, 343 F.Supp. 600, 603 (E.D.Pa.1972).
Goadby does not challenge the authority of the state or its designees to condemn property for public use by eminent domain. Nor can he contend seriously that the property here is not sought for a public use. Rather, Goadby’s complaint in federal court can be distilled to three contentions: first, that PECO and the PUC misapplied 15 Pa.Stat.Ann. § 1322 in condemning a right-of-way within the curtilage of his house thereby depriving him of due process; second, that PECO and the PUC knew or should have known that the extreme hazards of the power line would result in the taking of a de facto fee rather than a right-of-way and denied him due process by failing to so inform him; and third, that the Attorney General and the Commonwealth deprived Goadby of equal protection and due process by enactment of 15 Pa.Stat.Ann. § 1322(D), allowing condemnation of less than a fee estate. For each of these contentions as well as the more refined analysis articulated in the district court’s holding there is an adequate remedy at law in the state courts, and that remedy is damages.
Notwithstanding Goadby’s failure to appeal the PUC’s 1978 and 1979 rulings, he has at least two avenues for receiving legal relief under Pennsylvania law. He may file a complaint before the PUC challenging the scope of the condemnation under 66 Pa.Stat.Ann. § 701, as outlined above. Alternatively, provided that he can establish that the electromagnetic field from the line will result in the taking of his entire property, he may assert his entire loss before the board of view, 15 Pa.Stat.Ann. § 3021, and if dissatisfied with their award, he may appeal to the Court of Common Pleas for a jury trial de novo, 15 Pa.Stat.Ann. § 3023.
We conclude that Goadby has an adequate and complete damage remedy under Pennsylvania law to vindicate the equity claims asserted here. Accordingly, the district court erred by granting Goadby’s motion for a preliminary injunction because of the existence of the various remedies at law available in the state system.
IV.
The judgment of the district court granting a preliminary injunction will be reversed and the case remanded with a direction to dismiss the complaint insofar as it relates to injunctive relief.
. Under Pennsylvania law, parties that fail to agree on the amount of compensation for condemned property may petition the Court of Common Pleas for appointment of a board of view. 15 Pa.Stat.Ann. § 3021. The viewers examine the property and take testimony to determine appropriate damages. The viewers then report to the Common Pleas Court, where the parties can challenge their findings. The Common Pleas Court may confirm, modify, correct, or remand the report to the board of view. Upon entry of a final order by the Court of Common Pleas, an interested party may ap- . peal to the state superior and supreme courts as in other cases. 15 Pa.Stat.Ann. § 3023. Furthermore, within thirty days of the filing of the report any party whose property is taken may appeal to the common pleas court and demand a trial by jury at common law. Id. As of the date this case was heard, the board of view had not been appointed.
. We reject PECO’s assertion that the district court lacked subject matter jurisdiction. We need not decide whether a private utility exercising eminent domain powers engages in state action, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). Goadby has alleged a conspiracy between PECO and PUC and it is settled that otherwise private acts are performed under color of state law for purposes of 42 U.S.C. § 1983, when they are part of a conspiracy with state officials. See Dennis v. Sparks, — U.S. —, —, 101 S.Ct. 183, 185, 66 L.Ed. 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970).
. The district court dismissed as insignificant any harm to the utility and the public, even though it acknowledged that PECO would lose $350,000 per week beginning on October 15, 1980, for every week of delay of construction for the first month and $275,000 per week thereafter. 504 F.Supp. at 814, app. at 104.
. 66 Pa.Cons.Stat.Ann. § 701 provides:
The commission, or any person, corporation, or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission. ...
. It is somewhat disturbing that these contentions are made before a federal court in 1980, when Goadby, having a right to appeal the PUC’s 1974 decision to the Commonwealth Court, 42 Pa.Cons.Stat.Ann. § 763(a)(1), failed to avail himself of that opportunity. Moreover, the appellants have raised a persuasive argument that Goadby’s claim is barred by principles of res judicata and collateral estoppel. Our examination of the state court record reveals that Goadby raised his constitutional issues in that forum, see, e. g., Complaint ¶¶ 25, 54, 55, 61, Goadby v. Philadelphia Elec. Co., No. 80-8312 (Montgomery Co. C.P., filed May 13, 1980), and that those proceedings have not yet terminated. Cf. Allen v. McCurry, — U.S. —, —, 101 S.Ct. 411, 419, 66 L.Ed.2d 308 (1980) (state court decision on fourth amendment claim in criminal trial collaterally estops plaintiff from asserting identical fourth amendment claim in 42 U.S.C. § 1983 damage action). In addition, Judge Huyett has addressed these issues in denying Goadby’s request for a temporary restraining order. Both this court and the United States Supreme Court refused to overrule that decision. Our disposition of the appeal, however, makes it unnecessary for us to decide these issues.
. The dismissal of the injunctive claim leaves pending Goadby’s damage claims. A motion to dismiss that claim is pending before the district court and is not before us at the present time. See 28 U.S.C. § 1292(a)(1).
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_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.
James S. MURRAY, etc., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
No. 6079.
United States Court of Appeals First Circuit.
Heard April 1, 1963.
Decided April 18, 1963.
James M. Kendrick, Boston, Mass., for appellant.
Earl J. Silbert, Atty., Dept. of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept. of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Max C. Goldberg, Asst. U. S. Atty., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit ■Judges.
ALDRICH, Circuit Judge.
This is an action for recovery of an ■overpayment of income tax in the amount •of $8,897 and interest. Whether or not it was an overpayment depends upon whether certain prior payments standing as credits to the account of appellant taxpayer, James S. Murray, hereinafter Murray, had been properly consumed by having been applied by the I.R.S. to the delinquent tax account of Murray’s sister-in-law, Margaret. It is the government’s position that Murray had authorized the transfer. The case has been tried three times to the court, resulting each time in a finding for the government. We set aside the first two findings and ordered further proceedings. Murray v. United States, 1 Cir., 1961, 292 F.2d 602; Murray v. United States, 1 Cir., 1962, 300 F.2d 804.
The principal government witnesses were Duffy, an I.R.S. group supervisor, and Foster, an accountant holding an I.R.S. recognized power of attorney from Murray. At the outset Murray complains of the government’s use at the present trial of the deposition of Foster, who was admittedly unavailable because of illness (see F.R.Civ.P. 26(d) (3)). The deposition had been introduced at the earlier trials for the same reason. Murray contends that our ordering a new trial meant this deposition could not be used again. There is nothing in this point.
Sometime in or before 1951 it was discovered that there were arrearages due from both Murray and his sister-in-law. In February 1953 the sum of $8,897 which had been paid in by Murray was applied by the I.R.S. to the government’s claim against Margaret. If the Service did, in fact, obtain the customary written authorization from Murray to effectuate this transfer there was admittedly no recollection or record thereof. However, we have previously held that proof by the government of an oral authorization would be sufficient. Because the testimony as to this differed somewhat at the third trial and Murray criticizes the court’s findings, we will review briefly the evidence in this regard, including such prior evidence as was properly reintroduced.
In his deposition Foster testified that at a conference attended by Murray, Duffy and himself he authorized the transfer to Margaret’s account of $8,897 paid in by Murray. He placed the conference at Murray’s place of business on a Saturday morning. Although he was not sure of the date, he accepted the government’s suggestion of February 1953. This date was in accordance with Duffy’s testimony at the earlier trials. At the present trial Duffy testified that his recollection had been refreshed by seeing papers in another case and that the Saturday in question could not have been later than April 1952. The court credited this testimony. Murray contends that it was not until May 12, 1952, when he and his wife returned refund checks totaling $481 that he had sufficient credits to permit Foster to authorize a transfer in the amount of $8,897. However, even if this $481 had not stood as a credit before it was paid out and returned, Duffy testified that Murray stated at the conference that he wanted Margaret’s account cleared up ahead of his own, and that “all payments that were to be made [“from James Murray”] were to be credited to the account of Margaret Murray.” (ital. suppl.) The court accepted “the testimony of Duffy and Foster * * It was warranted in including the $481 payment within the authorized transfer.
Murray makes no other points that were not considered in our previous opinions.
Judgment will be entered affirming the judgment of the District Court.
. Murray complains that the written power did not specify the correct year. However, the actions of Foster here relied upon took place in Murray’s presence, and he raised no objection.
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_appel1_8_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
INTERPOOL, LIMITED v. CERTAIN FREIGHTS OF THE M/VS VENTURE STAR, MOSMAN STAR, FJORD STAR, LAKES STAR, LILY STAR, et al. Appeal of Robert George DUNN, as Liquidator of the Estate of KKL (Kangaroo Line) PTY Limited, debtor in a foreign proceeding.
No. 88-5833.
United States Court of Appeals, Third Circuit.
Argued May 15, 1989.
Decided June 23, 1989.
Donald J. Kennedy (argued), Alan He-black, Haight Gardner Poor & Havens, New York City, for appellant.
Hymán Hillenbrand (argued), Kenneth Fremont, Kroll & Tract, New York City, C. Douglas Wikle (argued), Wikle & Henry, Professional Corp., Los Angeles, Cal., for appellees.
Before MANSMANN, GREENBERG and SCIRICA, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Presently before the court is an appeal by Robert George Dunn, the Australian liquidator of the estate of KKL (Kangaroo Line) Pty Limited (“KKL”), from an order of the district court denying his motion to dismiss a Chapter 7 proceeding brought by KKL’s creditors and, correspondingly, granting leave for the Chapter 7 case to proceed. Because we find that Section 305(c) of the Bankruptcy Code forecloses appellate review of the district court’s order, we will dismiss the liquidator’s appeal.
Background
KKL, an Australian company incorporated in 1983, operated a liner service between the west coast of the United States and Australia. In January 1986, KKL went into liquidation in Australia. At about the same time, various American creditors of KKL filed complaints in the United States District Court for the District of New Jersey, seeking warrants of arrest and writs of maritime attachment against the freights of KKL’s vessels and such relief was issued. These lien creditor actions were consolidated on February 11, 1986.
On February 19, 1986, the Australian courts ordered KKL to wind up operations and appointed Dunn as KKL’s liquidator. On February 27, 1986, Dunn commenced a case ancillary to a foreign proceeding by filing a petition in the United States Bankruptcy Court for the District of New Jersey pursuant to 11 U.S.C. § 304(a). He simultaneously filed a complaint in that court against the American lien creditors, seeking an order enjoining them from further proceeding against KKL’s assets and requiring them to turn over those assets. On April 28,1987, the district court entered an interim order withdrawing the section 304 petition from the bankruptcy court, consolidating it with the lien creditors’ actions against KKL, and enjoining the creditors from proceeding against KKL’s assets. Most of the maritime lien claims ultimately were resolved by order of April 15, 1988.
Meanwhile, on April 2, 1986, a Chapter 7 involuntary petition in bankruptcy had been filed in the United States Bankruptcy Court for the Central District of California by other American creditors of KKL, which had provided it with transportation services. The case was transferred to the District of New Jersey in June 1987, and consolidated with the other actions involving KKL.
On September 3, 1987, the liquidator filed a motion to dismiss the Chapter 7 proceedings. More specifically, in his notice of motion, the liquidator sought an order “pursuant to 11 U.S.C. § 305, dismissing the pending Chapter 7 petition....” The motion subsequently was withdrawn, but on February 22, 1988, the liquidator again moved for dismissal of the Chapter 7 petition. This time, however, he sought a final order “[pjursuant to Section 304 of the United States Bankruptcy Code” which would “recognize the pending Australian liquidation proceeding under principles of comity” and, correspondingly, would dismiss the Chapter 7 petition. The liquidator further sought approval of the settlement of the lien creditors’ litigation; authorization of the distribution of assets to those creditors and to the liquidator; and an injunction prohibiting the continuation or commencement of any further proceedings against KKL. The Chapter 7 creditors opposed the liquidator’s motion.
On October 14, 1988, the district court denied the liquidator’s motion. In its comprehensive opinion, it first noted that most of the liens had been resolved by earlier orders, slip op. at 4 n. 1. It then went on to examine whether “the factors enumerated in § 304(c)” warranted granting the liquidator’s motion to dismiss the Chapter 7 proceedings, slip op. at 11, and ultimately determined that they did not. It accordingly held that “the § 304 petition should not be granted and the motion for a Chapter 7 Petition should be granted and an Order for Relief entered,” adding that “[a]ll of the assets located in the United States ... shall be considered part of the bankrupt estate and be administered under the laws of the United States Bankruptcy Code.” Slip op. at 21. This appeal followed.
Sections 304 & 305
As its caption — “cases ancillary to foreign proceedings” — indicates, section 304 governs not full-fledged bankruptcy cases, but rather limited proceedings “designed to operate in aid of a principal proceeding abroad.” 2 Collier on Bankruptcy, 11304.01, at 304-8 (15th ed. 1988). The filing of a section 304 petition by a foreign representative does not trigger the automatic stay; instead, the foreign representative must affirmatively request injunctive or other available relief.
Section 304(c) provides that the touchstone in determining whether to grant any requested relief is “what will best assure an economical and expeditious administration of [the] estate,” consistent with six enumerated criteria. If, after consideration of the relevant factors, the court decides that relief is warranted, section 304(b) authorizes it to provide a broad spectrum of remedies. Specifically, it may
(1) enjoin the commencement or continuation of—
(A) any action against—
(i) a debtor with respect to property involved in such foreign proceeding; or
(ii) such property, or
(B) the enforcement of any judgment against the debtor with respect to such property, or any act or the commencement or continuation of any judicial proceeding to create or enforce a lien against the property of such estate;
(2) order turnover of the property of such estate, or the proceeds of such property, to such foreign representative; or
(3) order other appropriate relief.
11 U.S.C. § 304(b).
Significantly, section 304(b) does not mention “dismissal” as an available option. However, section 305 of the Code, entitled “Abstention,” specifically addresses this alternative. Section 305(a) provides as follows:
(a) The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in,a case under this title, at any time if—
(1) the interests of creditors and the debtor would be better served by such dismissal or suspension; or
(2)(A) there is pending a foreign proceeding; and
(B) the factors specified in section 304(c) of this title warrant such dismissal or suspension.
Finally, section 305(c) provides:
(c) An order under subsection (a) of this section dismissing a case or suspending all proceedings in a case, or a decision not so to dismiss or suspend, is not reviewable by appeal or otherwise.
The legislative history emphasizes that “[t]he bankruptcy court, based on its experience and discretion is vested with the power of decision.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 325 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6282; S.Rep. No. 989, 95th Cong., 2nd Sess. 36 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5822.
Discussion
In his February 22, 1988, motion, the liquidator placed not only his request for injunctive relief against KKL’s lien creditors, but also his request for dismissal of the Chapter 7 proceedings, under the umbrella of section 304. Not surprisingly, therefore, the district court never mentioned section 305 in the context of its decision not to dismiss the Chapter 7 case, referring only to section 304. According to the liquidator, the absence of any reference to section 305 in his motion to dismiss the Chapter 7 case renders section 305 inapplicable to this case, and appeal therefore is not foreclosed by section 305(c).
We cannot agree' with the liquidator’s analysis. Although section 304(b) provides the bankruptcy court with considerable leeway in fashioning an appropriate remedy, dismissal of a case is not an express option. Section 305, however, specifically addresses the court’s authority to dismiss a case, incorporating the same criteria used in assessing whether to grant section 304 relief. Read in tandem, as we believe they should be, it is apparent that section 305 rather than section 304 was designed to control dismissal of a competing bankruptcy proceeding when a foreign proceeding is pending. See In re Gee, 53 B.R. 891, 897 (Bkrtcy.S.D.N.Y.1985). The liquidator’s omission of any reference to section 305 in his motion does not change this. Moreover, the bare fact that the district court did not rely on section 305 for its order simply does, not alter the fact that the court, after considering the 304(c) criteria, decided not to dismiss a bankruptcy case —a decision governed by section 305.
The consequences of a contrary holding would be anomalous; motions seeking identical relief on identical grounds would be treated differently, without rhyme or reason, for purposes of appellate review. Re-latedly, the availability of the simple expedient of seeking dismissal under section 304 rather than section 305 “would effectively obviate section 305.” In re Gee, 53 B.R. at 905 n. 21. Indeed, in this very case, the liquidator previously filed a motion to dismiss under section 305, which he withdrew and ultimately replaced with a motion seeking similar relief against the Chapter 7 creditors under section 304. We can hardly attribute to Congress an intent to allow appellate review of decisions on dismissal to hinge upon maneuvering of this kind by the moving party. Rather, appealability should depend upon the nature of the decision rendered.
The liquidator has cited no case law which directly supports his position. He points out, however, that section 304 is not the exclusive remedy for a representative of a foreign bankrupt; that the representative may, alternatively, request the court to recognize pending foreign proceedings as a matter of international comity. See Remington Rand v. Business Systems Inc., 830 F.2d 1260, 1271-72 (3d Cir.1987); see also Cunard Steamship Co. v. Salem Reefer Svs., 773 F.2d 452, 454-56 (2d Cir.1985). Contending that an order grounded upon general principles of comity would be reviewable, the liquidator maintains that it would be inconsistent to preclude appellate review in his case — where principles of comity are implicated under section 304(c)(5) — yet permit such review in cases not brought under section 304.
The short answer is that regardless of whether or not there is an inconsistency, we cannot ignore the statutory scheme which the liquidator himself chose to utilize. Having filed a petition under section 304 and having secured diverse relief thereunder, the liquidator now seeks to avoid the statutory boundaries. We are neither willing nor able to allow him to do so.
Conclusion
When a foreign representative files an ancillary petition under section 304 of the Bankruptcy Code and thereafter seeks dismissal of a competing bankruptcy proceeding against the foreign debtor, such relief is governed by section 305 and the court’s decision is nonreviewable. Because this is such a case, we lack jurisdiction to hear the liquidator’s appeal and therefore we will dismiss it.
. These creditors included Interpool, Ltd.; Itel Containers International Corp.; California Che-moil Corp.; Transmaritime Inc. and Trafimar, S.A.; and Stevedoring Services of America, a California Corporation.
. Pursuant to these orders the freights were distributed among the liquidator and the lien creditors. In exchange for the settlement of their claims, the creditors agreed to waive all claims against KKL and the liquidator.
. This was the second of three such motions filed by the liquidator during the course of the proceedings. The first was filed when the Chapter 7 proceedings were still pending in the Central District of California, and was denied on June 19, 1987 pursuant to the transfer of venue. The third motion to dismiss forms the basis of this appeal and is discussed infra.
.A foreign representative has the alternative of filing a full-scale involuntary bankruptcy case under section 303(b)(4), thereby triggering the automatic stay. See Matter of Axona Intern. Credit & Commerce Ltd., 88 B.R. 597, 606 (Bkrtcy.S.D.N.Y.1988).
.Those criteria are as follows:
(1) just treatment of all holders of claims against or interests in such estate;
(2) protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding;
(3) prevention of preferential or fraudulent dispositions of property of such estate;
(4) distribution of proceeds of such estate substantially in accordance with the order prescribed by this title;
(5) comity; and
(6) if appropriate, the provision of an opportunity for a fresh start for the individual that such foreign proceeding concerns.
11 U.S.C. § 304(c).
. Section 305(b) provides that "[a] foreign representative may seek dismissal or suspension under subsection (a)(2) of this section,” and has been interpreted as allowing the representative to do so even if he has not filed a section 304 petition. In re Gee, 53 B.R. 891, 897 (Bkrtcy.S.D.N.Y.1985).
. The district court did mention section 305 in the context of whether to give preclusive effect to the order of the California court denying the first motion to dismiss the Chapter 7 proceedings. Preclusive effect was not given as the order denying the motion was entered without prejudice and was not on the merits.
. The relationship between sections 304 and 305 is emphasized in the House and Senate reports referred to above which provide in discussions of abstention under section 305: "Likewise, if there is pending a foreign proceeding concerning the debtor and the factors specified in proposed 11 U.S.C. 304(c) warrant dismissal or suspension, the court may so act.” See H.R. Rep. at 325; S.R.Rep. at 36, 1978 U.S.Code Cong. & Admin.News at pp. 5822, 6282.
. A number of courts have emphasized that dismissal under section 305 should be used "sparingly,” In re 82 Milbar Blvd. Inc., 91 B.R. 213, 216 (Bkrtcy.E.D.N.Y.1988); In re Gee, 53 B.R. at 905 n. 21, and not as a substitute for motions to dismiss under other sections of the Bankruptcy Code. However, any argument that the district court’s reliance upon section 304 rather than section 305 constituted an appropriate application of the foregoing principle would be misplaced. The Code’s other dismissal sections, 707(a), 927, 1112(b) and 1307(c), establish standards for dismissal different than those of section 305(a). In contrast, section 305(a)(2) actually incorporates the criteria set forth in section 304(c); thus sections 304 and 305 do not establish independent bases for dismissal.
. The liquidator does argue that a number of courts have in fact reviewed decisions denying section 304 petitions without reference to section 305(c). However, neither of the cases he cites involved motions to dismiss or suspend based upon section 304(c) criteria. In re Goerg, 844 F.2d 1562 (11th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 850, 102 L.Ed.2d 981 (1989), involved the dismissal of a section 304 petition for lack of subject matter jurisdiction on the ground that the foreign debtor did not qualify as a "debtor” under the Code. Similarly, Matter of Stuppel, 17 B.R. 413 (S.D.Fla.1981), involved review of a bankruptcy court’s order dismissing a section 304 petition for lack of personal jurisdiction.
. The liquidator seems to maintain that he sought relief under both section 304 and general comity precepts, Reply Brief at 13, suggesting that we may review the district court’s order under general comity standards. Assuming ar-guendo that a dual attack would be proper, the liquidator did not make one. From the . start, the liquidator proceeded under section 304 of the Code, filing a petition and complaint thereunder and bringing his February 22, 1988 motion under its auspices. Indeed, his petition filed February 27, 1986 commencing his case asked for relief only "pursuant to Section 304 of the Bankruptcy Code." The district court treated the motion as one brought under the Code. The liquidator’s eleventh-hour recharacterization of his case is unpersuasive. In view of our conclusion, we have no need to consider how section 305(c) would apply if the liquidator had attempted to commence his United States proceedings by invoking international comity.
. The court on its own motion raised an issue as to whether the order of October 14, 1988, was a final order so that without regard for section 305 the court might not have jurisdiction over the appeal. No determination has been made on this point which is now moot.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
BAINES et al. v. CITY OF DANVILLE.
No. 959.
Decided June 20, 1966.
Arthur Kinoy, William M. Kunstler and J. L. Williams for petitioners.
Rutledge C. Clement for respondent.
Per Curiam.
The motions to dispense with printing the petition for a writ of certiorari and the respondent’s brief are granted. The petition for writ of certiorari is also granted and the judgments are affirmed. City of Greenwood v. Peacock, ante, p. 808.
The Chief Justice, Mr. Justice Douglas, Mr. Justice Brennan and Mr. Justice Fortas would reverse the judgments for the reasons stated in the dissenting opinion of Mr. Justice Douglas in City of Greenwood v. Peacock, ante, at 835.
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:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
ADKINS, ADMINISTRATRIX, v. E. I. DuPONT de NEMOURS & CO., INC. UNITED STATES, Intervenor.
No. 1,
Misc.
Argued October 18, 1948.
Decided November 22, 1948.
John W. Porter, Jr. argued the cause and filed a brief for petitioner.
G. C. Spillers argued the cause for the E. I. DuPont de Nemours.& Co., respondent. With him on the brief was Peter B. Collins.
Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Paul A. Sweeney, Harry I. Rand and Morton Hollander filed a brief for the United States, intervenor. They expressed the view that this Court should remand the case to the District Court for reconsideration of the entire question of leave to proceed in forma pauperis — in the light of principles to be enunciated by this Court.
Mr. Justice Black
delivered the opinion of the Court.
The questions presented chiefly involve the scope and application of the statute which authorizes a citizen to prosecute or defend actions in federal courts “without being required to prepay fees or costs or for the printing of the record in the appellate court . . . upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or appeal, or to give security for the same, . . .”
This action was filed in the United States District Court for the Northern District of Oklahoma by P. V. Adkins. Mr. Adkins died while the litigation was pending and his wife having been appointed administratrix of his estate was substituted as plaintiff. The original complaint claimed overtime compensation, damages and attorneys’ fees on behalf of Mr. Adkins and twelve other employees of the respondent “under and pursuant to the Fair Labor Standards Act of 1938 (Title 29, U. S. C. A. Secs: 201-219) and Executive Order #9240 as amended (Title 40 U. S. C. A. following Sec. 326) . ...”
From a dismissal of her complaint in the District Court and the denial by that court of her motion to set the dismissal aside and grant a new trial, petitioner filed in the District Court a motion to appeal to the United States Court of Appeals for the Tenth Circuit. She also filed a motion that the appeal be allowed in forma pauperis. Her affidavit in support of this motion stated that petitioner was a widow 74 years of age; the estimated costs of the appeal record would be approximately $4,000; all she had was a home, inherited from her husband, appraised at $3,450; her only source of income was rent from parts of her home; and without such income she would not be able to purchase the necessities of life. No objection appears to have been filed to her motion to appeal in forma pauperis, but the motion was denied by the court. Apparently denial was for two reasons: (1) She could not proceed in forma pauperis where there were twelve other claimants involved who had filed no affidavits of poverty; (2) the court assumed that petitioner’s lawyers were employed on a contingent fee basis, and was of opinion that she therefore could not appeal in forma pauperis unless the lawyers either prepaid the costs, gave security for costs or filed an affidavit of their poverty along with petitioner and all other claimants.
Petitioner then filed an application for appeal in forma pauperis in the United States Court of Appeals. This application was denied. The denial, so the record indicates, was on the ground that to appeal in forma pauperis, Mrs. Adkins, the twelve employees, and all the members of the law firm representing her would have to make affidavits of poverty.
Petitioner then went back to the District Court. Ten of the twelve employees filed affidavits in each of which this statement appeared: . . because of my poverty I am unable to pay or give security for the costs ($4,000) of such appeal and still be able to provide myself and my dependents with the necessities of life.” An affidavit with identical language was filed by one member of the firm of lawyers representing petitioner. The affidavit also stated that the firm’s interest in all fees from this litigation had been assigned to affiant. No affidavit of poverty was filed by the other members of the firm. An affidavit was filed for the firm, however, stating a belief that the claims were meritorious, that appeal costs had been estimated at about $4,000, and that the total liquid assets of the firm did not exceed $2,000. One of the twelve claimants could not be located and one refused to sign an affidavit of poverty.
The district judge for the second time denied the motion to permit appeal without security for costs. His grounds seem to have been these. Two of the claimants had signed no affidavit of poverty; unless all signed, there could be no in forma pauperis appeal. The affidavits of petitioner, the ten claimants, and the attorneys were held insufficient in that they failed to show the precise financial condition of affiants, “whether they were or were not without property.” The judge was not sure just what affiants would have to show as to property, but felt that each should prove a complete inability to pay at least a portion of the costs. All interested in the recovery, he thought, including the lawyers, “have at least got to chip in to the extent of their ability to pay; and whatever they have, they have got to put in the pot for the purpose of taking the appeal.” The judge was “inclined to believe but not sure” that before Mrs. Adkins could be permitted to appeal in forma pauperis she must mortgage her home and “chip in” what she received on the mortgage loan. He construed all the affidavits as showing no more than that it would constitute a hardship to pay or give security for the payment of $4,000 to make the record. This statement as to “hardship” he thought did not meet the statutory requirement for an affidavit of inability to pay or secure costs due to “poverty.”
Furthermore, the judge thought petitioner had designated more for the record than was needed to decide the dismissal question raised by the appeal. He therefore believed that a $4,000 record was “wholly unnecessary.” Since the judge believed he was without power directly to limit the contents of the appellate record, he felt “persuaded to be more technical and more strict” on the type of in forma pauperis affidavits he required.
The Court of Appeals thereafter denied a second motion of petitioner to accept its appeal in forma pauperis. Petitioner then applied to this Court for certiorari to review the actions of the Court of Appeals and of the District Court in denying petitioner leave to appeal in forma pauperis. Petitioner further asked the court for leave to proceed here without giving security for costs. We set the motion down for argument. The matter has now been submitted on briefs and oral argument. The affidavits of poverty filed to proceed here in forma pauperis are the same as the affidavits filed in the two courts below.
If these affidavits are thought to be insufficient to support her motion, the petitioner urges that we give directions concerning additional requirements. While for our purposes the affidavits would have been more acceptable had they merely followed the language of the statute, our rules have provided no precise requirements. But the only questions presented here relate to the sufficiency of these affidavits in the two courts below. And to reach these questions, which are important, we must either accept the affidavits as sufficient or delay final consideration of the case. We accept the affidavits, grant the petition for certiorari, and the case having been fully argued, we proceed to pass on the questions presented so far as necessary. See Steffler v. United States, 319 U. S. 38.
First. We do not think the court was without power to protect the public from having to pay heavy costs incident to the inclusion of “wholly unnecessary” matters in an in forma pauperis appeal. Sections 1 and 4 of the statute provide that a court may exercise a limited judicial discretion in the grant or denial of the right and this Court has so held. Kinney v. Plymouth Rock Squab Co., 236 U. S. 43, 45, 46. Rule 75 (m) of our present Rules of Civil Procedure reads as follows:
Appeals in Forma Pauperis. Upon leave to proceed in forma pauperis, the district court may by order specify some different and more economical manner by which the record on appeal may be prepared and settled, to the end that the appellant may be enabled to present his case to the appellate court. [329 U. S. 870.]
We know of few more appropriate occasions for use of a court’s discretion than one in which a litigant, asking that the public pay costs of his litigation, either carelessly or wilfully and stubbornly endeavors to saddle the public with wholly uncalled-for expense. So here, the court was not required to grant the petitioner’s motion if she wrongfully persisted in including in the appeal record masses of matter plainly irrelevant to the issues raised on appeal. See Estabrook v. King, 119 F. 2d 607, 610. And, of course, under Rule 75 (m) the court may save the costs of printing by providing for a typewritten record. If exercise of discretion by a district court should result in an unfair and incomplete record to a litigant’s injury, the court’s error could be remedied. Its action would be subject to review by the appellate court. Moreover, if in obedience to court order a party should agree to a record inadequate for appellate court purposes, that court would have power, upon motion or sua sponte, to require addition of material necessary to enable the court fairly to decide the appeal questions presented.
Second. The statute allowing in forma pauperis appeals provides language appropriate for incorporation in an affidavit. One who makes this affidavit exposes himself “to the pains of perjury in a case of bad faith.” Pothier v. Rodman, 261 U. S. 307, 309. This constitutes a sanction important in protection of the public against a false or fraudulent invocation of the statute’s benefits. Furthermore, the statute provides other sanctions to protect against false affidavits. Section 4 authorizes a court to dismiss actions brought on affidavit of poverty “if it be made to appear that the allegation of poverty is untrue.” And § 5 provides another safeguard against loss by the Government due to false affidavits in that a court is permitted, in its discretion, to render judgment for costs “at the conclusion of the suit as in other cases.” Consequently, where the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.
Here, the affidavits were not couched in the language of the statute. They went outside that language. Estimating that the costs would be $4,000, each affidavit stated that the affiant could not pay or secure $4,000. In other words, the affidavits here tied inability to pay to a fixed cost of $4,000. Under these circumstances, we think the court was justified in looking further to see if the cost really should have been $4,000 and if not, the judge was right in requiring affidavits made with an appreciation by affiants of the lesser amount of expense to which they might be subjected by the appeal.
Third. We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty “pay or give security for the costs . . . and still be able to provide” himself and dependents “with the necessities of life.” To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation' is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. See cases collected in 6 A. L. R. 1281-1287 for a discussion as to whether a showing of complete destitution should be made under this and similar statutes.
Fourth. We do not think that this petitioner can be denied a right of appeal under the statute merely because other claimants will neither give security for costs nor sign an affidavit of poverty. This case illustrates that such a restrictive interpretation of this statute might wholly deprive one of several litigants of a right of appeal, even though he had a meritorious case and even though his poverty made it impossible for him to pay or give security for costs. Such a deprivation would frustrate the basic purpose of the statute. This does not mean that one' of several claimants financially able but unwilling to pay his proportionate part of the costs could demand the benefits of an appeal perfected by another claimant under the in forma pauperis statute. But it does mean in this case that the petitioner, upon making the required affidavit of poverty, was entitled to appellate review of the issues the district court decided against her, without regard to whether other claimants filed an affidavit of poverty, or paid or secured their fair part of the costs.
Fifth. Petitioner’s appeal under the statute was denied in part because her attorneys, thought by the District Court to have been employed on a contingent fee basis, had not shown to the court’s satisfaction that they were unable on account of poverty to pay or give security for costs. We think the statute imposes no such burden on a lawyer who is to share in the recovery through contract by reason of his legal services. We are aware that some district and circuit courts of appeal have so construed the Act, and that some have even adopted rules which impose this requirement on lawyers. Other district and circuit courts of appeal have declined to interpret the statute as imposing such a burden on lawyers who represent litigants too poor to pay or secure the costs.
Many states, apparently including Oklahoma where this case was tried, make it illegal for lawyers to sign a bond to secure costs for their clients in any civil or criminal action. It would have been an innovation had Congress in this statute expressly permitted lawyers trying cases in federal courts to contract with their clients to pay or secure costs in their clients’ cases. But it would have been a surprising legislative innovation for Congress to command that lawyers pay or secure such costs. That Congress did not do this seems to be strongly indicated by the basic statute itself.
Section 1 of that statute is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, “in any court of the United States” solely because his poverty makes it impossible for him to pay or secure the costs. Not content with this safeguard for the poor in federal courts, Congress in § 4 of the Act provided that “the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, . . .” Certainly a lawyer appointed under § 4 could not be required to pay the costs of an appeal. Nor could such an appointed lawyer have a burden of this kind cast upon him if Congress had required payment of a fee for appointed counsel in an amount fixed as reasonable by the court, a requirement that some state laws have provided. Yet, such a “reasonable fee” fixed by a court would be a “contingent fee” should we accept respondent's argument in this case. For respondent contends that because the Fair Labor Standards Act authorizes a court to fix a reasonable fee for attorneys prosecuting overtime claims for employees, this petitioner’s lawyers are on a contingent fee basis. They therefore according to respondent have a financial interest in the recovery. Consequently, respondent argues, petitioner must abandon her appeal and her claim unless these lawyers pay costs, secure them, or make affidavits of poverty.
No proof is needed that imposition of such onerous burdens on employees’ lawyers would put serious obstacles in the way of employees obtaining the kind of legal representation Congress intended to provide for them in the Fair Labor Standards Act. And since § 4 of the in forma pauperis statute was plainly intended to assure legal representation to the poor, it is also obvious that the purpose of that Act could be frustrated in part by construing the statute as imposing a guarantee of appeal costs on all lawyers employed to represent the poor on a contingent basis. For if a person is too poor to pay the costs of a suit, sometimes very small in amount, how can it be imagined that he could possibly pay a fair fee except from the recovery he obtains?
The statute here under consideration is not susceptible of a construction that would impose more burdens on lawyers employed by litigants unable to pay fees except on a contingent basis, than the burdens imposed on lawyers for those litigants who are able to employ counsel by the year or by payment of straight noncontingent fees. Section 3 of the statute specifically states that litigants who make affidavits of poverty shall be entitled to the same court processes, have the same right to the attendance of witnesses, and the same remedies as are provided by law in other cases. And as pointed out, § 4 of the statute makes it abundantly clear that poor litigants shall have the same opportunity to be represented by counsel as litigants in more fortunate financial circumstances. The statutory construction urged by respondent here would result in restricting the opportunities of the poor litigant in getting a lawyer who would follow his case through the appellate courts. For as was said by the Court of Appeals in Clark v. United States, 57 F. 2d 214, 216: “. . . The same poverty that compels a litigant to avail himself of this beneficent statute makes it impossible for him to hire counsel. He can procure counsel only by agreeing that out of the proceeds of his case, if there are proceeds, counsel shall be compensated. . . . In practical effect he [a poor litigant] is denied counsel if his counsel must either himself guarantee the costs or file an affidavit that he also is penniless. The statute was intended for the benefit of those too poor to pay or give security for costs, and it was not intended that they should be compelled to employ only paupers to represent them.”
It was error to deny petitioner’s motion for appeal under the statute on the ground that her lawyers had not made satisfactory affidavits of poverty. The statute requires no affidavit at all from them as a condition of appeal.
What we have said makes it unnecessary for us to pass on the contention of respondent that an agreement for a contingent fee payable out of an employee’s recovery to prosecute claims under the Fair Labor Standards Act is invalid.
The orders denying appeal in forma pauperis are vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
It is so ordered.
27 Stat. 252, as amended, 36 Stat. 866, 42 Stat. 666, 28 U. S. C. § 832. The substance of §§ 1 to 5 of the original statute as amended has now been incorporated in §§ (a) to (e) of 28 U. S. C. § 1915.
Section 16 (b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U. S. C. §216 (b), authorized employees’ suits by agents. Here the agent was acting “for a consideration contingent upon recovery.” An amendment of this section, the Portal-to-Portal Act, 61 Stat. 84, 29 U. S. C. Supp. I, §§ 251-252, limited the circumstances under which such representative actions could be maintained.
Executive Order No. 9240, 7 Fed. Reg. 7159 (1942), as amended, 7 Fed. Reg. 7419 (1942).
We do not mean to indicate that the issues sought to be raised by this petitioner on her appeal could have been properly presented to the Court of Appeals with nothing other than the very limited record the trial court apparently thought would be adequate. The case was dismissed because the District Court thought it had been deprived of jurisdiction by the Portal-to-Portal Act, supra. This Act purports to deprive federal courts of jurisdiction to enforce payment of overtime wages based on any activity except one com-pensable by either “(1) an express provision of a written or nonwrit-ten contract ... or (2) a custom or practice in effect, at the time of such activity,” at the place of employment, and not inconsistent with a written or nonwritten contract governing such employment. Petitioner had contended that examination by the court of the entire record including evidence already taken by a special master would show that employees’ claims for compensation were supported by express contracts or by custom. He contended that the Portal-to-Portal Act was therefore inapplicable under the facts 'of this case and that consequently the dismissal under that Act was erroneous. Petitioner’s application to amend her complaint to conform to the evidence was denied by the court. Cf. Maty v. Grasselli Chemical Co., 303 U. S. 197, 200-201; Hoiness v. United States, 335 U. S. 297. It would appear that the petitioner was entitled to have a record that was not so limited as to deprive the Court of Appeals of an opportunity to review these issues she raised.
United States ex rel. Randolph v. Ross, 298 F. 64; Bolt v. Reynolds Metal Co., 42 F. Supp. 58; Esquibel v. Atchison, T. & S. F. R. Co., 206 F. 863; Feil v. Wabash R. Co., 119 F. 490; Phillips v. Louisville & N. R. Co., 153 F. 795; The Bella, 91 F. 540, 543; Boyle v. Great Northern R. Co., 63 F. 539; Silvas v. Arizona Copper Co., 213 F. 504, 507-508.
Rule 26 (1), Rules of United States Court of Appeals for the Third Circuit; Rule 18 (2), Rules of United States Court of Appeals for the Sixth Circuit; Chetkovich v. United States, 47 F. 2d 894, but see Deadrich v. United States, 67 F. 2d 318.
Quittner v. Motion Picture Producers and Distributors of America, 70 F. 2d 331; United States ex rel. Payne v. Call, 287 F. 520; Jacobs v. North Louisiana & Gulf R. Co., 69 F. Supp. 5; Clark v. United States, 57 F. 2d 214; Evans v. Stivers Lumber Co., 2 F. R. D. 548.
See Okla. Stat. tit. 5, § 11 (1941). See also Watkins v. Sedberry, 261 U. S. 571, 576; Peck v. Heurich, 167 U. S. 624, 630. But see, Radin, Contingent Fees in California, 28 Calif. L. Rev. 587, 589, 598 (1940).
Clay County v. McGregor, 171 Ind. 634, 87 N. E. 1; County of Dane v. Smith, 13 Wis. 585; Ryce v. Mitchell County, 65 Iowa 447, 21 N. W. 771; State v. Hudson, 55 R. I. 141, 143, 179 A. 130, 131.
See Radin, Contingent Fees in California, supra at p. 589; United States ex rel. Payne v. Call, 287 F. 520, 522; Clark v. United States, 57 F. 2d 214, 216.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Barnet SHOIFET, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
No. 203, Docket 25297.
United States Court of Appeals Second Circuit.
Argued Jan. 14, 1959.
Decided March 31, 1959.
Jack Steinman, New York City (William E. J. Connor, Hudson, N. Y., on the brief), for plaintiff-appellee.
C. Austin White, New York City (Gerald E. Dwyer and Thomas J. Smith, New York City, on the brief), for defendant-appellant.
Before MEDINA, LUMBARD and BURGER, Circuit Judges.
Sitting by designation pursuant to 28 U.S. C.A. § 291(a).
MEDINA, Circuit Judge.
In this grade-crossing accident case The New York Central Railroad Company’s appeal presents a single question of law, properly raised at the trial by a variety of motions: Was appellee guilty of contributory negligence as a matter of law?
As federal jurisdiction is based on diversity of citizenship, and the accident occurred in New York, the substantive aspects of the case are governed by New York law. See Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079; Continental Can Co. v. Horton, 8 Cir., 1957, 250 F.2d 637; and Poplar v. Bourjois, Inc., 1948, 298 N.Y. 62, 80 N.E.2d 334; Benton v. Safe Deposit Bank, 1931, 255 N.Y. 260, 174 N.E. 648; Fitzpatrick v. International Ry. Co., 1929, 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801.
On November 21, 1956 appellee Barnet Shoifet, a 72-year old cattle-dealer was driving alone in his 1948 Chevrolet pickup truck along Route 343 bound for Amenia, New York, from his home in Sharon, Connecticut. He had driven his car in this same locality many times before. At about 9:10 A.M. a New York Central train, on its single track Harlem Division, struck Shoifet’s truck at a crossing. The direction of the truck was about due West and that of the train Southwest.
There was evidence from which the jury was justified in concluding that the crossing, otherwise unguarded, was protected by flashing red lights or blinkers, and that these blinkers were not operating at the time of the accident, despite the presence of the on-coming train. Nor was there any other warning of the approach of the train; no bell was rung; no whistle was blown. The train was proceeding at a “pretty fast” rate of speed, estimated by the engineer and the fireman to be about sixty miles an hour.
Shoifet was going about 30 miles an hour in his truck as he approached the crossing. He slowed down considerably, and from conflicting testimony the jury may have inferred that he did not stop. The applicable New York law did not require him to stop. See Judson v. Central Vermont R. Co., 1899, 158 N.Y. 597, 53 N.E. 514. The road and the railroad track converge at an angle of approximately 20 degrees. Thus the view of the track on which the train was moving was more backwards than sideways from the driver’s seat; and, after coming through a cut, the train was visible for a distance of about 900 feet. But the exhibits and the testimony indicate that this distance cannot be taken absolutely. It was only when the truck had passed a point about 350 feet from the crossing that the train could be seen 900 feet away, and there was expert testimony that a driver, who had to watch where he was going on the road, could only see from his driver’s seat “a train practically the same distance from the crossing (as) he was,” and that it would have taken the train 9.7 seconds to traverse this 900 feet. The jury could have reasonably concluded, however, that the train was going faster than appellant’s employees admitted. See Noseworthy v. City of New York, 1948, 298 N.Y. 76, 80 N.E.2d 744.
It was broad daylight at the time of the accident, although a slight drizzle might have somewhat interfered with Shoifet’s view. While badly injured he survived and testified that his sight and hearing were good despite his age and that he “looked around” in all directions and listened to ascertain if a train was coming before attempting to cross the track. There was nothing in the back of the truck behind the driver’s cab to obstruct or impede Shoifet’s vision. It is on the basis of his testimony that he looked and did not see the train that we are asked to rule that he was guilty of contributory negligence as a matter of law, and to reverse the judgment and dismiss the complaint. The burden of the argument is, and must be, that this testimony is incredible on its face, because it is claimed that no reasonably prudent person could have looked, not seen the train and yet been hit by it.
We see no reason to doubt that on the facts as above summarized the controlling rule of law is the one frequently formulated by the New York Court of Appeals in wrongful death actions arising out of railroad crossing accidents, that contributory negligence is an issue for the jury, if there is “any possible hypothesis on the evidence that will support the conclusion that due care was exercised.” See Chamberlain v. Lehigh Valley R. Co., 1924, 238 N.Y. 233, 144 N.E. 512; Flynn v. Long Island R. Co., 1942, 289 N.Y. 283, 45 N.E.2d 445; Nicholson v. Greeley Square Hotel Co., 1919, 227 N.Y. 345, 349, 125 N.E. 541, 543; and Crough v. New York Central R. Co., 1932, 260 N.Y. 227, 183 N.E. 372. Indeed, as we are not here concerned with any question of burden of proof, this is only another way of saying that all questions of credibility, sifting of the evidence and drawing inferences therefrom must be assumed to have been decided in Shoifet’s favor. See Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Baltimore & Ohio R. Co. v. Groeger, 1925, 266 U.S. 521, 527, 45 S.Ct. 169, 69 L.Ed. 419; Greany v. Long Island R. Co., 1886, 101 N.Y. 419, 423, 5 N.E. 425, 426.
It was for the jury to determine what were the relative speeds of the truck and the train and also to determine how far away the train was at the various times Shoifet said he looked. As he slowly approached the crossing and looked to the right, before he looked to the left, it is too plain for reasonable debate that the train might have been beyond the cut and obscured from sight. Moreover, in view of the fact that the blinkers were not functioning and he knew that they were placed there to warn of the approach of trains, together with the absence of any bell or whistle, we think a jury might reasonably have concluded that a prudent person would do no more than look from the driver’s seat through the right-hand window of the truck, without shifting his seat or straining to look backwards. Had the jury reasoned in this fashion, they might well have concluded that the train was only 300 or 400 or 500 feet away when he first looked to the right but that it still was not within Shoifet’s vision. The speeding train thus could within 4 or 5 seconds have come upon the unsuspecting Shoifet before the latter realized his danger.
Another and very likely hypothesis is that when Shoifet first looked to the right the train had not yet come out of the cut, but that in the time it took him to watch the road ahead, look to the left, and then again to the right the train had reached a point less than 900 feet away, but still not within his vision, as his last look was merely confirmatory and hence he did not strain to see the full distance over his right shoulder and backwards to the cut. The jury, on this hypothesis, may well have concluded that Shoifet was, under the circumstances, entitled to some degree to relax his vigilance. See Flynn v. Long Island R. Co., supra, 289 N.Y. 283, 286, 45 N.E.2d 445, 446; Nicholson v. Greeley Square Hotel Co., supra, 227 N.Y. 345, 349, 125 N.E. 541, 543; Carr v. Pennsylvania R. Co., 1918, 225 N.Y. 44, 47, 121 N.E. 473, 474. In any event, as he slowed down when he neared the crossing and kept “looking around,” he could see less and less distance down the track with his normal line of sight through the right-hand window of the truck. Thus we have not one but many hypotheses to support a jury finding that due care was exercised in this case, and none of these hypotheses lacks rationality or probability.
Indeed the facts here are strikingly similar to those in Chamberlain v. Lehigh Valley R. Co., supra, 238 N.Y. 233, 144 N.E. 512. There the road and track were parallel except at the crossing. Plaintiff’s intestate’s truck was proceeding at 8 miles an hour, the train at 45 miles an hour. The view of the track was obstructed until the decedent was 105 feet from the track, giving the decedent about 9 seconds to see the track. The train could be seen from 600 feet away which meant that it could be seen for nine seconds before it reached the crossing. The New York Court of Appeals held that the question of contributory negligence was for the jury, stating at page 237 of 238 N.Y., at page 513 of 144 N.E.:
“With one pair of eyes one cannot look in two directions at the same time. The duty of deceased was to look in both directions, keep control of his car, and negotiate it across the tracks. If he had looked in the direction of the approaching train 10 seconds before the accident, the jury might have said that he would have seen nothing and heard nothing to warn him of the approaching danger.”
Cases abound which demonstrate the New York attitude on this subject and we cite only a few more as further illustrations. Guido v. Delaware, Lackawan-na & Western R. Co., 1958, 4 N.Y.2d 981, 177 N.Y.S.2d 503, 152 N.E.2d 527; Cabri v. Long Island R. Co., 1954, 306 N.Y. 765, 118 N.E.2d 475; Latourelle v. New York Central R. Co., 1950, 301 N.Y. 103, 92 N.E.2d 911; Paley v. New York Central R. Co., 1948, 297 N.Y. 1017, 80 N.E.2d 537; Flynn v. Long Island R. Co., 1942, 289 N.Y. 283, 45 N.E.2d 445; Bond v. Schenectady Ry. Co., 1929, 251 N.Y. 315, 167 N.E. 455; Carr v. Pennsylvania R. Co., 1918, 225 N.Y. 44, 121 N.E. 473; Mullen v. Schenectady Ry. Co., 1915, 214 N.Y. 300, 108 N.E. 412; Greany v. Long Island R. Co., 1886, 101 N.Y. 419, 5 N.E. 425.
Appellant’s reliance upon cases like Wadsworth v. Delaware, L. & W. R. Co., 1947, 296 N.Y. 206, 71 N.E.2d 868; Crough v. New York Central R. Co., 1932, 260 N.Y. 227, 183 N.E. 372; Schrader v. New York, C. & St. L. R. Co., 1930, 254 N.Y. 148, 172 N.E. 272; Fitch v. New York Central R. Co., 1922, 233 N.Y. 356, 135 N.E. 598; Hagglund v. Erie R. Co., 1913, 210 N.Y. 46, 103 N.E. 770, is misplaced. Factors such as right angle intersections, plainly unobstructed views and various other circumstances suggesting a total lack of any care whatsoever are commonly found. In none of these cases do we find any basis in the facts for an inference or hypothesis consistent with the exercise of reasonable prudence by the injured person who was struck by the train.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_respond1_5_3
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant.
Oliver Lee KIRKLAND and Elizabeth Smith, Appellants, v. Paul H. PRESTON and Luke Moore, Appellees.
No. 20334.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 10, 1967.
Decided by Judgment Entered Jan. 19, 1967.
Opinion Rendered Sept. 14, 1967.
Mr. William J. Garber, Washington, D. C., for appellants.
Mr. Roger A. Pauley, Atty., Dept, of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Thomas Lumbard, Asst. U. S. Attys., were on the brief, for appellees. Mr. James A. Strazzella, Asst. U. S. Atty., also entered an appearance for appellees.
Before Edgerton, Senior Circuit Judge, and Fahy and Wright, Circuit Judges.
Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967. arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.”
J. SKELLY WRIGHT, Circuit Judge.
On June 1, 1966, the Chief Judge of the District Court, acting in the role of chief executive for the District of Columbia pursuant to 23 D.C.Code § 401(a) (1961), issued warrants for the arrest of Oliver Lee Kirkland and Elizabeth Maria Smith with a view toward their extradition to the State of Florida. Before him at that time were various papers submitted by the Governor of Florida. These consisted of the affidavit of John Dowda of the Miami, Florida, Police Department, sworn to before a justice of the peace; an arrest warrant issued by the same justice of the peace; and a requisition form initialed by the Governor certifying the authenticity of the accompanying documents and formally demanding appellants’ arrest and delivery up to Florida officials.
The police officer's affidavit read, in pertinent part, as follows:
“* -x- * [0]n the '23rd day of July A.D., 1965, in the County and District aforesaid [Dade County] one Oliver Lee Kirkland & Elizabeth Maria Smith DID THEN AND there: unlawfully, wilfully, maliciously and feloniously set fire to and burn or cause to be burned a certain building, to wit: The Hut Bar, located at 2280 S.W. 32nd Avenue, City of Miami, Dade County, Florida, a further and more particular description of said bar being to the affiant unknown, the said bar being the property of one Fredrich Ritter.”
Apart from the filling in of date, place and ownership, this language mirrors with its alternative clauses the text of the Florida second-degree arson statute. 3 It is clear that affidavits framed like this one in the conelusory statutory language and lacking any identification of sources do not show probable cause under the Fourth Amendment. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
In the course of the brief extradition hearing which followed appellants’ arrest, the Chief.Judge, over appellants’ objection based on lack of probable cause, ruled: “I do not go into the matter of probable cause here.” Concluding that appellants had been “substantially charged,” he ordered them bound over for extradition. Appellants then pursued their habeas corpus remedy in the District Court which ruled that the affidavit was “sufficient” and discharged the writ. This appeal followed.
On January 19, 1967, a week after argument before this court, we entered our judgment, indicating that an opinion would follow. Stating in the judgment that the officer’s affidavit “does not allege sufficient evidence of probable cause to justify arrest,” we ordered that, unless the defective affidavit was successfully cured by February 2, the habeas writ should be made absolute. No further documents were received from Florida, and on February 6 appellants were released from custody.
I
23 D.C.Code § 401(a) defines the procedures for extradition from the District of Columbia “[i]n all cases where the laws of the United States provide that fugitives from justice shall be delivered up,” thus cross-referencing to 18 U.S.C. § 3182 (1964), the basic federal statute on interstate extradition enacted by the Second Congress in 1793, 1 Stat. 302. Since then Section 3182, which incorporates most of the language from the Extradition Clause of the Constitution, has not been altered or amended in significant respects. Under its provisions extradition is dependent on submission to the asylum jurisdiction of “an indictment found or an affidavit made before a magistrate * * *, charging the person demanded with having committed treason, felony, or other crime.” Appellants were not indicted, and hence authority for extradition, if any, must derive from the affidavit provision of Section 3182. Whether a police officer’s affidavit supports extradition when it merely repeats the language of the criminal statute allegedly violated is a question relating to the proper construction of Section 3182. We hold that, for purposes of extradition, the Section 3182 “affidavit” does not succeed in “charging” a crime unless it sets out facts which justify a Fourth Amendment finding of probable cause.
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”
II
Before Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), made the Fourth Amendment applicable to the states through the Fourteenth, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made it enforceable against them by the same sanctions and by application of the same constitutional standards as prohibit unreasonable searches and seizures by the federal government, the quantum of evidence needed for arrest in the individual states was not a matter of federal concern. Though a pre-Wolf constitutional law of arrest could perhaps have been developed directly from the Fourteenth Amendment’s “deprivation of liberty” clause, it apparently was not. And, in fact, only developments since Wolf and Mapp have made it clear that what those cases applied to the states was the whole of the Fourth Amendment, thereby transmuting the federal standard of probable cause into a minimal and uniform requirement of a valid arrest by state officers.
Even before Wolf and Mapp were decided, we find a brace of federal and state cases indicating that in extradition proceedings the Section 3182 affidavit from the charging state had to show “probable cause,” though not necessarily in the constitutional sense. Yet this court, after once indicating that a probable cause finding was a prerequisite in Section 3182 proceedings generally, Blevins v. Snyder, 57 App.D.C. 300, 22 F. 2d 876 (1927), in another pr e-Wolf case, Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282 (1936), apparently approved a Section 3182 affidavit framed in the conclusory language of the demanding state’s criminal statute. Even in Riley, however, this court was careful to point out that the affidavit submitted was adequate to effect an arrest under the law of the demanding state, Michigan.
The Supreme Court’s deepest judicial inquiry into the qualities of the “affidavit * * * charging” requirement of Section 3182 was in Matter of Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905), decided long before Wolf. There the court rejected the claim that under the Extradition Clause a suspect is not charged with a crime until his case is actually pending in a court of competent jurisdiction. Instead the Court ruled:
*' * * * [D]oubtless the word ‘charged’ was used in its broad signification to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge. * * * ” 197 U.S. at 331, 25 S.Ct. at 537. (Emphasis added.)
Though Strauss indicates that an arrest warrant from the demanding state must accompany the affidavit, Section 3182 has never explicitly required that the magistrate before whom the affidavit is sworn issue such a warrant and the courts since Strauss have not found such a requirement by implication. Nevertheless Strauss as well as Riley and almost all other pre-Wolf decisions indicate quite clearly that the Section 3182 affidavit should report or summarize enough evidence to justify issuance of an arrest warrant in the accusing state. It then follows that now, since Wolf and Mapp, the Section 3182 affidavit must also present facts sufficient to establish a showing of probable cause under the federal Fourth Amendment standards. For apprehension of a fugitive under Section 3182 is plainly a criminal arrest since it deprives him of his liberty for the purpose of insuring his presence at a criminal trial. See Strauss, supra, 197 U.S. at 333, 25 S.Ct. 535.
There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition arrests. Under its familiar doctrine arrests must be preceded by a finding of probable cause. When an extradition demand is accompanied by an indictment, that document embodies a grand jury’s judgment that constitutional probable cause exists. But when the extradition papers rely on a mere affidavit, even where supported by a warrant of arrest, there is no assurance of probable cause unless it is spelled out in the affidavit itself. Thus Fourth Amendment considerations require that before a person can be extradited on a Section 3182 affidavit the authorities in the asylum state must be satisfied that the affidavit shows probable cause.
Ill
The law appreciates the hardship which extradition can involve: not only the suspension of one’s liberty, but his deportation from the state in which he lives into another jurisdiction which may be hundreds of miles from his home. The law accordingly surrounds the accused with considerable procedural protection to stave off wrongful rendition. It is consistent with this concern for the accused’s just treatment to recognize his right to require official confirmation of probable cause in the asylum state before extradition. This right to probable cause confirmation seems especially appropriate in view of the fact that the accused will have no access to an evidentiary preliminary hearing on probable cause until he finally arrives in the accusing jurisdiction.
In addition, the interests of the asylum state are advanced by its own probable cause determination. For it would be highhanded to compel that jurisdiction to lend its coercive authority, and the processes of its law, against even its own citizens in aid of an enterprise the key details of which remain in the dark. If, as here, it turns out that the prosecution against the fugitive is unfounded, the asylum state will have expended its resources and given the legitimizing stamp of its judiciary to a cause which is at best futile, at worst arbitrary.
Recognizing a probable cause requirement in Section 3182, moreover, conflicts with no compelling interests elsewhere in the legal system. If the demanding state does have probable cause data, it will be no real inconvenience to record this evidence in the extradition papers. Documenting probable cause in an affidavit is what the policeman in many jurisdictions, including the District of Columbia, must do if he is to secure an ordinary warrant for an arrest or search. And governors, or habeas corpus judges, will hardly be significantly burdened by having to study written submissions for probable cause in extradition cases.
From all these considerations the court draws the conclusion that the terms of 18 U.S.C. § 3182 are not met unless the affidavit indicates to the asylum state executive that there is probable cause for believing the accused guilty and that habeas corpus is the appropriate remedy to test the validity of his judgment. Since the Florida Section 3182 affidavit was insufficient and this defect was not cured in the time provided by the court, release of the prisoners was mandatory.
. 23 D.C.Code § 401(a), in pertinent part, reads:
“In all cases where the laws of the United States provide that fugitives from justice shall be delivered up, the Chief Judge of the United States District Court for the District of Columbia shall cause to be apprehended and delivered up such fugitive from justice who shall be found within the District, in the same manner and under the same regulations as the executive authorities of the several States are required to do by the provisions of sections 5278 and 5279, title 66, of the Revised Statutes of the United States * *
. Fla.Stat.Ann. § 806.02, in pertinent part, reads:
“Any person who wilfully and maliciously sets fire to, burns or causes to be burned * * * any building or structure * * * whether the property of himself or of another, not included or described in the preceding section, shall be guilty of arson in the second degree * *
. U.S.Const., Art. IV, § 2, cl. 2:
. In recodification in 1948 the word “District” was twice inserted to make it clear that the District of Columbia was subject to § 3182 obligations. Act of June 25, 1948, c. 645, 62 Stat. 822. This had earlier been assumed. E.g., Riley v. Colpoys, 66 App.D.C. 116, 85 F.23 282 (1936).
. “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District 'or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be
. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
. United States ex rel. McCline v. Meyering, 7 Cir., 75 F.2d 716 (1934); Raftery ex rel. Huie Fong v. Bligh, 1 Cir., 55 F. 2d 189 (1932); Ex parte Hart, 4 Cir., 63 F. 249, 260 (1894); Ex parte Morgan, W.D.Ark., 20 F. 298 (1883).
Although state cases are in considerable disarray, something like probable cause is a prerequisite for extradition under § 3182 from Colorado and perhaps New York, and also from New Jersey and Ohio. Henry v. McArthur, 122 Colo. 474, 223 P.2d 621 (1950); compare People ex rel. DeMartini v. McLaughlin, 243 N.Y. 417, 153 N.E. 853 (1926); Ex parte Fritz, 137 N.J.Eq. 185, 44 A.2d 414 (1945); In re Powell, 2 Ohio Supp. 222, 10 Ohio O. 54, 25 O.L.A. 417 (1937). And see In re Cooper, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956 (1960), construing like provision of the Uniform Criminal Extradition Act.
Of the several federal and state cases which could be cited in opposition, e.g., Collins v. Traeger, 9 Cir., 27 F.2d 842 (1928), it can justly be said that they bear on probable cause by implication only; the court’s research has uncovered no ease authority which in terms states that probable cause is not necessary.
R. Hurd, Habeas Corpus 605 (1858), finds that the affidavit must show probable cause; J. Scott, The Law of Interstate Rendition (1917), though basically contra, id. at 150-152, finds a probable cause rule “humane and reasonable,” id. at 234.
. Only a single objection, however, was directed at that affidavit — that it was based exclusively on information and belief. No objection was framed in probable cause terms. Moreover, included in the Riley extradition papers was the affiant’s additional follow-up affidavit detailing facts and sources undoubtedly sufficient to supply probable cause had the court directly confronted the question. It would have been permissible to read the two affidavits together. See Raftery ex rel. Huie Fong v. Bligh, supra Note 7. Compare Ex parte Hart, supra Note 7.
. 66 App.D.C. at 118, 85 F.2d at 284.
. The Supreme Court in Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113 (1908), declined close inspection of a demanding state’s indictment, and indicated in dictum that this would be true of the affidavit as well. This case, however,1 was decided long before Wolf and Mapp made state arrests a subject of federal court focus.
. See the opinion of the first Attorney General, Edmund Randolph, a representative to the Constitutional Convention: “[T]his term [‘charged’] is sufficiently technical to exclude any wanton or unauthorized accusation from becoming the basis of the demand.” J. Scott, supra Note 7, at 27-28.
. Application of Williams, 76 Idaho 173, 279 P.2d 882 (1955); Ex parte Riccardi, 68 Ariz. 180, 203 P.2d 627 (1949); People ex rel. Gates v. Mulcahy, 392 Ill. 498, 65 N.E.2d 21 (1946) ; State ex rel. Covington v. Hughes, 157 La. 652, 102 So. 824 (1925). See Fowler v. Ross, 90 U.S.App.D.C. 305, 312 n. 3, 196 F.2d 25, 31 n. 3 (1952). Compare § 3 of the Uniform Criminal Extradition Act, which asks that if an arrest warrant is issued it be included in the extradition papers. 9 U.L.A. 274 (1957).
Undoubtedly Strauss would be satisfied if the magistrate officially accepted or recorded the affidavit under some procedure equivalent to issuance of an arrest warrant. See Compton v. State of Alabama, 214 U.S. 1, 14, 29 S.Ct. 605, 53 L.Ed. 885 (1909); Collins v. Traeger, 9 Cir., 27 F.2d 842, 844 (1928).
. Unless the “affidavit” clause of § 3182 is construed at least to require that the affidavit report or summarize enough evidence to justify issuance of an arrest warrant in the accusing state, the statute strays far beyond the constitutional text it has always been supposed to be implementing. See Com. of Kentucky v. Dennison, 65 U.S. (24 How.) 66, 105, 16 L.Ed. 717 (1861). It is not clear whether this alone would endanger § 3182 constitutionally. The Extradition Clause is often read as securing a demanding state’s right to have a defendant extradited if its conditions are met, not the accused person’s right to avert extradition when they have not been satisfied. See Note, 39 Corn.L.Q. 326 (1954).
Moreover, this interpretation of the “affidavit * * * charging” language of § 3182 is in harmony with common legal usage, for in many jurisdictions arrest warrants must issue exclusively on the basis of affidavits or complaints which themselves make out the evidentiary case for arrest. E.g., Rule 4(a), Fed.R. Ckim.P., applied in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Idaho Gen. Laws Ann. §§ 19-504 to 19-506 (1950); Nev.Bev.Stat. §§ 171.120 to 171.130 (1957); Okla.Stat., Title 22, § 171 (1937); Wis.Stat.Ann. § 954.02 (1958).
In other jurisdictions, including Florida, the complaint can be supplemented by the magistrate’s personal examination of the complainant or others. B.g., Fla. Stat. §§ 901.01-901.02, F.S.A. (1944); Ill.Ann.Stat. 38, § 107-9 (1964); Ariz. B.Crim.Proc. 1, 2, 17 A.B.S. (1956). In these states, therefore, an affidavit can be sufficient to launch the process leading to arrest, yet not itself show probable cause.
. It has never been suggested that the Extradition Clause of the Constitution affirmatively authorizes extradition arrests on a lesser basis than Fourth Amendment probable cause. Bather, this court has said that the Clause does not conflict with basic constitutional rights. Johnson v. Matthews, 86 U.S.App.D.C. 376, 381, 182 F.2d 677, 682, cert. denied, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1950).
. See People of State of New York v. O’Neill, 359 U.S. 1, 12-18, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959) (dissenting opinion of Mr. Justice Douglas). Modern transportation and communication facilities have, of course, reduced the inconvenience of interstate travel. Note, however, that under § 2 of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings — upheld in O’Neill — those compelled to travel between states are recompensed at the rate of $5 a day and $.10 per mile. 9 U.L.A. 93 (1957). There is no comparable provision in the extradition statute.
. Principally, the factual finding implicit in the accused state’s affidavit, or even indictment, that the accused was within the accusing state on the date of the crime has been held not conclusive; prior to placing the accused under extradition arrest, the asylum state executive must make his own confirming determination on the “fugitivity” question, Hyatt v. People ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903), and the accused can freely relitigate the issue in the course of his habeas corpus hearing, though there he must carry the burden of proof. See Moncrief v. Anderson, 119 U.S.App.D.C. 323, 342 F.2d 902 (1964), and 122 U.S.App.D.C. 289, 353 F.2d 460 (1965). The other litigable issue in habeas corpus is, of course, identity. See Annot., 98 A.L.B.2d 964 (1964).
. In many, if not all, jurisdictions the right of the unindicted suspect, arrested with or without a warrant, to such a hearing has been firmly secured, e■ g., Alaska R.Crim.Proc. 5 (1963); Ariz. R.Crim.Proc. 16 (1956); W.Va.Code § 62-1-8 (1966), the underlying principle being that defendants should not be subjected to serious inconvenience or prolonged detention absent careful judicial confirmation of the fact that probable cause for that detention exists.
. Since “sufficient evidence of probable cause to justify arrest” was not forthcoming from Florida in the time allowed after our judgment of January 19, 1967, resulting in appellants’ release, we assume that Florida had no additional evidence of probable cause to offer.
. Analogies supporting a probable cause construction for the § 3182 affidavit come from Rule 40(b) (3), Fed.R.Crim.P., governing removal of a suspect from one to another federal district, and 18 U.S.C. § 3184 (1964), defining procedures for international extradition. Under the former’s terms if an unindicted suspect for whom an arrest warrant has in fact been issued in one district is found in another district which lies in another state and more than 100 miles away, before removal he must be given a hearing before a judge or commissioner at which the issue is whether “there is probable cause to believe that the defendant is guilty of the charge.” Pursuant to § 3184, extradition “may” be ordered, but only upon a proper sworn “complaint” and after a hearing, also before a judge or commissioner, exploring “evidence of criminality,” this construed to mean probable cause. Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911); United States ex rel. Petrushanky v. Marasco, 2 Cir., 325 F.2d 562 (1963).
True, each of the three situations — interstate rendition, federal removal and international extradition — has its own ideological characteristics. But as the Note of the Advisory Committee on Federal Rules makes clear, the general intention of Rule 40 is a practical one — to strike a just compromise between the valid conflicting interests of an accused and a distant prosecuting agency:
“The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes * * *. The object of the rule is adequately to meet each of these * * * situations.”
And the Supreme Court has already advised us that on the question of the quantum of evidence needed for extradition the international and interstate rules are in “general harmony.” Strauss, supra, 197 U.S. at 333, 25 S.Ct. 535.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant?
A. Police
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election processes
H. Education
I. Other Service Activity
J. not ascertained
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Santiago ALBANESE D’IMPERIO, Plaintiff, Appellant, v. SECRETARY OF THE TREASURY OF PUERTO RICO, Defendant, Appellee.
No. 4869.
United States Court of Appeals First Circuit.
June 6, 1955.
Orlando J. Antonsanti, San Juan, Puerto Rico, for appellant.
Manuel J. Medina Aymat, Asst. Atty. Gen., with whom Jose Trias Monge, Atty. Gen., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
By special designation.
WOODBURY, Circuit Judge.
This is an appeal from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the Superior Court of Puerto Rico, San Juan Part, which sustained administrative action resulting in the assessment of a deficiency in income tax against the appellant for the calendar year 1949. Our appellate jurisdiction under Title 28 U.S.C. § 1293 is clear, for the appéllant contends in this court as he did in both insular courts that § 24(b) of the Income Tax Act of Puerto Rico, quoted in the margin, 2as applied to him, deprives him of his property without due process of law in violation of the Constitution of the United States, as well as in violation of Art. II, § 7 of the Constitution of the Commonwealth of Puerto Rico, 48 U.S. C.A. § 731d note, and § 2 of the Organic Act of March 2, 1917, known as the Jones Act. 39 Stat. 951, 48 U.S.C.A. § 737.
The case is presented to us on an agreed statement of facts which can be briefly summarized. In January 1949, the appellant, a widower, and Iris de Juan, a widow, both with minor children born of their previous marriages, entered into an antenuptial agreement pursuant to the provisions of Book Fourth, Title III, Chapter I of the Civil Code of Puerto Rico, 1930 ed., the pertinent sections of which are quoted in the margin. They included in the agreement a complete inventory of all their respective properties and by the agreement they undertook to effect a complete separation, not only of the property each then owned, but also of all property each might acquire in the future. Furthermore, in clause 6 they provided: “The parties hereby make known that having excluded from the marriage they are about to contract, the regime of the legal conjugal partnership (régimen de la sociedad legal de gananciales), the property that during the marriage each spouse shall acquire, shall be and become the property of each in absolute dominium.”
The parties married on January 27, 1949 in accordance with their agreement, and in reporting their income for that year each filed a separate return and each paid a tax calculated on his and her respective income. The Secretary of the Treasury, however, took the position that § 24(b) of the Income Tax Act quoted above applied in spite of the antenuptial agreement. He, therefore, ruled that the appellant should have reported both his and his wife’s income in a single joint return and paid a tax calculated on the total taxable income of both. Therefore the Secretary assessed a deficiency against the appellant in the amount of the difference between the tax due on his and his wife’s combined income and the tax actually paid by the appellant on his own personal income. The appellant contested the assessment of his deficiency through the administrative remedies provided by local law and on up through the Puerto Rican courts wherein, as already pointed out, he raised the same federal constitutional question he presents on this appeal.
Basically the appellant’s contention is that the antenuptial agreement between himself and his wife is clearly valid under local law (indeed, he says that there is not even an iota of evidence that its purpose was to avoid taxes or that it was in any respect a sham or subterfuge) and that, by its clear terms, the agreement effected a complete separation not only of the properties but also of the incomes of the spouses. Wherefore he says that to require him to pay a tax on his and his wife’s combined income is to require him to pay a tax measured by the income of another which the Supreme Court held in Hoeper v. Tax Commission, 1931, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248, violated the due process clause of the Fourteenth Amendment.
The Supreme Court of Puerto Rico, relying heavily on its opinion in Ballester v. Court of Tax Appeals, 61 P.R.R. 460 (1943), rejected this contention.
Although the Commonwealth of Puerto Rico, by direct inheritance of the law of Spain, has always had a legal community property system, see Chapter IV of Title III, Book Fourth of the Civil Code of Puerto Rico, 1930 ed., the court in Ballester v. Court of Tax Appeals, supra, held that under its system of community property the wife did not have a “vested interest” in income earned by the husband or produced by community property. Wherefore it found Hoeper v. Tax Commission, supra, readily distinguishable and held that under the rule of United States v. Robbins, 1926, 269 U.S. 315, 46 S.Ct. 148, 70 L.Ed. 285, there was no constitutional impediment to applying § 24(b) of the Income Tax Act to require a husband to report and pay the income tax on the entire net income of the conjugal partnership. This court affirmed. Ballester-Ripoll v. Court of Tax Appeals, 1 Cir., 1944, 142 F.2d 11, certiorari denied, 1944, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581.
The Ballester case does not rule this one, for the spouses in that case married under the traditional community property system and the taxpayer’s position was that as an incident of that system one half of the income of the community “vested” in his wife and so could not constitutionally be taxed to him under the rule of Poe v. Seaborn, 1930, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239. In the case at bar, however, the spouses married in accordance with an antenuptial agreement excluding “the regime of the legal conjugal partnership” and providing for a complete and final separation of their respective properties and incomes, and the taxpayer relies upon the terms of that agreement to effect the separation of his and his wife’s respective incomes for income tax purposes. Nevertheless, we agree with the Supreme Court of Puerto Rico that the result reached in the Ballester case must also be reached in this one.
Certainly there is nothing in Hoeper v. Tax Commission, supra, if that case still speaks with authority, see Ballester v. Descartes, 1 Cir., 1950, 181 F.2d 823, 829, to indicate the existence of any constitutional limitation on the power of the Legislature of Puerto Rico, or for that matter of a State in the federal union, to enact legislation forbidding spouses from thereafter escaping the normal income tax consequences of their marital relationship by contractual arrangements entered into either before or after their marriage. And we think the local statutes have precisely this effect.
The reason for our conclusion can be briefly stated. It is that § 1268 of the Civil Code, quoted in footnote 3 supra, specifically provides that the parties to antenuptial contracts “can not stipulate anything contrary to law,” and if they do, that provision of their contract “shall be considered void,” and § 24(b) of the Income Tax Act, making a husband and wife living together a unit for income tax purposes had been the “law” in Puerto Rico for some nine years before the appellant and his wife entered into their antenuptial agreement. Thus, While their antenuptial agreement is no doubt valid under local law for many purposes, we do not think that local law permits it to have any validity as a device to divide their respective incomes for income tax purposes. And, as we have said, we are not aware of any constitutional limitation on the power of the Legislature to forbid, at least prospectively, contracts between a husband and wife altering the normal income tax consequences of their marriage.
The Supreme Court of Puerto Rico was not concerned, nor are we, with the question whether the same result would be reached with respect to an antenuptial agreement like the present which had been entered into prior to the enactment of § 24(b) of the Income Tax Act. We express no opinion on that question.
The judgment of the Supreme Court of Puerto Rico is affirmed.
. Act No. 74 of August 6, 1925 as amended by Act No. 31 of April 12, 1941, effective January 1, 1940.
“If a husband and wife living together have a net income for the taxable year of $2,000 or over, or an aggregate gross income for such year of $5,000 or over, the total income of both shall be included in a single joint return, and the normal and additional tax shall be computed on the aggregate income. The net or gross income received by anyone of the spouses shall not be divided between them.”
. In this case as in Mora v. Mejias, 1 Cir., 1953, 206 F.2d 377, 382, we do not find it necessary to decide whether the due process clause of the Fifth Amendment or that of the Fourteenth Amendment is applicable for: “The restraint imposed upon [tax] legislation by the due process clauses of the two amendments is the same.” Heiner v. Donnan, 1932, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772.
. “Section 1267. — Persons who may be joined in matrimony may, before celebrating it, execute contracts, stipulating tbe conditions for the conjugal partnership with regard to present and future property, without any other limitations than those mentioned in this Code.
“In the absence of contracts relating to property it shall be understood that the marriage has been contracted under the system of legal conjugal partnership.
“Section 1268. — In the contracts referred to in the preceding section the contracting parties can not stipulate anything contrary to law or morality, nor humiliating to the authority within the family pertaining respectively to the future spouses.
“All stipulations not in accordance with the provisions of this section shall be considered void.”
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_respond1_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 first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. COASTAL REFINING AND MARKETING, INC., Defendant-Appellee, Cross-Appellant.
No. 89-6056.
United States Court of Appeals, Fifth Circuit.
Sept. 14, 1990.
Kenneth W. Starr, Sol. Gen., U.S. Dept, of Justice, Michael P. Healy, Robert L. Klarquist, Land & Natural Res. Div., Dept, of Justice, Appellate Sect., C. Carrick Brooke-Davidson, Dept, of Justice, Environmental Enforcement Sect., Washington, D.C., for plaintiff-appellant cross-appellee.
Keith A. Jones, Fulbright & Jaworski, Washington, D.C., Louis S. Zimmerman, J.B. Ruhl, Fulbright & Jaworski, Austin, Tex., for defendant-appellee cross-appellant.
Before REAYLEY, DUHÉ and WIENER, Circuit Judges.
REAYLEY, Circuit Judge:
The United States brought this action against Coastal Refining and Marketing, Inc. (“Coastal”), alleging violations of the Environmental Protection Agency’s Clean Air Act regulations with respect to five cargos of imported petroleum product. On cross-motions for summary judgment, the trial court held that Coastal had, in fact, violated the regulations as to four of the five cargos. The trial court, however, refused to impose the $9 million in mandatory penalties sought by the government because the court found that § 211(d) of the Clean Air Act, which establishes the mandatory penalty, is unconstitutional. The government appeals, arguing that § 211(d) is constitutional and that Coastal violated the regulations with respect to the fifth cargo. Coastal cross-appeals, contending that the trial court erred in concluding that it had violated the regulations with respect to four of the cargos. We vacate the judgment and dismiss the suit of the United States.
I.
Section 211(c) of the Clean Air Act authorizes the Administrator of the Environmental Protection Agency (“EPA”) to promulgate regulations to
control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine ... if in the judgment of the Administrator any emission product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare....
42 U.S.C. § 7545(c)(1).
For several years the EPA has recognized that lead, which historically was used as an additive to enhance the octane level of gasoline, poses a threat to human health. See Small Refiner Lead Phase-Down Task Force v. United States EPA, 705 F.2d 506, 511, 527-31 (D.C.Cir.1983). Accordingly, the EPA has regulated the use of lead as an additive since 1973. See id. at 512. In 1985, the Administrator issued regulations under § 211(c) to reduce substantially the lead content in gasoline. See Union Oil Co. v. U.S. EPA, 821 F.2d 678, 679 (D.C.Cir.1987). The regulations called for a gradual reduction in lead content over a period of time. To provide producers and importers with flexibility during the “lead phasedown” period, the EPA regulations permitted those who voluntarily used less lead per gallon than specified in the regulations to “bank” the difference as a “lead usage right.” See 40 C.F.R. § 80.20(e)(1). These “rights,” also referred to as “credits,” could then be withdrawn through the end of 1987 to comply with the new, more stringent, standards as they became effective. Id. § 80.20(e)(2). These “credits” could also be transferred through the end of 1987, at which time the program ended. Id.; see also Union Oil Co., 821 F.2d at 680.
In order for a producer or importer to generate any “lead usage rights” under the regulatory program, the product produced or imported had to be “gasoline.” See 40 C.F.R. § 80.20(c)(1)®, (e)(l)(i)-(ii), (e)(3). “Gasoline” is defined as
any fuel sold in any State for use in motor vehicles and motor vehicle engines, and commonly or commercially known or sold as gasoline.
Id. § 80.2(c) (footnote omitted). Those who participated in the lead banking program were required to make quarterly reports to the EPA in which the product being produced or imported was identified. See id. § 80.20(a)(3), (c)(3), (e)(2)(iii), (e)(3)(iv). These reports enabled the EPA to ensure that the total amount of “banked” credits used by the industry did not exceed the maximum allowed under the lead content standard. See Union Oil Co., 821 F.2d at 680.
To give the § 211(c) regulations force, § 211(d) of the Clean Air Act provides that
[a]ny person who violates ... the regulations prescribed under subsection (c) ... shall forfeit and pay to the United States a civil penalty of $10,000 for each and every day of the continuance of such violation....
42 U.S.C. § 7545(d). Section 211(d) further provides that the Administrator of the EPA may remit or mitigate the $10,000 per day penalty. Id.
II.
During the first half of 1985, Coastal imported five cargos of petroleum product from Mexico. In its quarterly reports to the EPA, Coastal classified the cargos as “gasoline” and reported the creation of approximately 30 million grams of “lead usage rights” based on this classification.
The United States brought this action against Coastal, contending that the imported product was not “gasoline” and that the “lead usage rights” were, therefore, invalidly created. The government sought $9 million in penalties under § 211(d) ($10,-000 per day for 900 days — from the time Coastal classified the product as “gasoline” in the quarterly report on July 15, 1985, until December 31, 1987, the date the banking program ended).
Coastal moved for summary judgment and the United States filed a cross-motion for summary judgment. The trial court granted partial summary judgment on the issue of liability in favor of the United States. With regard to four of the five cargos, the court concluded that Coastal had not imported “gasoline” and, therefore, that the lead credits were not validly created. The court determined that § 211(d) of the Clean Air Act, which imposes the mandatory $10,000 per day penalty for a violation of the regulations issued under § 211(c), was unconstitutional. Consequently, the trial court did not impose any penalty on Coastal. The court also granted partial summary judgment for Coastal, holding that one cargo was “gasoline.”
The government appeals the lower court’s determination that § 211(d) is unconstitutional and that one of the five car-gos was “gasoline” as defined by the regulations. Coastal cross-appeals, claiming that the trial court erred in holding that four of its cargos were not “gasoline.”
III.
A. “Gasoline ”
In order to create “lead credits” under the EPA’s “banking” program, an importer must import “gasoline” as defined in the regulations. Two requirements must be met for a petroleum product to be considered “gasoline”: (1) it must be fuel of a type “sold in any State for use in motor vehicles and motor vehicle engines,” and (2) it must be “commonly or commercially known or sold as gasoline.” 40 C.F.R. § 80.2(c). The EPA’s regulatory definition is non-technical and provides no objective test against which product can be measured. As the trial court noted, in determining whether a product is “gasoline,” the courts are resigned to using “other objective standards available as a way of postulating some formula or standard which encompasses this legal definition.” A number of standards were presented to the trial court, including specifications of the American Society for Testing and Materials (“ASTM”).
The ASTM has established a standard specification for automotive gasoline. This specification, “established on the basis of the broad experience and close cooperation of producers of gasoline, manufacturers of automotive equipment, and users of both,” provides guidance “in establishing the requirements of gasoline for ground vehicles equipped with spark-ignition engines.” As the specification itself admits, “[i]t neither necessarily includes all types of gasolines that are satisfactory for automotive vehicles, nor necessarily excludes gasolines that may perform unsatisfactorily....” Although the specification does not provide an objective, comprehensive definition of gasoline, it is useful to the court as an aid in determining whether a particular product is “commonly or commercially known or sold as gasoline”; the standard was developed in conjunction with gasoline producers, automotive equipment manufacturers, and users of both. In addition, it has been incorporated into certain federal procurement standards. Because of the broad-based participation of key groups in developing the standard and its use in federal procurement practices, we accept that standard as our guide in determining whether a product is “commonly or commercially known” as “gasoline.”
The ASTM standard identifies several characteristics of gasoline. These characteristics include, but are not limited to, sulphur content, gum content, vapor pressure, oxidation stability, and octane content. The specification establishes objective standards for each of these several characteristics. For example, the specification establishes 87 as a minimum octane level for leaded gasoline. Similar objective standards are established for each of the other characteristics identified in the specification.
In its order, the trial court recognized that a number of characteristics are considered in determining whether product is “gasoline” and that octane plays a critical role in that determination. The court also acknowledged that to be “gasoline” a product must be both (1) fuel of a type “sold in any State for use in motor vehicles and motor vehicle engines” and (2) “commonly or commercially known or sold as gasoline.” Id. However, the lower court focused its analysis on the second portion of the definition and based its ruling exclusively on the octane level of the cargos.
(1) “Commonly or commercially known or sold as gasoline”
The record reveals that the trial court had before it the results of tests that inspectors had performed on each of the five cargos imported by Coastal. Coastal’s expert witness testified that each cargo satisfied all ASTM standards for gasoline. The government did not dispute that the test results satisfied the ASTM standards with regard to any characteristic of gasoline other than octane content. As to octane content, the government contended that the cargos fell below a level found in product that was “commonly or commercially known or sold as gasoline.”
In determining whether any of the car-gos imported by Coastal were “commonly or commercially known or sold as gasoline,” the trial court specifically stated that “[t]he parties agree that Coastal’s fuel met all [ASTM D 439] requirements, except [for octane content].” As to octane content the court stated that “[a] thorough review of all the specifications reveals that the minimum octane level for leaded gasoline is 87(R + M)/2. Allowable deductions ... reduce this minimum to 81.8(R + M)/2. Therefore, the only cargo ... imported by Coastal that qualifies as gasoline is the Pacific Hunter” (I) shipment with an octane level of 82.6, all other octane levels of the Coastal cargos being below 81.8. The trial court’s holding, at least as to the second part of the two-part definition of “gasoline,” rests solely on a determination that product with an octane level above 81.8 is “gasoline” and product with an octane level below 81.8 is not “gasoline.”
In its cross-appeal, Coastal argues that in arriving at 81.8 as a minimum octane level the trial court committed a mathematical error and that if the math is performed properly, the minimum acceptable octane rating as specified by the ASTM is 80.8. Because all of the Coastal cargos had octane levels exceeding 80.8, Coastal contends that it has satisfied the second part of the two-part definition of “gasoline.”
The United States does not defend the mathematical calculation of the trial court. In fact, the government concedes that Coastal has raised a genuine issue of material fact as to whether the cargos are “commercially known” as “gasoline.” We believe that Coastal has done more than that. Coastal correctly points out that the trial court erred in applying the ASTM specifications for octane levels. As noted earlier, the ASTM establishes 87 as the minimum octane level for leaded gasoline. The ASTM further provides that this octane level can be reduced by up to 4.5 for variations in altitude and by as much as 1 for climatic conditions. This results in a minimum octane level of 81.5.
In addition, the ASTM recognizes that octane measurements may be imprecise. As a consequence, the ASTM specification suggests that an octane measurement of a particular cargo may differ from another measurement of that same cargo by as much as .7 before the test results are considered suspect. We do not necessarily agree with Coastal that this .7 “precision variance” is automatically made a part of the ASTM specification for all purposes. However, the ASTM’s recognition of measurement variances informs this court’s judgment and for purposes of determining whether a particular product is “commonly or commercially known or sold as gasoline,” a .7 reduction in the minimum octane level is appropriate. Taking into account this “precision variance,” the minimum octane rating for gasoline under the ASTM standard is 80.8. The octane level of all of Coastal’s cargos exceeded the 80.8 octane level. Because all five of Coastal’s cargos meet all of the ASTM requirements for gasoline, including octane content, we believe there can be no question that those five cargos are “commonly or commercially known” as “gasoline.”
(2) “Sold in any state”
For a product to be “gasoline” within the meaning of the EPA regulations it must not only be “commonly or commercially known or sold as gasoline,” it must also be “sold in any State for use in motor vehicles and motor vehicle engines.” Id. On appeal the government focuses its attack on this part of the “gasoline” definition and argues that Coastal has failed to demonstrate that fuel with an octane level of 82.6 (the highest octane level of any of Coastal’s cargos) or below was “sold in any State for use in motor vehicles.” The government presented the trial court with a variety of studies showing that the majority of gasoline sold throughout the country has an octane level above 82.6. However, the trial court apparently did not find the evidence on this point in favor of the government and neither do we.
As we read the regulation, all that an importer must do to satisfy this part of the definition is to show evidence of a single sale in one state of gasoline of the same type as that being imported. This Coastal did by evidence of “postings.” The Federal Trade Commission requires that the octane content of gasoline be posted at the pump. See 16 C.F.R. pt. 306. The actual octane content must equal or exceed the posted octane content. See id. § 306.9(c). Coastal presented evidence to the trial court that at four service stations in the United States the posted octane level was below 82.6. One station (in Oregon) had a posted octane level of 80, which is lower than all of Coastal’s imported cargos. We find, as the trial court implicitly must have, that this is sufficient evidence to satisfy the first part of the definition.
The government argues that this is insufficient evidence to support the conclusion that gasoline with octane levels as low as that of the Coastal cargos was sold in any state. The government insists that these postings, admittedly a tiny fraction of the full number of postings, are the result of transcribing errors. The government also suggests that, based upon its surveys, the actual octane content exceeds the posted octane level and that postings are not evidence of actual sales. Other explanations are offered by the government. However, the government fails to offer any evidence that the posted octane content of 80 at the one station was, in fact, the result of a scriveners error. Nor did the government prove that the actual octane content of the gasoline in the pump exceeded the posted octane level of 80 or that there was no sale of such low octane gasoline from that station. We agree with Coastal that this posting presents a prima facie case as to the actual octane level of the gasoline at that station and that postings are evidence of sales. On this record, this posting establishes a material fact in favor of Coastal over which there is no genuine issue. Because Coastal has satisfied both parts of the two-part “gasoline” definition, it is entitled to summary judgment as to all five cargos. We affirm the trial court’s judgment as to the Pacific Hunter (I) cargo and reverse as to the other four cargos.
Because Coastal is not liable for any regulatory violation, we are not compelled to say more. However, we think it will be useful to state our views on the constitutionality of § 211(d) and to express our disagreement with the lower court’s holding in this regard.
B. Constitutionality of § 211(d)
Section 211(d) of the Clean Air Act provides that
[a]ny person who violates ... the regulations prescribed under subsection (c) of this section ... shall forfeit and pay to the United States a civil penalty of $10,-000 for each and every day of the continuance of such violation_ The Admin-
istrator may, upon application therefor, remit or mitigate any forfeiture provided for in this subsection and he shall have authority to determine the facts upon all such applications.
42 U.S.C. § 7545(d). After finding Coastal liable for violating the regulations of subsection (c), the trial court refused to impose the required penalty because the court determined that § 211(d) was unconstitutional. The court stated that
[sjection 211(d) violates the Separation of Powers Doctrine because it subjects the judgment of an Article III Court to review by the Executive Branch. The Article III judge is, in essence, performing an administrative task by determining only the number of days of violation and imposing a mandated penalty. No discretion remains....
Furthermore, the obligatory penalty provision is pre-determined. By denying a defendant the right to present an equitable defense and the Court the right to use its discretion in imposing a penalty, the provision violates the established procedures and guaranteed rights of due process, and therefore violates the Fifth Amendment.
Likewise, the imposition of a $10,000 fine may be reasonable and justifiable in many circumstances; in others it may not be. Not allowing the Court jurisdiction to hear equitable defenses when assessing a penalty deprives the Court of inherent discretion and may result in a penalty with no rational relationship between the violation and the penalty imposed.
We disagree with the district court’s assessment that § 211(d) violates the principles of separation of powers and due process.
(1) Separation of Powers
The trial court determined that § 211(d) violates the principle of separation of powers because it establishes a mandatory penalty and allows the Administrator of the EPA to remit or mitigate the penalty after it is imposed by the court.
The Constitution separates governmental powers into three coordinate branches. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988). It is this separation of powers that serves as a “ ‘safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’ ” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976)). The principle of separation of powers is violated when an “Act ‘impermissibly undermine[s]’ the powers of [one] Branch, or ‘disrupts the proper balance between the coordinate branches [by] preventpng] th[at] Branch from accomplishing its constitutionally assigned functions.’ ” Id. 108 S.Ct. at 2621 (citations omitted). We see no evidence that § 211(d) of the Clean Air Act violates the principle of separation of powers. The constitutionality of congressionally established mandatory penalties such as that found in § 211(d) seems beyond doubt. See Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 1840, 95 L.Ed.2d 365 (1987) (In denying the defendant’s claim of a Seventh Amendment right to have a jury determine the amount of damages under the Clean Water Act, the Supreme Court reasoned that “the action to recover civil penalties usually seeks the amount fixed by the Congress.... Since Congress itself may fix the civil penalties, it may delegate that determination to trial judges.”); see also United States v. Regan, 232 U.S. 37, 43, 34 S.Ct. 213, 215, 58 L.Ed. 494 (1914); Hepner v. United States, 213 U.S. 103, 108, 29 S.Ct. 474, 476-77, 53 L.Ed. 720 (1909). Similarly, statutes giving the executive branch the power to remit or mitigate a congressionally established and judicially imposed penalty have long been recognized and approved by the Supreme Court. See Confiscation Cases, 74 U.S. (7 Wall.) 454, 461-62, 19 L.Ed. 196 (1869) (Secretary of Treasury can “remit a forfeiture or penalty, accruing under [statutes], subsequent to the final decree or judgment”); Johnson v. United States, 74 U.S. (7 Wall.) 166, 174-75, 19 L.Ed. 187 (1869) (power of Secretary of Treasury to mitigate is not judicial exercise; rather it is one of mercy from which no appeal can be taken); see also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 690 n. 27, 94 S.Ct. 2080, 2095 n. 27, 40 L.Ed.2d 452 (1974); The Laura, 114 U.S. 411, 5 S.Ct. 881, 29 L.Ed. 147 (1885); United States v. Morns, 23 U.S. (10 Wheat. 246) 246, 292-96, 6 L.Ed. 314 (1825). The mandatory penalty and the mitigation authority provided the Administrator of the EPA in § 211(d) presents neither an aggrandizement of power by one branch at the expense of the other nor an encroachment of one branch on the other. Section 211(d) simply does not impermissibly undermine the powers of the judicial branch.
(2) Due Process
As to the district court’s holding that the mandatory penalty provision of § 211(d) violates due process by denying a defendant the right to present — and the court the right to consider — equitable defenses, we agree with the government that there is no inherent power for the judiciary to mitigate congressionally-mandated penalties. See Clark v. Barnard, 108 U.S. 436, 457, 2 S.Ct. 878, 890, 27 L.Ed. 780 (1883) (“where any penalty or forfeiture is imposed by statute ... courts of equity will not interfere to mitigate the penalty or forfeiture, ... for it would be in contravention of the direct expression of [Congress]”). A court in equity may not do that which the law forbids. See Immigration & Naturalization Serv. v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 2216, 100 L.Ed.2d 882 (1988).
The trial court also determined that § 211(d) is unconstitutional because the mandatory penalty may bear no rational relationship to the violation involved in a particular case. In so doing, the court erred. A court may not declare a statute facially invalid based upon a hypothetical possibility that the law may be unreasonable in certain circumstances. See United States v. Raines, 362 U.S. 17, 20-22, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960) (“one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional”); accord Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-02, 105 S.Ct. 2794, 2800-01, 86 L.Ed.2d 394 (1985). The trial court failed to do that which it must — determine whether a statute is constitutional as applied to the facts in the case before it. See Raines, 362 U.S. at 21-22, 80 S.Ct. at 522-23.
It is unnecessary for this panel to consider the other arguments raised by the parties given our resolution of the determinative issue — Coastal properly classified its imported product as “gasoline.”
The judgment of the district court is VACATED and the suit of the United States is DISMISSED.
. The lead content of gasoline produced or imported after July 1, 1985, was to be reduced from 1.10 grams of lead per gallon of leaded gasoline to no more than an average level of 0.50 grams of lead per gallon of leaded gasoline. After December 31, 1985, the lead content could be no more than 0.10 grams of lead per gallon of leaded gasoline on average during any quarter of the calendar year. See 40 C.F.R. § 80.20(c)(1) (standards for importers).
. To be "gasoline,” the imported product does not actually have to be sold as such. Coastal’s imported product was not sold directly on the market as gasoline.
. The relevant standard is designated as D 439 and is entitled “Standard Specification for AUTOMOTIVE GASOLINE." The standard indicates that it is a living document subject to change; it represents a description of gasolines at a given point in time.
. "Gasoline” is broadly defined in ASTM D 439 as "a volatile mixture of liquid hydrocarbons, generally containing small amounts of additives, suitable for use as a fuel in spark-ignition internal combustion engines.”
. In its Memorandum in Support of its Cross-Motion for Partial Summary Judgment on Liability, even the government admits that EPA employees have indicated that in determining whether a fuel was “gasoline” under the EPA’s regulations, "a relevant inquiry is whether the product meets the specifications known to be commonly used in industry, such as ... American Society for Testing and Materials specifications .... ”
. All references to octane used in this opinion are (R + M)/2. This formula refers to the research octane number plus the motor octane number divided by two. See 40 C.F.R. § 80.2(d).
. The ASTM standard provides for various adjustments to this octane level. Once these adjustments are applied, the minimum octane level falls to 80.8. These adjustments and their significance in this case are discussed later in this opinion.
. The cargos, and their respective octane contents as reported by Coastal and as relied upon by the trial court, were as follows.
Cargo Octane Content
Pacific Hunter (I) 82.6
Pacific Hunter (II) 80.9
Potomac Trader 81.45
St. Michaelis 81.7
Scottish Lion 81.55
In addition to these octane levels, the record also indicates that the octane content as reported by Coastal to United States Customs for the Pacific Hunter (I) cargo was 81.2 and for the Scottish Lion cargo was 80.3. The government contends that we must rely on the lower octane levels reported to Customs in determining Coastal's cross-appeal. Although the different octane levels on these two cargos arguably present a factual dispute that would render summary judgment inappropriate, we do not consider these different readings to raise a "genuine issue of material fact” in light of other undisputed facts in this case.
As to the Pacific Hunter (I) cargo, the 81.2 octane reading reported to Customs is still above a properly calculated minimum octane level specified by the ASTM after adjustments are applied. See supra note 7. The different reading on this cargo is, therefore, immaterial.
As to the Scottish Lion cargo, we note that the record indicates that the 81.55 reading is the reading upon discharge, and the 80.3 reading appears to be a reading taken upon loading. The difference in the two readings was not explained by the parties. It may merely reflect the imprecision in measuring octane levels. We also note that on appeal the government has not directly challenged the trial court’s reliance on the octane levels reported in the chart above.
Standing alone, however, the 80.3 octane level is not dispositive of the status of the product as "gasoline.” Although octane content is critical in determining whether a product is "gasoline,” octane content is not the only criteria. Assuming 80.3 is the octane level of the Scottish Lion cargo, in a situation such as this, where a product indisputably meets all ASTM criteria (except octane content) and where there is evidence of gasoline with octane levels as low as 80 being sold, see infra, we believe that there can be no doubt that such product is "commonly or commercially known” as "gasoline" where its octane content falls a mere fraction of a point below the ASTM minimum adjusted octane level of 80.8. The process of classifying product as "gasoline” does not rely on a "bright-line” test and is not as precise as the trial court order might suggest. The ASTM standard admits as much. Presumably, if the EPA wished to inject more certainty into the task, it could do so through a regulatory revision.
. Our reading of the trial court order suggests that the court relied on a federal procurement specification modified by the ASTM. standard specification in arriving at its minimum octane level. As we stated earlier, for purposes of determining whether a product is "commonly or commercially known” as “gasoline” we accept the ASTM as our guide. See supra note 5 and accompanying text.
. In its order, the trial court noted that the ASTM standard provides for a .7 "precision variance,” and the court, in fact, applied a .7 reduction in its analysis. Although the applicability of this "precision variance” was disputed by the parties below, on appeal the government has not addressed the issue. Testimony before the trial court revealed that the “precision variance” could be used. In addition, the government’s own witness stated that the State of Maryland routinely applies a .7 variation in determining compliance with State octane specifications.
. See supra note 8.
. The trial court’s order acknowledges that this part of the two-part definition must be satisfied for product to be properly classified as "gasoline.” Beyond this acknowledgment, the court did not discuss how this part of the definition was met in this case. However, the trial court implicitly found that this portion of the definition was satisfied with respect to the Pacific Hunter (I) cargo because it found that cargo to be properly classified as "gasoline."
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
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sc_respondentstate
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13
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
FERGUSON v. GEORGIA.
No. 44.
Argued November 14-15, 1960.
Decided March 27, 1961.
Paul James Maxwell argued the cause and filed a brief for appellant.
Dan Winn, Solicitor General of Georgia, argued the cause for appellee. With him on the brief were Eugene Cook, Attorney General, John T. Ferguson, Deputy Assistant Attorney General, John T. Perrin, Assistant Solicitor General, and Robert J. Noland.
Mr. Justice Brennan
delivered the opinion of the Court.
The State of Georgia is the only State — indeed, apparently the only jurisdiction in the common-law world — to retain the common-law rule that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866 abolished by statute the common-law rules of incompetency for most other persons. However, the statute, now Georgia Code § 38-416, expressly retained the incompetency rule as to persons “charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction . . . Two years later, in 1868, Georgia allowed the criminal defendant to make an unsworn statement. The statute enacted for that purpose, as amended, is now Georgia Code § 38-415, and provides: “In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The prisoner shall not be compelled to answer any questions on cross-examination, should he think proper to decline to answer.”
In this case a jury in the Superior Court, Douglas County, Georgia, convicted the appellant of murder, and he is under sentence of death. After the State rested its case at the trial, the appellant’s counsel called him to the stand, but the trial judge sustained the State’s objection to counsel’s attempt to question him. To the argument that to deny counsel the “right to ask the defendant any questions on the stand . . . violates . . . [Amendment] VI . . . [and] the Fourteenth Amendment to the Constitution of the United States . . . [because] it deprives the defendant of the benefit of his counsel asking him questions at the most important period of the trial . . . ,” the trial judge answered that under § 38-415, “. . . you do not have the right to do anything more than instruct your client as to his rights, and . . . you have no right to question him on direct examination.” In affirming the conviction and sustaining this ruling, the Supreme Court of Georgia said:
“The constitutional provisions granting to persons charged with crime the benefit and assistance of counsel confer only the right to have counsel perform those duties and take such actions as are permitted by the law; and to require counsel to conform to the rules of practice and procedure, is not a denial of the benefit and assistance of counsel. It has been repeatedly held by this court that counsel for the accused cannot, as a matter of right, ask the accused questions or make suggestions to him when he is making his statement to the court and jury.” 215 Ga. 117, 119, 109 S. E. 2d 44, 46-47.
On appeal brought here under 28 U. S. C. § 1257 (2), we noted probable jurisdiction. 362 U. S. 901.
The only question which the appellant properly brings before us is whether this application by the Georgia courts of § 38-415 denied the appellant “the guiding hand of counsel at every step in the proceedings against him,” Powell v. Alabama, 287 U. S. 45, 69, within the requirements of due process in that regard as imposed upon the States by the Fourteenth Amendment. See also Chandler v. Fretag, 348 U. S. 3.
Appellant raises no question as to the constitutional validity of § 38-416, the incompetency statute. However, decision of the question which is raised under § 38-415 necessarily involves consideration of both statutes. Historically these provisions have been intertwined. For § 38-416 is a statutory declaration of the common-law rule disqualifying criminal defendants from testifying, and § 38-415, also with its roots in the common law, was an attempt to mitigate the rigors of that incompetency.
The disqualification of parties as witnesses characterized the common law for centuries. Wigmore traces its remote origins to the contest for judicial hegemony between the developing jury trial and the older modes of trial, notably compurgation and wager of law. See 2 Wigmore, Evidence, pp. 674-683. Under those old forms, the oath itself was a means of decision. See Thayer, Preliminary Treatise on Evidence, pp. 24-34. Jury trial replaced decision by oath with decision of the jurors based on the evidence of witnesses; with this change “[T]he party was naturally deemed incapable of being such a witness.” 2 Wigmore, p. 682. Incompetency of the parties in civil cases seems to have been established by the end of the sixteenth century. See 9 Holdsworth, History of English Law, p. 194. In time the principal rationale of the rule became the possible untrustworthiness of the party’s testimony; for the same reason disqualification was applied in the seventeenth century to interested nonparty witnesses.
Its firm establishment for criminal defendants seems to have come somewhat later. In the sixteenth century it was necessary for an accused to conduct his own defense, since he was neither allowed to call witnesses in his behalf nor permitted the assistance of counsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of this period has been described as “a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other’s arguments with the utmost eagerness and closeness of reasoning.” Stephen, supra, p. 326. In the process the defendant could offer by way of explanation material that would later be characterized as testimony. 2 Wigmore, p. 684. In the seventeenth century, however, he was allowed to call witnesses in his behalf; the right to have them sworn was accorded by statute for treason in 1695 and for all felony in 1701. 7 Will. Ill, c. 3; 1 Anne, St. 2, c. 9. See Thayer, supra, pp. 157-161, and n. 4; 2 Wigmore, pp. 685-686. A distinction was drawn between the accused and his witnesses — they gave evidence but he did not. See 2 Wigmore, pp. 684-685, and n. 42; 9 Holdsworth, supra, pp. 195-196. The general acceptance of the interest rationale as a basis for disqualification reinforced this distinction, since the criminal defendant was, of course, par excellence an interested witness. “The old common law shuddered at the idea of any person testifying who had the least interest.” State v. Barrows, 76 Me. 401, 409. See Benson v. United States, 146 U. S. 325, 336-337.
Disqualification for interest was thus extensive in the common law when this Nation was formed. 3 Bl. Comm. 369. Here, as in England, criminal defendants were deemed incompetent as witnesses. In Rex v. Lukens, 1 Dall. 5, 6, decided in 1762, a Pennsylvania court refused to swear a defendant as a witness, holding that the issue there in question “must be proved by indifferent witnesses.” Georgia by statute adopted the common law of England in 1784, and “. . . the rules of evidence belonging to it . . . [were] in force there . . . .” Doe v. Winn, 5 Pet. 233, 241. Georgia therefore followed the incompetency rule for criminal defendants long before it was given statutory form by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v. State, 189 Ga. 36, 40-41, 5 S. E. 2d 340, 343.
Broadside assaults upon the entire structure of disqualifications, particularly the disqualification for interest, were launched early in the nineteenth century in both England and America. Bentham led the movement for reform in England, contending always for rules that would not exclude but would let in the truth. See Rationale of Judicial Evidence, bk. IX, pt. Ill, c. Ill (Bowring ed.), pp. 393-406. The basic ground of the attack was, as Macaulay said, that “[A] 11 evidence should be taken at what it may be worth, that no consideration which has a tendency to produce conviction in a rational mind should be excluded from the consideration of the tribunals.” Lord Macaulay’s Legislative Minutes, 1835, pp. 127-128. The qualification in civil cases of nonparty witnesses despite interest came first. See Lord Denman’s Act of 1843, 6 & 7 Viet., c. 85. The first general exception in England for party witnesses in civil cases was the County Courts Act of 1846, 9 & 10 Viet., c. 95, although there had been earlier grants of capacity in certain other courts. Best, Evidence (Lely ed. 1893), pp. 158-159. Lord Brougham’s Act of 1851, 14 & 15 Viet., c. 99, virtually abolished the incompetency of parties in civil cases.
The qualification of criminal defendants to give sworn evidence if they wished came last. The first statute was apparently that enacted by Maine in 1859 making defendants competent witnesses in prosecutions for a few crimes. Maine Acts 1859, c. 104. This was followed in Maine in 1864 by the enactment of a general competency statute for criminal defendants, the first such statute in the English-speaking world. The reform was largely the work of John Appleton of the Supreme Court of Maine, an American disciple of Bentham. Within 20 years most of the States now comprising the Union had followed Maine’s lead. A federal statute to the same effect was adopted in 1878, 20 Stat. 30, 18 U. S. C. § 3481. Before the end of the century every State except Georgia had abolished the disqualification.
Common-law jurisdictions outside the United States also long ago abolished the disqualification. This change came in England with the enactment in 1898 of the Criminal Evidence Act, 61 & 62 Viet., c. 36. Various States of Australia had enacted competency statutes even before the mother country, as did Canada and New Zealand. Competency was extended to defendants in Northern Ireland in 1923, in the Republic of Ireland in 1924, and in India in 1955.
The lag in the grant of competency to the criminally accused was attributable in large measure to opposition from those who believed that such a grant threatened erosion of the privilege against self-incrimination and the presumption of innocence. “[I]f we were to hold that a prisoner'offering to make a statement must be sworn in the cause as a witness, it would be difficult to protect his constitutional rights in spite of every caution, and would often lay innocent parties under unjust suspicion where they were honestly silent, and embarrassed and overwhelmed by the shame of a false accusation. ... [It would result in] ... the degradation of our criminal jurisprudence by converting it into an inquisitory system, from which we have thus far been happily delivered.” People v. Thomas, 9 Mich. 314, 320-321 (concurring opinion). See also Ruloff v. People, 45 N. Y. 213, 221-222; People v. Tyler, 36 Cal. 522, 528-530; State v. Cameron, 40 Vt. 555, 565-566; 1 Am. L. Rev. 443; Maury, Validity of Statutes Authorizing the Accused to Testify, 14 Am. L. Rev. 753.
The position of many who supported competency gave credence to these fears. Neither Bentham nor Appleton was a friend of the privilege against self-incrimination. While Appleton justified competency as a necessary protection for the innocent, he also believed that incompetency had served the guilty as a shield and thus disserved the public interest. Competency, he thought, would open the accused to cross-examination and permit an unfavorable inference if he declined to take the stand to exculpate himself.
This controversy left its mark on the laws of many jurisdictions which enacted competency. The majority of the competency statutes of the States forbid comment by the prosecution on the failure of an accused to testify, and provide that no presumption of guilt should arise from his failure to take the stand. The early cases particularly emphasized the importance of such limitations. See, e. g., Staples v. State, 89 Tenn. 231, 14 S. W. 603; Price v. Commonwealth, 77 Va. 393; State v. Taylor, 57 W. Va. 228, 234-235, 50 S. E. 247, 249-250. Cf. 1 Cooley, Constitutional Limitations (8th ed.), pp. 658-661. See generally, Reeder, Comment Upon Failure of Accused to Testify, 31 Mich. L. Rev. 40. For the treatment of the accused as a witness in Canada, see 12 Can. Bar Rev. 519, 13 Can. Bar Rev. 336; in Australia, see 6 Res Judicatae 60; and in Great Britain, see 2 Taylor, Evidence (12th ed.) 864-865 ; 51 L. Q. Rev. 443; 58 L. Q. Rev. 369.
Experience under the American competency statutes was to change the minds of many who had opposed them. It was seen that the shutting out of his sworn evidence could be positively hurtful to the accused, and that innocence was in fact aided, not prejudiced, by the opportunity of the accused to testify under oath. An American commentator discussing the Massachusetts statute in the first year of its operation said: “We have always been of opinion, that the law permitting criminals to testify would aid in the detection of guilt; we are now disposed to think that it will be equally serviceable for the protection of innocence.” 1 Am. L. Rev. 396. See also 14 Am. L. Reg. 129.
This experience made a significant impression in England and helped to persuade Parliament to follow the American States and other common-law jurisdictions in granting competency to criminal defendants. In the debates of 1898, the Lord Chancellor quoted a distinguished English jurist, Russell Gurney: “[A]fter what he had seen there [in America], he could not entertain a doubt about the propriety of allowing accused persons to be heard as witnesses on their own behalf.” 54 Hansard, supra, p. 1176. Arthur Balfour reported to the Commons that “precisely the same doubts and difficulties which beset the legal profession in this country on the suggestion of this change were felt in the United States, but the result of the experiment, which has been extended gradually from State to State, is that all fears have proved illusory, that the legal profession, divided as they were before the change, have now become unanimous in favor of it, and that no section of the community, not even the prisoners at the bar, desire to see any alteration made in the system.” 60 Hansard, supra, pp. 679-680.
A particularly striking change of mind was that of the noted authority on the criminal law, Sir James Stephen. Writing in 1863, Stephen opposed the extension of competency to defendants. He argued that it was inherent that a defendant could not be a real witness: “[I]t is not in human nature to speak the truth under such a pressure as would be brought to bear on the prisoner, and it is not a light thing to institute a system which would almost enforce perjury on every occasion.” A General View of the Criminal Law of England, p. 202. Competency would put a dangerous discretion in the hands of counsel. “By not calling the prisoner he might expose himself to the imputation of a tacit confession of guilt, by calling him he might expose an innocent man to a cross-examination which might make him look guilty.” Ibid. Allowing questions about prior convictions “would indirectly put the man upon his trial for the whole of his past life.” Id., p. 203. Twenty years later, Stephen, after many years’ experience on the criminal bench, was to say: “I am convinced by much experience that questioning, or the power of giving evidence, is a positive assistance, and a highly important one, to innocent men, and I do not see why in the case of the guilty there need be any hardship about it. . . . A poor and ill-advised man ... is always liable to misapprehend the true nature of his defence, and might in many cases be saved from the consequences of his own ignorance or misfortune by being questioned as a witness.” 1 Stephen, History of the Criminal Law of England, pp. 442, 444.
In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case. The development of the unsworn-statement practice was itself a recognition of the harshness of the incompetency rule. While its origins antedated the nineteenth century, its strong sponsorship by English judges of that century is explained by their desire for a mitigation of the rigors of that rule. Baron Alderson said: “I would never prevent a prisoner from making a statement, though he has counsel. He may make any statement he pleases before his counsel addresses the jury, and then his counsel may comment upon that statement as a part of the case. If it were otherwise, the most monstrous injustice might result to prisoners.” Reg. v. Dyer, 1 Cox C. C. 113, 114. See also Reg. v. Malings, 8 Car. & P. 242; Reg. v. Walkling, 8 Car. & P. 243; Reg. v. Manzano, 2 F. & F. 64; Reg. v. Williams, 1 Cox C. C. 363. Judge Stephen’s sponsorship of the practice was especially influential. See Reg. v. Doherty, 16 Cox C. C. 306. See also Reg. v. Shimmin, 15 Cox C. C. 122; 60 Hansard, supra, p. 657. It became so well established in England that it was expressly preserved in the Criminal Evidence Act of 1898.
The practice apparently was followed in this country at common law in a number of States and received statutory recognition in some. Michigan passed the first such statute in 1861; unlike the Georgia statute of 1868, it provided that the prisoner should be subject to cross-examination on his statement. See People v. Thomas, 9 Mich. 314. The Georgia Supreme Court, in one of the early decisions considering the unsworn-statement statute, stressed the degree of amelioration expected to be realized from the practice, thereby implicitly acknowledging the disadvantages for the defendant of the incompetency rule. The Court, emphasized “the broad and liberal purpose which the legislature intended to accomplish. . . . This right granted to the prisoner is a modern innovation upon the criminal jurisprudence of the common law, advancing to a degree hitherto unknown the right of the prisoner to give his own narrative of the accusation against him to the jurors, who are permitted to believe it in preference to the sworn testimony of the witnesses.” Coxwell v. State, 66 Ga. 309, 316-317.
But the unsworn statement was recognized almost everywhere else as simply a stopgap solution for the serious difficulties for the accused created by the incompetency rule. “The system of allowing a prisoner to make a statement had been introduced as a mere makeshift, by way of mitigating the intolerable hardship which occasionally resulted from the prisoner not being able to speak on his own behalf.” 60 Hansard, supra, p. 652. “The custom grew up in England out of a spirit of fairness to give an accused, who was otherwise disqualified, an opportunity to tell his story in exculpation.” State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rule was therefore held in many jurisdictions also to abolish the unsworn-statement practice. “In such cases the unsworn statement of an accused becomes secondary to his right of testifying under oath and cannot be received.” State v. Louviere, supra, 169 La., at 119, 124 So., at 192. “The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an unsworn statement was removed.” Rex v. Krafchenko, [1914] 17 D. L. R. 244, 250 (Man. K. B.).
Where the practice survives outside America, little value has been attached to it. “If the accused does not elect to call any evidence or to give evidence himself, he very often makes an unsworn statement from the dock. It is well understood among lawyers that such a statement has but little evidential value compared with the sworn testimony upon which the accused can be cross-examined . . . .” Rex v. Zware, [1946] S. A. L. R. 1, 7-8. “How is a jury to understand that it is to take the statement for what it is worth, if it is told that it cannot regard it as evidence (i. e., proof) of the facts alleged?” 68 L. Q. Rev. 463. The unsworn statement “is seldom of much value, since it is generally incoherent and leaves open many doubts which cannot be resolved by cross-examination.” 69 L. Q. Rev. 22, 25. “The right of a prisoner to make an unsworn statement from the dock still exists . . . but with greatly discounted value.” 1933 Scots Law Times 29. Commentators and judges in jurisdictions with statutory competency have suggested abrogation of the unsworn-statement right. See 94 Irish Law Times, March 5, 1960, p. 56; 68 L. Q. Rev. 463; Rex v. McKenna, [1951] Q. S. R. 299, 308.
Georgia judges, on occasion, have similarly disparaged the unsworn statement. “Really, in practice it is worth, generally, but little if anything to defendants. I have never known or heard of but one instance where it was supposed that the right had availed anything. It is a boon that brings not much relief.” Bird v. State, 50 Ga. 585, 589. “The statement stands upon a peculiar footing. It is often introduced for the mere purpose of explaining-evidence, or as an attempt at mitigation; the accused and his counsel throw it in for what it may happen to be worth and do not rely upon it as a substantive ground of acquittal.” Underwood v. State, 88 Ga. 47, 51, 13 S. E. 856, 858.
The unsworn statement has anomalous characteristics in Georgia practice. It is not treated as evidence or like the testimony of the ordinary sworn witness. “The statement may have the effect of explaining, supporting, weakening or overcoming the evidence, but still it is something different from the evidence, and to confound one with the other, either explicitly or implicitly, would be confusing and often misleading. . . . The jury are to deal with it on the plane of statement and not on the plane of evidence, and may derive from it such aid as they can in reaching the truth. The law fixes no value upon it; it is a legal blank. The jury may stamp it with such value as they think belongs to it.” Vaughn v. State, 88 Ga. 731, 739, 16 S. E. 64, 66. Because the statement is not evidence, even the charge in the strict terms of the statute favored by the Georgia Supreme Court, see Garrett v. State, 203 Ga. 756, 765, 48 S. E. 2d 377, 383; Emmett v. State, 195 Ga. 517, 541, 25 S. E. 2d 9, 23, calls attention to the fact that the defendant is not under oath. Moreover, charge after charge going beyond the terms of the statute has been sustained. Thus in Garrett v. State, supra, the trial judge instructed that while the defendants were “allowed” to make a statement, “they are not under oath, not subject to cross-examination, and you are authorized to give to their statement just such weight and credit as you think them entitled to receive.” In Emmett v. State, 195 Ga., at 540, 25 S. E. 2d, at 22, the instruction was that the statement migrrt be believed in preference to the sworn testimony “if you see proper to give it that weight and that place and that importance in the trial of this case.” In Douberly v. State, 184 Ga. 573, 575, 192 S. E. 223, 225, the jury were told they might credit the statement “provided they believe it to be true.” In Allen v. State, 194 Ga. 430, 436, 22 S. E. 2d 65, 68, the charge was: “There is no presumption attached to the defendant’s statement. No presumption that it is true, nor any presumption that it is not true. In other words, it goes to you without a presumption either for or against him. You have the right to reject the statement entirely if you do not believe it to be true.” In many cases the trial judges have been sustained in specifically pointing out that defendants were not subject to the sanction for perjury with respect to their unsworn statements. “[I]f he failed to tell you the truth, he incurred no penalty by reason of such failure.” Darden v. State, 171 Ga. 160, 161, 155 S. E. 38, 40. “[T]he defendant's statement is not under oath; no penalty is prescribed for making a false statement . . . .” Klug v. State, 77 Ga. 734, 736. “Surely there can be no wrong in calling the attention of the jury to circumstances which should impair the force of such testimony or which should enable them to give it the weight to which it is entitled.” Poppell v. State, 71 Ga. 276, 278. See also Grimes v. State, 204 Ga. 854, 51 S. E. 2d 797; Thurmond v. State, 198 Ga. 410, 31 S. E. 2d 804; Willingham v. State, 169 Ga. 142, 149 S. E. 887; Millen v. State, 175 Ga. 283, 165 S. E. 226.
Because it is not evidence, the statement is not a foundation supporting the offer of corroborative evidence. Chapman v. State, 155 Ga. 393, 117 S. E. 321; Medlin v. State, 149 Ga. 23, 98 S. E. 551. “The statute is silent as to corroborating the mere statement of the accused, and while it allows the jury to believe it in preference to the sworn testimony, it seems to contemplate that the statement shall compete with sworn testimony single-handed, and not that it shall have the advantage of being reinforced by facts which do not weaken the sworn evidence otherwise than by strengthening the statement opposed to it.” Vaughn v. State, 88 Ga. 731, 736, 16 S. E. 64, 65. Similarly the statement is not an independent basis for authenticating and introducing documents. Sides v. State, 213 Ga. 482, 99 S. E. 2d 884; see also Register v. State, 10 Ga. App. 623, 74 S. E. 429. In the absence of a specific request, the trial judge need not charge the law applicable to a defense presented by the statement but not supported in sworn testimony. Prater v. State, 160 Ga. 138, 143, 127 S. E. 296, 298; Cofer v. State, 213 Ga. 22, 96 S. E. 2d 601; Willingham v. State, 169 Ga. 142, 149 S. E. 887; Holleman v. State, 171 Ga. 200, 154 S. E. 906; Darby v. State, 79 Ga. 63, 3 S. E. 663. In contrast the trial judge may sua sponte instruct the jury to treat the accused’s explanation as not presenting a defense in law; “[i]n proper cases the jury may be guarded by a charge from the court against giving the statement an undue effect in favor of the prisoner . . . Underwood v. State, 88 Ga. 47, 51, 13 S. E. 856, 858; Fry v. State, 81 Ga. 645, 8 S. E. 308.
It is said that an advantage of substance which the defendant may realize from the distinction is that the contents of his statement are not circumscribed by the ordinary exclusionary rules of evidence. Prater v. State, 160 Ga. 138, 142-147, 127 S. E. 296, 298-300; Richardson v. State, 3 Ga. App. 313, 59 S. E. 916; Birdsong v. State, 55 Ga. App. 730, 191 S. E. 277; Tiget v. State, 110 Ga. 244, 34 S. E. 1023. However, “The prisoner must have some regard to relevancy and the rules of evidence, for it was never intended that in giving his narrative of matters pertaining to his defense he should attempt to get before the jury wholly immaterial facts or attempt to bolster up his unsworn statement by making profert of documents, letters, or the like, which if relevant might be introduced in evidence on proof of their genuineness.” Nero v. State, 126 Ga. 554, 555, 55 S. E. 404. See also Saunders v. State, 172 Ga. 770, 158 S. E. 791; Montross v. State, 72 Ga. 261; Theis v. State, 45 Ga. App. 364, 164 S. E. 456; Vincent v. State, 153 Ga. 278, 293-294, 112 S. E. 120, 127.
The situations in which the Georgia cases do assimilate the defendant to an ordinary witness. emphasize the anomalous nature of the unsworn statement. If he admits relevant facts in his statement the prosecution is relieved of the necessity of proving them by evidence of its own. “The prisoner’s admission in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence as to the facts.” Hargroves v. State, 179 Ga. 722, 725, 177 S. E. 561, 563. “It is well settled that the statement of a defendant to a jury is a statement made in judicio and is binding on him. Where the defendant makes an admission of a fact in his statement, such admission is direct evidence, and the State need not prove such fact by any other evidence.” Barbour v. State, 66 Ga. App. 498, 499, 18 S. E. 2d 40, 41; Dumas v. State, 62 Ga. 58. And admissions in a statement will open the door to introduction of prosecution evidence which might otherwise be inadmissible. McCoy v. State, 124 Ga. 218, 52 S. E. 434. Admissions in a statement at one trial are admissible against the accused in a later trial. Cady v. State, 198 Ga. 99, 110, 31 S. E. 2d 38, 46; Dumas v. State, supra. The prosecution may comment on anything he says in the statement. Frank v. State, 141 Ga. 243, 277, 80 S. E. 1016. Although it has been held that the mere making of a statement does not put the defendant
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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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).
Jerry L. CAVEN and Thomas O’Donnell d/b/a States Investment, a partnership, Plaintiffs/Appellees, and Timothy Wayne d/b/a Timothy Wayne and Associates, Intervenor Plaintiff/Appellee/Cross Appellant, v. AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF COLORADO, Defendant/Appellant.
Nos. 85-1517, 85-1551.
United States Court of Appeals, Tenth Circuit.
Jan. 25, 1988.
F. James Donnelly (Charles A. Miller, with him on briefs), of Stutz, Dyer, Miller and Delap, Denver, Colo., for plaintiffs/ap-pellees.
Howard L. Slavin, Denver, Colo., for in-tervenor plaintiff/appellee/cross appellant.
Gregory B. Kanan of Rothgerber, Appel, Powers & Johnson, Denver, Colo. (Thomas M. Domme and Elizabeth T. Wald of Roth-gerber, Appel, Powers & Johnson, Denver, Colo., and John J. Keilbach of Preston, Altman, Parlapiano, Keilbach & Lytle, Pueblo, Colo., with him on briefs), for defendant/appellant.
Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and BRIMMER, District Judge .
Chief Judge, U.S. District Court for the District of Wyoming, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
In this diversity action, American Federal Savings appeals from an award of damages to Jerry Caven for breach of contract. We reverse. Timothy Wayne & Associates appeals from a directed verdict in favor of American Federal Savings in the same action. We affirm.
I.
In 1972, American Federal Savings and Loan Association of Colorado (“American Federal”) agreed to finance the purchase of real estate and the construction of apartments in Pueblo, Colorado. The borrower executed a loan agreement with American Federal, subject to a contemporaneous Deed of Trust that included the following provision regarding transfer of ownership of the property:
“In the event the property securing this loan or any portion thereof is proposed to be sold or conveyed or becomes the subject of any agreement to sell prior to the maturity hereof, the proposed transferee shall be subject to the prior approval of the holder. In such event, the holder shall be provided with documentation to include, but not limited to, copies of: purchase or transfer agreement; management agreement, if any; financial and income statements of the proposed transferee, and a report on the credit standing of the proposed transferee from an approved professional credit reporting agency. The holder shall review the documentation to ascertain transferee’s management skills (or skills of a professional manager to be retained by transferee), credit worthiness and ability to repay this Deed of Trust in accordance with the terms and provisions contained herein. Holder shall have the right to approve any such proposed transferee; however, approval shall not be unreasonably withheld. If, however, such approval is withheld, but not unreasonably, and the transfer, sale or conveyance is nevertheless consummated, the entire indebtedness shall immediately become due and payable at the option of the holder. In any event, no such transfer shall be permitted until construction is completed and a certifícate of occupancy issued.”
R.Vol. I at 11 (emphasis added).
In July, 1977, Jerry Caven purchased the apartments and assumed the American Federal loan, subject to the original Deed of Trust. At the time of the purchase the Deed of Trust was supplemented by a modification agreement between Caven and American Federal. The modification agreement altered the interest rates on the underlying promissory note, provided for a late payment charge and included the following provision under the heading “Transfer of Ownership:”
“If there shall be any change in the ownership of said premises without the written consent of the Association being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of the Association. If the Association consents to such change of ownership, then the current transfer fee shall be due and payable to the association.”
R.Vol. I at 14 (emphasis added). The modification agreement also included the following provision, as the final paragraph:
“This agreement is supplementary to said Note and Deed of Trust. All of the provisions of the Note and Deed of Trust, including the right to declare the principal and accrued interest due for any cause specified therein, shall remain in full force and effect except as specifically herein modified. ...”
R.Vol. I at 14 (emphasis added).
In 1982, Caven sought to sell the apartments. He retained Timothy Wayne & Associates (“Wayne”), the intervenor plaintiff below, as brokers. On August 18, 1982, Caven entered into a contract with Donald Macy and Donald Egan to sell the apartments for a purchase price of $3,160,-000.00. Caven forwarded the contract and financial information concerning the potential purchasers to American Federal. American Federal responded by (1) requesting more detailed financial information, and (2) demanding a substantial increase in the interest rates. Caven countered by arguing that American Federal had no right to increase the interest rate. American Federal disputed that argument and stated that it would not consent to any assumption of the loan and required that the loan be liquidated when the property was sold. As a result, Macy and Egan withdrew from the contract. Caven subsequently sold the apartments on a cash basis to another purchaser for $2,800,000.00 and instituted this diversity action against American Federal for breach of contract. Wayne intervened as a plaintiff alleging breach of contract and tortious interference with contract, claiming as damages his lost commission on the aborted sale to Macy and Egan.
Prior to trial, Caven and American Federal both moved for summary judgment based on their interpretations of the language in the Deed of Trust and modification agreement. Caven argued that the modification agreement did not “specifically modify” the language of the Deed of Trust, and that American Federal had no power to condition an assumption of the loan on an increase in interest rates. American Federal argued that the provision in the modification agreement was an “absolute due on sale clause” that replaced the earlier provision and gave American Federal the power to disapprove an assumption of the loan for any reason.
The district court below granted partial summary judgment to Caven, holding that the language in the modification agreement did not specifically modify “either the procedural aspects of how the information shall be presented to [American Federal], nor the fact that approval shall not be [unreasonably withheld. It specifically does not affect those provisions.” R.Vol. IV at 6.
Trial proceeded to a jury to determine whether American Federal had complied with the provisions of the Deed of Trust. Caven’s breach of contract claim went to the jury and the jury returned a verdict in Caven’s favor for $300,000.00. The trial court granted American Federal’s motion for a directed verdict against Wayne, holding that, under Colorado law, he could not succeed on the interference with contract claim. American Federal appeals from the trial court’s partial summary judgment for Caven, from the judgment entered for Ca-ven, and from the denial of its motion for judgment notwithstanding the verdict. Wayne appeals from the directed verdict against him.
II.
We turn first to the partial summary judgment granted to Caven. “When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986) (citations omitted). The parties do not dispute the material facts, thus we are left to determine if the district court correctly applied the substantive law. “In reviewing the trial court’s construction of the contract, it should be noted that ordinarily the construction of a contract is a question of law for the court.” Resort Car Rental Sys., Inc. v. Chuck Ruwart Chevrolet, Inc., 519 F.2d 317, 320 (10th Cir.1975). See also Union Rural Elec. Ass’n, Inc. v. Public Util. Comm., 661 P.2d 247, 251 (Colo.1983) (“Interpretation of contract language is generally a question of law.”); Stroh-Mc Investments v. Bowens, 725 P.2d 33, 34 (Colo.Ct.App.1986) (“Interpretation of the language of a contract is a question of law for the court.”). In reviewing a question of law, we are not bound by the district court’s conclusions. See Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 734 (9th Cir.1980); C. Wright and A. Miller, Federal Practice and Procedure, Civil § 2588, at 750 (1971) (“the interpretation and the construction of written contracts are matters of law and freely reviewable as such”). See also Reynolds v. Farber, 40 Colo.App. 467, 577 P.2d 318, 320 (1978) (“Since the construction of a written instrument is a question of law, this court is not bound by the trial court’s interpretation.”).
In this diversity action, we look initially to Colorado law for guidance in interpreting this contract. The parties cite a variety of rules and principles of contract construction used in Colorado. No decision by the Colorado courts directs us to only one permissible conclusion in the interpretation of the specific language of this contract. However, we find certain principles helpful. First, where “the language used is plain, clear, and no absurdity is involved, we must declare and enforce the instrument as written.” Fuller & Co. v. Mountain States Investment Builders, 37 Colo.App. 201, 546 P.2d 977, 980 (1975). Second, “[w]e must adopt a construction of the agreement that will give effect to all of its provisions.” Union Rural, 661 P.2d at 252. See also Oriental Refining Co. v. Hollenbeck, 125 Colo. 77, 240 P.2d 913, 916 (1952) (“each and every part and portion of a contract is to be given effect, if possible”). Finally, the parties have not cited, nor have we found, any clear statement of the Colorado courts on the effect of a modification agreement, but we believe the following statement by the Utah Supreme Court correctly states general contract law relating to modification agreements:
“It is well-settled law that the parties to a contract may, by mutual consent, alter all or any portion of that contract by agreeing upon a modification thereof. Where such a modification is agreed upon, the terms thereof govern the rights and obligations of the parties under the contract, and any pre-modification contractual rights which conflict with the terms of the contract as modified must be deemed waived or excused.”
Rapp v. Mountain States Telephone and Telegraph Co., 606 P.2d 1189, 1191 (Utah 1980) (footnotes omitted). This same principle was stated by the District of Columbia Court of Appeals in Egan v. McNamara, 467 A.2d 733, 740 (D.C.1983): “a contract containing a term inconsistent with a term of an earlier contract between the same parties regarding the same subject matter should be interpreted to rescind the inconsistent term in the earlier contract.” We believe that the Colorado Supreme Court would apply those general principles.
With those principles in mind, we turn to the language of the modification agreement. The terms of that agreement are plain. “If there shall be any change in the ownership ... without the written consent of [American Federal] being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of [American Federal].” R.Vol. I at 14 (emphasis added). The modification agreement includes no conditions or limitations on American Federal’s right to disapprove an assumption of the loan. In our view, this language “specifically modifies” the procedural requirements and the limitation of the Deed of Trust providing that approval of the transferee may not be “unreasonably withheld.”
In addition to the plain language of the agreement, we find two arguments persuasive. First, the parties executed a modification agreement. We assume that they wanted to change the prior terms of their contract. See South Florida Beverage Corp. v. Figueredo, 409 So.2d 490, 496 (Fla.Dist.Ct.App.1981) (“It may be presumed, however, than an amendment to an agreement is designed to serve some useful function, and its existence is strong evidence, therefore, that the contract was changed from what the parties believed and intended was provided before.”), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982). The interpretation urged by Caven, and adopted by the district court, adds nothing to the terms of the original Deed of Trust and renders the cited portion of the modification agreement meaningless. We do not believe the parties intended to adopt modifying language without any force. The second argument is closely related. Under Colorado law, we are urged to give effect to all provisions of a contract. Union Rural, 661 P.2d at 252. This principle is violated by an interpretation of the agreement that renders the transfer of ownership provisions in the modification agreement without effect. Thus, we face conflicting provisions in the original contract and modification. We choose to enforce the provision in the later agreement, which is by its very nature, intended to modify the earlier agreement. Accordingly, we conclude that American Federal had the absolute right and power to call the loan to Caven due and payable upon any transfer, and it was entitled to a summary judgment to that effect.
III.
Colorado recognizes the tort of intentional interference with contractual relations. Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 690 P.2d 207, 210 (Colo.1984). At trial, Wayne argued that American Federal induced Macy and Egan to breach the purchase contract with Caven, resulting in the loss of a real estate commission to Wayne.
Colorado relies on the provisions of the Restatement (Second) of Torts §§ 766, 767 (1977) to define the elements of that tort. Trimble v. City and County of Denver, 697 P.2d 716, 725-26 (Colo.1985); Memorial Gardens, 690 P.2d at 210. Specifically, the Colorado Supreme Court has held that a party may not be held liable for the intentional interference with contractual relations unless that party’s conduct was “improper.” Trimble, 697 P.2d at 726; Memorial Gardens, 690 P.2d at 210.
At the close of the trial below, the district court granted American Federal’s motion for a directed verdict against Wayne, holding that, as a matter of law, Wayne was unable to show that American Federal’s actions were improper. Normally, we would review the directed verdict viewing the evidence and all reasonable inferences that can be drawn from that evidence most favorably to the non-moving party. See Brown v. Reardon, 770 F.2d 896, 902 (10th Cir.1985). In this case, however, we have already determined that American Federal had an absolute right to insist on an increase in the interest rate under the terms of the modification agreement. That decision renders Wayne’s claim and appeal moot. For under Colorado law, “[n]o liability attaches [for intentionally interfering with contractual relations] where the act claimed to have caused the breach is undertaken in the exercise of an absolute right, that being conduct which the actor has a definite legal right to engage in without qualification.” Radiology Professional Corp. v. Trinidad Area Health Ass’n, Inc., 39 Colo.App. 100, 565 P.2d 952, 954 (1977) (citation omitted).
The district court’s orders granting partial summary judgment for Caven, denying summary judgment for American Federal, and denying American Federal’s motion for judgment notwithstanding the verdict are REVERSED. The district court’s order granting a directed verdict against Wayne is AFFIRMED.
. In 1980, the parties signed a second modification agreement. American Federal extended the payment dates on a personal loan to Caven, and in return, Caven agreed to an increase in the interest rate on the underlying loan. For purposes of this dispute, the relevant language of the second agreement is identical and this opinion will reference only one "modification agreement."
. On appeal, Caven advances several creative interpretations of the provision designed to give it an effect consistent with the Deed of Trust. For example, we are urged to read it as a “gap filling" provision, effective only in the case where the borrower transfers the property without notice to the lender. We have considered this, and other arguments, carefully and find that the plain language of the agreement cannot support the reading urged by Caven.
. Restatement (Second) of Torts § 767 (1977) specifies the factors to be considered in determining whether an actor’s conduct in intentionally interfering with a contract is improper:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
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_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.
Gerald MASTRACCHIO, Petitioner, Appellant, v. Lieutenant Angelo RICCI and Providence Police Department, Respondents, Appellees.
No. 74-1045.
United States Court of Appeals, First Circuit.
Submitted May 9, 1974.
Decided June 24, 1974.
Gerald Mastracchio on brief pro se.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
This is a civil rights suit under 42 U.S.C. § 1983 in which plaintiff seeks compensatory and punitive damages against the Providence, Rhode Island Police Department and against a then Sergeant Ricci, a member of that department, based upon the allegation that defendant Ricci committed perjury during the state court trial in which plaintiff was convicted of murder. Because plaintiff's appeal of his conviction to the Rhode Island Supreme Court “raised like issues as have been raised in the instant matter”, the federal suit was stayed by the district court by agreement of counsel pending the outcome of that appeal. After the Rhode Island Supreme Court affirmed plaintiff’s conviction the court below granted summary judgment for defendants sua sponte. The district court reasoned that the state judgment acted to bar the complaint by means of the operation of principles of collateral estoppel, relying upon our decision in Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). To the extent that plaintiff presented new evidence the court stated that, “if the plaintiff is now claiming that he has discovered new exculpatory evidence, it appears that his motion should be addressed to the State Courts by way of a motion for a new trial.”
Plaintiff, who brings this appeal pro se, has raised two issues for review. First, he urges that the court below erred in requiring him to present his new evidence to the state courts before he could use it as the basis for a federal civil rights suit. He argues that this amounted to a requirement of exhaustion of remedies, and that such a requirement cannot be applied to civil rights actions. The second issue raised is whether a state criminal conviction may be used to bar a civil rights suit for damages by operation of principles of collateral estoppel. Both of these issues raise points not previously considered by this court in this precise context.
In Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir.) this court held that a civil rights damage action brought during the pendency of state criminal proceedings (including appellate proceedings) must be deferred until the end of those proceedings if the validity of the state conviction would be an issue in the federal action. Although sensitive to the well-established rule, and the strong policies which it protects, that exhaustion is not required in civil rights actions, we found that considerations of federalism, the orderly administration of criminal justice, and the integrity of the writ of habeas corpus dictated the creation of an exception.
This case presents a somewhat different situation. No state criminal proceedings are ongoing, the direct criminal appeal having run its course. Therefore, the impact of federal proceedings upon the state judicial system, upon the administration of justice and upon the province of the Great Writ are all attenuated. But plaintiff states in his brief that he is in the process of presenting his newly discovered evidence to the Rhode Island courts. Thus, while it is possible that cases may arise in a context like this one in which the policies which call for deferral of the federal action will not be sufficiently at stake to make such deferral necessary, that is not true here. Since the prospect of further state court action is very real, and since by its very nature the purpose of this state proceeding will be to call in question the validity of the criminal conviction, the district court properly decided that the matter in issue which had not already been presented to the state courts should not be heard in federal court until the state action was completed.
The second issue raised by plaintiff concerns the collateral estoppel effect to be given to his criminal conviction. The district court rested its finding against plaintiff on this point upon Cardillo v. Zyla, 486 F.2d 473 (1st Cir. 1973). But Cardillo involved a federal diversity action which followed a criminal conviction. The novel question here presented is whether our holding in Cardillo is applicable to the situation where the federal action is brought under the Civil Rights Act.
The Supreme Court has never ruled on the question of the applicability of principles of res judicata and collateral estoppel to actions under section 1983. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) the majority noted that, “res judicata has been held to be fully applicable to a civil rights action brought under § 1983. Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970); Jenson v. Olson, 353 F.2d 825 (CA8 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (CA8 1964); Goss v. Illinois, 312 F.2d 257 (CA7 1963).” 411 U.S. at 497, 93 S.Ct. at 1840. In dissent, Mr. Justice Brennan agreed that several lower federal courts had assumed res judicata was applicable to § 1983 actions but thought that, “in view of the purposes underlying enactment of the Act — in particular, the congressional misgivings about the ability and inclination of state courts to enforce federally protected rights . . . — that conclusion may well be in error.” 411 U.S. at 509 n. 14, 93 S.Ct. at 1846 (Brennan, J., dissenting). A few courts have also expressed misgivings, most notably the Ninth Circuit in Ney v. California, 439 F.2d 1285 (9th Cir. 1971), which noted that,
“if a successful state prosecution, based upon the use of information obtained by violating the defendant’s constitutional rights, could bar a civil rights action against the police for violating his rights, either by analogy to the law of malicious prosecution or on theories of res judicata or estoppel by judgment, the Civil Rights Act would, in many cases, be a dead letter.” 439 F.2d at 1288.
This concern was echoed in Ames v. Vavreck, 356 F.Supp. 931, 940-941 (D.Minn.1973) and in Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973). One district court has even held that state convictions do not have a collateral estoppel effect upon section 1983 actions, Wecht v. Marsteller, 363 F.Supp. 1183, 1190 (W.D.Pa.1973).
Nevertheless, it now appears well established that when a civil rights action is brought in federal court which presents the same issue as was decided in a prior state civil action, that prior state judgment may have a collateral estoppel (or res judicata) effect upon the federal suit. Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1014 (1st Cir. 1972); see also Garner v. Louisiana State Board of Education, 489 F.2d 91 (5th Cir. 1974); Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974); Lackawanna Police Benevolent Ass’n. v. Balen, 446 F.2d 52 (2d Cir. 1971); Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Coogan v. Cincinnati Bar Ass’n., 431 F.2d 1209 (6th Cir. 1970); Scott v. California Supreme Court, 426 F.2d 300 (9th Cir. 1970); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966); Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965); Lavasek v. White, 339 F.2d 861 (10th Cir. 1965); Chance v. County Bd. of School Trustees, 332 F.2d 971 (7th Cir. 1964). The same is true if the prior civil action was in federal court, Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). This result may be reached without regard to highly technical notions of mutuality, P. I. Enterprises v. Cataldo, supra, 457 F.2d at 1015.
The same principles have been applied by a number of courts to the situation where the prior judgment is a state criminal conviction, see Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974); Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972); Metros v. United States District Court, 441 F.2d 313, 316 (10th Cir. 1971); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Goss v. Illinois, 312 F.2d 257 (7th Cir. 1963); Burchett v. Bower, 355 F.Supp. 1278 (D.Ariz.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); Palma v. Powers, 295 F.Supp. 924, 937 (N.D.Ill.1969); see also Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Willard v. United States, 422 F.2d 810 (5th Cir.), cert. denied, 398 U.S. 913, 90 S.Ct. 1714, 26 L.Ed.2d 76 (1970).
In this circuit a holding that a state criminal conviction can have a collateral estoppel effect upon a federal civil rights action can be reached simply by analytically combining our holdings in Bricker v. Crane, supra, and P. I. Enterprises v. Cataldo, supra (civil rights action preceded by state civil judgment), with our holding in Cardillo v. Zyla, supra (federal diversity action preceded by criminal conviction). As shown above, this result accords with the overwhelming weight of authority. As to the scope of this collateral estoppel, we think it proper to repeat what we have said on this topic before. “Collateral estoppel operates, of course, only as to matters actually litigated and decided at the prior trial. See Palma v. Powers, [supra], citing Cromwell v. County of Sac, 94 U.S. 351, 354, 24 L.Ed. 195 (1876).” Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973). Accord, P. I. Enterprises v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972). Other courts have adopted a similar position. Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Ames v. Vavreek, 356 F.Supp. 931, 941 (D.Minn.1973); Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va.1973); see also Ney v. California, 439 F.2d 1285, 1288 (9th Cir. 1971); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); cf. Metros v. United States District Court, 441 F.2d 313, 317 (10th Cir. 1971). Indeed, Judge Stahl has written that “[reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel.” Kauffman v. Moss, supra, 420 F.2d at 1274.
In the instant case, since the antecedent action was a criminal trial, and since such trials do not re suit, generally, in explicit findings as to anything but the ultimate issue of guilt or innocence, the proper course in determining whether collateral estoppel principles are to operate in the federal trial is set out in Cardillo v. Zyla, supra. There the court “examined the record of the antecedent criminal case to determine the issues decided by that judgment”. 486 F.2d at 475. Collateral estoppel was found operative because, “Cardillo’s present civil claims are based on issues whose earlier determination was essential to the criminal judgment . . . .’’Id.
The court below reasoned that, “If the alleged perjui'e [sic] testimony was indeed essential to a jury’s finding of guilt, then the issues have been resolved against plaintiff in State Courts. If the alleged perjure [sic] testimony was not essential to his conviction below, then even if the testimony was false, plaintiff has not suffered any damages as a result thereof.” We have examined the amended complaint, and can find nothing in it to indicate that infringement of any federally protected right is involved other than the right to a fair trial. Thus, while it is quite possible that cases may arise in which civil rights claims based upon actions before or at trial would not be “issues whose earlier determination was essential to the criminal judgment”, Cardillo v. Zyla, supra, 486 F.2d at 475, but would nevertheless be compensable, that is not true here. Under these circumstances the district court’s equation was correct.
Affirmed.
. The term res judicata is sometimes used generically to cover a number of related principles. More narrowly, res judicata refers to preclusion of a cause of action, while collateral estoppel refers to preclusion of an issue. See Palma v. Powers, 295 F.Supp. 924, 932 n. 1 (N.D.Ill.1969), IB Moore’s Federal Practice K 0.401 (1974).
. In Moran v. Mitchell, Judge Merhige suggested the possibility of an exception to the general applicability of collateral estoppel to section 1983 actions in the situation where, because of limitations placed upon the availability of federal habeas corpus, for example, the custody requirement, a plaintiff might otherwise have no federal forum available to him in which to seek vindication of his federally protected rights.
It may also be worthwhile to note another aspect of the relationship between habeas and res judicata/collateral estoppel. As pointed out by the Court in Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963), “the familiar principle that res judicata is inapplicable in habeas proceedings ... is really but an instance of the larger principle that void judgments may be collaterally impeached.” Thus, once a state judgment has been found void in a federal habeas action, it should then also be void for res judicata/collateral estoppel purposes in a civil rights action.
. For example, it might be claimed that before or during trial rights of privacy, or free speech, or freedom from unlawful pretrial incarceration have been infringed, and these could constitute compensable wrongs wholly apart from the question of the constitutional validity of conviction.
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_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".
GIMBEL BROTHERS, INC., Appellant, v. WILLIAM H. VANDERHERCHEN, INC., Appellee v. BELGRADE WAGON WORKS, Third-Party Defendant.
No. 71-1790.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Sept. 7, 1972.
Decided Oct. 20, 1972.
Richard W. Hopkins, White & Williams, Philadelphia, Pa., for appellant.
John T. Quinn, McEldrew, Hanamirian, McWilliams, Quinn & Bradley, Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, and VAN DUSEN and ALDISERT, Circuit J udges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
Gimbel Brothers, Inc. (Gimbel) appeals from the district court’s entry of summary judgment in favor of the defendant, William H. Vanderherchen, Inc. (Vanderherchen).
Gimbel’s complaint alleged that Vanderherchen had contracted to erect various tents for a two-week period at Gimbel’s Cheltenham branch. After the tents were úp, there was a rainstorm and the tents leaked, resulting in about $40,000 worth of damage to Gimbel’s goods stored in the tents. Gimbel alleged that this injury was due to Vanderherchen’s negligence in supplying or erecting the tents. Jurisdiction was based on diversity.
The district court granted Vanderherchen’s motion for summary judgment, which incorporated the lease, because the following provision appeared in such lease prepared by Vanderherehen:
“3. Lessee [Gimbel Brothers, Inc.] hereby indemnifies and agrees to save and keep Lessor [William H. Vanderherehen, Inc.] harmless of and from any loss, damage, liability, costs, claims or charges whatsoever arising as a result of any claim for damage to property, or injury to person, from, during or because of the use of the leased property by Lessee, or the erection or taking down thereof, or storing thereof upon the premises, or otherwise, while the same are in the custody or possession of Lessee, except injuries to any employees of Lessor not caused through Lessee’s negligence. Without limiting the generality thereof, it is agreed that lessor shall not be liable for and is hereby indemnified against, any damage to property or injury to person suffered by anyone whatsoever through or because of the said leased property while the same is in Lessee’s possession or custody due to any fire, no matter how arising in the said leased property or any breakage defect or failing thereof or to any strikes, picketing, labor disturbances or acts of anyone arising from any labor controversy whether the persons committing the same be at the time employees of Lessor or not.”
The test of the effectiveness of such a provision has been set forth in Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 436, 192 A.2d 682, 688 (1963) :
“[W]here a person claims that, under, the provisions and terms of a contract, he is rendered immune from and relieved of any liability for negligent conduct on his part or the part of his employees, the burden is on such person to prove (a) that such contractual provisions and terms do not contravene public policy and (b) that the provisions and terms of the contract clearly and ■ unequivocally spell out the intent to grant such immunity and relief from liability.” (Emphasis in original.)
See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1216-1221 (3d Cir. 1970); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971).
The question this case presents is how the provision in Yanderherchen’s contract is to be construed. As stated above, Dilks requires that to relieve a party of his own negligence, language must be clear and unequivocal, and the burden of proof falls on the party seeking such relief. This burden is even greater where, as here, such party drafted the agreement. See Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., 302 F.2d 843, 849 (3d Cir. 1962).
The cases have distinguished situations where the indemnity clause explicitly referred to liability for a party’s own negligence from situations where there was “an obligation to indemnify for ‘all liability’ or ‘all loss.’ ” Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166 at 173, 228 A.2d 656 at 660. See also Neville Chemical Co. v. Union Carbide Corp., 422 F.2d at 1220 (“The clause that Carbide relies on does not include the word negligence or any of its cognates and is essentially a clause of ‘general import.’ ”). The language here, while broad, does not specifically state that Vanderherchen is to be indemnified against liability arising out of Vanderherchen’s own negligence. Consequently, we hold that the clause is not an effective defense to the allegations in Gimbel’s complaint.
The district court’s entry of summary judgment will be vacated and the case remanded for proceedings consistent with this opinion.
. In regard to validity, we doubt that Gimbel can plausibly maintain that its bargaining position was such as to make this a contract of adhesion. Nor can it be said that it would have been unreasonable for Gimbel to bear alone the risk that the tents would cause damage if the lease so provided. In such circumstances, indemnification clauses are valid. See Jamison v. Ellwood Consolidated Water Co., 420 F.2d 787 (3d Cir. 1970); Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 228 A.2d 656 (1967).
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_casetyp1_7-3-5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
Gertrude McCALL, Appellant, v. Bernard SHAPIRO, Commissioner, Connecticut Welfare Department, Appellee.
No. 586, Docket 33061.
United States Court of Appeals Second Circuit.
Argued May 15, 1969.
Decided Aug. 11, 1969.
Mary R. Hennessey, Hartford, Conn. (Robert M. Cover, Center on Social Welfare Policy & Law, New York City, on the brief), for appellant.
Francis J. MacGregor, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen., State of Connecticut, on the brief), for appellee.
Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the District of Connecticut rendered October 17, 1968, 292 F.Supp. 268, M. Joseph Blumenfeld, Judge, dismissing plaintiff-appellant’s action for declaratory and injunctive relief against the appellee Connecticut Welfare Department Commissioner. We find no error and affirm the judgment.
On May 24, 1968, the plaintiff-appellant was notified by the Social Security Administration that her daughter Georgianna was found eligible to receive Old Age, Survivors and Disability Insurance (OASDI) benefits under Title II of the Social Security Act. In June, 1968 appellant received a retroactive lump sum payment in the amount of, $334.10 for the period September, 1967 through May, 1968. After appellant notified the Connecticut Welfare Commissioner of receipt of the payment, the Commissioner made demand for the total OASDI payment as reimbursement for assistance rendered Georgianna by Connecticut during the months covered by that payment. Appellant refused to turn over the OASDI payment, claiming that it was a restricted payment for Georgianna’s present and future needs under federal law, and as such exempt from the Commission’s reimbursement requirement.
Upon appellant’s failure to turn over the OASDI payment, appellant was notified by the Commissioner that the total Connecticut Aid for Families with Dependent Children (AFDC) for herself and her two daughters would be terminated for that period of time which it would take the three of them to exhaust the $334.10 OASDI payment, a period of six weeks, commencing on May 29, 1968.
On June 6, 1969 plaintiff requested a fair hearing before the Welfare Commissioner, which was held on June 20, 1968. At the hearing, appellant argued her right to the OASDI payment without reimbursement, and additionally that the termination of her AFDC assistance without first according her a hearing deprived her of due process of law. After appellant was back on welfare (AFDC) the Welfare Commission rendered its decision on July 23, 1968, rejecting appelant’s arguments and upholding the action of the Commissioner.
Appellant then brought this action in the District of Connecticut, in forma pawperis, asking for a declaratory judgment and a permanent injunction enjoining the Commissioner from modifying, suspending or terminating public welfare assistance prior to a fair hearing, and requesting a three-judge district court under 28 U.S.C. §§ 2281, 2284. Appellant also claimed that in treating the OASDI payment as income which diminished the state’s AFDC payments, the Commissioner interfered with the operation of the federal statute, 42 U.S.C. § 407. Appellant’s remaining claim was without federal coloration.
With regard to appellant’s request for a three-judge district court, the District Court held that under 28 U.S.C. §§ 2281, 2284 appellant’s due process claim could not stand unless the federal question presented was substantial. 292 F.Supp. 270, citing Green v. Board of Elections, etc., 380 F.2d 445, 448 (2d Cir. 1967), cert. denied 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968). The District Court further held that although appellant’s interest in receiving welfare assistance was protected by the due process clause, a hearing before suspension of payments was not required. The court noted that “at most what was at stake was who was entitled to possession of the OASDI check pending resolution of the question whether it was available for use as assistance for the family,” and concluded that since an opportunity was given for a subsequent administrative hearing and judicial determination, the constitutional claim was insubstantial. Appellant does not challenge this holding on appeal.
With regard to appellant’s claim that there was a conflict between the federal and state welfare statutes and regulations, the District Court held that there was not present the requisite amount in controversy under 28 U.S.C. § 1331(a), and further that the Court in the present ease does not have subject matter jurisdiction under 28 U.S.C. § 1343(3) which does not require a jurisdictional amount, since plaintiff-appellant has not been deprived of a right secured by the Constitution, nor does the deprivation claimed arise from an Act of Congress providing for equal rights of citizens.
Appellant argues here that federal jurisdiction is provided by 28 U.S.C. § 1343(4) which provides for original jurisdiction :
To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. [Emphasis added.]
This contention was not ruled upon by the District Court. We think it not well taken. The Social Security Act is not one “providing for the protection of civil rights.”
Appellant also argues that 42 U.S.C. § 1983, which establishes a cause of action for any deprivation of a right secured by the Constitution and laws, establishes the cause of action here, and provides for federal jurisdiction over such actions. Although this might have been thought to be the case when the Act was originally enacted in 1871, the subsequent restructuring of federal court jurisdiction demonstrates that this was not the interpretation then made. The Act, 17 Stat. 13, was enacted to secure the Negroes’ newly granted civil rights, and to give the federal courts cognizance of suits for the recovery of damages for violations of the Act of 1870. The 1875 Judiciary Act revolutionized the concept of the federal judicial system by establishing blanket federal question jurisdiction subject to a $500 amount requirement (subsequently increased in several steps to the present $10,000 limitation). See H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 729 (1953). After the 1875 Judiciary Act, “the history of federal question jurisdiction * * * revolves largely around the creation by Congress of myriad new federal rights and its provision for their enforcement in the national courts without regard to jurisdictional amount.” Id. at 730. As Hart and Wechsler point out, since the jurisdictional amount limitation imposed by the Act of 1875, the Congress has provided specific exceptions when it chose to make such jurisdiction available without regard to amount. The Congress has not, however, provided in the welfare, statutes in question here for their enforcement in federal court without regard to jurisdictional amount. Section 1983 provides for jurisdiction without regard to amount in controversy only for suits alleging deprivation of civil rights.
The Civil Rights Act of 1871, the predecessor to Section 1983, provided for jurisdiction without regard to amount in controversy. Subsequently, the 1875 Judiciary Act provided for general federal question jurisdiction, with a $500 minimum requirement. The Act of 1871, however, was not superseded by the 1875 Judiciary Act, and a suit alleging a deprivation of civil rights could still be brought without alleging an amount in controversy. See opinion of Mr. Justice Stone in Hague v. Committee for Industrial Organization (1939) 307 U.S. 496, 529-532 at 531-532, 59 S.Ct. 954, 971, 83 L.Ed. 1423:
The conclusion seems inescapable that the right conferred by the Act of 1871 to maintain a suit in equity in the federal courts to protect the suitor against a deprivation of rights or immunities secured by the Constitution, has been preserved, and that whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights there is jurisdiction in the district court under § 24(14) of the Judicial Code to entertain it without proof that the amount in controversy exceeds $3,000. [Emphasis added.]
Thus, Section 1983 grants jurisdiction without regard to the amount in controversy when there is an unconstitutional infringement on individual rights (e. g., speech, liberty, vote, press, religion) incapable of monetary valuation. See Douglas v. City of Jeanette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Whaley v. Cavanagh, 237 F.Supp. 900 (N.D.Calif.1963), aff’d 341 F.2d 295 (9th Cir. 1965), cert. denied 382 U.S. 872, 86 S.Ct. 102, 15 L.Ed.2d 110 (1965). It would appear that the limited exception to the amount in controversy requirement remaining in 42 U.S.C. § 1983 which consists of suits under the Civil Rights Act of 1871 does not extend to suits involving solely money claims not related to violation of civil rights.
Thus, for example, where a complaint falls under federal question jurisdiction but not civil rights jurisdiction, as in cases involving assessment of taxes, the jurisdictional amount requirement applies. See Bussie v. Long, 383 F.2d 766, 769 (5th Cir. 1967); Abernathy v. Carpenter, 208 F.Supp. 793 (W.D.Mo.1962), aff’d 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963).
This distinction has been held applicable to 28 U.S.C. § 1343. In Abernathy v. Carpenter, supra, plaintiffs claimed that an Illinois tax discriminated against them as nonresidents. The District Court held that there was no jurisdiction under § 1343 without regard to jurisdictional amount, since Hague v. Committee for Industrial Organization, supra, held that civil rights jurisdiction does not attach where the deprivation “is not one of personal liberty, but merely a property right,” 208 F.Supp. at 794, and the Supreme Court affirmed. See also Bussie v. Long, supra.
It is reasonably clear then that Section 1343(3) and (4) dealing with statutes providing for “equal rights” and “civil rights” were aimed at questions of personal liberty rather than property matters, and that the latter are relegated to the general provisions of 28 U.S.C. § 1331(a).
Appellant argues, however, that since the cause of action created by 42 U.S.C. § 1983 parallels the first clause of § 1343 (3), the scope of both should be the same in order to provide a comprehensive federal remedy. We do not agree. The language of the sections is not similar, Section 1983 does not contain the “providing for” limitation, nor is there any indication of a congressional intent to provide § 1343(3) jurisdiction for all suits under § 1983.
There appears here no claim of racial or other impermissible classification or discrimination or other classic civil rights issue, but rather a question of statutory interpretation by the Commissioner in a single case. This claim comes under none of the three types of congressional grant of power to the federal courts in cases arising under the laws of the United States, (1) the post-Civil War rights of action for deprivation of personal liberty exemplified by 1983, (2) the general federal question jurisdiction of the Judiciary Act of 1875 limited to claims in excess of $500 (since increased to in excess of $10,000), or (3) post-1875 acts creating rights of action and specifically exempting them from a monetary limitation. To assume jurisdiction here would be to accept a federal court review power over almost every ruling of the Commissioner in the day-today operation of the state welfare laws, regardless of the amount involved. We are reluctant to conclude that the Congress conferred such jurisdiction on us solely by implication, in the face of the careful limitation of Hague and Douglas, swpra.
Affirmed.
. We have no occasion therefore to consider whether the due process claim may not be substantial where termination of relief without prior hearing effectively cuts off family support. Cf. Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y.1968). Here the sole question was the interpretation of the statute and regulations as to availability of categorical relief during a period after receipt of the Social Security payment. The Commissioner’s ruling here may indeed be erroneous, but the question is whether the Congress has empowered the federal courts to determine the issue.
. 28 U.S.C. § 1331(a) provides:
The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
. 28 U.S.C. § 1343(3) provides for original jurisdiction of the district court:
To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
. 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
songer_respond1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
Luigi BAFICO, Appellant, v. SOUTHERN PACIFIC COMPANY, Appellee.
No. 20006.
United States Court of Appeals Ninth Circuit.
July 26, 1966.
Rehearing Denied Sept. 2, 1966.
Martin Schedler, Portland, Or., for appellant.
John Gordon Gearin, James V. Hurley, of McColloch, Dezendorf & Spears, Portland, Or., for appellee.
Before J. WARREN MADDEN, Judge, Court of Claims, and HAMLEY and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
This action arises under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60. Bafico, plaintiff below and appellant here, was employed by appellee in its Brooklyn Yards, Portland, Oregon, as a section worker maintaining appellee’s right of way. Appellee usually dispatched section gangs to the section of track assigned to them in a vehicle provided by appellee and driven by one of its employees. On June 11, 1962, in alleged violation of the “work and safety rules” requiring this practice, Bafico’s superior directed him to drive to his assigned section of track in his own vehicle. As Bafico was leaving Brooklyn Yards, a truck owned by Dad’s Root Beer Bottling Company of Portland proceeded through a stop light and struck his automobile, demolishing it and causing the injuries which resulted in his total and permanent disability.
Bafico first brought suit against Dad’s Root Beer in an Oregon state court. That action was settled for $16,500 on the morning set for trial. In return for the settlement payment, Bafico executed a “standard form” release, in the office of his own attorney and in the absence of the attorney for Dad’s Root Beer, which reads in pertinent part as follows:
“FULL AND FINAL RELEASE OF ALL CLAIMS
“KNOW ALL MEN BY THESE PRESENTS, that the Undersigned do(es) hereby acknowledge' receipt of a draft for Sixteen Thousand Five Hundred and no/100ths Dollars ($16,-500.00) which draft is accepted in full compromise settlement and satisfaction of, and as sole consideration for the final release and discharge of, all actions, claims and demands whatsoever, that now exist, or may hereafter accrue, against DAD’S ROOT BEER BOTTLING COMPANY OF PORTLAND, OREGON and any other person, corporation, association or partnership charged with responsibility for injuries to the person and property of the Undersigned, and the consequences flowing therefrom, as the result of an accident, casualty or event which occurred on or about the 11th day of June, 1962 at or near S. E. Harold Street and McLoughlin Boulevard and for which the Undersigned claims the said persons or parties are legally liable in damages; which legal liability and damages are disputed and denied, and;
“The Undersigned Warrants, that no promise or inducement has been offered except as herein set forth; that this Release is executed without reliance upon any statement or representation by the person or parties released, or their representatives, or physicians, concerning the nature and extent of the injuries and/or damages and/or legal liability therefor; that the Undersigned is of legal age, legally competent to execute this Release and accepts full responsibility therefor, and;
“The Undersigned Agrees, as a further consideration and inducement for this compromise settlement, that it is a full and final release of all claims and shall apply to all known and unknown and anticipated and unanticipated injuries and damages resulting from said accident, casualty or event, as well as to those now known or disclosed.”
The italicized matter in the foregoing quotation was added in blank spaces in the printed form; the release is signed by Luigi and Victoria Bafico, and by their attorney in his capacity as a notary public.
Approximately a year later Bafico brought this action, seeking recovery on the ground of appellee’s alleged negligence in sending him to his work station in his own automobile in breach of its own “work and safety rules.” He claimed that as an ultimate result of that negligence he lost $9,472 in wages, expended $344 for medicine and medical attention, and sustained general damages of $50,000, and sought judgment in the total sum of $59,816 and costs. After appellee raised the release as a defense, the district court granted Bafico’s motion for a separate trial on the segregated issue of the legal effect of that release.
That trial resulted in a judgment for appellee, based on findings and conclusions that (1) appellee had sustained its burden of proof that Bafico intended by the release to discharge it from liability; (2) the settlement received by Bafico from Dad’s Root Beer constituted full satisfaction for all injuries received in the accident; (3) appellee, if negligent at all, was a joint tort-feasor rather than an independent concurring or aggravating tort-feasor, and so was discharged from liability by the release executed to the other tort-feasor; and (4) the language of the release was unambiguous and the intention of the parties to the agreement, reflected in the preceding findings, was clear.
Bafico assigns all of these findings, and the trial court’s refusal to permit parol proof of Bafico’s “true” but uncommunicated intent when signing the release, as error.
The central question "presented is whether, under Oregon law and in the circumstances of this case, a release given to one tort-feasor may by the breadth of its language bar action against another alleged tort-feasor who contributed nothing to the settlement. A subsidiary problem is whether the trial court’s refusal to take evidence on the intent of a party to the release constitutes reversible error. Appellant seems to rely principally upon our decision in Rudick v. Pioneer Memorial Hospital, 9 Cir., 1961, 296 F.2d 316, in urging that the first question be answered no and the second yes.
In Rudick the plaintiff had been injured in an automobile accident. She alleged that she was subsequently negligently treated by the defending hospital and doctors. They urged that recovery against them was barred by the terms of a release signed by the plaintiff, which provided that in return for the settlement sum paid by the offending driver, he “and all other persons, firms and corporations in any way interested or concerned” should be released from liability arising out of “an automobile accident” which occurred “On or about the 25th day of May, 1957, in the vicinity of Mitchell, Oregon.” She had been advised to sign the release by her brother, a legal layman so far as the opinion shows, who had carried on negotiations with the driver’s insurer and discovered that the applicable policy limit was less than 20 percent above the sum for which plaintiff finally settled. On appeal, after a full consideration of the relevant Oregon decisions, we said that “the question is the clarity of the document to this appellant, knowing what she knew as to who the insured was and what the policy limits were,” and held that “to this layman” the document’s “apparent confinement of the release to a ‘certain accident, casualty or event which occurred on or about the twenty-fifth day of May, 1957, at or near Mitchell, Oregon, * * * ’ might very' well * * * have excluded a release of acts of negligence subsequently committed in a hospital in Prineville.” 296 F.2d at 320.
In the present case the situation is obviously different. Here the negligence of Dad’s Root Beer and the negligence, if any, of appellee materialized in a single accident, not in two occurrences of negligence separate in time and space. Here the release ran to Dad’s Root Beer “and any other person, corporation, association or partnership charged with responsibility for injuries to the person and property of the Undersigned” (emphasis added), not merely to “all other persons, firms and corporations in any way interested or concerned.” Here appellant was represented at all times, including the negotiation for settlement and signing of the release, by his own attorney, not by a layman. We think that in these circumstances, the trial court could properly infer that appellant knew what he was doing when he signed the release and could properly hold him bound by the literal, precise, unambiguous terms of the contract he signed. It follows that no investigation into his uncommunicated intent at the time of signing was required, for “the law in this jurisdiction [Oregon] does not permit contracts to be reformed merely because of uncommunicated mental reservations held by one of the parties at the time of execution.” Wheeler v. White Rock Bottling Co., 1961, 229 Ore. 360, 366 P.2d 527, 529.
In view of our disposition of this issue, consideration of the other questions raised becomes unnecessary.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
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songer_state
|
17
|
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".
Bernard Young SMITH, Appellant, v. UNITED STATES of America, Appellee.
No. 7173.
United States Court of Appeals Tenth Circuit.
Jan. 25, 1963.
James E. Carpenter, Denver, Colo. (Bernard Young Smith filed a brief pro se), for appellant.
Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., Topeka, Kan., with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
PICKETT, Circuit Judge.
On July 28, 1954, the appellant, Smith, pleaded guilty to a five-count indictment, and was sentenced on each count to serve consecutive sentences. Counts two and three grew out of an occasion on which Smith was alleged to have broken and entered a United States Post Office with intent to steal property of the United States. The indictment, in separate counts, charged the offense of breaking and entering the post office with intent to commit larceny, and also the offense of stealing money or property of the United States. The fifth count charged a violation of Section 2(e) of the Federal Firearms Act, 52 Stat. 1250 (1938), 15 U.S.C. § 902(e), by alleging that Smith, having theretofore been convicted of a crime of violence, transported an automatic pistol in interstate commerce. In this proceeding, under 28 U.S.C. § 2255, Smith attacks the validity of the judgments and sentences on counts two and three, contending that only one crime was committed for which he could be sentenced. As to the fifth count, it is asserted that the conviction of a crime of violence occurred before the enactment of the Federal Firearms Act, and could not be relied upon in enforcing the statute, because of the Constitutional prohibition against the passage of any ex post facto law. The trial court denied Smith’s motion.
Section 2115 of Title 18, U.S.C.,. provides that whoever foreeably breaks into any post office, or building used in whole or in part as a post office, with intent to commit larceny or other depredation, shall be fined not more than $1000 or imprisoned not more than 5 years, or both. Section 641 of Title 18, U.S.C., makes the embezzlement or theft of government property an offense. In Macomber v. Hudspeth, 10 Cir., 115 F.2d 114, the defendants were convicted of violating 18 U.S.C. § 2115 and 18 U.S.C. § 1707, which is identical in principle to 18 U.S.C. § 641. We held, citing Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, that “[e]ven though committed at the same time, the two offenses were distinct [and] were properly laid as separate counts in the indictment,” thus subjecting the defendants to the maximum sentence authorized by statute on each count. Smith relies upon Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, in which the Supreme Court held, in construing the Bank Robbery Act, 18 U.S.C. § 2113, that the legislative history of that Act compelled a conclusion that Congress did not intend that a person could be punished for two separate crimes when a bank was entered and property was stolen therefrom. The decision refers to Morgan v. Devine, supra, and distinguishes it. Cf. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505.
There is no merit to the contention that Section 2(e) of the Federal Firearms Act is unconstitutional as an ex post facto law when applied to one who has been convicted of a crime of violence prior to the passage of the Act. Paragraph three of Article I, Section 9, of the Constitution, prohibiting the passage of ex post facto laws, does not prevent the regulation by Congress of conduct, which it has the power to regulate, even though subjection to the regulation depends upon behavior occurring before the enactment of the statute. Cases v. United States, 1 Cir., 131 F.2d 916, cert. denied Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718.
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
CATERPILLAR TRACTOR CO., a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 11560.
United States Court of Appeals Seventh Circuit.
March 2, 1956.
George B. Christensen, Chicago, 111., Winston, Strawn, Black & Towner, Chicago, 111., of counsel, Fred H. Daugherty, David C. Keegan, Chicago, 111., for petitioner.
David P. Findling, Associate General Counsel, Norton J. Come, Attorney, N.L. R.B., Washington, D. C., Theophil C. Kammholz, General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Louis Schwartz, Attorneys, National Labor Relations Board, Washington, D. C., for respondent.
Before LINDLEY, SWAIM, and SCHNACKENBERG, Circuit Judges.
LINDLEY, Circuit Judge.
Caterpillar Tractor Company seeks to set aside an order entered by the Board based on the latter’s finding that petitioner had violated subsections 8(a) (1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1) and (3). The facts are not in dispute; the sole controversy is as to their legal effect.
District Lodge No. 55, International Association of Machinists, AFL, hereinafter referred to as the union, is the certified bargaining agent for petitioner’s production employees at its plant in Joliet, Illinois. In February 1954, approximately 1,450 of the some 1,900 employees in the bargaining unit were members of the union. For an extended period of time, the relations between the employer and the union had been entirely amicable and cooperative. During February the union began a membership drive. For this purpose, 1,000 advertising slogan buttons were distributed to its members, 250 of which were emblazoned with the slogan “Don’t be a Scab.” The others bore such legends as “Don’t be a Free Rider.” The “Scab” buttons were first worn in the shop on February 24. Petitioner did not demur to the use of other buttons but advised the union’s business agent that it objected to the “Scab” emblems being worn in the shop, because of their tendency to incite unrest and resentment among union and nonunion employees and to disturb the peaceful, friendly atmosphere which had continued between petitioner and the union for a number of years. Despite this protest, wearing of the “Scab” buttons continued throughout the remainder of the week. On Friday, February 26, the employer advised all such wearers that they would be sent home if they returned to work the next working day wearing the buttons. On March 1, the next working day, 247 employees reported for work wearing the offensive badge and were sent home. On the same day, the union agreed to suppress the emblem pending the Board’s decision on unfair labor charges based on petitioner’s suspension of these employees. On March 2, all employees returned to work without the objectionable buttons, and that status has since prevailed.
' The Board concluded that wearing the button during working hours was a protected activity within the purview of Section 7 of the Act, and, that, by suspending the 247 employees for wearing it in the work shop, petitioner violated § 8(a) (1) and (3) of the Act. A cease and desist order was entered, which required, inter alia, reimbursement for the time lost to the suspended employees. 113 N.L.R.B. No. 37. Member Rodgers filed a vigorous dissenting opinion.
We are convinced that the Board erroneously interpreted Section 7 and that its order must be set aside. The fine balance between protected and unprotected activities in membership solicitation is pointed up by the Supreme Court in Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 797-798, 65 S.Ct. 982, 985, 89 L.Ed. 1372: “These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.”
Thus, in its application to organizational activities, the protective mantle of Section 7 is tempered by the employer’s right to exact a day’s work for a day’s pay and to maintain discipline, and does not reach activities which inherently carry with them a tendency toward, or likelihood of, disturbing efficient operation of the employer’s business. Perhaps no greater disruptive force can be found in the field of labor relations than that innate in the application of the term “scab” to one employee by his fellow workman. The term, when applied to one embraced in a labor group, bears an inescapable connotation of opprobiousness and vileness commonly recognized by all members of modern American society. As we said, in N.L.R.B. v. Aintree Corp., 7 Cir., 135 F.2d 395, 397, “Probably no words are more insulting to, or arouse keen resentment more promptly in, an employee than to call him ‘a scab.’ ” See Member Rodgers Dissent, 113 N.L.R.B. No. 37.
We are of the opinion that petitioner’s anticipation that the “Scab” buttons would prove disruptive of employee harmony in its plant and destructive of discipline in production was fully justified. It was under no compulsion to wait until resentment piled up and the storm broke before it could suppress the threat of disruption by exercising its right to enforce employee discipline. Although the union, on March 1, after the event, distributed literature to all employees protesting, in effect, that it used the term “scab” as synonymous with that of “free rider”, its inarticulateness in the use of specific words on the button did not in any way serve to lessen petitioner’s legitimate concern over the universally recognized explosive nature of the ill-chosen word.
In view of the zealous argument advanced by petitioner, we think it wise, perhaps, to negate the erroneous position which we understand it takes that it could properly have prohibited any organizational activity on company time, and might, also, have forbidden the wearing of the other slogan buttons employed in the union’s campaign. We think its right in this respect is limited to the restriction of activities which disrupt, or tend to disrupt, production and to break down employee discipline, and does not include restriction of passive inoffensive advertisement of organizational aims and interests, i. e., the wearing of advertising insignia and buttons, which in no way interferes with discipline or efficient production. Cf. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The “Scab” insignia falls because of its inherent disruptive influence.
The order is set aside.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_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 FARM FIRE AND CASUALTY COMPANY, Petitioner
v.
UNITED STATES, ex rel. Cori RIGSBY, et al.
No. 15-513.
Supreme Court of the United States
Argued Nov. 1, 2016.
Decided Dec. 6, 2016.
Kathleen M. Sullivan, New York, NY, for Petitioner.
Tejinder Singh, Bethesda, MD, for Respondents.
John F. Bash for the United States as amicus curiae, by special leave of the Court, supporting the Respondents.
Jeffrey B. Wall, Sullivan & Cromwell LLP, Washington, DC, Sheila L. Birnbaum, Kathleen M. Sullivan, Douglas W. Dunham, Ellen P. Quackenbos, Bert L. Wolff, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioner.
Tejinder Singh, Goldstein & Russell, P.C., Bethesda, MD, Maison Heidelberg, Watson Heidelberg, Jones PLLC, Flowood, MS, William E. Copley, August J. Matteis, Jr., Derek Y. Sugimura, Pamira Shah Matteis, Matthew S. Krauss, Timothy M. Belknap, Weisbrod Matteis & Copley PLLC, Washington, DC, for Respondents.
Justice KENNEDY delivered the opinion of the Court.
This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U.S.C. § 3730(b)(2). There are two questions presented before this Court. First, do any and all violations of the seal requirement mandate dismissal of a private party's complaint with prejudice? Second, if dismissal is not mandatory, did the District Court here abuse its discretion by declining to dismiss respondents' complaint?
I
A
The FCA imposes civil liability on an individual who, inter alia, "knowingly presents ... a false or fraudulent claim for payment or approval" to the Federal Government. § 3729(a)(1)(A). Almost unique to the FCA are its qui tam enforcement provisions, which allow a private party known as a "relator" to bring an FCA action on behalf of the Government. § 3730(b)(1) ; Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768, n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (listing three other qui tam statutes). The Attorney General retains the authority to intervene in a relator's ongoing action or to bring an FCA suit in the first instance. §§ 3730(a) -(b).
This system is designed to benefit both the relator and the Government. A relator who initiates a meritorious qui tam suit receives a percentage of the ultimate damages award, plus attorney's fees and costs. § 3730(d). In turn, " 'encourag[ing] more private enforcement suits' " serves " 'to strengthen the Government's hand in fighting false claims.' " Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 298, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010).
The FCA places a number of restrictions on suits by relators. For example, under the provision known as the "first-to-file bar," a relator may not " 'bring a related action based on the facts underlying [a] pending action.' " Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U.S. ----, ----, 135 S.Ct. 1970, 1978, 191 L.Ed.2d 899 (2015) (quoting § 3730(b)(5) ; emphasis deleted). Other FCA provisions require compliance with statutory requirements as express conditions on the relators' ability to bring suit. The paragraph known as the "public disclosure bar," for instance, provided at the time this suit was filed that " '[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... unless the action is brought by the Attorney General or ... an original source of the information.' " Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, supra, at 283, n. 1, 285-286, 130 S.Ct. 1396 (quoting 31 U.S.C. § 3730(e)(4)(A) (2006 ed.) ; footnote omitted).
The FCA also establishes specific procedures for the relator to follow when filing the complaint. Among other things, the relator must serve on the Government "[a] copy of the complaint and written disclosure of substantially all material evidence and information the [relator] possesses." § 3730(b)(2). Most relevant here, the FCA provides: "The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders." Ibid.
B
Petitioner State Farm is an insurance company. In the years before Hurricane Katrina, petitioner issued two types of homeowner-insurance policies that are relevant in this case: (1) Federal Government-backed flood insurance policies and (2) petitioner's own general homeowner insurance policies. The practical effect for homeowners who were affected by Hurricane Katrina and who purchased both policies was that petitioner would be responsible for paying for wind damage, while the Government would pay for flood damage. As the Court of Appeals noted, this arrangement created a potential conflict of interest: Petitioner had "an incentive to classify hurricane damage as flood-related to limit its economic exposure." 794 F.3d 457, 462 (C.A.5 2015).
Respondents Cori and Kerri Rigsby are former claims adjusters for one of petitioner's contractors, E.A. Renfroe & Co. Together with other adjusters, they were responsible for visiting the damaged homes of petitioner's customers to determine the extent to which a homeowner was entitled to an insurance payout. According to respondents, petitioner instructed them and other adjusters to misclassify wind damage as flood damage in order to shift petitioner's insurance liability to the Government. See id., at 463-464 (summarizing trial evidence).
In April 2006, respondents filed their qui tam complaint under seal. At the Government's request, the District Court extended the length of the seal a number of times. In January 2007, the court lifted the seal in part, allowing disclosure of the qui tam action to another District Court hearing a suit by E.A. Renfroe against respondents for purported misappropriation of documents related to petitioner's alleged fraud. See E.A. Renfroe & Co. v. Moran, No. 2:06-cv-1752 (ND Ala.). In August 2007, the District Court lifted the seal in full. In January 2008, the Government declined to intervene.
In January 2011, petitioner moved to dismiss respondents' suit on the grounds that they had violated the seal requirement. The parties do not dispute the essential background. In the months before the seal was lifted in part, respondents' then-attorney, one Dickie Scruggs, e-mailed a sealed evidentiary filing that disclosed the complaint's existence to journalists at ABC, the Associated Press, and the New York Times. All three outlets issued stories discussing the fraud allegations, but none revealed the existence of the FCA complaint. Respondents themselves met with Mississippi Congressman Gene Taylor, who later spoke out in public against petitioner's purported fraud, although he did not mention the existence of the FCA suit at that time. After the seal was lifted in part, Scruggs disclosed the existence of the suit to various others, including a public relations firm and CBS News.
At the time of the motion to dismiss in 2011, respondents were represented neither by Scruggs nor by any of the attorneys who had worked with him. In March 2008, Scruggs withdrew from respondents' case after he was indicted for attempting to bribe a state-court judge. Two months later, the District Court removed the remaining Scruggs-affiliated attorneys from the case, based on their alleged involvement in improper payments made from Scruggs to respondents. The District Court did not punish respondents themselves for the payments because they were not made "aware of the ethical implications" and, as laypersons, "are not bound by the rules of professional conduct that apply to" attorneys. App. 21.
In deciding petitioner's motion the District Court considered only the seal violations that occurred before the seal was lifted in part, reasoning the partial lifting in effect had mooted the seal. Applying the test for dismissal set out in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242, 245-247 (C.A.9 1995), the District Court balanced three factors: (1) the actual harm to the Government, (2) the severity of the violations, and (3) the evidence of bad faith. The court decided against dismissal. Petitioner did not request some lesser sanction. The case went to trial, resulting in a victory for respondents on what the Court of Appeals referred to as a "bellwether" claim regarding a single damaged home. 794 F.3d, at 462.
The Court of Appeals for the Fifth Circuit affirmed the denial of petitioner's motion to dismiss. The court recognized that the case presented two related issues of the first impression under its case law: (1) whether a seal violation requires mandatory dismissal of a relator's complaint and, if not, (2) what standard governs a district court's decision to dismiss. The court noted that the Courts of Appeals for the Second and Ninth Circuits had held that the FCA does not require automatic dismissal for a seal violation, while the Court of Appeals for the Sixth Circuit had held that dismissal is mandatory. See United States ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 998 (C.A.2 1995) ; United States ex rel. Lujan v. Hughes Aircraft Co., supra, at 245; United States ex rel. Summers v. LHC Group Inc., 623 F.3d 287, 296 (C.A.6 2010) ; see also United States ex rel. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (C.A.4 2015) (following Pilon ).
After a careful analysis, the Court of Appeals for the Fifth Circuit held automatic dismissal is not required by the FCA. 794 F.3d, at 470-471. It then considered the same factors the District Court had weighed and came to a similar conclusion. Id., at 471-472. First, the Court of Appeals held the Government was in all likelihood not harmed by the disclosures because none of them led to the publication of the pendency of the suit before the seal was lifted in part. Second, the Court of Appeals determined the violations were not severe in their repercussions because respondents had complied with the seal requirement when they first filed their suit. Third, the Court of Appeals assumed, without deciding, that the bad behavior of respondents' then-attorney could be imputed to respondents; but it held that, even presuming the attribution of bad faith, the other factors favored respondents.
This Court granted certiorari, 578 U.S. ----, 136 S.Ct. 2386, 195 L.Ed.2d 761 (2016), and now affirms.
II
A
Petitioner's primary contention is that a violation of the seal provision necessarily requires a relator's complaint to be dismissed. The FCA does not enact so harsh a rule.
Section 3730(b)(2)'s text provides that a complaint "shall" be kept under seal. True, this language creates a mandatory rule the relator must follow. See Rockwell Int'l Corp. v. United States, 549 U.S. 457, 464, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007) ("As required under the Act, [the relator] filed his complaint under seal ..."); see also Kingdomware Technologies, Inc. v. United States, 579 U.S. ----, ----, 136 S.Ct. 1969, 1977, 195 L.Ed.2d 334 (2016) ("[T]he word 'shall' usually connotes a requirement"). The statute says nothing, however, about the remedy for a violation of that rule. In the absence of congressional guidance regarding a remedy, "[a]lthough the duty is mandatory, the sanction for breach is not loss of all later powers to act." United States v. Montalvo-Murillo, 495 U.S. 711, 718, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990).
The FCA's structure is itself an indication that violating the seal requirement does not mandate dismissal. This Court adheres to the general principle that Congress' use of "explicit language" in one provision "cautions against inferring" the same limitation in another provision. Marx v. General Revenue Corp., 568 U.S. ----, ----, 133 S.Ct. 1166, 1177, 185 L.Ed.2d 242 (2013). And the FCA has a number of provisions that do require, in express terms, the dismissal of a relator's action. Supra, at 440 (citing § 3730(b)(5) ); see also §§ 3730(e)(1)-(2) ("[n]o court shall have jurisdiction" over certain FCA claims by relators against a member of the military or of the judicial, legislative, or executive branches). It is proper to infer that, had Congress intended to require dismissal for a violation of the seal requirement, it would have said so.
The Court's conclusion is consistent with the general purpose of § 3730(b)(2). The seal provision was enacted in the 1980's as part of a set of reforms that were meant to "encourage more private enforcement suits." S. Rep. No. 99-345, pp. 23-24 (1986). At the time, "perhaps the most serious problem plaguing effective enforcement" of the FCA was "a lack of resources on the part of Federal enforcement agencies." Id., at 7. The Senate Committee Report indicates that the seal provision was meant to allay the Government's concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. Id., at 24. Because the seal requirement was intended in main to protect the Government's interests, it would make little sense to adopt a rigid interpretation of the seal provision that prejudices the Government by depriving it of needed assistance from private parties. The Federal Government agrees with this interpretation. It informs the Court that petitioner's test "would undermine the very governmental interests that the seal provision is meant to protect." Brief for United States as Amicus Curiae 10.
B
Petitioner's arguments to the contrary are unavailing. First, petitioner urges that because the seal provision appears in the subsection of the FCA creating the relator's private right of action, Congress intended to condition the right to bring suit on compliance with the seal requirement. It is true that, as discussed further below, the Court sometimes has concluded that Congress conditioned the authority to file a private right of action on compliance with a statutory mandate. E.g., Hallstrom v. Tillamook County, 493 U.S. 20, 25-26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). There is no textual indication, however, that Congress did so here.
Section 3730(b)(2) does not tie the seal requirement to the right to bring the qui tam suit in conditional terms. As noted above, the statute just provides: "The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders."
The text at issue in Hallstrom, by contrast, was quite different than the statutory language that controls here. The Hallstrom statute, part of the Resource Conservation and Recovery Act of 1976, provided: " 'No action may be commenced ... prior to sixty days after the plaintiff has given notice of the violation' " to the Government. 493 U.S., at 25, 110 S.Ct. 304.
Petitioner cites two additional cases to support its argument, but those decisions concerned statutes that used even clearer conditional words, like "if" and "unless." See United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 161, 34 S.Ct. 550, 58 L.Ed. 893 (1914) (statute allowed creditors of Government contractors to bring suit " 'if no suit should be brought by the United States within six months from the completion and final settlement of said contract' "); McNeil v. United States, 508 U.S. 106, 107, n. 1, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (statute provided that " '[a]n action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency' ").
Again, the FCA's structure shows that Congress knew how to draft the kind of statutory language that petitioner seeks to read into § 3730(b)(2). The applicable version of the public disclosure bar, for example, requires a district court to dismiss an action when the underlying information has already been made available to the public, " 'unless' " the plaintiff is the Attorney General or an original source. Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S., at 286, 130 S.Ct. 1396.
Second, petitioner contends that because this Court has described the FCA's qui tam provisions as "effecting a partial assignment of the Government's damages claim," Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S., at 773, 120 S.Ct. 1858 adherence to all of the FCA's mandatory requirements-no matter how small-is a condition of the assignment. This argument fails for the same reason as the one discussed above: Petitioner can show no textual indication in the statute suggesting that the relator's ability to bring suit depends on adherence to the seal requirement.
Third, petitioner points to a few stray sentences in the Senate Committee Report that it claims support the mandatory dismissal rule. As explained above, however, the Report's recitation of the general purpose of the statute is best understood to support respondents. Supra, at 442. And, furthermore, because the meaning of the FCA's text and structure is "plain and unambiguous, we need not accept petitioner['s] invitation to consider the legislative history." Whitfield v. United States, 543 U.S. 209, 215, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005).
III
Petitioner's secondary argument is that the District Court did not consider the proper factors when declining to dismiss respondents' complaint or, at a minimum, that it was plain error not to consider respondents' conduct after the seal was lifted in part. This Court holds the District Court did not abuse its discretion by denying petitioner's motion, much less commit plain error. In light of the questionable conduct of respondents' prior attorney, it well may not have been reversible error had the District Court granted the motion; that possibility, however, need not be considered here.
In general, the question whether dismissal is appropriate should be left to the sound discretion of the district court. While the factors articulated in United States ex rel. Lujan v. Hughes Aircraft Co. appear to be appropriate, it is unnecessary to explore these and other relevant considerations. These standards can be discussed in the course of later cases.
IV
Petitioner and its amici place great emphasis on the reputational harm FCA defendants may suffer when the seal requirement is violated. But even if every seal violation does not mandate dismissal, that sanction remains a possible form of relief. District courts have inherent power, moreover, to impose sanctions short of dismissal for violations of court orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Remedial tools like monetary penalties or attorney discipline remain available to punish and deter seal violations even when dismissal is not appropriate.
Of note in this case, petitioner did not request any sanction other than dismissal. Tr. of Oral Arg. 3-4, 17. Had petitioner sought some lesser sanctions, the District Court might have taken a different course. Yet petitioner failed to do so. On this record, the question whether a lesser sanction is warranted is not preserved.
The judgment of the Court of Appeals for the Fifth Circuit is
Affirmed.
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_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. Paul CHAPLIN, Appellant.
No. 695, Docket 33182.
United States Court of Appeals, Second Circuit.
Argued April 16, 1970.
Decided May 21, 1970.
Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York; Peter L. Truebner and Jack Kaplan, Asst. U. S. Attys., of counsel, for appellee.
Samuel W. Gilman, New York City, for appellant.
Before WATERMAN and FRIENDLY, Circuit Judges, and ZAMPANO, District Judge.
Of the District of Connecticut, sitting by designation.
PER CURIAM:
Following a non-jury trial before Judge Marvin E. Frankel in the United States District Court for the Southern District of New York, appellant Paul Chaplin was convicted of the unlawful receipt and concealment of approximately 100 grams of heroin. 21 U.S.C. §§ 173, 174. We affirm the judgment.
Appellant first contends there was no probable cause for his arrest. At appellant’s pretrial suppression hearing, agent O’Brien testified that surveillance prior to the arrest had revealed a pattern of clandestine meetings between appellant and two other narcotic suspects. On one occasion, Chaplin was seen to pass a large sum of money to the suspected narcotics traffickers; shortly thereafter the agent observed Chaplin emerge from the suspects’ car supporting something under his jacket. On another occasion, Chaplin was a party to an incriminating conversation which was overheard by a federal agent. The vehicles used by the appellant in his dealings with these suspects were registered to known narcotic offenders. Finally, after observing the appellant’s involvement in another similar transaction on October 9, 1967, the agents moved in and arrested Chaplin in his automobile. A search of the vehicle uncovered the heroin.
The appellant argues that had the search not disclosed the contraband, there would not have been sufficient evidence to sustain a conviction. While this may be true, the requirements of probable cause are not grounded on so rigid a test, but on the “practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Much less evidence is necessary to constitute probable cause for arrest than is required to establish guilt. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). We believe that under the circumstances here the officers reasonably determined that a violation of the narcotics laws had occurred, cf. Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); probable cause, therefore, existed for Chaplin’s arrest.
The appellant next asserts that, even assuming the arrest was valid, the officers were required first to obtain a warrant before they conducted a search of the vehicle. The claim is without merit. Since the search and seizure occurred in 1967, we need not consider whether the principles established in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) apply. See United States v. Bennett, 415 F.2d 1113 (2 Cir. 1969). Pre-Chimel law clearly authorized the search of the appellant’s automobile at the time and place of the arrest. United States v. Rabinowitz, 339 U.S. 56, 61, 70 S.Ct. 430, 94 L.Ed. 653 (1950); United States v. Mazzochi, 424 F.2d 49 (2 Cir. 1970); United States v. Gorman, 355 F.2d 151, 154-155 (2 Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966).
Appellant’s final complaint is that Judge Croake’s pretrial denial of his motion to suppress “without prejudice” entitled him to another plenary hearing before the trial judge. Upon counsel’s renewal of the motion at trial, Judge Frankel permitted the appellant to present only the testimony of a witness who was unavailable at the time of the original hearing. This testimony was completely consistent with Judge Croake’s pretrial disposition of the issues ; the trial judge was not required to pursue the matter further. See Fed.R.Crim.P. 41(e); United States v. Culotta, 413 F.2d 1343, 1345 (2 Cir. 1969).
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Jack W. WHITE, Petitioner-Appellant, v. Hubert D. GNANN, Warden, Effingham Public Works Camp, Springfield, Georgia, Respondent-Appellee.
No. 28499
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 19, 1970.
Jack W. White, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Courtney Wilder Stanton, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
PER CURIAM:
We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this fact in writing. See Huth v. Southern Pacific Co., 5 Cir. 1969, 417 F.2d 526; Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804; 5th Cir. R. 18.
Jack White, represented by court-appointed counsel, was convicted and sentenced upon his plea of guilty in state court to the charge of larceny of a motor vehicle. When he had exhausted state remedies, White filed a petition for habeas corpus in the district court. He alleges that he was held in jail incommunicado for sixty-five days prior to arraignment and not permitted to get in touch with counsel during that time; that he was wrongfully denied the right to make bond; and that his plea of guilty was coerced in that his lawyer advised that if he did not plead guilty “he stood a good chance of getting ten years” instead of the two years his lawyer had bargained for if he entered a guilty plea. The district court denied relief without holding an evidentiary hearing.
In a prior habeas corpus proceeding on March 13, 1969, the Superior Court of Effingham County, Georgia, held a hearing on all of these contentions. White was represented by counsel. Upon consideration of the evidence presented, the Superior Court denied the petition for habeas corpus with findings of fact and conclusions of law. This judgment was affirmed on appeal to the Supreme Court of Georgia. White has not alleged nor have we discovered anything to justify rejecting these findings of fact. 28 U.S.C. § 2254 instructs us that in these circumstances the state court’s findings are “presumed to be correct”. Thomas v. Simpson, 5 Cir. 1968, 391 F.2d 283.
As characterized by the district court, the Superior Court of Effingham County, Georgia, concluded that the evidence demonstrated White’s guilty plea to have been entered knowingly, deliberately, and voluntarily. White’s fear of receiving a greater sentence by standing trial does not vitiate his plea. Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214, 215-216; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492. Since a plea of guilty entered voluntarily and understandingly waives all prior non jurisdictional defects, File v. Smith, 5 Cir. 1969, 413 F.2d 969, we affirm the judgment of the district court.
. 28 U.S.C. § 2254(d) reads:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant ' shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court preceding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_casetyp1_7-3-6
|
E
|
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 - property disputes".
COMMERCIAL CREDIT CO. v. UNITED STATES.
(Circuit Court of Appeals, Ninth Circuit.
February 14, 1927.)
No. 4915.
Internal revenue <s=»46 — Automobile cannot be forfeited under statute relating to internal revenue, where driver has been convicted under National Prohibition Act (Rev. St. §§ 3450 [Comp. St. § 6352]; National Prohibition Act [Comp. St. § 10138(4 et seq.]).
Where driver of car transporting intoxicating liquors has been convicted under National Prohibition Act (Comp. St. § 1013814 et seq.), the car can be disposed of only in accordance with that Aet, and cannot be forfeited under Rev. St. § 3450 (Comp. St. § 6352), relating to internal revenue.
Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; George M. Bourquin, Judge.
Proceeding by the United States for forfeiture of one Gardner coach automobile and accessories. Prom a decree of forfeiture, the Commercial Credit Company, claimant, appeals.
Reversed.
John J. Kennett, of Seattle, Wash., for appellant.
Thos. P. Revelle, U. S. Atty., and Paul D. Coles, Asst. U. S. Atty., both of Seattle, Wash.
Before RUDKIN, Circuit Judge, and DIETRICH and KERRIGAN, District Judges.
KERRIGAN, District Judge.
This is an appeal from a decree of forfeiture of an automobile, made under the provisions of section 3450 of the Revised Statutes (Cómp. St. § 6352). That section, in part, provides:
“Whenever any goods * * * in respeet whereof any tax is or shall be imposed, * * * are removed, or are deposited or concealed in any place, with intent to defraud the United States of such tax * * * every * * * conveyance whatsoever * * * used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited.”
On January 17,1925, appellant’s assignor delivered the automobile in question "to one Carrie Holland under a conditional sale contract, which provided that title should remain in the vendor or its assigns until payment in full had been made. On October 3, 1925, federal prohibition agents stopped the ear, in which were riding Carrie Holland, her husband, and a third person, and found in it certain intoxicating liquor. Holland! and her companions were charged with unlawful possession and transportation of said intoxicating liquor, and they were convicted on both counts. The government then instituted the present proceeding for the forfeiture of the automobile, upon allegations that the vehicle seized was by its occupants being used for the purpose of removing and concealing a quantity of distilled spirits, with intent to defraud- the United States government of the tax due thereon.
It is not denied that appellant and its assignor are innocent of any wrong, nor that they were unaware of any intended unlawful use of the automobile, or that it had been put to such use; and it is apparent that the effect of the proceeding under section 3450 will be to defeat appellant’s interest in the seized vehicle — an interest which, under the circumstances, the proceeding for the disposition of a seized vehicle under the National Prohibition Aet (Comp. St. § ÍOISS1/^ et seq.), recognizes and protects. In this behalf it is contended by the appellant that the present proceeding is not available to the government, but that it must proceed under the provisions of said aet.
Upon an extended consideration of this question, the United States Supreme Court recently held in accordance with this contention in the case of Port Gardner Investment Co. v. U. S. (decided November 23, 1926) 47 S. Ct. 165, 71 L. Ed. -. There the material facts were identical with those before us in this case; and, in view of conflicting decisions upon the points involved by various Circuit Courts of Appeal, the following question, among others, was certified to the Supreme Court: “Did the prosecution of the driver of the car under the National Prohibition Act constitute an election by the government to proceed under [title 2] section 26 of the aet [Comp. St. § 10138%mm], and thereby prevent the forfeiture of the ear under section 3450 of the Revised Statutes of the United States?”
The Supreme Court, in answering the question, said: “The disposition of the automobile prescribed in section 26 became mandatory after Neaudeau’s [the driver’s] conviction; and, being inconsistent with the disposition under section 3450, preeluded resort to proceedings under the latter section. Construing the fifth question (that above set out) as referring to the prosecution with effect, we answer the question in the affirmative.”
The situation presented in the case before us being identical with the one there considered, the rule thus announced is applicable, and necessitates the reversal of the decree. It is so ordered.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
|
songer_respond1_2_3
|
H
|
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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
CLEVELAND PAPER HANDLERS AND SHEET STRAIGHTENERS UNION NO. 11 OF the INTERNATIONAL PRINTING AND GRAPHIC COMMUNICATIONS UNION, Plaintiff-Appellee, v. E. W. SCRIPPS COMPANY, Publisher of the Cleveland Press and the Plain Dealer Publishing Company, Defendants-Appellants.
No. 80-3758.
United States Court of Appeals, Sixth Circuit.
Argued April 19, 1982.
Decided June 18, 1982.
Don H. Pace, Elliot S. Azoff, Baker & Hostetler, Cleveland, Ohio, for defendants-appellants.
Stanley D. Gottsegen, Robert S. Stone, Burke, Haber & Berick, Cleveland, Ohio, for plaintiff-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and ENSLEN, District Judge.
The Honorable Richard A. Enslen, Judge, U. S. District Court for the Western District of Michigan, sitting by designation.
PER CURIAM.
Appellants, The Plain Dealer Publishing Company and the E. W. Scripps Publishing Company, appeal the decision by the District Court for the Northern District of Ohio enforcing an arbitration award.
Appellee Cleveland Paper Handlers and Sheet Straighteners Union No. 11 of the International Printing and Graphic Communications Union (Union) is a party to separate collective bargaining agreements with appellants, newspaper publishers in Cleveland, Ohio. The appellants belong to the Cleveland Newspaper Publishers Association which acted as their joint negotiator and the two contracts are nearly identical. The contracts contain minimum manning provisions that specify the minimum number of members of the collective bargaining unit that must be employed if appellants’ publishing plants are in operation. The contracts also contain manning schedules, which specify the number of bargaining unit employees required to perform each of several tasks. The contracts require that any dispute between the parties shall be submitted to final and binding arbitration. In addition, the Union’s contract with The Plain Dealer contains a side letter stating that paperhandlers on the unloading crew not needed for unloading may be assigned to do any other paperhandler work. These provisions of the collective bargaining agreement have been the subject of several arbitrations and a pair of lawsuits.
The job classifications in the bargaining unit include “core unwinders,” “balers,” “platemen,” “warehouse crew,” etc. The manning schedule requires E. W. Scripps to man the baler with two members of the bargaining unit and to man the core unwin-der with one. The Plain Dealer has consolidated the two operations, so is required to employ three members of the bargaining unit to perform both jobs together. In early 1977 Arbitrator Teple ruled that appellants had power under the bargaining agreement to transfer persons from one job classification to temporarily relieve persons in another classification.
The three baler and core unwinder employees at E. W. Scripps consistently finished their work well before the end of their shift, so the publisher consolidated its operations by eliminating two of the baler/core unwinder positions. Scripps thereafter assigned one person to do baling and core unwinding full time, supplemented as necessary by employees temporarily transferred from other positions within the bargaining unit. The Union objected and the case went to Arbitrator Ipavec.
Arbitrator Ipavec ruled that Scripps was not required to employ any persons to run the baler and core unwinder during shifts when those machines were not scheduled to be operated, but was required to use three bargaining unit employees to run them for each shift they were scheduled to operate, in accordance with the manning schedule. He did not specifically address the propriety of manning the baler and core unwinder with employees transferred from other classifications when the machines were scheduled to operate for only part of a shift, although this was a part of Scripps’ manning policy. Arbitrator Ipavec also ruled that while the manning practices he addressed were proper, any layoff prior to his award was premature. He assessed damages for the premature layoff.
Scripps chose to construe this ruling together with the Teple ruling to mean that it could continue temporarily to transfer other bargaining unit employees to perform baler and core unwinder jobs without scheduling anyone full time for those tasks so long as the machines were not scheduled full time. The Union protested, claiming that under the collective bargaining agreement if the baler and core unwinder were scheduled to be run on even part of a shift then three employees had to be scheduled to run them. The dispute went back to Arbitrator Ipavec, who issued his decision on October 18, 1979. The Plain Dealer agreed to join this arbitration and be bound by its results.
One stipulated issue was presented to Arbitrator Ipavec: “Must the Publisher hire men solely for the operation of the baler and core machines or can the Publisher re-assign men previously assigned to other duties to the operation of the baler and core machines?” The arbitrator found that a simple yes or no answer could not be given to this question. He observed that since his and Arbitrator Teple’s earlier decisions the collective bargaining agreement had been renegotiated, and neither the operative language of the agreement nor the terms of the arbitration awards had been changed. Thus, he concluded, those awards were now a part of the collective bargaining agreement itself, no longer subject to modification by another arbitrator. Because of the Teple award appellant had some rights to transfer employees assigned to one machine, so it clearly could not be forced to hire workers solely for the baler and core unwinder. Arbitrator Ipavec then ruled that the bargaining agreement required appellants to schedule the number of employees specified in the manning schedule for each operation that was to be functional on a shift. Thus, if appellants wished to schedule the baler and core unwinder they had also to schedule three bargaining unit employees to run those machines, although once scheduled those employees could be temporarily transferred, as necessary. Arbitrator Ipavec noted that as the case had been tried on a stipulated issue in which the question of damages was not raised, he did not have enough information to compute the damages for appellants’ improper manning procedures. He directed the parties to conduct further negotiations on the question of damages.
Appellants continued to take the position after this second Ipavec decision that they were only required to hire employees specifically for the core unwinder and baler machines if the machines were scheduled to run for a full shift, and continued to man the machines as they had prior to the arbitrator’s decision, transferring other full-time unit employees to operate the machines on a part-time basis as needed. The Union continued to argue that if the machines were scheduled for even a partial shift the arbitrator’s award required that three employees be scheduled for those operations for that shift. The parties apparently agreed at one time to ask Arbitrator Ipavec for further clarification, and he agreed to provide it. However, before the parties could reach agreement on the question to be submitted to the arbitrator the Union broke off further discussions and initiated this lawsuit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for confirmation of Arbitrator Ipa-vec’s second award and for damages.
Appellants moved to dismiss the complaint or to remand to the arbitrator for further clarification. The Union moved for summary judgment. On October 24, 1980 the District Judge denied appellants’ motion to dismiss and granted appellee’s motion for summary judgment. The judge concluded that there was no ambiguity in the arbitrator’s award and granted enforcement. The court also ordered the parties to compute damages.
Appellants raise three issues: Whether the District Court exceeded its authority by (1) construing an ambiguous arbitration decision; (2) interpreting the Plain Dealer’s contractual right to use its unloading crew for any paperhandling work not to permit the use of unloading crew in place of persons specifically scheduled for the baler and core unwinder under the Ipavec decision; and (3) ordering the parties to compute damages according to a specific formula.
The law is clear that federal courts have jurisdiction to enforce arbitration awards. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). It is also clear that the courts may not go beyond the arbitration award to decide questions that the arbitrator did not decide. Id. at 599, 80 S.Ct. at 1362. An ambiguous award may not be enforced but should be remanded to the arbitrator. Id. at 597-598, 80 S.Ct. at 1361. An ambiguity in the opinion accompanying the award will not alone provide a reason to deny enforcement. Id. at 598, 80 S.Ct. at 1361. If the arbitrator’s opinion and award, read together, are not ambiguous the award should be enforced. International Brotherhood of Electrical Workers, Local 369 v. Olin Corp., 471 F.2d 468 (6th Cir. 1972).
The District Court correctly held that the second Ipavec arbitration award was not ambiguous. Appellants argue that the award is ambiguous if it can be read to require appellants to hire bargaining unit employees to man the baler and core unwinder when those operations are not scheduled. The arbitrator’s opinion specifically states that appellants are required to hire men to operate the baler and core unwinder “on any shift that the employer contemplates making such operations functional.” The ambiguity appellants fear does not exist.
Appellants suggest that the first Ipavec award permits them to use other available paperhandlers to operate the baler and core unwinder, and the second award contradicts this if its requires them to hire people for the baler and core unwinder whenever those machines are scheduled. Appellants are incorrect about the holding of the first Ipavec decision, which did no more than say they were not required to employ persons to run the baler and core unwinder when those machines were not scheduled. It did not say appellants could transfer other workers to run those machines part-time in lieu of scheduling workers to run them. Although appellants apparently engaged in this practice prior to the first Ipavec award and the award does approve some of appellants’ manning practices, the award does not specifically mention this practice and deals only with the separate question whether appellants must schedule baler and core un-winder employees on all shifts, regardless of whether or not machines are to be run on a given shift.
Appellants note that the second award requires them to hire employees for any shift in which the baler and core unwinder are scheduled to be run. They claim this is ambiguous because it could mean either when the machines are scheduled to be run for a full shift, or when they are scheduled to be run at all. Appellants are attempting to create an ambiguity where none exists. The fact that the award does not specify that the machines must be scheduled for a full shift means that this is not a necessary condition to the requirement that employees be scheduled.
In the process of reaching its conclusion that the second award is not ambiguous the District Court stated that the side letter in the Plain Dealer contract did not create an ambiguity, but just meant that other unloading crew members could relieve on the baler and core unwinder should workers scheduled on those machines be transferred. Arbitrator Ipavec did not construe this side agreement and the District Court did not need to. The side letter could not make the arbitrator’s award ambiguous, no matter how construed. The District Court exceeded its authority by going beyond the arbitrator’s award to interpret it.
Arbitrator Ipavec directed the parties to “negotiate a monetary settlement which will properly compensate the bargaining unit and the affected employees for the loss of situations.” The District Court directed the parties to “compute the damages in the amount it would have cost [appellants] to man the baler and core unwinding machines with members of the bargaining unit employed for such jobs had [appellants] not changed their manning practices, from the date of the changes to the date of confirmation by this court.” The District Court again exceeded its authority by departing from the arbitrator’s general language to pick the date from which damages must be measured and to measure damages according to what it would have cost appellants to man the baler and core unwinder properly.
Those parts of the judgment construing the Plain Dealer side agreement and specifying a measure of damages are vacated. That portion of the District Court’s order of October 24, 1980 directing “E. W. Scripps Company Publisher of the Cleveland Press and the Plain Dealer Publishing Company, ... to begin hiring immediately, members of the bargaining unit specifically for the tasks of manning the baler and core unwinding machines whenever such machines are to be functional” is affirmed. Each party will bear its own costs.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
NATIONAL LABOR RELATIONS BOARD v. NEWS SYNDICATE CO., INC., et al.
No. 339.
Argued March 1, 1961.
Decided April 17, 1961.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Norton J. Come.
John R. Schoemer, Jr. argued the cause for News Syndicate Co., Inc., respondent. With him on the briefs were Andrew L. Hughes and Stuart N. Updike.
' Gerhard P. Van Arkel argued the cause for New York Mailers’ Union No. 6, respondent. With him on the brief were Henry Kaiser and David I. Shapiro.
Me. Justice Douglas
delivered the opinion of the Court.
Respondent union, affiliated with the International Typographical Union, entered into collective bargaining agreements with various publishers, including respondent News Syndicate (and Dow Jones & Co.), which contained a provision that “the General Laws of the International Typographical Union . . . not in conflict with this contract or with federal or state law shall govern relations between the parties on conditions not specifically enumerated herein.” The contract limited mail-room employment to “journeymen and apprentices.” The contract also provided that mail-room superintendents, foremen, and assistant foremen must be members of the union arid that the foremen would do the hiring. The General Laws of ITU provided that “foremen or journeymen” should be “active members” of the union, that only union members should operate, maintain, and service any mailing machinery or equipment, that no person should be eligible as a “learner” who is not a union member.
Another provision of the contract stated, however, that “The Union shall not discipline the Foreman for carrying out the instructions of the Publisher or his representatives in accordance with this agreement.” It also provided, that the foremen “shall be appointed and may be removed by the Publisher.”
The foreman at one plant was a union member and the Board found that he discriminated in favor of union men against a nonunion employee named Julius Arrigale. It also found that the foreman at another plant was a union member and discriminated in favor of union men and against a nonunion employee named Burton Randall. It concluded that the union and the News Syndicate had violated §8 (b)(1)(A) and (2) and §8 (a)(1) and (3) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 140-141, as amended, 29 U. S. C. § 158, respectively, by their contract arrangements and by operating an unlawful closed shop and preferential hiring system. It held that vesting control over employment in union foremen was a delegation of exclusive control over hiring to the union without the requisite safeguards prescribed by the Board in Mountain Pacific Chapter, 119 N. L. R. B. 883. The order of the Board contained various provisions including a direction that all employees in the mail-rooms be reimbursed for dues and assessments paid the union for a period beginning six months before the service of the charges against it; and this duty was made, so far as concerns the news mail-room, a joint and several liability of the union and News Syndicate. 122 N. L. R. B. 818.
The Board petitioned the Court of Appeals for enforcement of the order. That court held that the finding of discrimination against Randall was in part supported by the record; and it refused enforcement of the Board’s order, allowing the Board, if it wished, to enter an order directed only to that instance of discrimination the Court of Appeals found the record to show. 279 F. 2d 323. The case is here on petition for a writ of certiorari which we granted along with No. 340, International Typographical Union v. Labor Board, post, p. 705, because of the conflict between them. 364 U. S. 877, 878.
What we have this day decided in Carpenters Local 60 v. Labor Board, ante, p. 651, is dispositive of the provision in the Board’s order requiring respondents to reimburse union members for dues and assessments.
We also believe the Court of Appeals was right in concluding that the contract on its face is not unlawful even though the foremen — who are union members — do the hiring. In the first place, the contract (unlike the General Laws) does not require journeymen and apprentices to be union members. In the second place, the provisions of the contract which we have set forth make the foremen “solely the employers’ agents,” as the Court of Appeals concluded. 279 F. 2d, at 330. Finally, as we said in Teamsters Local 357 v. Labor Board, decided this day, ante, p. 667, we will not assume that unions and employers will violate the federal law, favoring discrimination in favor of union members against the clear command of this Act of Congress. As stated by the Court of Appeals, “In the absence of provisions calling explicitly for illegal conduct, the contract cannot be held illegal because it failed affirmatively to disclaim all illegal objectives.” 279 F. 2d, at 330.
We also agree with the Court of Appeals that the General Laws provision of the contract is not per se unlawful. For it has in it the condition that only those General Laws of the union are incorporated which are “not in conflict with this contract or with federal or state law.” Any rule or regulation of the union which permitted or required discrimination in favor of union employees would, therefore, be excluded from incorporation in the contract since it would be at war with the Act. We can say with Judge Prettyman in Honolulu Star-Bulletin v. Labor Board, 107 U. S. App. D. C. 58, 61, 274 F. 2d 567, 570, that while the words “not in conflict with federal . . . law” might in some circumstances be puzzling or uncertain as to meaning, “there could hardly be any uncertainty respecting a closed-shop clause.” For the command of § 8 is clear and explicit and the only exception is plainly spelled out in the provisos to § 8 (a) (3).
Whether in practice respondents maintained and enforced closed-shop and preferential hiring conditions raises a distinct question.
The Board’s case comes down to the method by which those in the mail-room became journeymen. One could either take an apprentice training program or pass a competency examination. Apprentices were hired by the foremen; but the Court of Appeals found that there were no discriminatory practices in the actual hiring of apprentices. If a person followed the examination route, the contract .provided for it to be given “by impartial examiners qualified to judge journeyman competency selected by the parties hereto.” The examiners were union officials and the mail-room foremen.
The union proposed and News Syndicate agreed in 1956 to put into the class of a “regular substitute” those extras who in the prior two years had earned 15 vacation credits, which was another way of describing those who had averaged about three days’ work a week. Those who were hired on a day-to-day basis (“shaped for work”) included 60 nonunion men. Of these, 31 were invited to take the examination. They passed, were made “regular substitutes,” and subsequently became union members. Thereafter each of the new “regular substitutes” was hired prior to Randall, though he had “shaped” at the News longer than many of them. Randall, it appears, had full-time outside jobs that kept him from “shaping” regularly. Arrigale was a nonjourneyman who shaped up for the Wall Street Journal, which had essentially the same hiring setup as the News. The asserted discrimination occurred when “outside card-men” were hired in preference to Arrigale, although Arri-gale was “shaping” steadily and was the oldest nonunion extra. The foreman testified he took “outside card-men” because he could be sure of their competency, because they would have taken the journeyman test or had served as apprentices. There was no evidence that membership in the union was a condition for the journeyman test, save that all journeymen in fact did become union men.
Respondents, therefore, contend that to accord priority in the hire of extras to men who work regularly for the employer (and who also have the journeyman status). is a hiring system based on competency and legitimate employee qualifications.
The Court of Appeals concluded:
“We find ... a dearth of evidence either that a Union journeyman has ever been hired in preference (let alone, an unlawful preference) to a nonunion journeyman, or that the qualifying standards for taking a competency examination are discriminatory. The record is barren of even the slightest hint that there has been discrimination in the conduct of the examinations. Availability, dependability and regularity of service, as well as mere competency, are valid nondiscriminatory considerations in determining the order of hire. The fact that one applicant is as competent as another, does not mean that the other may not properly be preferred on the basis of his other qualifications. And the fact that those achieving status as new ‘regular substitutes’ subsequently became Union members and even indicated their willingness to do so prior to the adoption of the standard, does not indicate, at least on this record, that the standard, seemingly fair, was discriminatory in its effect. Randall admitted that he would have welcomed the opportunity to become a Union member, and for aught that appears in the record, so would the remaining extras who did not meet the established standard.
“We conclude that the record does not warrant a finding that the hiring system in general, or the competency system in particular, by its discrimination against nonunion applicants, encouraged Union membership.” 279 F. 2d, at pp. 333-334.
This finding of the Court of Appeals disposed of Arrigale’s complaint'and all of Randall’s with the exception of the loss of one night’s employment as to which the court sustained the Board. The Board drew contrary inferences. But it does not now seriously challenge the foregoing finding of the Court of Appeals. Rather, its main reliance is on the long history of ITU’s use of the closed shop, the fact that foremen were union members, and the obscurity of the “not in conflict” clause of the agreement. We think the reversal of the Board on the facts by the Court of Appeals was within the scope of review entrusted to it. See Universal Camera Corp. v. Labor Board, 340 U. S. 474, 490-491. ’
A~ , Affirmed.
Mr. Justice Whittaker dissents. See his dissenting opinion in Carpenters Local 60 v. Labor Board, decided this day, ante, p. 660.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
Section 8 provides in relevant part:
“(a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later . . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That .this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . .
“(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership . . . .”
Section 7 provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).”
The 1947 amendments to the Act changed the ruling in Packard Motor Car Co. v. Labor Board, 330 U. S. 485, which held that foremen were “employees.” Section 2 (3) now excludes from the term “employees” one who is “employed as a supervisor.” Section 2 (11) defines a “supervisor” as one “having authority, in the interest of the employer, to hire,” etc., employees. Section 14 (a) provides:
“Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.”
As stated by Senator Taft, under these provisions even a union of foremen could be recognized by an employer, though no employer could be compelled to do so. S. Eep. No. 105, 80th Cong., 1st Sess., p. 5.
Burton Randall is neither a union member nor a journeyman within the meaning of the contract between the union and the News. The hiring practices at the News are as follows: The minimum mailing-room staff (“regular situation holders”) are both union members and journeymen; they report for work each night and are not required to “shape.” To fill in vacancies and to meet added needs, the foreman next turns to “regular substitutes,” who are both journeymen and union members. Next in line of priority are those the Board insists are referred to as “outside card men,” but who are at any rate both journeymen and union members regularly shaping up for other newspapers, but available for work on the News. The lowest priority category consists of what the Board calls “nonunion shapers” (and the union, “non-journeymen casuals”); at any rate, these men have neither union membership nor journeyman status. Within the category, such men are ranked in seniority running from the date of first shaping up for the News. Burton Randall is a “nonunion shaper” or “non-journeyman casual.” He has been turning up for the “shaping” at the News for a good many years; for most of them, he showed only on Fridays and Saturdays since he held another job. From 1950 to 1956, he was third in seniority on the “casual” list; from 1956, he was first on that list.
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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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sc_issuearea
|
I
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
MUSSER et al. v. UTAH.
No. 60.
Argued November 10, 1947.
Reargued January 5, 1948.
Decided February 9, 1948.
Claude T. Barnes argued the cause and filed a brief for appellants.
Calvin L. Bampton and Zar E. Hayes, Assistant Attorneys General of Utah, argued the cause for appellee on the original argument, and Mr. Bampton on the reargument. With them on the brief was Grover A. Giles, Attorney General.
Arthur Garfield Hays and Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Jackson
delivered the opinion of the Court.
The appellants sought review by this Court of a decision by the Supreme Court of Utah on the ground that the State convicted them in violation of the Fourteenth Amendment to the Federal Constitution. In the trial court a motion to dismiss the charge at the close of the evidence broadly indicated reliance on the Fourteenth as well as the First Amendment, and such reliance was indicated in requests for instructions. A preliminary motion to quash the information was stated in broad terms which it is claimed admitted argument of any federal grounds. Trial resulted in conviction and the Supreme Court of the State overruled all constitutional objections and affirmed.
On argument in this Court, inquiries from the bench suggested a federal question which had not been specifically assigned by defendants in this Court, nor in any court below, although general transgression of the Fourteenth Amendment had been alleged. This question is whether the Utah statute, for violation of which the appellants are amerced, is so vague and indefinite that it fails adequately to define the offense or to give reasonable standards for determining guilt. The question grew out of these circumstances:
Defendants were tried on an information which charged violation of § 103-11-1, Utah Code Ann. 1943, in that they conspired “to commit acts injurious to public morals as follows, to-wit: . . . It then specified acts which amount briefly to conspiring to counsel, advise, and practice polygamous or plural marriage, and it set forth a series of overt acts in furtherance thereof. The Supreme Court considered that the prosecution was under Paragraph (5) of 103-11-1 which, so far as relevant, defines conspiracy, “(5) to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws . . . .”
It is obvious that this is no narrowly drawn statute. We do not presume to give an interpretation as to what it may include. Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order. In some States the phrase “injurious to public morals” would be likely to punish acts which it would not punish in others because of the varying policies on such matters as use of cigarettes or liquor and the permissibility of gambling. This led to the inquiry as to whether the statute attempts to cover so much that it effectively covers nothing. Statutes defining crimes may fail of their purpose if they do not provide some reasonable standards of guilt. See, for example, United States v. Cohen Grocery Co., 255 U. S. 81. Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.
When the adequacy of this statute in these respects was questioned, the State asked and was granted reargument here. Rehearing convinces us that questions are inherent in this appeal which were not presented to or considered by the Utah Supreme Court and which involve determination of state law. We recognize that the part of the statute we have quoted does not stand by itself as the law of Utah but is part of the whole body of common and statute law of that State and is to be judged in that context. It is argued that while Paragraph (5) as quoted is admittedly very general, the present charge is sustainable under Paragraph (1) thereof which makes a crime of any conspiracy to commit a crime and that the sweep of Paragraph (5) is or may be so limited by its context or by judicial construction as to supply more definite standards for determining guilt. It is also said that the point, so far as this case is concerned, has been waived or lost because there was no timely or sufficient assignment of it as ground for dismissal to comply with state practice. We believe we should not pass upon the questions raised here until the Supreme Court of Utah has had opportunity to deal with this ultimate issue of federal law and with any state law questions relevant to it.
This trial was not conducted in federal court nor for violation of federal law. It is a prosecution by the State, in its courts, to vindicate its own laws. Our sole concern with it is to see that no conviction contrary to a valid objection raised under the Fourteenth Amendment is upheld. What the statutes of a State mean, the extent to which any provision may be limited by other Acts or by other parts of the same Act, are questions on which the highest court of the State has the final word. The right to speak this word is one which State courts should jealously maintain and which we should scrupulously observe. In order that the controversy may be restored to the control of the Supreme Court of Utah, its present judgment is vacated and the cause is remanded for proceedings not inconsistent herewith.
Vacated and remanded.
Mr. Justice Black concurs in the result.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_source
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
SAVKO BROTHERS COMPANY, an Ohio Corporation, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15742.
United States Court of Appeals Sixth Circuit.
Nov. 17, 1964.
Argued by C. Stanley Taylor, Columbus, Ohio, Schwenker, Teaford, Brothers & Bernard, Columbus, Ohio, on the brief, Robert E. Teaford, Columbus, Ohio, of counsel, for petitioner.
Argued by Carolyn R. Just, Dept. of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz and Carolyn R. Just, Attys., Dept. of Justice, Washington, D. C., on the brief, for respondent.
Before EDWARDS, Circuit Judge, BOYD, District Judge, and PRETTY-MAN, Senior Circuit Judge.
. Senior Circuit Judge E. Barrett Prettyman of the District of Columbia Circuit sitting by designation.
PER CURIAM.
In this appeal the taxpayer (Savko Brothers Company) seeks to reverse a tax deficiency judgment of $4,096.79. The Commissioner had previously found (and had contended before the Tax Court for) a deficiency of $36,496.51. The dispute turns upon whether or not salaries. and bonuses paid to the corporation’s two principal officers and stockholders were or were not “reasonable” within the meaning of Internal Revenue Code of 1954, § 162(a) (l).
Two brothers, Nick and Charley Savko, were recipients of the salaries and bonuses and paid personal income taxes thereon. They had organized the corporation late in 1955 to engage in the building, construction and excavating business in which both had considerable prior experience. It is undisputed that through their joint efforts in estimating jobs, in getting business, in laying out work and supervising it, they were personally responsible for the considerable success of the company.
The financial picture of the taxpayer company is shown in these figures:
Year Ending June 30 Gross Receipts Net Income (Loss) Total Compensation to Savkos
1957 $461,666.10 $(11,273.85) $62,500
1958 555,672.88 26,205.24 49.000
1959 775,916.01 38,683.27 52.000
The Commissioner’s and the Tax compensation was as follows: Court’s treatment of the Savkos’ total
Commissioner Tax Court
Taxable Year Ended June 30 Compensation Allowed Tax Deficiency Compensation Allowed Tax Deficiency
1957 $26,000.00 $ 6,873.11 $49,000.00 $ -0-
1958 26,000.00 16,103.40 49.000. 00 4,096.79
1959 26,000.00 13,520.00 52.000. 00 -0-
The Tax Court on this record held amounts paid each of the Savko brothers in 1957 “was unreasonable as compensation for services actually rendered * * * to the extent of $6,750 each.” It thus appears that the Tax Court allowed $24,500 as “reasonable” compensation to each officer for the first year of operation of the company at a time when the company showed a loss. This was the same compensation which the company paid to each brother in the following year — the first year when the company showed a profit.
Under this record we cannot say that the Tax Court’s determination was “clearly erroneous.” Rule 52(a) Fed. R.Civ.P.; Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960) v. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Affirmed.
. § 162. Trade or business expenses.
“(a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including — •
“(1) a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * ” 26 U.S.C.1958 ed., Sec. 162 (a) (1).
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_casetyp1_7-2
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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".
RYAN-RICHARDS, Inc., v. WHITESIDES et al.
No. 1627.
Circuit Court of Appeals, Tenth Circuit.
May 6, 1938.
James S. Twyford, of Oklahoma City, Okl. (Solon W. Smith and William J. Crowe, both of Oklahoma City, Okl., on the brief), for appellant.
T. Murray Robinson, of Oklahoma City, Okl. (Leverett Edwards, of Oklahoma City, Okl., and T. M. Robinson, of Altus, Okl., on the brief), for appellee Artie Whitesides.
Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
Artie Whitesides as plaintiff instituted this action for herself as widow and as next friend of Edward Richard Whitesides, her minor son by her husband, Major E. White-sides, deceased, against Ryan-Richards, Incorporated, to recover damages for the alleged negligent killing of her said husband, about 11:30 a. m. on December 21, 1933, at a point on highway 62 about one and one-half miles directly east of Altus, Okl.
By amended petition Percy Meacham became a party defendant.
The parties will be referred to herein in the order in which they appeared in the lower court, and when not so designated will be referred to as follows: The plaintiff as “widow” and the defendants, Ryan-Richards, Incorporated, as “contractor,” and Percy T. Meacham, as “truck driver.”
The said “contractor” answered, denying each and every allegation except where admitted, and interposed the plea of contributory negligence on the part of said decedent and averred that the injury, if it occurred as alleged, which was by defendants denied, that the party occasioning same was not an agent, servant or employee of said “contractor,” but an independent contractor operating his own truck, under no control or supervision of said “contractor,” who was in no wise responsible for said negligence and consequent damage.
Plaintiff (the widow) by reply denied all affirmative averments contained in said answer, specifically pleading as to the allegation that the said “truck driver” was an independent contractor, that the “contractor” was then and there operating under a contract with the Highway Commission of the State of Oklahoma, pursuant to section 204 of the National Industrial Recovery Act, 40 U.S.C.A. § 404, which provided:
“For the purpose of providing for emergency construction of public highways and related projects, 'the President is authorized to make grants to the highway departments of the several States in an amount not less than $400,000,000 to be expended by such departments in accordance with the provisions of the Federal Highway Act, approved November 9, 1921, as amended and supplemented [chapter 1 of Title 23], except as provided in this title [chapter] as follows: * * *
“(c) All contracts involving the expenditure of such grants shall contain provisions establishing minimum rates of wages, to be predetermined by the State highway department, which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals for bids for the work.”
And further averred that certain funds were allotted under the provisions of said act to the State Highway Commission, on account of which the State Highway Commission entered into a contract for certain road improvements on the highways of the State of Oklahoma, containing the following provision:
“No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer or his authorized representative. Requests for permission to sublet, assign or otherwise dispose of any portion of the contract shall be in writing and accompanied by showing that the organization which will perform the work is particularly experienced and equipped for such work. The contractor shall give assurance that the minimum wage for unskilled labor and the maximum amount to be deducted for board, if furnished, as stated in his proposal shall apply to labor performed on all work sublet, assigned or otherwise disposed of in any way. Written consent to sublet, assign or otherwise dispose of any portion of the contract shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract.”
A certified copy of said contract was attached as a part of said reply, with the further allegation that neither was application. made to the State Highway Commission nor its written consent obtained to sublet or assign or otherwise dispose of any portion of said contract, and that the said defendant, the “contractor,” was prohibited by its terms from employing the said “truck driver” as an independent contractor to perform any of the work thereunder, it being further alleged therein that: “Copies of all pay rolls for work performed under this contract (whether done by the contractor or under a sub-contract or otherwise), certified under oath by the contractor or his authorized representative, shall be filed with the engineer, showing the name of each employee, the State and the county of his bona fide residence, the agency from which his name was ’ obtained, whether or not a veteran with dependents, the class of work performed, the hours worked each day, the wage rate paid, the total amount earned and deductions for board, if any”; and that in accordance with said contract, and for the purpose of receiving payments thereon, the said “contractor” made its sworn reports to said Highway Commission, stating that the said “truck driver,” who is one and the same person as P. T. Meacham, was an employee of said “contractor,” a certified copy of one of said reports so made being attached to said reply and made a part thereof.
Judgment on verdict was for plaintiff, from which this appeal followed.
The deceased, whilst driving a truck on the highway east of Altus, Okl., traveling westward on said highway, and having picked up two hitchhikers, one of whom was blind, but both of whom were in his truck, stopped said truck on the north shoulder of said gravelled and graded highway, as far away from the traveled road as practicable. Having gotten out of said truck, he was standing on its south side making repairs on the motor when the said “truck driver” driving a gravel truck, also going west towards Altus, drove up directly behind the Whitesides truck until close to it, then swerved out, and around the said truck, the plainly defined tracks disclosing that the “truck driver’s” truck missed the White-sides truck about a foot and one-half, a line of blood and brains being along its tracks for some distance.
At the time of the accident the two hitchhikers were sitting on the bed of the truck just behind the cab, on the right side, facing north, one of whom, Wiley Giddens, being blind, could not tell how close the “truck driver’s” truck came to the deceased’s truck. The other. Reginald Rutledge, testified that the Whitesides truck stopped where the accident occurred, pulling out to the right side of the road, he (witness) being on the flat bed facing north, talking to blind Wiley Giddens, whilst Whitesides was working on the motor with the hood up, the motor idling, witness, not hearing “truck driver’s” truck but only a noise, looked around and saw Whitesides lying in the road about 35 feet in front of his truck, and the “truck driver’s” truck stopped about 500 yards further down the road. The said Reginald Rutledge examined the truck tracks from the “truck driver’s” track back and along past the Whitesides track, which were 18 or 20 inches from the Whitesides truck, Whitesides’ hat lying under same, and thus tracing same from “track driver’s” truck location back past the Whitesides truck, the tracks being 18 inches outside from the Whitesides truck.
Ross Rutherford, the county attorney of said county, testified that on December 21, 1933, he went to the scene of the accident, it being an ordinary clear day — neither wind blowing nor sand flying, on said highway (No. 62), the traveled part of the highway being about 60 feet wide, its entire right of way covering 100 feet, the bar pit being not over a foot deep with gradual slope. The Whitesides truck headed west, the body of the deceased still in the road, he examined and made investigation to find where the truck driven by the “truck driver” had passed with reference to the White-sides truck, and found that it had come from the east toward the west directly behind the Whitesides truck parked on the north side of the road as close to the bar pit as it could get without being driven into the bar pit, there being room on the left side of the road for two cars driving abreast to pass the Whitesides truck, the “truck driver’s” tracks coming directly behind the Whitesides truck, and disclosing that he had traveled behind the Whitesides truck till he got close to it, then swerved out, the plainly defined tracks showing he missed it possibly a foot and one-half or two feet south of the Whitesides truck, and along its track there being a line of brains and blood.
O. R. Jones, undersheriff, going from Altus to the scene of the accident, did not see the “track driver’s” truck when he arrived, no other truck being there except the Whitesides track. The place where he saw the sign of where the “truck driver’s” truck had stopped was about one-fourth mile from the accident, there being only one set of tracks behind the Whitesides truck. He later saw the “truck driver’s” truck at Altus. The auxiliary gasoline tank on it extended out further than the wheels, 3 to 6 inches past the bed of the truck, with a clot of brains hanging on it. The road was straight where the accident occurred and a parked truck could have been seen practically as far as the vision of the eye could extend.
Ernest Hathaway, a deputy sheriff for seven years and such on December 21, 1933, went to the scene of the accident and made an investigation of tracks and observed a heavy set of tracks coming from the east on the north side of the road, and as these tracks came up, approaching the Whitesides truck, they swerved to the left or south of the Whitesides truck, missing it by 2 or 3 feet, and was able to follow these tracks substantially up to where the body lay, there being brains scattered along the road parallel to the tracks, and signs on the road where the body had slid, which lay approximately 60 feet in front of the Whitesides track, not in the center of the road, the body being west of the truck which was facing west, the highway a wide one, and the Whitesides truck being parked very close to the bar pit. He was present when Meacham talked, who said he saw no one standing around the truck, but about the time he got ready to pass, a man kind of stepped out and he thought turned around and about the same time he heard the truck strike something, and mentioned it to the boy who was riding with him. He then stopped his truck and went back to the Whitesides truck when he saw what had happened.
Demurrer to plaintiff’s evidence on the part of each defendant was interposed, overruled, and exceptions saved.
Evidence on part of defendant and rebuttal by plaintiff was introduced.
At close" of all the evidence each defendant separately moVed the court t"o direct the jury to return a verdict in his or its favor, exceptions being saved.
(1) Whether plaintiff met the burden of proof with substantial evidence tending to show that the negligence alleged was the proximate cause of the injury and (2) that Meacham was an employee of Ryan-Richards, Incorporated, and not an independent contractor, it is uncontradicted that the deceased, Whitesides, had stopped his truck on the north shoulder of the highway as near the bar pit as reasonably possible and as distant from the section of the road over which the main part of the traffic passed as it could practically and safely be done, and had gotten out of the cab or driver’s .seat, going around on the south side of his truck, and raised the hood covering the engine on that side, endeavoring to make some repairs on its motor, and at the same time the defendant Percy Meacham, driving a gravel truck at a high rate of speed, at about 40 miles an hour, neither sounding his horn nor giving any signal or warning of his approach to the point on the highway where, for over 300 yards away from the White-sides truck, he admitted seeing.it, and failed to slow same down as he approached. By keeping a proper lookout he could have seen it as far as the vision of the eye could carry. His statement is that as he approached it he slowed- his truck down to 25 miles per hour, which is at variance with the weight of evidence in the record. He drove so close to the north shoulder of said highway in such a manner as to endanger vehicles and persons compelled to stop at such point on said highway, failing to keep his truck under reasonable control to avoid hitting the deceased, although in plain sight for several hundred yards before reaching that point.
Defendant Meacham admitted that he was overloaded, having 13,000 pounds on his truck, 2,750 pounds being the reasonably permitted load, the reserve gas tank on his truck projecting 3 to 6 inches beyond its right side, which struck deceased with sufficient force to crush his skull and scatter his brains along the roadway and hurl his body a long distance, 60 feet down the roadway, and not stopping his truck until he had gone about 400 yards beyond the point of the accident.
The court in submitting the issue as to negligence and proximate cause to the jury, committed no error.
Whether Ryan-Richards, Incorporated, was an employer, and Meacham an employee, in Standard Oil Co. v. Parkinson, 8 Cir., 152 F. 681, 682, it is said:
“The test of one’s liability for the act or omission of bis alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, ‘respondeat superior,’ in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond. * * *
“The fact that Perry’s compensation was-agreed to be paid and'was paid in solido for all that he did, including his hauling of the oil and gasoline and his sales, deliveries, collections, and remittances, indicates that all these acts were bound together and performed in the same relation, and the evidence that they were either by agreement or in fact' so separated that he was an independent contractor in the performance of the former and the agent of the’ company in' his relation to the latter is not so conclusive or convincing that all reasonable men in the exercise of an honest and unprejudiced judgment would agree that at the instant, and in the act of driving upon the railroad Perry was his own master or without the command and direction- of the company, while in the care, sale, delivery, and collection of the price of the oil and gasoline he was its agent. It is indisputable that there was substantial and persuasive evidence that in the performance of the latter acts Perry was the agent of the company subject to its command and direction. The driving of the team was an act -ordinarily within the scope and course of such an agency, and, in view of the fact that the hauling and driving were paid for together with the acts of care, sale, and delivery,vthe evidence in this case is not so conclusive that he was not the agent of the company and subject to its command in the hauling and in the driving upon the crossing that it was the duty of the court below to withdraw that issue from the jury and to so hold'as a matter of law. * * * ”
In Howard W. Luff Co. v. Capece, 6 Cir., 61 F.2d 635, it is said (page 636): “In making application of general principles to specific fácts, many and varied circumstances are relied upon in reported cases, such as the power of dischárge, the payment of wages as distinguished from other forms of compensation, the continuity of the employment, the .engagement by the alleged employee in a distinct business or occupation, the professional skill required in doing the employer’s work, and so on. Such circumstances, however, are not ultimate facts, but are only more or less useful in determining whose is the work and whose is the power of control. * * * ” See, also, Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; New Orleans, M. & C. Railroad Co. v. Hanning, 15 Wall. 649, 21 L.Ed. 220; Pittsburgh Valve Foundry & Construction Co. v. Gallagher, 6 Cir., 32 F.2d 436; P. F. Collier & Son Co. v. Hartfeil, 8 Cir., 72 F.2d 625; Western Express Co. v. Smeltzer, 6 Cir., 88 F.2d 94, 112 A.L.R. 74; and Philadelphia & R. Coal & Iron Co. v. Barrie, 8 Cir., 179 F. 50 at page 54 (concurring opinion by Circuit Judge Sanborn).
James, the superintendent, employed the “truck driver,”- directing him where to get loads of sand and where to dump same, with no understanding as to how many yards or loads of sand or to what extent were to be hauled or how long the hauling would continue or as to whether as long as it was necessary for sand to be hauled and delivered or dumped for the completion of said construction. The “truck driver” was subject to be discharged at any time without regard as to whether the work was satisfactory, his compensation to be paid i'n solido for all that he did, including the use of the truck and the hauling and dumping of the sand, the contractor furnishing the gasoline to be deducted out of said compensation.
The “truck driver” was not engaged in a distinct business or occupation, as he neither owned the truck, nor furnished the sand, being temporarily employed. No information was furnished the “contractor” as to who owned the truck or how long he could use it. The employment was not distinctive. The contract not being in writing, its intent must be gathered .from the direct and circumstantial evidence. The “truck driver” did not buy or sell the sand —did not know where it was located except as he was directed by the agent of the “contractor,” and was to dump it along the highway where the construction work was being done as directed by the agent of the “contractor.”
MaWirter had no part in the procuring of the job. The sand did not belong to him. The check was made out to the “truck driver” and not to MaWirter. The “contractor’s” agent furnished the “truck driver” with the gas and oil for the truck, the bill for same being reserved when the payment for the work was made. The “truck driver” could not only cease work at any time but could also be dispensed with at any time.
A flagman located by the “contractor” along the construction line when the trucks loaded with sand would come along to dump signalled them to slow down or to dump.
The right of the employer to exercise a limited control over the work, without thereby destroying the independent character of the contract, is recognized by the courts. Rules seem to be well established that, where the control reserved does not apply to the mode or manner of having the work done, not in any way taking the work out of the hands of the contractor, it will not destroy the independent nature of the contract, the relation of master and servant not to be inferred from the reservation by the employer of powers which do not deprive the contractor of his right to use his own methods in carrying out his contract.
The mere fact that a proprietor retains a general supervision over work to be constructed for him by another, to satisfy himself that the contractor carries out the stipulations of his contract, does not make the proprietor responsible for the wrongs done to third persons in the prosecution of the work. If the other provisions of the contract are such as render the person employed an independent contractor, he will not be converted into a servant by the insertion of stipulations reserving to the employer “the right to change, inspect, and supervise to the extent necessary to produce the result intended by the contract.” The mere fact of direction as to things to be done, without control over the methods or means of doing them, does not make a contractor a servant. The right of the defendant to supervise the work so far as to see whether it was done according to contract does not throw the responsibility if any, of the contractor, upon the employer.
In the instant case the “contractor,” in a written report made to the Highway Commission, sworn to, stated that the “truck driver” yvas its employee. This is direct evidence to be considered in connection with all the circumstances. True, the “contractor” and its codefendant, the “truck driver,” seek to explain this admission in writing, but that, under the evidence in the record, is a question for the determination by the jury as to independent contractor vel non.
In Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460, it is said (page 13) ; “'One of the tests to determine the question is whether the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done. Where the facts presented are as consistent'with the theory of agency as that of independent contractor, the burden is upon the one asserting the independency of the contractor to show the true relation of the parties. This may he a mixed question of law and fact, or of law alone.”
'In Norwegian Danish M. E. Church v. Home Tel. Co., 66 Wash. 511, 119 P. 834, it is said (page 835) : “These facts are quite as consistent with the theory of agency as that of independent contractor, and the burden shifts to appellant to show its true relation to the construction company, the best evidence of which would have been its contract, thus making a mixed question of law and fact, or one of law alone.”
The judgment of the lower court is affirmed.
Percy Meaeham, a defendant, testified that lie had lived at Lone Wolf, Old., since 1924, and was not acquainted with deceased; that lie saw him at the time of the accident when he was hauling sand for J. P. MaWirter who lived at Lone Wolf and who owned the New International Truck that he was driving, and was hauling 4 yards of sand which he got 2 miles east and three-fourth miles north of Indi^lioma, about 35 miles from where the accident took place and about 40 miles from where it was to be delivered, the road construction being east of Altus on highway 62; and that he first saw the truck of Whitesides about 300 yards ahead of him, at that time being fully loaded and running about 35 miles an hour going west, and saw Whitesides standing beside his truck with one foot on the running board talking to some one in the cab or looking in the cab, and thought he was a highway patrolman, and. as he approached slowed his truck to about 25 miles per hour, pulling over past the center grade of the road on the south side, and that he was on the south side of the road, having pulled over at least 150 yards down the road, and when he was about 25 feet from the truck some one reached out of the Whitesides truck. • He could see his arm as it came out of the cab in a playing manner as if to strike- at White-sides. Whitesides jerked back and his hat fell off,“and he started running across the road in front of Meacham, laughing. He did not have time to sound horn or anything, but wheeled 'over, missing him with the front end of the truck, but his head hit the gas tank on the side of the truck, and after he passed the parked truck he ran about halfw.ay to a little culvert in the road before stopping, about 150 yards down the road. He asked the boy on his truck if he had knocked the man down and, being informed he had, he jumped off the truck and got on the side of another truck going east and rode back; that Green Gannon was 'the driver of this truck and it could not have been over four minutes from the time of the accident until he (Meacham) got back to the scene. Whitesides’ body was lying’ about 15 feet from his truck, his feet to the northwest and his head to the southeast; one-half of his body being on the south side of the road and one-half on the north. Witness remáined at the scene about 15 minutes, no sheriff or county attorney being there during that time, and then he drove to the courthouse at Altus, waiting for the sheriff. The surface of the road was smooth, hard gravel and could not be dented by wheels. Witness went to work on the 20th of the month, having seen Mr. James, the superintendent for Ryan-Richards out on the job and asked him if he needed any more trucks and, upon being asked what kind of truck he had, he stated he had an International with a 4-yard bed, and Mr. James, the superintendent, told him to get the sand at Indiahoma; that he would give him $1.50 per yard for hauling sand, and that Mr. James never gave him any instructions about how to go, how long he was supposed to work, just .telling him how much he was paying, where to get the sand and said he would show him where to dump it when he got back. Witness hauled three loads on the 20th and one load on the 21st when the accident occurred, a total of 12 yards, for which he was to receive $18. Mr. James or his. bookkeeper stood good for him on a gas bill which was deducted from the amount of the check. The check was shown him, and he stated that was the checK which James’ paymaster or bookkeeper gave him when he went back there for settlement after the accident occurred, and he gave the check to a man he was working for there in Altus and stated that it was his own signature on the back and was also the signature of Mir. MaWirter also on the back, and also identified his gas hill that they had stood good for. The money for the bill was held out of the cheek so he didn’t know whether he or Ryan-Richards had paid it. The check was admitted in evidence, being signed by Ryan-Richards, Incorporated, in favor of P. T. Meacham, in the sum of $14.10, which was marked “Sand Haul,” dated 12-21-33. It was endorsed first by P. T. Meacham and then J. A. MaWjrter.
On cross-examination witness stated it was a clear bright day and level road, and that when he came -to the truck he slowed down to 25 miles an hour, the truck being parked on the north side with one wheel off of the road next to the gravel on the bar pit, with plenty of room to get by; that he was about 25 feet from Whitesides when he turned to run across the road, when somebody reached out and slapped him (White-sides), who ducked his head and whirled around, starting to run and from tlie expression on his face he was laughing; that he measured the distance with his eye and saw the expression on his face and the hand go out of the cab and saw the hat on the ground when he ran out and yet did not know whether he had hit the man or not, although the blow was sufficient to dash Whitesides’ brains out and throw the body 15 feet. The road had a 30-foot surface, there being room for a car to pass between the two trucks, and the body fell about 15 feet in front of Whitesides truck. The auxiliary gas tank struck Whitesides, there being a 16-gallon fuel tank on the side of the bed. He denied that he had made different statements about how the accident happened. He did not own the truck himself. When he went to work there was no agreement as to his working for any specific length of time; he never asked the superintendent how long he could work, and how long the joh was, or anything about that, and did not contract to keep him for any definite period. When Meacham dumped his last load, he saw two or three other haulers who told him the job was over. Meacham had not agreed to haul any specific number of loads or to deliver any certain amount of gravel. The contract was not in writing but in parol. The material he was hauling belonged to the man who owned the sand bed, he supposed. He did not buy the sand and resell to Ryan-Richards ; he had been driving a truck about ten years. MaWirter did not come out and procure the job. The sand did not belong to MaWirter. Meacham asked that his gasoline bill be paid and he was given a cheek for the rest of the money, the check being made out to Meacham and dated December 21, 1933. It was a Ryan-Richards check. Asked how the Ryan-Richards Company happened to stand good for his gasoline bill, he stated he had worked for them before. He told them he was out of gas and asked if they would stand good for it and they said yes, and when he slowed down believing he saw a highway patrolman it was that he was not afraid of the speed he. was driving but because he had on a load of 13,000 pounds. He was getting $6 a load or $1.50 per yard for hauling.
On redirect examination he testified that he endorsed the check to J. M. MaWirter, who paid him for his services. He got $3 per day. He could stop work at any time. MaWirter could have called him off the job whenever he wanted to. He was supposed to have a load of 2,750 pounds on the truck but actually had on about 13,000 pounds.
MaWirter did not go with witness to make the deal with James. All the trucks on the job dumped at different places. The foreman told him where to dump. There was a flagman frequently placed out by Ryan-Richards along the jobs and when the trucks would come up to where this flagman was he would signal them and the man would slow down.
Green Cannon testified that he lived close to Fort Cobb and was acquainted with Percy Meacham on December 21, 1933, seeing him at that time, and met him around the culvert on highway 62 about 5 miles east of Altus that day. Meacham got on his truck and told him that he had run over a man and killed Mm. It was about 200 yards from Meacham to Whitesides’ truck and about 400 yards from the culvert to White-sides’ truck. When they got to the scene of the accident, Whitesides was lying face downward about 20 or 30 feet in front of the truck a little to the left, that is, south, his body being a little north of the center of the road. There was blood on the road and on the truck fenders.
No blood was on the Whitesides truck. Meacham’s truck was about 200 yards from the culvert and about 200 yards west of the Whitesides truck, and Meacliam told him at that time that he had run over a man, when he took him back to the accident. Meacham also said he was working for Ryan-Richards, hauling sand — the same kind of work he was doing — and he got Ms job from James, who appeared to be in charge, and he supposed Ryan-Richards was paying him, and the foreman told Mm what to get and where to get it. Witness was driving his own truck and started to work on the 20th and hauled to the 21st. When he went back to the scene of the accident he could see tracks that looked to be tracks of the Meacham truck which he figured were about 3 or 4 feet south of the Whitesides truck. Some cars congregated at the scene before he left.
It was a big, wide, level road and a clear day. Witness did not work two whole days. He hauled after the accident while Meacham did not. Witness did not see the sheriff or undersheriff nor the blind man and his companion. Witness traced the tracks of the Meacham truck up to the Whitesides truck and then on east.
Ralph S. James testified that he was an engineer, was employed by Ryan-Richards, Incorporated, in December, 1933, as superintendent of a job in said county, east of- Altus, Okl. He was superintending the construction project and culvert and employed the material haulers. He employed Meacham on December 20th and was to pay him $1.50 a yard for hauling sand. The agreement was made out on the road. He had some sand to be hauled from a pit just east of Indiahoma, and he had two or three men hauling. They were hauling pretty fast and three or four other trucks came in on the job and stated they wanted a job and asked him what they were paying. He said he was paying $1.50 a yard for hauling sand and they all started hauling sand, and Meacham was one of these four. Ther'e was nothing said other than that he described. the place where the sand was to be gotten and how much a yard was to be paid for it. Trucks were hired by the yard. They were neither maintained nor repaired by the employer, as the company did not want to be responsible for a man who had to go 40 miles for sand. He hired by the load. He saw the Meacham truck which had a gasoline tank located about the center of the body and a center dump gravel truck body, the tank being on the right side about 4 feet from the ground and about 16 to 18 inches in diameter, being located a couple of inches inside of the outside wheels.
. The. job was finished on the 21st. Witness kept the time and Mr. Pauli made up the pay rolls, the wages being computed by the load. There was no agreement to carry any definite amount of loads. The contract was so much a load whether they got two or ten loads. When a hauler came in he drew a ticket and he either gave it to the foreman or the witness. Mr. Pauli made up the pay roll, it being filed with the Highway Commission according ,to the contract. These truck drivers were being carried on these pay rolls but their wages were computed by the load. James, the superintendent, laid off the truck drivers or discharged them and told them when their time was up. During the period of hauling he had the right to start or stop any one from hauling when he wanted to. There was a main highway running through there which the haulers used in going to the sand pit. They were maintaining safety regulations such as barricades at the street corners and at holes. Witness did not tell the people how to get to the sand pit, all he had was a description of the distance east of Indiahoma and how far north. Witness gave the information to Pauli from which to make up the pay roll. Witness also furnished Pauli the information with which to pay the men and the names of those who worked.
C. S. Pauli testified that he was employed in December, 1933, by Ryan-Richards. Incorporated, as cashier and on December 21st was located in Altus, where he took care of the checks and made up the • records, and identified the original pay roll records on the job.
On cross-examination he stated that the record was that Meacham and Cannon worked on the 19th and 20th but that was a mistake, as it should read the 20th and 21st, and, further, that under the contract with the State employees were required to receive a minimum wage of 40 cents per hour. Witness identified an exhibit as the regular pay roll ending December 31, 1933, and found the name of P. T. Meacham on the pay roll record, showing he was paid $14.10 and there was a deduction of $3.90 for something they had to advance him. The $18 was paid for hauling 12 cubic yards of sand at $1.50 per
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
COMMISSIONER OF INTERNAL REVENUE v. BOLLINGER et al.
No. 86-1672.
Argued January 13, 1988
Decided March 22, 1988
Scalia, J., delivered the opinion of the Court, in which all other Members joined, except Kennedy, J., who took no part in the consideration or decision of the case.
Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Durney, Deputy Solicitor General Lauber, Richard Farber, and Teresa E. McLaughlin.
Charles R. Hembree argued the cause for respondents. With him on the brief was Philip E. Wilson.
F. Kelleher Riess filed a brief for Gary R. Frink et al. as amici curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
Petitioner, the Commissioner of Internal Revenue, challenges a decision by the United States Court of Appeals for the Sixth Circuit holding that a corporation which held record title to real property as agent for the corporation’s shareholders was not the owner of the property for purposes of federal income taxation. 807 F. 2d 65 (1986). We granted certiorari, 482 U. S. 913 (1987), to resolve a conflict in the Courts of Appeals over the tax treatment of corporations purporting to be agents for their shareholders. Compare George v. Commissioner, 803 F. 2d 144, 148-149 (CA5 1986), cert. pending, No. 86-1152, with Frink v. Commissioner, 798 F. 2d 106, 109-110 (CA4 1986), cert. pending, No. 86-1151.
I
Respondent Jesse C. Bollinger, Jr., developed, either individually or in partnership with some or all of the other respondents, eight apartment complexes in Lexington, Kentucky. (For convenience we will refer to all the ventures as “partnerships.”) Bollinger initiated development of the first apartment complex, Creekside North Apartments, in 1968. The Massachusetts Mutual Life Insurance Company agreed to provide permanent financing by lending $1,075,000 to “the corporate nominee of Jesse C. Bollinger, Jr.” at an annual interest rate of eight percent, secured by a mortgage on the property and a personal guarantee from Bollinger. The loan commitment was structured in this fashion because Kentucky’s usury law at the time limited the annual interest rate for noncorporate borrowers to seven percent. Ky. Rev. Stat. §§360.010, 360.025 (1972). Lenders willing to provide money only at higher rates required the nominal debtor and record titleholder of mortgaged property to be a corporate nominee of the true owner and borrower. On October 14, 1968, Bollinger incorporated Creekside, Inc., under the laws of Kentucky; he was the only stockholder. The next day, Bollinger and Creekside, Inc., entered into a written agreement which provided that the corporation would hold title to the apartment complex as Bollinger’s agent for the sole purpose of securing financing, and would convey, assign, or encumber the property and disburse the proceeds thereof only as directed by Bollinger; that Creekside, Inc., had no obligation to maintain the property or assume any liability by reason of the execution of promissory notes or otherwise; and that Bollinger would indemnify and hold the corporation harmless from any liability it might sustain as his agent and nominee.
Having secured the commitment for permanent financing, Bollinger, acting through Creekside, Inc., borrowed the construction funds for the apartment complex from Citizens Fidelity Bank and Trust Company. Creekside, Inc., executed all necessary loan documents including the promissory note and mortgage, and transferred all loan proceeds to Bollinger’s individual construction account. Bollinger acted as general contractor for the construction, hired the necessary employees,‡ and paid the expenses out of the construction account. When construction was completed, Bollinger obtained, again through Creekside, Inc., permanent financing from Massachusetts Mutual Life in accordance with the earlier loan commitment. These loan proceeds were used to pay off the Citizens Fidelity construction loan. Bollinger hired a resident manager to rent the apartments, execute leases with tenants, collect and deposit the rents, and maintain operating records. The manager deposited all rental receipts into, and paid all operating expenses from, an operating account, which was first opened in the name of Creekside, Inc., but was later changed to “Creekside Apartments, a partnership.” The operation of Creekside North Apartments generated losses for the taxable years 1969, 1971, 1972,1973, and 1974, and ordinary income for the years 1970, 1975, 1976, and 1977. Throughout, the income and losses were reported by Bollinger on his individual income tax returns.
Following a substantially identical pattern, seven other apartment complexes were developed by respondents through seven separate partnerships. For each venture, a partnership executed a nominee agreement with Creekside, Inc., to obtain financing. (For one of the ventures, a different Kentucky corporation, Cloisters, Inc., in which Bollinger had a 50 percent interest, acted as the borrower and titleholder. For convenience, we will refer to both Creekside and Cloisters as “the corporation.”) The corporation transferred the construction loan proceeds to the partnership’s construction account, and the partnership hired a construction supervisor who oversaw construction. Upon completion of construction, each partnership actively managed its apartment complex, depositing all rental receipts into, and paying all expenses from, a separate partnership account for each apartment complex. The corporation had no assets, liabilities, employees, or bank accounts. In every case, the lenders regarded the partnership as the owner of the apartments and were aware that the corporation was acting as agent of the partnership in holding record title. The partnerships reported the income and losses generated by the apartment complexes on their partnership tax returns, and respondents reported their distributive share of the partnership income and losses on their individual tax returns.
The Commissioner of Internal Revenue disallowed the losses reported by respondents, on the ground that the standards set out in National Carbide Corp. v. Commissioner, 336 U. S. 422 (1949), were not met. The Commissioner contended that National Carbide required a corporation to have an arm’s-length relationship with its shareholders before it could be recognized as their agent. Although not all respondents were shareholders of the corporation, the Commissioner took the position that the funds the partnerships disbursed to pay expenses should be deemed contributions to the corporation’s capital, thereby making all respondents constructive stockholders. Since, in the Commissioner’s view, the corporation rather than its shareholders owned the real estate, any losses sustained by the ventures were attributable to the corporation and not respondents. Respondents sought a redetermination in the United States Tax Court. The Tax Court held that the corporation was the agent of the partnerships and should be disregarded for tax purposes. 48 TCM 1443 (1984), ¶ 84, 560 P-H Memo TC. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed. 807 F. 2d 65 (1986). We granted the Commissioner’s petition for certiorari.
II
For federal income tax purposes, gain or loss from the sale or use of property is attributable to the owner of the property. See Helvering v. Horst, 311 U. S. 112, 116-117 (1940); Blair v. Commissioner, 300 U. S. 5, 12 (1937); see also Commissioner v. Sunnen, 333 U. S. 591, 604 (1948). The problem we face here is that two different taxpayers can plausibly be regarded as the owner. Neither the Internal Revenue Code nor the regulations promulgated by the Secretary of the Treasury provide significant guidance as to which should be selected. It is common ground between the parties, however, that if a corporation holds title to property as agent for a partnership, then for tax purposes the partnership and not the corporation is the owner. Given agreement on that premise, one would suppose that there would be agreement upon the conclusion as well. For each of respondents’ apartment complexes, an agency agreement expressly provided that the corporation would “hold such property as nominee and agent for” the partnership, App. to Pet. for Cert. 21a, n. 4, and that the partnership would have sole control of and responsibility for the apartment complex. The partnership in each instance was identified as the principal and owner of the property during financing, construction, and operation. The lenders, contractors, managers, employees, and tenants — all who had contact with the development — knew that the corporation was merely the agent of the partnership, if they knew of the existence of the corporation at all. In each instance the relationship between the corporation and the partnership was, in both form and substance, an agency with the partnership as principal.
The Commissioner contends, however, that the normal indicia of agency cannot suffice for tax purposes when, as here, the alleged principals are the controlling shareholders of the alleged agent corporation. That, it asserts, would undermine the principle of Moline Properties v. Commissioner, 319 U. S. 436 (1943), which held that a corporation is a separate taxable entity even if it has only one shareholder who exercises total control over its affairs. Obviously, Moline’s separate-entity principle would be significantly compromised if shareholders of closely held corporations could, by clothing the corporation with some attributes of agency with respect to particular assets, leave themselves free at the end of the tax year to make a claim — perhaps even a good-faith claim— of either agent or owner status, depending upon which choice turns out to minimize their tax liability. The Commissioner does not have the resources to audit and litigate the many cases in which agency status could be thought debatable. "Hence, the Commissioner argues, in this shareholder context he can reasonably demand that the taxpayer meet a prophylactically clear test of agency.
We agree with that principle, but the question remains whether the test the Commissioner proposes is appropriate. The parties have debated at length the significance of our opinion in National Carbide Corp. v. Commissioner, supra. In that case, three corporations that were wholly owned subsidiaries of another corporation agreed to operate their production plants as “agents” for the parent, transferring to it all profits except for a nominal sum. The subsidiaries reported as gross income only this sum, but the Commissioner concluded that they should be taxed on the entirety of the profits because they were not really agents. We agreed, reasoning first, that the mere fact of the parent’s control over the subsidiaries did not establish the existence of an agency, since such control is typical of all shareholder-corporation relationships, id., at 429-434; and second, that the agreements to pay the parent all profits above a nominal amount were not determinative since income must be taxed to those who actually earn it without regard to anticipatory assignment, id., at 435-436. We acknowledged, however, that there was such a thing as “a true corporate agent... of [an] owner-principal,” id., at 437, and proceeded to set forth four indicia and two requirements of such status, the sum of which has become known in the lore of federal income tax law as the “six National Carbide factors”:
“[1] Whether the corporation operates in the name and for the account of the principal, [2] binds the principal by its actions, [3] transmits money received to the principal, and [4] whether receipt of income is attributable to the services of employees of the principal and to assets belonging to the principal are some of the relevant considerations in determining whether a true agency exists. [5] If the corporation is a true agent, its relations with its principal must not be dependent upon the fact that it is owned by the principal, if such is the case. [6] Its business purpose must be the carrying on of the normal duties of an agent.” Ibid, (footnotes omitted).
We readily discerned that these factors led to a conclusion of nonagency in National Carbide itself. There each subsidiary had represented to its customers that it (not the parent) was the company manufacturing and selling its products; each had sought to shield the parent from service of legal process; and the operations had used thousands of the subsidiaries’ employees and nearly $20 million worth of property and equipment listed as assets on the subsidiaries’ books. Id., at 425, 434, 438, and n. 21.
The Commissioner contends that the last two National Carbide factors are not satisfied in the present case. To take the last first: The Commissioner argues that here the corporation’s business purpose with respect to the property at issue was not “the carrying on of the normal duties of an agent,” since it was acting not as the agent but rather as the owner of the property for purposes of Kentucky’s usury law. We do not agree. It assuredly was not acting as the owner in fact, since respondents represented themselves as the principals to all parties concerned with the loans. Indeed, it was the lenders themselves who required the use of a corporate nominee. Nor does it make any sense to adopt a contrary-to-fact legal presumption that the corporation was the principal, imposing a federal tax sanction for the apparent evasion of Kentucky’s usury law. To begin with, the Commissioner has not established that these transactions were an evasion. Respondents assert without contradiction that use of agency arrangements in order to permit higher interest was common practice, and it is by no means clear that the practice violated the spirit of the Kentucky law, much less its letter. It might well be thought that the borrower does not generally require usury protection in a transaction sophisticated enough to employ a corporate agent — assuredly not the normal modus operandi of the loan shark. That the statute positively envisioned corporate nominees is suggested by a provision which forbids charging the higher corporate interest rates “to a corporation, the principal asset of which shall be the ownership of a one (1) or two (2) family dwelling,” Ky. Rev. Stat. §360.025(2) (1987) — which would seem to prevent use of the nominee device for ordinary home-mortgage loans. In any event, even if the transaction did run afoul of the usury law, Kentucky, like most States, regards only the lender as the usurer, and the borrower as the victim. See Ky. Rev. Stat. § 360.020 (1987) (lender liable to borrower for civil penalty), § 360.990 (lender guilty of misdemeanor). Since the Kentucky statute imposed no penalties upon the borrower for allowing himself to be victimized, nor treated him as in pari delicto, but to the contrary enabled him to pay back the principal without any interest, and to sue for double the amount of interest already paid (plus attorney’s fees), see Ky. Rev. Stat. § 360.020 (1972), the United States would hardly be vindicating Kentucky law by depriving the usury victim of tax advantages he would otherwise enjoy. In sum, we see no basis in either fact or policy for holding that the corporation was the principal because of the nature of its participation in the loans.
Of more general importance is the Commissioner’s contention that the arrangements here violate the fifth National Carbide factor — that the corporate agent’s “relations with its principal must not be dependent upon the. fact that it is owned by the principal.” The Commissioner asserts that this cannot be satisfied unless the corporate agent and its shareholder principal have an “arm’s-length relationship” that includes the payment of a fee for agency services. The meaning of National Carbide’s fifth factor is, at the risk of understatement, not entirely clear. Ultimately, the relations between a corporate agent and its owner-principal are always dependent upon the fact of ownership, in that the owner can cause the relations to be altered or terminated at any time. Plainly that is not what was meant, since on that interpretation all subsidiary-parent agencies would be invalid for tax purposes, a position which the National Carbide opinion specifically disavowed. We think the fifth National Carbide factor — so much more abstract than the others — was no more and no less than a generalized statement of the concern, expressed earlier in our own discussion, that the separate-entity doctrine of Moline not be subverted.
In any case, we decline to parse the text of National Carbide as though that were itself the governing statute. As noted earlier, it is uncontested -that the law attributes tax consequences of property held by a genuine agent to the principal; and we agree that it is reasonable for the Commissioner to demand unequivocal evidence of genuineness in the corporation-shareholder context, in order to prevent evasion of Moline. We see no basis, however, for holding that unequivocal evidence can only consist of the rigid requirements (arm’s-length dealing plus agency fee) that the Commissioner suggests. Neither of those is demanded by the law of agency, which permits agents to be unpaid family members, friends, or associates. See Restatement (Second) of Agency §§ 16, 21, 22 (1958). It seems to us that the genuineness of the agency relationship is adequately assured, and tax-avoiding manipulation adequately avoided, when the.fact that the corporation is acting as agent for its shareholders with respect to a particular asset is set forth in a written agreement at the time the asset is acquired, the corporation functions as agent and not principal with respect to the asset for all purposes, and the corporation is held out as the agent and not principal in all dealings with third parties relating to the asset. Since these requirements were met here, the judgment of the Court of Appeals is
Affirmed.
Justice Kennedy took no part in the consideration or decision of this case.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Claude C. SCOTT, Appellant, v. UNITED STATES of America, Appellee.
No. 19763.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 13, 1966.
Decided Oct. 26, 1966.
Mr. Charles R. Work (appointed by this court), with whom Mr. Paul K. Murphy, Washington, D. C., was on the brief, for appellant.
Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before Danaher, Circuit Judge, and Bastían, Senior Circuit Judge, and Wright, Circuit Judge.
DANAHER, Circuit Judge.
Scott was convicted of unauthorized use of a motor vehicle in violation of D.C. Code § 22-2204 (1961). The jury also found the appellant guilty of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312 (1964). In the District Court concurrent sentences were imposed with respect to the conviction on each count.
The appellant and the Government stipulated at trial that a certain identified Dodge automobile was owned by a resident of Richmond, Virginia, whose daughter had authorized the car to be parked on a Richmond street in front of a funeral home; further it was stipulated that the car bore a certain serial number and Virginia registration tags. Neither the owner of the car nor his daughter knew the appellant and conced-edly neither had given him permission to use the car.
The car was stolen on May 28, 1964. On the afternoon of November 25, 1964, a Metropolitan Police officer stopped the car for a speeding violation. The car then bore 1964 North Carolina license tags. When called upon to produce evidence of registration, the appellant opened the glove compartment and produced the Virginia registration which had been issued to the owner. A check of the serial number identified the car as that described in the Virginia registration. A similar check with North Carolina authorities developed that the North Carolina tags had been issued for a 1963 Ford.
The appellant offered no explanation for his possession of the stolen vehicle. Rather, he claimed to have been suffering from a form of amnesia and that he had no recollection of events over the period from May, 1964 to the date of his arrest.
In rebuttal, a psychiatrist on the staff at St. Elizabeths testified that he found the appellant had not suffered from mental disease or mental defect. The arresting officer testified that Scott had talked coherently, had answered questions put to him and had seemed normal in all respects.
There would seem to be no possible basis upon which this appellant’s use and operation of the stolen car on the public streets of the District of Columbia could be anything but “unauthorized” as the term is used in the pertinent section of our Code. We find no error.
Appellant contends that his conviction on either count may not stand in that the lapse of time between the theft in Richmond and his being arrested while driving the car in the District of Columbia had been so great that the car could not in any legally satisfactory sense be described as “recently stolen.” We need not decide the point, in the absence at trial of a request for limiting instructions or of objections to the charge as given.
Affirmed.
. This section in pertinent part provides: “Any person who, without the consent of the owner, shall * * * use, operate * * * on a public * * * highway * * * an automobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use, or purpose shall be punished by a fine not exceeding one thousand dollars or imprisonment not exceeding five years, or both such fine and imprisonment.”
. Cf. Travers v. United States, 118 U.S.App.D.C. 276, 335 F.2d 698 (1964); Bray v. United States, 113 U.S.App.D.C. 136, 139, 140, 306 F.2d 743, 746, 747 (1962); Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Gilbert v. United States, 94 U.S.App.D.C. 321, 215 F.2d 334 (1954) ; Boehm v. United States, 271 F. 454 (2 Cir. 1921).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America v. John H. ISENHOWER, Appellant.
No. 84-5474.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Feb. 8, 1985.
Decided Feb. 13, 1985.
John H. Isenhower, pro se.
Joseph J. Farnan, Jr., U.S. Atty., William C. Carpenter, Jr., Asst. U.S. Atty., Wilmington, Del., for appellee.
Before SEITZ, GIBBONS and SLOVI-TER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant, John H. Isenhower, was convicted after a jury trial of failing to file income tax returns for the calendar years 1980 and 1981 in violation of 26 U.S.C. § 7203. The evidence at trial showed that Isenhower received gross income during calendar year 1980 of $30,321.67 and during calendar year 1981 of $14,136.87, and that he failed to file any income tax returns for those years.
On appeal, Isenhower, appearing pro se, does not challenge the government’s factual assertions. Instead, he contends in essence that the district court lacked jurisdiction to try him for criminal tax offenses. His arguments are, “that the Congress of the United States ... has never conferred upon the District Courts within the Federal Government, or any other Court, criminal jurisdiction over God-created persons.” Brief for Appellant at 1. “The second reason is that in examining the Constitution Congress only has the power over three (3) types of crimes! [counterfeiting, felonies on the high seas and offenses against the law of nations, and treason].” Id. “The third reason is that within the whole of Title 18 of the United States Code, exists all the law (sic) on any federal crime that could be committed against the United States.” Id. at 2. The district court rejected these challenges, as do we.
Jurisdiction over tax matters has been explicitly given to the district courts by Congress, which provided that the district courts of the United States shall have original jurisdiction over all offenses against the laws of the United States. 18 U.S.C. § 3231. Article I, Section 8 of the Constitution and the Sixteenth Amendment empower Congress to create and enforce an income tax. The statute under which Isenhower was convicted plainly falls within that authority. Finally, there is no precedent nor rationale to support Isenhower’s contention that all of the criminal laws of the United States must be placed in Title 18.
We will affirm the judgment of the district court. Furthermore, the grounds asserted in this appeal are plainly frivolous. We will, therefore, today issue an Order to Show Cause why we should not “award just damages and single or double costs to the appellee” as authorized under Rule 38 of the Federal Rules of Appellate Procedure.
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_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
BONHAM, District Director of Immigration and Naturalization, v. CHI YAN CHAM LOUIE.
No. 11551.
Circuit Court of Appeals, Ninth Circuit.
Feb. 11, 1948.
J. Charles Dennis, U. S. Atty., and John E. Belcher, Asst. U. S. Atty., both of Seattle, Wash., for appellant
Fred H. Lysons and John J. Sullivan, both of Seattle, Wash., for appellee.
J. P. Sanderson, of Seattle, Wash., ami-cus curia for appellee.
Before DENMAN, STEPHENS, and ORR, Circuit Judges.
DENMAN, Circuit Judge.
This is an attempted appeal from a judgment admitting appellee to citizenship. In the district court the United States appeared and opposed appellee’s petition. One R. P. Bonham, as District Director of Immigration and Naturalization at Seattle, Washington, in his own name as such officer filed within time a notice of appeal. The question we, sua sponte, are required to determine is whether such a District Director has been empowered by Congress to take such action on behalf of the sovereign in his own name as appellant.
The District Director’s notice of appeal was filed on February 14, 1947. Over ten months later the United States appears here and contends that the District Director has such power and moves that it be substituted for him as appellant. The United States also has filed a stipulation of the appellee that the United States so be substituted as appellant and that the appeal be heard on its merits.
It is obvious that appellee’s stipulation for an attack on the judgment favorable to him will not confer jurisdiction on this court if no appeal has been taken by the United States.
The executive organization placed the administration of the immigration laws in the Attorney General. Reorganization Plan V of June 4, 1940, 54 Stat. 1238, 5 U. S.C. § 133t, 5 U.S.C.A. following section 133t. This included the office of the Commissioner of Immigration. That officer “under the direction of the Attorney General” has “charge of the administration of all laws relating to the immigration of aliens” and of the employees appointed under such laws. 8 U.S.C. § 102, 8 U.S.C. A. § 102. We assume that he has the authority to delegate to a district director such administrative power.
The particular immigration law here so to be administered is Sec. 334(d) of the Nationality Act of 1940, 8 U.S.C. § 734(d), 8 U.S.C.A. § 734(d), which provides,
“(d) The United States shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner’s right to admission to citizenship, and shall have the right to call witnesses, produce evidence, and be heard in opposition to the granting of any petition in naturalization proceedings,”
This is preceded by provisions for other administrative functions by an “examiner” to gather information respecting the petitioner’s right to naturalization.
It is clear that in administering the litigating provision 734(d), it is the duty of its administrator to cause the United States “to appear” and become the party litigant. The litigant is not the District Director any more than the Attorney General is the litigant in administering the litigation of tax claims for the United States. The instant notice that the “District Director * * * hereby appeals” no more brings the case before us than would a notice of appeal in such a tax claim case if it merely stated that “the Attorney General appeals” from a judgment adverse to the government.
The substitution of the United States in this court could not create jurisdiction in us by the notice of appeal in the name of the District Director, filed ten months earlier. The case has never been before us. In this it is unlike McDonald v. Nebraska, 8 Cir., 101 F. 171, 173, where the cause of action was held to be always before the district court in which the substitution was made. Nor is it like United States v. Koike, 9 Cir., 164 F.2d 155 and Sumpter Lumber Co. v. Sound Timber Co., 257 F. 408, where we held we had jurisdiction of the appeals before substituting as appellant the real party in interest.
Another panel of this court filed on December 29, 1947, an opinion in the case of Carmichael v. Wong Choon Hoi, 164 F.2d 696, which ordered the dismissal of the appeal, stating “Appellant is not a proper party to bring this appeal.” An examination of the record there shows that, as here, that appeal was from a decision in favor of a Chinese petitioning for naturalization in which the notice of appeal was in the name of a District Director of Immigration.
The motion to substitute the United States of America as appellant is denied and the appeal is ordered dismissed.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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.
UNITED STATES v. BAGGOT
No. 81-1938.
Argued March 2, 1983 —
Decided June 30, 1983
Deputy Solicitor General Wallace argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Archer, Harriet S. Shapiro, Robert E. Lindsay, and William A. Whitledge.
Samuel J. Betar argued the cause and filed a brief for respondent.
Briefs of amici curiae urging affirmance were filed by Erwin N. Gris-wold and Otis M. Smith for General Motors Corp.; and by Arlington Ray Robbins and Michael E. Cahill for Fred Witte et al.
Justice Brennan
delivered the opinion of the Court.
In United States v. Sells Engineering, Inc., ante, p. 418, we decide today that in some circumstances the Government may obtain disclosure of grand jury materials for civil uses under Federal Rule of Criminal Procedure 6(e)(3)(C)(i) (hereinafter sometimes referred to as (C)(i)). The question in this case is whether an Internal Revenue Service investigation to determine a taxpayer’s civil tax liability is “preliminar[y] to or in connection with a judicial proceeding” within the meaning of that Rule. We agree with the Court of Appeals that it is not.
In May 1976, a special grand jury began investigating certain commodity futures transactions on the Chicago Board of Trade. Respondent James E. Baggot became a target of the investigation. He was never indicted; instead, after interviews with IRS agents and plea negotiations with the Government, he pleaded guilty to two misdemeanor counts of violating the Commodity Exchange Act. The substance of Baggot’s crime was a scheme to use sham commodities transactions to create paper losses, which he deducted on his tax returns. A fraction of the “losses” was then recovered in cash kickbacks which were not reported as income.
About eight months after Baggot’s plea, the Government filed a (C)(i) motion for disclosure of grand jury transcripts and documents to the IRS, for its use in an audit to determine Baggot’s civil income tax liability. At first the District Court denied the request. After two renewed motions, however, the court granted disclosure. It held that some of the materials sought are not “matters occurring before the grand jury,” and therefore not subject to Rule 6(e)’s requirement of secrecy. With respect to the remainder of the materials, the court concluded that disclosure is not authorized by (C)(i) because the IRS’s proposed civil tax investigation is not “pre-liminar[y] to or in connection with a judicial proceeding.” Nevertheless, the court allowed disclosure under its “general supervisory powers over the grand jury.” App. to Pet. for Cert. 47a-48a.
The Court of Appeals reversed. In re Special February, 1975 Grand Jury (Baggot), 662 F. 2d 1232 (CA7 1981). It held that all the materials sought, with one possible exception, are “matters occurring before the grand jury” and therefore subject to Rule 6(e). It agreed with the District Court that no disclosure is available under (C)(i), but it held that the District Court erred in granting disclosure under “general supervisory powers.” It remanded the case for further consideration concerning the material that might not be “matters occurring before the grand jury.” The Government sought certiorari, limited to the question of whether the IRS’s civil tax audit is “preliminar[y] to or in connection with a judicial proceeding” under (C)(i). We granted certiorari. 457 U. S. 1131 (1982).
The IRS is charged with responsibility to determine the civil tax liability of taxpayers. To this end, it conducts examinations or audits of taxpayers’ returns and affairs. If, after the conclusion of the audit and any internal administrative appeals, the IRS concludes that the taxpayer owes a deficiency, it issues a formal notice of deficiency as prescribed by 26 U. S. C. § 6212 (1976 ed. and Supp. V). Upon receiving a notice of deficiency, the taxpayer has, broadly speaking, four options: (1) he can accept the IRS’s ruling and pay the amount of the deficiency; (2) he can petition the Tax Court for a redetermination of the deficiency; (3) he can pay the amount of the deficiency and, after exhausting an administrative claim, bring suit for a refund in the Claims Court or in district court; or (4) he can do nothing and await steps by the IRS or the Government to collect the tax. See generally 4 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶¶ 111.5, 112.1, 115.1, 115.2, 115.7 (1981).
Certain propositions are common ground between the parties. Both sides, sensibly, understand the term “in connection with,” in (C)(i), to refer to a judicial proceeding already pending, while “preliminarily to” refers to one not yet initiated. The Government concedes that an IRS audit, including its informal internal appeal component, is not itself a “judicial proceeding” within the meaning of the Rule. Conversely, Baggot agrees that either a Tax Court petition for redetermination or a suit for refund would be a “judicial proceeding.” The issue, then, is whether disclosure for use in an IRS civil audit is “preliminar[y] to” a redetermination proceeding or a refund suit within the meaning of (C)(i). We conclude that it is not.
The provision in (C)(i) that disclosure may be made “preliminarily to or in connection with a judicial proceeding” is, on its face, an affirmative limitation on the availability of court-ordered disclosure of grand jury materials. In our previous cases under Rule 6(e), we have not had occasion to address this requirement in detail, focusing instead on the requirement that the moving party show particularized need for access to grand jury materials. See Sells, ante, at 442-446, and cases cited. The two requirements, though related in some ways, are independent prerequisites to (C)(i) disclosure. The particularized-need test is a criterion of degree; the “judicial proceeding” language of (C)(i) imposes an additional criterion governing the kind of need that must be shown. It reflects a judgment that not every beneficial purpose, or even every valid governmental purpose, is an appropriate reason for breaching grand jury secrecy. Rather, the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge from the matter in which the material is to be used, or even that litigation is factually likely to emerge. The focus is on the actual use to be made of the material. If the primary purpose of disclosure is not to assist in preparation or conduct of a judicial proceeding, disclosure under (C)(i) is not permitted. See United States v. Young, 494 F. Supp. 57, 60-61 (ED Tex. 1980).
It follows that disclosure is not appropriate for use in an IRS audit of civil tax liability, because the purpose of the audit is not to prepare for or conduct litigation, but to assess the amount of tax liability through administrative channels. Assuming, arguendo, that this audit will inevitably disclose a deficiency on Baggot’s part, see also n. 6, infra, there is no particular reason why that must lead to litigation, at least from the IRS’s point of view. The IRS’s decision is largely self-executing, in the sense that it has independent legal force of its own, without requiring prior validation or enforcement by a court. The IRS need never go into court to assess and collect the amount owed; it is empowered to collect the tax by nonjudicial means (such as levy on property or salary, 26 U. S. C. §§ 6331, 6332), without having to prove to a court the validity of the underlying tax liability. Of course, the matter may end up in court if Baggot chooses to take it there, but that possibility does not negate the fact that the primary use to which the IRS proposes to put the materials it seeks is an extrajudicial one — the assessment of a tax deficiency by the IRS. The Government takes countless actions that affected citizens are permitted to resist or challenge in court. The fact that judicial redress may be sought, without more, does not mean that the Government’s action is “preliminar[y] to a judicial proceeding.” Of course, it may often be loosely said that the Government is “preparing for litigation,” in the sense that frequently it will be wise for an agency to anticipate the chance that it may be called upon to defend its actions in court. That, however, is not alone enough to bring an administrative action within (C)(i). Where an agency’s action does not require resort to litigation to accomplish the agency’s present goal, the action is not preliminary to a judicial proceeding for purposes of (C)(i).
We need not decide whether an agency’s action would always be preliminary to litigation if it arose under an administrative scheme that does require resort to courts — one in which, for example, the agency, when it found a probable violation of law, was required to bring a civil suit or criminal prosecution to vindicate the law and obtain compliance. We also do not hold that the Government (or, for that matter, a private party who anticipates a suit or prosecution against him) may never obtain (C)(i) disclosure of grand jury materials any time the initiative for litigating lies elsewhere. Nor do we hold that such a party must always await the actual commencement of litigation before obtaining disclosure. In In re Grand Jury Proceedings, Miller Brewing Co., 687 F. 2d 1079 (CA7 1982), rehearing pending, for example, the IRS had closed its audit and issued a notice of deficiency, and the taxpayer had clearly expressed its intention to seek redeter-mination of the deficiency in the Tax Court. The same court that denied disclosure in this case correctly held in Miller Brewing that the IRS may seek (C)(i) disclosure. In such a case, the Government’s primary purpose is plainly to use the materials sought to defend the Tax Court litigation, rather than to conduct the administrative inquiry that preceded it. There may be other situations in which disclosure is proper; we need not canvass the possibilities here. In this case, however, it is clear that the IRS’s proposed use of the materials is to perform the nonlitigative function of assessing taxes rather than to prepare for or to conduct litigation. Hence, no disclosure is available under (C)(i).
The judgment of the Court of Appeals is
Affirmed.
7U. S. C. § 6c(a)(A).
Hence, we need not address in this case the knotty question of what, if any, sorts of proceedings other than garden-variety civil actions or criminal prosecutions might qualify as judicial proceedings under (C)(i). See generally, e. g., Bradley v. Fairfax, 634 F. 2d 1126, 1129 (CA8 1980); In re J. Ray McDermott & Co., 622 F. 2d 166, 170-171 (CA5 1980); In re Special February 1971 Grand Jury v. Conlisk, 490 F. 2d 894, 897 (CA7 1973); Doe v. Rosenberry, 255 F. 2d 118, 120 (CA2 1958).
Our decision is limited to the meaning of (C)(i). Other considerations may govern the construction of similar standards in other contexts (e. g., Fed. Rule Civ. Proc. 26(b)(3) (“in anticipation of litigation or for trial”)).
The particularized-need test requires that the materials sought be “needed to avoid a possible injustice in another judicial proceeding” and that the moving party’s request be “structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 222 (1979) (footnote omitted). See generally id., at 221-224; United States v. Sells Engineering, Inc., ante, at 442-446. These inquiries cannot even be made without consideration of the particulars of the judicial proceeding with respect to which disclosure is sought. See also the proposed new Rule 6(e)(3)(E), to take effect August 1, 1983.
The Government relies on a remark by Wayne LaFave (Reporter for the Advisory Committee on Rules) during congressional hearings leading to the 1977 amendment to Rule 6(e). See generally United States v. Sells Engineering, Inc., ante, at 436-442. In response to a question, LaFave agreed that a “tax hearing” would be considered a judicial proceeding for purposes of Rule 6(e). Hearings on Proposed Amendments to the Federal Rules of Criminal Procedure before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess., 94 (1977). LaFave’s somewhat ambiguous reference to a “tax hearing,” however, cannot reasonably be taken to refer to an administrative audit. As LaFave explained earlier:
“[T]he cases say that the grand jury material cannot be turned over to an administrative agency for purely administrative proceedings, because that is not a judicial proceeding. But there are occasions when an administrative agency can show sufficient need with respect to pending judicial proceedings.” Id., at 86.
Indeed, if LaFave’s remark meant what the Government now takes it to mean, LaFave’s position would be inconsistent with the Government’s own position, which is that the audit is not itself a judicial proceeding but only preliminary to one.
In particular, we find it unnecessary to address the complex contentions of the parties as to the level of likelihood of litigation that must exist before an administrative action is preliminary to litigation. Baggot points out that the purpose of an audit is to determine whether or not he owes any tax deficiency. Thus, he argues, the occurrence of litigation is contingent not only on his decision to contest an assessment, see n. 7, infra, but on the outcome of the audit itself. He concludes that administrative investigations of this kind can never qualify as “preliminar[y] to a judicial proceeding,” since to posit a judicial proceeding is to prejudge the very question supposedly being decided in the investigation. See, e. g., United States v. Bates, 200 U. S. App. D. C. 296, 627 F. 2d 349 (1980); McDermott, 622 F. 2d, at 171; In re Grand Jury Proceedings, 309 F. 2d 440, 443-444 (CA3 1962). The Government counters that when the taxpayer has already pleaded guilty to a tax scam, the prospect of exoneration from civil liability is more theoretical than real. See, e. g., In re Judge Elmo B. Hunter’s Special Grand Jury Empaneled September 28, 1978, 667 F. 2d 724 (CA8 1981); see also Doe v. Rosenberry, 255 F. 2d, at 119-120. As a general matter, many an investigation, begun to determine whether there has been a violation of law, reaches a tentative affirmative conclusion on that question; at that point, the focus of the investigation commonly shifts to ascertaining the scope and details of the violation and building a case in support of any necessary enforcement action. We decline in this case to address how firm the agency’s decision to litigate must be before its investigation can be characterized as “preliminarfy] to a judicial proceeding,” or whether it can ever be so regarded before the conclusion of a formal preliminary administrative investigation.
We reject Baggot’s argument that litigation is a remote contingency because, if a deficiency is assessed against him, he may simply choose to pay it, or to negotiate some settlement with the Government. The Government correctly points out that settlement (including settlement by surrender) is almost always a possibility. If some chance of settlement were enough to disqualify a case from eligibility for (C)(i) disclosure, there would be nothing left of the “preliminarily to” language of the Rule. There may conceivably be instances in which the chances of litigation are so low that it cannot be considered a realistic possibility, but this case at least is not such an instance.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genstand
|
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 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".
UNITED STATES of America, Plaintiff-Appellee, v. Isadore VERLINSKY, a/k/a Isadore Verlin, and Murray Verlinsky, a/k/a Murray Verlin, Defendants-Appellants.
No. 71-2802
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 8, 1972.
Rehearing Denied May 31, 1972.
George W. Ericksen, Maefarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendants-appellants.
John L. Briggs, U. S. Atty., Bernard H. Dempsey, Jr., Tampa, Fla., Francis Dicello, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Scott P. Crampton, Gilbert E, Andrews, Asst. At-tys. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Crombie J. D. Garrett, Gordon S. Gilman, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit, Judges.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).
CLARK, Circuit Judge:
The alloyed tax-bankruptcy issue in this appeal requires that we construe a very narrow, highly technical, seldom invoked, slightly ambiguous — but here hotly contested — section of the Internal Revenue Code. Our interpretation constricts the reach of the aphorism of olde that “[t]he King’s debtor dying, the King shall first be paid,” by holding that before the sovereign claimed its privilege the statute of limitations had run. Indeed, the parties before us are agreed that but for the possible application of the tolling provisions of the Code section at issue in this case, the sovereign has no right at all to receive payment from these debtor-taxpayers of an amount admittedly owed.
The facts are not in dispute. We treat with them only briefly for most are of no aid to our disposition of the case. The United States brought an action in the court below to reduce to judgment four separate tax assessments previously made against the taxpayers (Isadore Verlinsky a/k/a Isadore Verlin, and Murray Verlinsky a/k/a Murray Verlin). The taxpayers admitted that the assessments had been made and were true and correct with respect to dates and amounts assessed; that the alleged unpaid balance, plus interest, was due and owing; but contended that it was all barred by the six-year statute of limitations. 26 U.S.C.A. §§ 6501, 6502. The government replied that the addition of four extensions agreed to by the taxpayers, 26 U.S.C.A. § 6502(a) (2), along with a period during which the taxpayers’ assets had been under the control of a bankruptcy court, 26 U.S.C. A. § 6503(b), together served to prolong the otherwise expired statute and brought the filing of the collection suit within the six-year limit. On rebuttal, the taxpayers further sharpened the controversy between the parties by conceding the four extensions, and thereby circumscribed the single issue now before this court to this: within the meaning of § 6503(b), for what portion of the period during which a bankruptcy proceeding continues can it be said that assets of a taxpayer, who is eventually discharged as a bankrupt, are under the control or custody of the bankruptcy court.
From the filing of the petition in bankruptcy, to the discharging of the trustee and closing of the estate, approximately two and one-half years elapsed. Due solely to the fortuitous timing of those proceedings, as they related to the running of the statute, the parties are in complete agreement that: if § 6503(b) should operate to toll the statute only until the discharge of the bankrupt, then it had run on the date suit was filed; if, however, the statute should remain tolled by § 6503(b) as late as the final closing of the estate, then none of the assessments were barred and the entire 23,125.85 dollars sought was payable. The district judge concluded that the latter interpretation was correct, and awarded summary judgment for the United States. We reverse.
Other than the Malkin decision, supra n. 2, which dealt with precisely the same question and facts that are now before us, there have been few cases dealing with this section of the Code, and though both parties attempt to rely on them, we find none to be helpful. Doubtless though, Chief Judge Carter foresaw our question when in his Mc-Cann decision he observed that “[t]he section leaves much to be desired in definiteness and clarity, and various situations may be spelled out in which real problems would arise.” This is what we have here.
Approaching, then, what is a novel question for this circuit, we are convinced that we should be first guided by the purpose Congress intended for § 6503(b), as that purpose is expressed in the legislative history. “The statute generally is suspended where assets are in the control or custody of a court because during this time they are not subject to administration collection procedures.” Quite obviously, the reason for the rule is that it would be unfair to allow the statute to run against the government’s right to enforce a tax lien at a time when, even if the government did bring suit, it couldn’t collect because it couldn’t “get at” the taxpayer’s assets. Other suspensions provided for in § 6503 are similarly designed. For example, the statute is tolled during any period the Secretary is prohibited from collecting by levy or proceeding in court, § 6503(a) (1), and likewise during any period that the taxpayer leaves the country for more than six months. § 6503(c).
Directly put, we must decide at what point during the bankruptcy proceedings did assets which once belonged to the taxpayer cease to be his assets; for at that moment, all assets then belonging to the taxpayer would be subject to collection by the government, and the government would again be charged with the responsibility of pursuing that collection. We hold that that moment occurred when the taxpayer was discharged as a bankrupt. For upon discharge, the taxpayer gave up all interest in his erstwhile assets (title to which had actually passed to the trustee the day the petition was filed, 11 U.S.C.A. § 110(a)), and did so in exchange for release from all save non-dischargeable debts. 11 U.S.C.A. § 1(15). That day, the taxpayer became a new economic person, entitled to retain any non-bankruptcy assets he then held and such other assets as he thereafter could accumulate, without interference from the bankruptcy court. As importantly, no later than that day, the taxpayers here were subject to assessment, suit, levy and execution for any debts not discharged, which included the tax assessments sought to be enforced by this action. Insofar as § 6503(b) relates to a bankruptcy proceeding, we refuse to interpret it in a fashion that would delay the hour when a man could finally divorce himself from his former holdings and debts. To do so would undermine the very purpose and policies of the Bankruptcy Act itself and jeopardize this circuit’s commitment to letting the bankrupt “start afresh.” Menier v. United States, 5th Cir., 405 F.2d 245, 249 (1968). We conclude that if the King wished to be paid, first or otherwise, then beginning on the day of discharge he had the obligation to bestir himself; for that is the day, economically speaking, the King’s debtor died.
Though this settles the issue, we feel compelled to make specific wherein we disagree with the Malkin decision, a carefully considered opinion which the court below endorsed. The Malkin court interpreted § 6503(b) in light of another section of the code, 26 U.S.C.A. § 6873(a).
The Judge reasoned that:
Inasmuch as the government is authorized to present its claim for adjudication to the Bankruptcy Court under 1954 IRC § 6871 and is authorized under 1954 IRC § 6873 to collect the portion of the taxes allowed in such proceeding ‘after the termination of such proceeding,’ it would appear a reasonable construction to hold that the entire term of the bankruptcy proceeding is excluded from the limiting period for suit. In a statutory sense the assets of the taxpayer are ‘in the control or custody of the court’ from the date the petition is filed to the date the referee signs the order closing the estate. United States v. Malkin, supra 317 F.Supp. at 616, n. 9.
We cannot accept that construction of § 6503(b) for two reasons. First, the government in this case has not contended, and we can find no evidence in the record to show, that it had presented a claim for these taxes to the bankruptcy court. Failing in its burden of proving that it was thus prevented from pursuing payment from the taxpayer until “after the termination of such proceeding,” it cannot now claim the protection of any relief § 6873 might otherwise afford. Second, even if the government had presented these claims to the bankruptcy court and was thereby precluded from demanding payment of unpaid claims until the proceedings had finally terminated, that would not persuade us to find that the taxpayer’s assets were under the control of that court until that time. Though in that instance § 6503(b) would not suspend the running of the statute any longer than it did in the actual case, § 6503(a) (1), previously mentioned, would so do. For that section specifically provides that there will be a suspension of the running of the statute for any period “during which the Secretary or his delegate is prohibited from making the assessment or from collecting by levy or a proceeding in court . . . and for 60 days thereafter.” However, finding that §§ 6873 and 6503(a) (1) are completely inapplicable to the case at bar, we decide that”] the statute began to run again from the I date the taxpayers were discharged in bankruptcy. The parties are agreed that this determination bars the suit; therefore the judgment below must be
Reversed.
. Magna Carta, 1225, 9 Hen. 3, c. 18, cited in Plumb, Federal Tax Liens and Priorities in Bankruptcy — Recent Developments, 43 Ref.J. 37 (1969).
. For a fully developed presentation of the facts, see United States v. Malkin, 317 F.Supp. 612 (E.D.N.Y.1970), a case dealing with precisely the same events and issues as the present case.
. The complete text of § 6503(b) reads:
(b) Assets of taxpayers in control or custody of court. — -The period of limitations on collection after assessment pre-cribed in section 6502 shall be suspended for the period the assets of the taxpayer are in the control or custody of the court in any proceeding before any court of the United States or of any State or of the District of Columbia, and for 6 months thereafter.
. See United States v. McCann, 259 F. Supp. 632 (S.D.Cal.1966); United States v. Cranor, 253 F.Supp. 600 (S.D.Ind. 1966).
. S.Rep.No. 1708, 89th Cong., 2nd Sess. 24-25 (1966).
. It is true that upon the completion of administration and distribution of the bankrupt’s estate, should there be any residue remaining it would be restored to the bankrupt for him to deal with as he pleases. 4A Collier on Bankruptcy, ¶ 70.07, at 94 (14th ed. 1971). However, such a remote possibility, which did not come to fruition in the case at bar, is not sufficient to upset our judgment that any such hypothetical residue ceased to , be “the taxpayer’s assets” on the day of discharge. From the day of discharge forward, all assets before the bankruptcy court were held in trust for the creditors of the taxpayer, and for the satisfaction of administrative costs. None of them belonged any longer to the taxpayer; they were all required of him as the price of his new economic freedom. In the unlikely event that he might later regain any portion of them, that portion would represent but an unexpected dividend of his bargain, and a newly-acquired asset.
. That section provides :
Any portion of a claim for taxes allowed in a receivership proceeding under the Bankruptcy Act which is unpaid shall be paid by the taxpayer upon notice and demand from the Secretary or his delegate after the termination of such proceeding.
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:
|
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
Denard STOKELING, Petitioner
v.
UNITED STATES.
No. 17-5554.
Supreme Court of the United States
Argued Oct. 9, 2018.
Decided Jan. 15, 2019.
Brenda G. Bryn, Fort Lauderdale, FL, for Petitioner.
Frederick Liu, Washington, DC, for Respondent.
Amir H. Ali, Roderick & Solange, MacArthur Justice Center, Washington, DC, Michael Caruso, Federal Public Defender, Brenda G. Bryn, Andrew L. Adler, Assistant Federal Public Defenders, Office of the Federal Public Defender, Fort Lauderdale, FL, for Petitioner.
Noel J. Francisco, Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Frederick Liu, Assistants to the Solicitor General, John M. Pellettieri, Attorney, Department of Justice, Washington, DC, for Respondent.
Justice THOMAS delivered the opinion of the Court.
This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim's resistance necessitates the use of "physical force" within the meaning of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does.
I
In the early hours of July 27, 2015, two people burgled the Tongue & Cheek restaurant in Miami Beach, Florida. Petitioner Denard Stokeling was an employee of the restaurant, and the Miami Beach Police identified him as a suspect based on surveillance video from the burglary and witness statements. After conducting a criminal background check, police learned that Stokeling had previously been convicted of three felonies-home invasion, kidnaping, and robbery. When confronted, Stokeling admitted that he had a gun in his backpack. The detectives opened the backpack and discovered a 9-mm semiautomatic firearm, a magazine, and 12 rounds of ammunition.
Stokeling pleaded guilty in federal court to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The probation office recommended that Stokeling be sentenced as an armed career criminal under ACCA, which provides that a person who violates § 922(g) and who has three previous convictions for a "violent felony" shall be imprisoned for a minimum of 15 years. § 924(e). ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
As relevant here, Stokeling objected that his 1997 Florida robbery conviction was not a predicate offense under ACCA. This conviction, he argued, did not qualify under the first clause-the "elements clause"-because Florida robbery does not have "as an element the use, attempted use, or threatened use of physical force."
Under Florida law, robbery is defined as "the taking of money or other property ... from the person or custody of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (1995). The Florida Supreme Court has explained that the "use of force" necessary to commit robbery requires "resistance by the victim that is overcome by the physical force of the offender." Robinson v. State, 692 So.2d 883, 886 (1997).
Instead of applying a categorical approach to the elements clause, the District Court evaluated whether the facts of Stokeling's robbery conviction were serious enough to warrant an enhancement. The court concluded that, although Stokeling " 'grabbed [the victim] by the neck and tried to remove her necklaces' " as she " 'held onto' " them, his actions did not "justify an enhancement." Sentencing Hearing in 15-cv-20815 (SD Fla.), Doc. 45, pp. 10-11. The court then sentenced Stokeling to less than half of the mandatory minimum 15-year term of imprisonment provided by ACCA.
The Eleventh Circuit reversed. 684 Fed.Appx. 870 (2017). It held that the District Court erred in making its own factual determination about the level of violence involved in Stokeling's particular robbery offense. Id., at 871. The court also rejected Stokeling's argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under ACCA's elements clause. Id., at 871-872.
We granted certiorari to address whether the "force" required to commit robbery under Florida law qualifies as "physical force" for purposes of the elements clause. 584 U.S. ----, 138 S.Ct. 1438, 200 L.Ed.2d 716 (2018). We now affirm.
II
Construing the language of the elements clause in light of the history of ACCA and our opinion in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), we conclude that the elements clause encompasses robbery offenses that require the criminal to overcome the victim's resistance.
A
As originally enacted, ACCA prescribed a 15-year minimum sentence for any person who received, possessed, or transported a firearm following three prior convictions "for robbery or burglary." 18 U.S.C. App. § 1202(a) (1982 ed., Supp. II). Robbery was defined in relevant part as "any felony consisting of the taking of the property of another from the person or presence of another by force or violence ." § 1202(c)(8) (1982 ed., Supp. II) (emphasis added).
The statute's definition mirrored the elements of the common-law crime of robbery, which has long required force or violence. At common law, an unlawful taking was merely larceny unless the crime involved "violence." 2 J. Bishop, Criminal Law § 1156, p. 860 (J. Zane & C. Zollman eds., 9th ed. 1923). And "violence" was "committed if sufficient force [was] exerted to overcome the resistance encountered." Id., at 861.
A few examples illustrate the point. Under the common law, it was robbery "to seize another's watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him." W. Clark & W. Marshall, Law of Crimes 554 (H. Lazell ed., 2d ed. 1905) (Clark & Marshall) (footnotes omitted). Similarly, it was robbery to pull a diamond pin out of a woman's hair when doing so tore away hair attached to the pin. See 2 W. Russell, Crimes and Indictable Misdemeanors 68 (2d ed. 1828). But the crime was larceny, not robbery, if the thief did not have to overcome such resistance.
In fact, common-law authorities frequently used the terms "violence" and "force" interchangeably. See ibid. (concluding that "if any injury be done to the person, or there be any struggle by the party to keep possession of the property before it be taken from him, there will be a sufficient actual 'violence' " to establish robbery); Clark & Marshall 553 ("Sufficient force must be used to overcome resistance.... If there is any injury to the person of the owner, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance" (emphasis added)). The common law also did not distinguish between gradations of "violence." If an act physically overcame a victim's resistance, "however slight" that resistance might be, it necessarily constituted violence. Ibid. ; 4 W. Blackstone, Commentaries on the Laws of England 242 (1769) (distinguishing "taking ... by force" from "privately stealing," and stating that the use of this "violence" differentiates robbery from other larcenies); see also 3 id., at 120 (explaining, in the battery context, that "the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it").
The overlap between "force" and "violence" at common law is reflected in modern legal and colloquial usage of these terms. "Force" means "[p]ower, violence, or pressure directed against a person or thing," Black's Law Dictionary 656 (7th ed. 1999), or "unlawful violence threatened or committed against persons or property," Random House Dictionary of the English Language 748 (2d ed. 1987). Likewise, "violence" implies force, including an "unjust or unwarranted use of force." Black's Law Dictionary, at 1564; accord, Random House Dictionary, at 2124 ("rough or injurious physical force, action, or treatment," or "an unjust or unwarranted exertion of force or power, as against rights or laws").
Against this background, Congress, in the original ACCA, defined robbery as requiring the use of "force or violence"-a clear reference to the common law of robbery. See Samantar v. Yousuf, 560 U.S. 305, 320, n. 13, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) ("Congress 'is understood to legislate against a background of common-law ... principles' "). And the level of "force" or "violence" needed at common law was by this time well established: "Sufficient force must be used to overcome resistance ... however slight the resistance." Clark & Marshall 553.
In 1986, Congress amended the relevant provisions of ACCA to their current form. The amendment was titled Expansion of Predicate Offenses for Armed Career Criminal Penalties. See Career Criminals Amendment Act of 1986, § 1402, 100 Stat. 3207 -39. This amendment replaced the two enumerated crimes of "robbery or burglary" with the current elements clause, a new enumerated-offenses list, and a (now-defunct) residual clause. See Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In the new statute, robbery was no longer enumerated as a predicate offense. But the newly created elements clause extended ACCA to cover any offense that has as an element "the use, attempted use, or threatened use of physical force ." 18 U.S.C. § 924(e)(2)(B)(i) (2012 ed.) (emphasis added).
" '[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.' " Hall v. Hall, 584 U.S. ----, ----, 138 S.Ct. 1118, 1128, 200 L.Ed.2d 399 (2018) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). That principle supports our interpretation of the term "force" here. By retaining the term "force" in the 1986 version of ACCA and otherwise "[e]xpan[ding]" the predicate offenses under ACCA, Congress made clear that the "force" required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause. We can think of no reason to read "force" in the revised statute to require anything more than the degree of "force" required in the 1984 statute. And it would be anomalous to read "force" as excluding the quintessential ACCA-predicate crime of robbery, despite the amendment's retention of the term "force" and its stated intent to expand the number of qualifying offenses.
The symmetry between the 1984 definition of robbery (requiring the use of "force or violence") and the 1986 elements clause (requiring the use of "physical force") is striking. By replacing robbery as an enumerated offense with a clause that has "force" as its touchstone, Congress made clear that "force" retained the same common-law definition that undergirded the original definition of robbery adopted a mere two years earlier. That conclusion is reinforced by the fact that the original 1984 statute defined "robbery" using terms with well-established common-law meanings.
Our understanding of "physical force" is further buttressed by the then widely accepted definitions of robbery in the States. In 1986, a significant majority of the States defined nonaggravated robbery as requiring force that overcomes a victim's resistance. The Government counts 43 States that measured force by this degree, 5 States that required "force" to cause bodily injury, and 2 States and the District of Columbia that permitted force to encompass something less, such as purse snatching. App. B to Brief for United States. Stokeling counters that, at most, 31 States defined force as overcoming victim resistance. Reply Brief 21. We need not declare a winner in this numbers game because, either way, it is clear that many States' robbery statutes would not qualify as ACCA predicates under Stokeling's reading.
His reading would disqualify more than just basic-robbery statutes. Departing from the common-law understanding of "force" would also exclude other crimes that have as an element the force required to commit basic robbery. For instance, Florida requires the same element of "force" for both armed robbery and basic robbery. See Fla. Stat. § 812.13(2)(a) (distinguishing armed robbery from robbery by requiring the additional element of "carr[ying] a firearm or other deadly weapon" during the robbery). Thus, as Stokeling's counsel admitted at oral argument, "armed robbery in Florida" would not qualify under ACCA if his view were adopted. Tr. of Oral Arg. 3-4; see United States v. Lee, 886 F.3d 1161, 1163, n. 1 (C.A.11 2018) (treating "Florida strong-arm robbery [i.e., basic robbery], armed robbery, and attempted robbery ... the same for purposes of analyzing the ACCA's elements clause").
Where, as here, the applicability of a federal criminal statute requires a state conviction, we have repeatedly declined to construe the statute in a way that would render it inapplicable in many States. See, e.g., United States v. Castleman, 572 U.S. 157, 167, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) (reading "physical force" to include common-law force, in part because a different reading would render 18 U.S.C. § 922(g)(9)"ineffectual in at least 10 States"); Voisine v. United States, 579 U.S. ----, ----, 136 S.Ct. 2272, 2280, 195 L.Ed.2d 736 (2016) (declining to interpret § 912(a)(33)(A) in a way that would "risk rendering § 922(g)(9) broadly inoperative" in 34 States and the District of Columbia). That approach is appropriate here as well.
B
Our understanding of "physical force" comports with Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). There, the Court held that " 'actua[l] and intentiona[l] touching' "-the level of force necessary to commit common-law misdemeanor battery-did not require the "degree of force" necessary to qualify as a "violent felony" under ACCA's elements clause. Id., at 138, 140, 130 S.Ct. 1265. To reach this conclusion, the Court parsed the meaning of the phrase "physical force." First, it explained that the modifier "physical" "plainly refers to force exerted by and through concrete bodies-distinguishing physical force, from, for example, intellectual force or emotional force." Id., at 138, 130 S.Ct. 1265. The Court then considered "whether the term 'force' in [the elements clause] has the specialized meaning that it bore in the common-law definition of battery." Id., at 139, 130 S.Ct. 1265. After reviewing the context of the statute, the Court rejected the Government's suggestion that "force" encompassed even the "slightest offensive touching." Ibid. Instead, it held that "physical force" means "violent force-that is, force capable of causing physical pain or injury to another person." Id., at 140, 130 S.Ct. 1265. Applying that standard to a Florida battery law criminalizing "any intentional physical contact," the Court concluded that the law did not require the use of "physical force" within the meaning of ACCA. Ibid.
Stokeling argues that Johnson rejected as insufficient the degree of "force" required to commit robbery under Florida law because it is not "substantial force." We disagree. The nominal contact that Johnson addressed involved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the "unwanted" nature of the physical contact itself suffices to render it unlawful. See State v. Hearns, 961 So.2d 211, 216 (Fla.2007).
By contrast, the force necessary to overcome a victim's physical resistance is inherently "violent" in the sense contemplated by Johnson, and "suggest[s] a degree of power that would not be satisfied by the merest touching." 559 U.S., at 139, 130 S.Ct. 1265. This is true because robbery that must overpower a victim's will-even a feeble or weak-willed victim-necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself "capable of causing physical pain or injury." Id., at 140, 130 S.Ct. 1265. Indeed, Johnson itself relied on a definition of "physical force" that specifically encompassed robbery: " '[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim .' " Id., at 139, 130 S.Ct. 1265 (quoting Black's Law Dictionary 717 (9th ed. 2009); emphasis added). Robbery thus has always been within the " 'category of violent, active crimes' " that Congress included in ACCA. 559 U.S., at 140, 130 S.Ct. 1265.
To get around Johnson, Stokeling cherry picks adjectives from parenthetical definitions in the opinion, insisting that the level of force must be "severe," "extreme," "furious," or "vehement." These adjectives cannot bear the weight Stokeling would place on them. They merely supported Johnson 's actual holding: that common-law battery does not require "force capable of causing physical pain or injury." Ibid . Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA's scope. Moreover, Stokeling ignores that the Court also defined "violence" as " 'unjust or improper force.' " Ibid. (emphasis added). As explained above, the common law similarly linked the terms "violence" and "force." Overcoming a victim's resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury. See Russell, Crimes and Indictable Misdemeanors, at 68.
C
In the wake of Johnson, the Court has repeated its holding that "physical force" means " 'force capable of causing physical pain or injury.' " Sessions v. Dimaya, 584 U.S. ----, ---- - ----, 138 S.Ct. 1204, 1220, 200 L.Ed.2d 549 (2018) (quoting Johnson, supra, at 140, 130 S.Ct. 1265 ); see also Castleman, supra, at 173-174, 134 S.Ct. 1405 (Scalia, J., concurring in part and concurring in judgment).
Finding this definition difficult to square with his position, Stokeling urges us to adopt a new, heightened reading of physical force: force that is "reasonably expected to cause pain or injury." For the reasons already explained, that definition is inconsistent with the degree of force necessary to commit robbery at common law. Moreover, the Court declined to adopt that standard in Johnson, even after considering similar language employed in a nearby statutory provision, 18 U.S.C. § 922(g)(8)(C)(ii). 559 U.S., at 143, 130 S.Ct. 1265. The Court instead settled on "force capable of causing physical pain or injury." Id., at 140, 130 S.Ct. 1265 (emphasis added). "Capable" means "susceptible" or "having attributes ... required for performance or accomplishment" or "having traits conducive to or features permitting." Webster's Ninth New Collegiate Dictionary 203 (1983); see also Oxford American Dictionary and Thesaurus 180 (2d ed. 2009) ("having the ability or quality necessary to do"). Johnson thus does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality.
Stokeling's proposed standard would also prove exceedingly difficult to apply. Evaluating the statistical probability that harm will befall a victim is not an administrable standard under our categorical approach. Crimes can be committed in many different ways, and it would be difficult to assess whether a crime is categorically likely to harm the victim, especially when the statute at issue lacks fine-tuned gradations of "force." We decline to impose yet another indeterminable line-drawing exercise on the lower courts.
Stokeling next contends that Castleman held that minor uses of force do not constitute "violent force," but he misreads that opinion. In Castleman, the Court noted that for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively "minor uses of force" that might not "constitute 'violence' in the generic sense" could nevertheless qualify as predicate offenses. 572 U.S., at 165, 134 S.Ct. 1405. The Court thus had no need to decide more generally whether, under Johnson, conduct that leads to relatively minor forms of injury-such as "a cut, abrasion, [or] bruise"-"necessitate[s]" the use of "violent force." 572 U.S., at 170, 134 S.Ct. 1405. Only Justice Scalia's separate opinion addressed that question, and he concluded that force as small as "hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling," id., at 182, 134 S.Ct. 1405 (alterations omitted), satisfied Johnson 's definition. He reasoned that "[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury." 572 U.S., at 182, 134 S.Ct. 1405. This understanding of "physical force" is consistent with our holding today that force is "capable of causing physical injury" within the meaning of Johnson when it is sufficient to overcome a victim's resistance. Such force satisfies ACCA's elements clause.
III
We now apply these principles to Florida's robbery statute to determine whether it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does.
As explained, Florida law defines robbery as "the taking of money or other property ... from the person or custody of another, ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1). The Florida Supreme Court has made clear that this statute requires "resistance by the victim that is overcome by the physical force of the offender." Robinson v. State, 692 So.2d 883, 886 (1997). Mere "snatching of property from another" will not suffice. Ibid.
Several cases cited by the parties illustrate the application of the standard articulated in Robinson . For example, a defendant who grabs the victim's fingers and peels them back to steal money commits robbery in Florida. Sanders v. State, 769 So.2d 506, 507-508 (Fla.App.2000). But a defendant who merely snatches money from the victim's hand and runs away has not committed robbery. Goldsmith v. State, 573 So.2d 445 (Fla.App.1991). Similarly, a defendant who steals a gold chain does not use " 'force,' within the meaning of the robbery statute," simply because the victim "fe[els] his fingers on the back of her neck." Walker v. State, 546 So.2d 1165, 1166-1167 (Fla.App.1989). It is worth noting that, in 1999, Florida enacted a separate "sudden snatching" statute that proscribes this latter category of conduct; under that statute, it is unnecessary to show either that the defendant "used any amount of force beyond that effort necessary to obtain possession of the money or other property" or that "[t]here was any resistance by the victim to the offender." Fla. Stat. § 812.131 (1999).
Thus, the application of the categorical approach to the Florida robbery statute is straightforward. Because the term "physical force" in ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of "force," Florida robbery qualifies as an ACCA-predicate offense under the elements clause. Cf. Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ("If the relevant statute has the same elemen[t]," "then the prior conviction can serve as an ACCA predicate").
IV
In sum, "physical force," or "force capable of causing physical pain or injury," Johnson, 559 U.S., at 140, 130 S.Ct. 1265 includes the amount of force necessary to overcome a victim's resistance. Robbery under Florida law corresponds to that level of force and therefore qualifies as a "violent felony" under ACCA's elements clause. For these reasons, we affirm the judgment of the Eleventh Circuit.
It is so ordered.
Justice SOTOMAYOR, with whom THE CHIEF JUSTICE, Justice GINSBURG, and Justice KAGAN join, dissenting.
In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), this Court ruled that the words "physical force" in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as "force" for purposes of the common-law crime of battery. Id., at 139-140, 130 S.Ct. 1265. This case asks whether Florida robbery requires such "physical force," and thus qualifies as a "violent felony" under the ACCA, even though it can be committed through use of only slight force. See § 924(e)(2)(B). Under Johnson, the answer to that question is no. Because the Court's contrary ruling distorts Johnson, I respectfully dissent.
I
As the majority explains, petitioner Denard Stokeling pleaded guilty in 2016 to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Government and the probation department argued for an increased sentence under the ACCA. Stokeling objected.
The ACCA imposes a 15-year mandatory-minimum sentence on any § 922(g) offender who has been convicted of at least three qualifying predicate convictions. § 924(e)(1). As relevant here, a past conviction can qualify as an ACCA predicate if it is what ACCA calls a "violent felony"-that is, "any crime punishable by imprisonment for a term exceeding one year" that
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
Clause (i) is often called the "elements clause" (or "force clause"), because it requires each qualifying crime to have an element involving force. The first part of clause (ii) is often called the "enumerated clause," because it enumerates certain generic crimes-such as burglary-that Congress sought to cover. The final part of clause (ii), often called the "residual clause," once offered a catchall to sweep in otherwise uncovered convictions, but the Court struck it down as unconstitutionally vague in 2015. See Johnson v. United States, 576 U.S. ----, ----, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569. So the elements clause and the enumerated clause are now the only channels by which a prior conviction can qualify as an ACCA "violent felony."
Whether Stokeling is subject to the ACCA's 15-year mandatory minimum hinges on whether his 1997 conviction for Florida robbery, see App. 10, qualifies under the elements clause. To determine whether a conviction qualifies as a violent felony under the ACCA, courts apply a method called the categorical approach. See Taylor v. United States, 495 U.S. 575, 600-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the elements-clause context, that method requires asking whether the least culpable conduct covered by the statute at issue nevertheless "has as an element the use, attempted use, or threatened use of physical force against the person of another." See § 924(e)(2) ; Johnson, 559 U.S., at 137, 130 S.Ct. 1265. If it does not, then the statute is too broad to qualify as a "violent felony." In determining what a state crime covers for purposes of this federal sentencing enhancement, federal courts look to, and are constrained by, state courts' interpretations of state law. See id., at 138, 130 S.Ct. 1265.
As relevant here, Florida law defines robbery as "the taking of money or other property ... from the person or custody of another ... when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (2017). The Florida Supreme Court has interpreted the statute's reference to force to require "force sufficient to overcome a victim's resistance." Robinson v. State, 692 So.2d 883, 887 (1997). Otherwise, the "degree of force used is immaterial." Montsdoca v.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genresp1
|
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.
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.
NORTHERN PACIFIC TERMINAL CO. OF OREGON v. CITY OF PORTLAND et al.
No. 7726.
Circuit Court of Appeals, Ninth Circuit
Dec. 6, 1935.
John F. Reilly and James G. Wilson, both of Portland, Or., for appellant.
Frank S. Grant, City Atty. and L. E. Latourette, Deputy City Atty., both of Portland, Or., for appellee.
Before WILBUR, DENMAN, and HANEY, Circuit Judges.
Certiorari denied 56 S. Ct. 591, 80 L. Ed. —.
HANEY, Circuit Judge.
Complainant appeals from a decree rendered against it in a suit wherein the relief asked was for an injunction restraining defendants from selling complainant’s property under a lien, arising from a special assessment which was levied for the purpose of obtaining revenue to defray the cost of the construction of an improvement known as the “Front Street Intercepting Sewer and Drainage System,” in the city of Portland, Or.
The Willamette river runs through the city of Portland, separating the city into what is called the “East Side” and the ‘West Side.” The business district on the west side of the river extends westerly from the river bank, a distance of several blocks. It appears that prior to the construction of the intercepting sewer involved herein, appellant, which operates a railroad terminal in Portland, built the necessary terminal facilities, including a union station, upon a filled in lake bed. There was a high strip of ground between the lake and the river. Appellant filled in the lake bed, principally with sand and gravel taken from the river, up to an elevatii n of 32 feet; the work being completed about the year 1893. The water in the fill of the lake bed and which is under appellant’s property is unaffected by the rise and fall of the water in the river; the reason for which was alleged to be, that the bowl of the lake surrounding appellant’s property was of some impervious formation, through which the water in the river cannot percolate. The total investment of the terminal yard approximates $10,000,-000, which does not include another portion of the terminal facilities known as Guild’s Lake Yards, where improvements were made in 1922 costing in excess of $1,500,000, and although this latter property does not enter the present controversy, it is a part of the terminal facilities. The union station alone was reconstructed a short time prior to the trial of this cause, at a cost of'about $250,000. As the terminal facilities were being constructed, complainant installed its own private sewer system, which has been adequate for its purposes for about 40 years. This sewer emptied into the river at one place only; being about five blocks north from the southern boundary of appellant’s property.
The buildings constructed by appellant on its property were constructed so that no provision was made for basements, and no basements have been built thereon. Its sewer system is not of sufficient depth for basement drainage, if, basements were constructed on appellant’s property. The water in the fill of the lake bed stands so high that a part of it would have to be drained, if basements were built on appellant’s property.
The "evidence shows the condition along the west side of the river to be in accordance with the following finding of the special master: “For more than a half century prior to 1929 the West Side water front in Portland was an open cess-pool of sewage and filth, and a breeding place for rats and vermin. As the population of the West side increased and additional and larger sewers were constructed the condition became worse, and was accentuated by antiquated buildings and decaying wooden wharfs along the West side river front. In times of high water in the Willamette River, sewers were clogged, downtown basements were flooded and vermin were driven uptown. In the district * * * there was almost an annual interruption to traffic and business caused by the installation of numerous separate pumping plants and the pumping of water and sewage which has seeped, overflowed or been forced into basements into the streets. This situation became a serious menace to the public health, and also a detriment to the property in the affected district by reason of the interruption of business and street traffic and the expense of pumping flood water and sewage from basements. Some business firms had moved away from the district to other parts of the city, and a further exodus was feared.”
This condition, so described, was due in part to the fact that sewers emptied into the river at 29 different places along the west bank of the river, and, because thereof, sewage collected on said bank. This condition, however, according to the testimony, did .not extend past a point on the bank which would be directly opposite the southern boundary of appellant’s property.
To remedy those conditions, a plan was evolved known as the “Front Street Intercepting Sewer and Drainage System,” wherein it was proposed that a concrete bulkhead wall would' be built along the west side of the river extending from a point on the bank, about directly opposite the southern boundary of plaintiff’s property, on southerly about 18 or 20 blocks. The plan also contemplated an intercepting sewer to be built, connecting all the above-mentioned sewers which emptied directly into the river, and converging them at one point where one outlet into the river was to be made. The plan also contemplated a pumping plant to be constructed at the one sewer outlet point mentioned, to pump the sewage into the river.
The plans and specifications of the plan or project were adopted by the city council on June 24, 1925, by resolution, which also determined the boundaries of the district said to be specially benefited, provided that the cost of the project would be assessed against those specially and peculiarly benefited, declared its intention of constructing such project, and directed publication of the resolution. The resolution was duly published with'a notice of the time within which remonstrances might be filed. Appellant filed a protest within the time allowed, protesting against the assessment of its property, “on the ground that none of the said property of this objector will be specially and peculiarly benefited thereby.” On September 2, 1925, the city council adopted an ordinance providing for the “time and manner of constructing” the project and directing advertisement for bids. Immediately thereafter, one of the property owners in the assessment district commenced a suit in the state court to enjoin construction of the project, claiming that the city had no power to construct a pumping plant or the bulkhead wall. In due time, this suit reached the Supreme Court of Oregon, where it was held that construction of the wall and pumping plant were essential parts of the sewerage system, and therefore the project was within the power of the city. Pioneer Real Estate Co. v. City of Portland, 119 Or. 1, 247 P. 319. This decision is conclusive as to the power of the city to construct the sea wall and pumping as an essential "part of the sewage system as well as the creation of a district to be impressed with liens for the purpose of securing money to meet the cost thereof.
The city council suspended action on the project until after the decision of the above case, when a contract for the construction of the improvement was duly made. The work was seasonably completed, and was accepted by the council on June 14, 1929. Thereafter, appellant filed a further protest against the assessment of its property, naming some 17 grounds of protest, which, for the most part, consisted of claims that its property was in nowise benefited, and that the assessment constituted a taking of appellant’s property without due process of law. This protest was denied add overruled by the council after consideration on July 3, 1929, and on July 12, 1929, the council passed an ordinance declaring the cost of the system to be $2,638,296.95, assessing the property benefited thereby, including a part of appellant’s property, and directing'entry of the assessments in the docket of the city liens. The part of appellant’s property included within the assessment district was assessed for $93,273.34.
When appellant failed to pay the assessment and the same became delinquent, the city treasurer began the proceedings to sell appellant’s property, whereupon the instant suit was instituted to enjoin such sale and to declare the assessment void.
The total cost of the project and the amount of the assessment was $2,703,718.-80, which is divided as follows:
Wall ...................... $1,781,581.20
Pumping Plant............. 303,591.56
Intercepting Sewer......... 287,498.50
Special charges and interest 331,047.54
The area of the assessment district is equal to 2179.18 lots of an area of 500 square feet each, which includes part of appellant’s property equal to 113% of such lots, or 5.3 per cent, of the total area of the district. The amount assessed against appellant’s property was 3.1 per cent, of the total assessment.
In assessing the property within the district, the property was divided into two classes: (1) Property which required sanitary sewerage and drainage only; (2) property which required sanitary sewerage and drainage, and, in addition thereto, also required protection from river overflow and sewage in basements.
It was determined that all lots in the district received the benefit of the first class mentioned, and that the cost of that benefit was the entire cost of the intercepting sewer; one-half the cost of the pumping plant and five per cent, of the cost of the wall. This total was then divided by the number of lots in the district and the quotient was the amount of the assessment against each lot, amounting to $242.42, to which was added a proportional amount of the total interest. From the total cost of the project was subtracted the amount so determined to be the total cost of the benefit to the first class of property mentioned above, which left a sum to be assessed against a portion of the lots which came within the second class, and the assessment of those lots was proportional according to their elevation.
Appellant’s property was placed in the second classification stated above.
The master found that the inclusion of appellant’s property in the second class above mentioned was an arbitrary action on the part of the city, and that appellant’s property received the benefit of sanitary sewerage and drainage, but that the wall did not specially benefit appellant’s property; that the wall was a part of the sewer project as to a portion of the district, but not with respect to appellant’s property.
The trial court held that the wall and pumping plant “were instrumentalities essential to the object and purpose of the improvement,” that appellant failed to overcome the presumption that the assessment was valid by its evidence, and overruled the findings and conclusions of the special master in all particulars inconsistent with its opinion.
The evidence clearly shows that the improvement for which the assessment is sought includes the intercepting sewer, the pumping plant, and the wall, and that they are integral parts of such improvement. There is some assumption by defendants that appellant is attempting to separate the improvement into parts, but we do not so construe the language used by appellant. There need be no argument with respect to the essence of the improvement for the evidence of both parties shows that it consisted of a bulkhead wall, a pumping plant, and an intercepting sewer.
The rule of law and the exception thereto, governing the case, are well stated in Branson v. Bush, 251 U.S. 182, 189, 40 S.Ct. 113, 115, 64 L.Ed. 215, as follows:
“Where, in laws creating districts for local improvements and taxation, there is such a legislative declaration as this, as to what lands within the district will be benefited by the improvement, the law with respect to the extent to which such determination may be reviewed by the courts is so well settled, and has so lately been reexamined and restated by this court, that-extended discussion of the subject is not justified.
“In Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763 — a decision often cited and approved — it is decided that if the proposed improvement is one which the state had authority to make and pay for by assessments on property benefited, the Legislature, in the exercise of the taxing power, has authority to determine, by the statute imposing the tax, what lands, which might be benefited by the improvement, are in fact benefited by it; and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard on the question whether their lands have be.-n benefited or not.
“The subject was carefully re-examined and the law restated in cases so recent as Phillip Wagner v. Baltimore City (Leser), 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230, and Houck v. Little River Drainage District, 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266, with the result that the rule as we have stated it was approved, with the qualification, which was before implied, that the legislative determination can be assailed under the Fourteenth Amendment only where the legislative action is ‘arbitrary, and wholly unwarranted,’ ‘a flagrant abuse, and by reason of its arbitrary character is confiscation of particular property.’ And see Witlmell v. Ruecking Construction Co., 249 U.S. 63, 69, 39 S.Ct. 200, 63 L.Ed. 479; Hancock v. Muskogee, 250 U.S. 454, 457, 39 S.Ct. 528, 63 L.Ed. 1081; Embree v. Kansas City Road District, 240 U.S. 242, 250, 36 S.Ct. 317, 60 L.Ed. 624.”
In considering whether or not the assessment in the instant case is “palpably arbitrary and a plain abuse,” as stated in Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478, 481, 36 S.Ct. 204, 60 L.Ed. 392, the following quotations are material. In Norwood v. Baker, 172 U.S. 269, 279, 19 S.Ct. 187, 191, 43 L.Ed. 443, it is said: “In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say ‘substantial excess,’ because exact equality of taxation is not always attainable; and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity, when its aid is invoked to restrain the enforcement of a special assessment.”
And in Houck v. Little River Drainage District, 239 U.S. 254, 265, 36 S.Ct. 58, 61, 60 L.Ed. 266, it is said: “When local improvements may be deemed to result in special benefits, a further classification may be made and special assessments imposed accordingly; but even in such case there is no requirement of the Federal Constitution that for every payment there must be an equal benefit.”
And in Kansas City Southern R. Co. v. Road District, 266 U.S. 379, 386, 45 S.Ct. 136, 139, 69 L.Ed. 335, it is said:
“Only where the legislative determination is palpably arbitrary, and therefore a plain abuse of power, can it be said to offend the due process of law clause of the Fourteenth Amendment. [Citations.] And only where there is manifest and unreasonable discrimination in fixing the benefits which the several parcels will receive can the legislative determination be said to contravene the equal protection clause of that amendment. Kansas City Southern R. Co. v. Road Improvement District No. 6, 256 U.S. 658, 41 S.Ct. 604, 65 L.Ed. 1151; Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 43 S.Ct. 440, 67 L.Ed. 758.
“To justify an assessment of benefits to particular lands it is not essential that the benefits be direct or immediate. Valley Farms Co. v. County of Westchester, supra [261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585], But it is essential that they have a better basis than mere speculation or conjecture. Kansas City Southern R. Co. v. Road Improvement District No. 6, supra. * * *
“The evidence, as before outlined, falls short of showing that the assessment against the railway property was either palpably arbitrary or unreasonably discriminatory. The burden was on the railway companies to overcome the presumption attending the legislative determination, and this they failed to do. * * * True, the amount of benefits which will áccrue to the railway property is largely a matter of forecast and estimate; but the same thing is true of the farm lands and town lots, and also of benefit assessments in general. [Citations.] Forecast and estimate, based on a solid premise of fact and experience, are not to be confused with mere speculation and conjecture.”
In view of the above quotations, the rule as claimed by appellant is too broadly stated, for it imports that the special benefit received must equal the assessment. The major question before us for determination is whether or not the assessment against appellant’s property so materially exceeds the special benefits received by it as to be palpably arbitrary.
It is shown by the evidence that if the improvement had been constructed including the intercepting sewer and pumping-plant but without the wall, the system would have functioned until the water in the river reached a height of approximately 28 feet, when the water would have then flowed over the bank at its lowest point. However, the improvement as constructed will function until the water in the river rises to a height of 32 feet, which is also the height of appellant’s property. If the water in the river reached the height of 32 feet, it would interfere with the operation of appellant on its property to only a slight degree. However, if the water reached that height the operation of appellant’s terminal yard would be seriously interfered with, due to the fact that several other railroads leading into appellant’s yards would not be able to reach the yards because of flood conditions at Other places.
It also appears that the improvement removed a menace to public health by removing the filthy condition along tire water front and preventing flooding of basements with backwater and sewage. In so far as appellant’s property was concerned, however, it was not affected by these conditions. It does appear that the improvement is capable of being used by appellant and that appellant could receive special benefits, in that the system would permit increased surface drainage, would permit sewage disposal, basement drainage in the event basements were built on appellant’s property, and that by reason of these benefits, the value of appellant’s property was increased by the improvement so that the assessment did not materially exceed the benefits conferred. Theée three benefits are the only benefits which we can say are fairly reflected by the evidence.
Defendant contends that where, as in this case, property is assessed which is owned in fee, the assessment must be made against the land itself and not against the use to which the property is permanently devoted. Louisville & N. R. Co. v. Barber Asphalt Co., 197 U.S. 430, 25 S.Ct. 466, 49 L.Ed. 819; Wabash R. Co. v. City of St. Louis (C.C.A. 8) 64 F.(2d) 921; Carolina & N. W. R. Co. v. Town of Clover (C.C.A. 4) 46 F.(2d) 395.
In City of San Diego v. Atchison, Topeka & Santa Fe Ry. Co. (C.C.A.) 45 F.(2d) 11, 13, certiorari denied 283 U.S. 830, 51 S.Ct. 364, 75 L.Ed. 1443, this court said: “Not only is appellee’s property now devoted exclusively to railroad purposes, and so improved as to make wholly probable the permanency of such use, but by the deeds conveying title to its immediate predecessor in interest it was expressly provided that the grantee must construct and maintain thereon a passenger station, with reversion of title in case of failure to comply with this condition. We are, therefore, of the opinion that in making the assessment appellant was bound to assume the measurable permanency of such use and to make assessment accordingly.”
The use of tie property assessed in this case is devoted to railroad purposes. Therefore, if the improvement in this case confers no benefits on the property assessed, as contended by appellant, then in accordance with the general rules set out above, and Myles Salt Co. v. Board of Commissioners, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392, the assessment made is void.
With respect to the first benefit mentioned above, i. e., increased surface drainage, it does not appear from the evidence that this is a benefit to appellant’s property in its use for railroad purposes, for the reason that the surface water has not in 40 years hindered the operation of the property in the slightest degree. One reason for this is because the surface water percolates readily through the sandiill in the lake bed.
Appellant contends that the second benefit, that the improvement would permit sewage disposal, is no “benefit” because its private sewer system is adequate for its needs. In the first place, it is apparent that sewage disposal is a benefit to property used for railroad purposes, especially where, as here, a union station is on the property. The mere fact that appellant had constructed a sewer does not mean that it received no benefit from the city system. In Mayor, etc., of City of Atchison v. Price, 45 Kan. 296, 25 P. 605, 611, it is said: “Some of the defendants in error had constructed private sewers or drains at their own expense, and they now claim that they should not be taxed for the sewer built by the city. While one of these drains was quite expensive, it is not found or stated that any of them were authorized or adopted by the city as a part of the sewer system, nor that they are suitable or adequate for the purposes intended. The legislature has conferred upon the city authorities the discretion and power to provide sewerage facilities, and for that purpose has given them control of the streets and alleys where the sewers are built. They are to determine the necessity for sewers, as well as the character and capacity of those that are required to be built. To allow property owners to decide for themselves whether their lots needed sewerage facilities, or to permit them to provide private ditches, drains, sewers, or cess-pools as they might determine to be sufficient, would be wholly impracticable, and would prevent the adoption of a general sewerage system under the control of the city, as the statutes evidently contemplate.”
See, also, Philadelphia v. Odd Fellows Hall, 168 Pa. 105, 31 A. 917; City of St. Joseph v. Owen, 110 Mo. 445, 19 S.W. 713.
It is contended by appellant that there are no basements on the property assessed1, that there never have been any basements, and that the union station building is constructed so that no basements could be built thereunder. It is true that, as the property is used now, basement drainage would be no benefit to the property, but it may be that appellant will construct an office building, or a new station, or some other building, in which a basement might be placed, and, if so, appellant will utilize this benefit. Basement drainage is conceivably a benefit to property used for railroad purposes, and the benefit remains there, whether it is used by appellants or not. '
Other property owners in the assessment district obtained other benefits from the improvement, such as preventing overflow of the river on their property. It is unnecessary to consider them, for the evidence clearly shows that appellant received no such benefits.
Having established that sewage disposal and basement drainage are special benefits to the property in its use for railroad purposes, and in accordance with' the rule stated in Kansas City Southern R. Co. v. Road District, supra, the presumption is that the assessment is not arbitrary, and is valid. It might be argued that it makes no difference to appellant whether the property is valuable or worthless, except for its use, because if its operation could be carried on there, that fact is the only one of importance to it. On the other hand, it is not inconceivable that appellant might sell the entire property to another railroad, and, if so, the value of the property would be an important factor in determining the sale price. Again we are unable to say that it is impossible for some other use to be made of the property which would make a market for the property at a figure greatly in excess of the entire cost to appellant of all its improvements. It is not inconceivable that appellant might at some later date wish to sell the property and build its facilities in some other location in the city. Under these circumstances, we ,are unable to say that the increased value to the property in its use for railroad purposes is no benefit to appellant.
From the foregoing it appears that sewage disposal and basement drainage are, in 'fact, special benefits accruing to appellant, and that as the assessment does not materially exceed the presumptive value arising therefrom, it is necessary to determine whether or not appellant has overcome such presumption.
Appellant introduced evidence to show that sewage disposal and basement drainage could have been as satisfactorily supplied to it by 'the construction of a pumping plant at the outlet of the main trunk sewer, as it is by the improvement. The proportionate share of the cost of such plant which would' be borne by appellant would be $9,400, not including ’any item in the total cost of the plant for right of way which in the witnesses’ opinion would not be required.
However, the finding of the special master in regard to this contention is: “ * * * A municipal system constructed so' as to flow directly to the river, independently of the intercepter sewer or the Tanner Creek sewer system, would serve plaintiff’s property, but whether such a system would be cheaper or better is a matter of opinion and judgment, and the exercise of its powers and discretion in that respect by the city council forecloses the question * * * ”
Inasmuch as the evidence is conflicting as to what the cost might be for appellant to obtain these special benefits, we are unable to say that appellant has overcome the presumption that the assessment in question is valid.
It is unnecessary to consider the further point made by defendants that appellants are estopped to bring this suit.
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Oscar GUEST, as Administrator of the Estate of Callie W. Beane, deceased, Appellant, v. Dr. C. S. BREEDIN and St. Mary’s Hospital and Training School for Nurses, a corporation, Appellees.
No. 7632.
United States Court of Appeals Fourth Circuit.
Argued June 5, 1958.
Decided July 16, 1958.
Henry Hammer and Henry H. Edens, Columbia, S. C. (G. Ross Anderson, Jr., Anderson, S. C., on brief), for appellant.
William L. Watkins and John K. Hood, Jr., Anderson, S. C. (Earle M. Rice, Anderson, S. C., on brief), for appellees.
Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and MOORE, District Judge.
SOBELOFF, Chief Judge.
This is a suit for malpractice against a physician. The administrator of Callie W. Beane obtained a favorable verdict from the jury for injuries which allegedly caused the decedent’s death. The appeal is from an order of the District Judge granting the defendant’s motion for judgment n. o. v. or, in the alternative, a new trial.
Beane died while on the operating table of a private hospital managed by the defendant, Dr. C. S. Breedin, and owned by his wife. A post mortem examination revealed that the decedent’s spinal cord had been crushed in the fracture of a vertebra. The question chiefly in dispute is whether the fracture occurred before death and caused the death, as the plaintiff claims, or whether Beane died naturally of “heart arrest” and the fracture occurred after death, in the mortuary, as claimed by the defendant.
The decedent, 57 years old, had for ten years suffered from osteoarthritis. The disease had progressed so far that his spine was curved almost to a half circle and wryneck drew his head down to the left. He entered the hospital for treatment by the defendant, and after a two-week stay was taken to the operating room on January 17, 1955. The defendant testified that he wanted to examine the patient’s neck muscles in a relaxed state to determine whether surgery, to relieve the wryneck, “was justifiable under the circumstances,” and, if justifiable, an operation was to be performed on the spot. Anesthesia was preferable because examination would be painful.
Beane himself “slid” from the stretcher on which he was wheeled into the operating room to the operating table. Anesthesia, sodium pentathol, was administered. The defendant and the nurses present at the operation testified that he manipulated Beane’s neck “gently.” One of them, however, said that while the doctor was manipulating the patient’s head and neck, Beane “sort of raised his knees” against the strap holding his legs to the table; he “rared his legs against that strap.” After approximately 45 minutes to one hour of examination, Dr. Breedin, according to the defense witnesses, announced that “it would be too big an operation to do at that stage,” and immediately thereafter Beane’s pulse “disappeared suddenly.” Stimulants failed to revive him, and he died about 11:30 a. m.
At 1:30 p. m. the body was removed to the mortuary. Douglas McDougald, funeral director, testified that neither he, nor anyone pursuant to instructions from him, performed any act of violence on it. Beane’s face was shaved by Charles Bannister, who embalmed the body. The embalming process involves pumping a fluid through an artery, displacing the blood through an opening made in a vein.
When Beane’s brother-in-law came to the mortuary about 5 p. m. that afternoon, however, McDougald moved a pillow under the decedent’s head, and the head moved. The brother-in-law found that it could be moved from side to side. The defendant suggests that in the process of adjustment, the neck was broken, but Bannister, like McDougald, denies this. Bannister testified that the body was shaped like a see-saw, and to fit it into the casket it was “adjusted” by leveling the legs and head to equal heights, with supports under them. If the neck had been broken before Bannister handled the body, he did not notice it.
The next day a pathologist and a radiologist performed an autopsy. They found that the third cervical vertebra was fractured and that this had crushed the spinal cord. There was also evidence of hemorrhage in the area, and, from its character and extent, their positive testimony was that the spinal cord was crushed before death and that this was the cause of death.
The plaintiff’s medical experts also testified that it would have taken considerable pressure to break the neck bones. Breedin admitted that the application of sufficient pressure to break the neck would, under the circumstances, have been “gross negligence” and “contrary to all standards of medical treatment.” He also admitted that Beane’s bones were not abnormally chalky or brittle. His insistence, however, was that he applied no excessive pressure; that Beane must have died from a “heart arrest” or an “angina,” which would not show in the autopsy; that, because of the curve in Beane’s spine, he would have sat eleven inches out of the casket, so that the people at the mortuary must have broken Beane’s vertebra trying to “adjust” him. It was the doctor’s further suggestion that the hemorrhage must have been caused by the force of the embalming fluid. The pathologist and the radiologist negatived this suggestion; they testified that what they found in the autopsy could have been caused only by the action of the heart and not after death in the embalming process.
This conflict, the jury, in the performance of their undoubted function, resolved by rendering a verdict for the plaintiff for $20,000. The Judge granted the defendant’s motion for judgment n. o. v., or, in the alternative, a new trial. See, Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. Essentially the bases for the motion in the alternative, though stated jointly, were in fact separate. The ground for the motion for judgment n. o. v. was that there was no competent evidence as to the defendant’s negligence sufficient to go to the jury, while the motion for a new trial rested on the contention that the verdict was against the weight of the evidence.
The above recital of the testimony, we think, shows an adequate basis for submission of the issues to the jury. See: 41 Am.Jur., “Physicians and Surgeons,” Sec. 79, p. 198; Smith v. Baker, 1934, 172 S.C. 75, 172 S.E. 767; Bessinger v. De Loach, 1956, 230 S.C. 1, 94 S.E. 2d 3; Cf.: Thomas v. Register, 1918, 110 S.C. 173, 96 S.E. 517; Dillishaw v. Bell, 1920, 115 S.C. 258, 105 S.E. 410; Green v. Shaw, 1926, 136 S.C. 56, 134 S.E. 226, 48 A.L.R. 243. The judgment n. o. v. should not have been extended. We are not prepared to say, however, that the District Judge exceeded the limits of judicial discretion in relying upon his appraisal of the weight of the evidence in granting the alternative motion for a new trial. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 247, 60 S.Ct. 811, 84 L.Ed. 1129; Norfolk Southern Ry. Co. v. Davis Frozen Foods, 4 Cir., 1952, 195 F.2d 662.
Reversed and remanded for new trial.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_method
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
PACIFIC STATES LIFE INS. CO. v. GILL et al. (CORN BELT BANK, Intervener).
No. 5131.
Circuit Court of Appeals, Seventh Circuit.
June 13, 1934.
E. R. Elliott, of Chicago, Ill., for appellant.
John H. Page, of Eockford, Ill., for appellee Genevieve P. Gill.
Shelby L. Large, of Eockford, Ill., for appellee Com Belt Bank.
Before ALSCIIULER, EVANS, and FITZTiENRY, Circuit Judges.
EVANS, Circuit Judge
(after stating tho facts as above).
Tho Chicago National Life Insurance Company, on September 2-8, 1981, borrowed $3-,009 of Gill and deposited as security a certain note and morigage for $12,500, known as the Schultz morigage. This loan became due in five days, and upon its maturity a new loan, payable in twenty-five days, was made for the same amount and secured by the same collateral. At the same time a cheek, payable to Gill, was drawn, by the Chicago National Life Insurance Company on the Saybrook Bank to pay the first loan. This cheek was certified by the cashier of said bank, but the hank closed before the check was presented. The first loan, however, was subsequently paid by the insurance company.
The instant suit involves a controversy arising out of the second loan and mo-re particularly the refusal of Gill to deliver to appellant the Schultz note and mortgage. The second note, and the cheek executed by Gill, bore date of October 6-, or three days subsequent to the actual transaction. This postdating was in order to make sure that the cheek drawn by the insurance company would be cashed upon presentation.
When the insurance company made good its first check, it desired the return of the mortgage security which had been deposited. Appellee Gill refused to turn over the security because of the second loan. An agreement was reached, however, which was reduced to writing, the important parts of which read as follows:
“Now, Therefore, it is agreed by and between the parties hereto that if and when said cheeks last described clear and the proceeds are deposited to the account of Second Party, said Second Party will cause to he released and forwarded by registered mail to First Party the following described collateral:
“A promissory note in the sum of $12,-500.00 signed by Annie L. and Louis Schultz, dated July 3, 1929.
“1 Trust Deed securing same, signed by the same parties, to the Chicago- National Life Insurance Co., Trustee.
“Two Interest Coupon notes #5 and #0 of the same date between the same parties, each in tho sum of $375.00.
“It is further agreed by and between the parties hereto that upon tho release of and delivery of the aforesaid Three Thousand * * * Dollar cheek returned ‘N.S.F.’ to Second Party herein, Second Party will return and deliver cancelled to First Party the aforesaid principal note in the sum of Thirty Two Hundred * * * Dollars.”
Ap-peliee Gill refused to carry out the written agreement by her made to return the collateral because, as she claims, she was induced to sign the agreement upon the false and fraudulent representations made at the time of its execution by the representativo of the insurance company. Upon this issue the court found:
“ * * * The Chicago National Life Insurance Company at said conference, through its agents stated to the defendant, Genevieve P. Gill, that it desired to discontinue and terminate the loan of October 6, 1931 and desired the return of the Schultz mortgage. The defendant, Genevieve P. Gill, would not agree to return the Schultz mortgage unless her check for $3-,000, dated October 6, 1931 had not been negotiated and could be returned to her. The Chicago National Life Insurance Company, through its agents then and there stated that said check had not been negotiated and was in possession of the Chicago National Life Insurance Company and would be returned immediately to tho defendant, Genevieve P. Gill. Acting upon this representation “ * * Gill signed the contract. 8 * * Tha representations concerning the negotiation, of the said Gill cheek and concerning the possession of it by the Chicago National Life Insurance Company were untrue in this, that said check had been negotiated and said check; was not in the possession of the Chicago- National Life Insurance Company and that said statements made by the Chicago National Life Insurance Company through its agent as aforesaid, were known to be untrue and were made with the intent to deceive the defendant, Genevieve P. Gill, and to obtain her signature to said contract known as Exhibit 1. The defendant, Genevieve P. Gill, executed said contract * * * in good faith relying on the truth of the statements so made to her as to the negotiation and as to the possession of said check.”
While the suit was pending the Corn Belt Bank was permitted to intervene, and it sought relief based upon the fact that it had paid the Gill cheek which the insurance company had falsely represented was in its possession and had not been transferred. Gill stopped payment on the cheek before it was presented to the bank upon which it was drawn, and the Com Belt Bank claimed it was a holder in due course and demanded payment from Gill of the amount represented by the check.
When the rather involved statement of facts is analyzed, little difficulty is experienced in disposing of the issues presented. In fact determination of this appeal turns largely upon the question of whether the evidence suppor’s the findings. The important findings, aside from the one above set forth, are:
“The collateral given by plaintiff as security for said second note of plaintiff, dated October 6,1931, and now in the hands of the Clerk of this Court still stands as security for the payment of said note.
“Plaintiff is indebted to Genevieve P. Gill for the principal and interest due under said Second note; and Genevieve P. Gill is liable to the Com Belt Bank for the amount of her cheek in the sum of $3,000.00 and dated October 6, 1931.”
In the absence of any agreement to the contrary it is clear that the Schultz mortgage was given to Gill as security for the loan. Gill’s check to the insurance company evidenced the loan. Until she is released from liability, her right to hold the security can not be successfully challenged.
The evidence, we think, clearly showed her liability on the outstanding check to the Com Belt Bank, which the said bank acquired in the usual course of business. She was therefore indebted to this bank, as the court found, and the decree in favor of said bank against her was proper. As she was indebted to the bank in this sum, which indebtedness arose by reason of the insurance company’s depositing the cheek, the insurance company’s loan from her remained in force and was unsatisfied.
Nor do we see force in the argument that the agreement changed the rights and liabilities of the parties. Gill’s signature thereto was obtained through false and fraudulent representations which she relied on and believed to be true. The evidence amply supports the finding of the court in this respect. Nor can we accept appellant’s contention that the agreement was a divisible one, only part of which should fall because of the fraud and the other part should stand. We agree with* the District Court that the agreement was an indivisible one and either stood or fell in to to.
The decree is affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
sc_casesource
|
026
|
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.
BROWDER v. DIRECTOR, DEPARTMENT OF CORRECTIONS OF ILLINOIS
No. 76-5325.
Argued October 31, 1977
Decided January 10, 1978
Kenneth N. Flaxman argued the cause for petitioner. With him on the briefs were John M. Kalnins, Thomas R. Meites, and Frederick H. Weisberg.
Raymond McKoski, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.
David Goldberger and Joel Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Howard Eg'lit filed a brief for the Chicago Council of Lawyers as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner’s discharge from respondent’s custody because respondent’s appeal was untimely. In order to resolve this question, we must consider the applicability of Federal Rules of Civil Procedure 52 (b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, w© reverse.
I
On January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named “Browder,” was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner’s brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers’ suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966), petitioner confessed to the second rape but denied having committed the rape on January 29.
At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous-objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better.
Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's “motion to dismiss,” and the state-court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible.
On November 18, or 28 days after entry of the District Court’s order, respondent filed with the District Court a motion “to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing.” Respondent submitted that the state-court record was inadequate and that the District Court had “erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and if so, whether his confession was thereby tainted.” App. 118. Respondent cited Townsend v. Sain, 372 U. S. 293 (1963), and United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court’s authority to consider the motion.
The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and on December 12 set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state-trial record had not been raised in respondent’s “motion to dismiss” but concluded “that the request for an evidentiary hearing should not be denied solely because it is untimely.” App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed, the District Court “no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders.” Id., at 122.
The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: “[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED.” Id., at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent’s untimely post-judgment motion. See n. 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed. Rule Civ. Proc. 60 (b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion. Respondent disclaimed reliance on Rule 60 (b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26.
The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider “whether there was an untimely appeal” on the issue whether petitioner’s confession was admissible under Brown v. Illinois, 422 U. S. 590 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F. 2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U. S. 1072 (1977).
II
Under Fed. Rule App. Proc. 4 (a) and 28 U. S. C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is “mandatory and jurisdictional.” United States v. Robinson, 361 U. S. 220, 229 (1960). See also Fallen v. United States, 378 U. S. 139 (1964); Coppedge v. United States, 369 U. S. 438, 442 (1962); United States v. Schaefer Brewing Co., 356 U. S. 227 (1958); Matton Steamboat Co. v. Murphy, 319 U. S. 412, 415 (1943); George v. Victor Talking Mach. Co., 293 U. S. 377, 379 (1934). The purpose of the rule is clear: It is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands. Any other construction of the statute would defeat its purpose.” Matton Steamboat, supra, at 415.
The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52 (b) or Rule 59. Respondent’s motion for a stay and an evidentiary hearing was filed 28 days after the District Court’s order directing that petitioner be discharged. It was untimely under the Civil Rules, see n. 5, supra, and therefore could not toll the running of time to appeal under Rule 4 (a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 52 (b) and 59 do not apply because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding. We consider each of these contentions.
A
An appeal in a habeas corpus proceeding lies from a “final order,” 28 U. S. C. § 2253. The District Court’s order of October 21 purported to be final, as it granted petitioner’s application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order “ ‘leaving nothing to be done but to enforce by execution what had been determined,’ Catlin v. United States, 324 U. S. 229, 236 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued.” Brief for Respondent 42. Respondent cites 28 U. S. C. §§ 2243 and 2254 (d) and the Court’s decision in Townsend v. Sain, 372 U. S. 293 (1963), in support of his contention that the October 21 order “cannot be considered a final order under 28 U. S. C. [§] 2253 because it left unresolved the statutorily prescribed question of whether an evidentiary .hearing would be required . . . Brief for Respondent 43.
Respondent’s position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty “summarily [to] hear and determine the facts/’ 28 U. S. C. § 2243, by granting the petition on the state-court record. See Walker v. Johnston, 312 U. S. 275, 284 (1941). Respondent’s failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration or as error on appeal, but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants’ divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous.
B
Since the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent’s notice of appeal therefore was untimely by 68 days, unless respondent’s motion of November 18 tolled the time for appeal under Rule 4 (a). The rationale behind the tolling principle of the Rule is the same as in traditional practice: “A timely petition for rehearing tolls the running of the '[appeal] period because it operates to suspend the finality of the . . . court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Department of Banking v. Pink, 317 U. S. 264, 266 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4 (a), by asserting that his motion was not based on Rule 52 (b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding.
Respondent’s failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent’s insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures. During the pendency of a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed. Rule Civ. Proc. 81 (a) (2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court.
Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U. S. 6 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U. S. 75 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead, “ 'traditional and virtually unquestioned practice’ ” dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal and therefore would toll the time for appeal, Dieter, supra, at 8, and n. 3 (quoting Healy, supra, at 79); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review,” 376 U. S., at 78. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52 (b) or Rule 59, each of which allows only 10 days; and Rule 4 (a) follows the “traditional and virtually unquestioned practice” in requiring that a motion be timely if it is to toll the time for appeal.
Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. We think this is a mistaken assumption. It is well settled that habeas corpus is a'civil proceeding. Fisher v. Baker, 203 U. S. 174, 181 (1906); Ex parte Tom Tong, 108 U. S. 556 (1883); see Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U. S. 286, 293-294, and n. 4 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed. Rule Civ. Proc. 81 (a) (2); see Fed. Rule Civ. Proc. 1.
In Harris the Court considered whether the discovery procedure authorized by Fed. Rule Civ. Proc. 33 is available in a habeas corpus proceeding. The Court concluded “that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Rule 81 (a) (2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.” 394 U. S., at 293. In Thompson v. INS, 375 U. S. 384 (1964), on the other hand, the Court assumed without discussion that Rules 52 (b) and 59 applied in a “proceeding for admission to citizenship” in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81 (a) (2).
Although this Court has not had occasion to hold Rules 52 (b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E. g., Rothman v. United States, 508 F. 2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F. 2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52 (b) or 59 and the tolling principle of Rule 4 (a) or its predecessor, Fed. Rule Civ. Proc. 73 (a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E. g., Flint v. Howard, 464 F. 2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F. 2d 849 (CA3) (en banc), cert. denied, 393 U. S. 868 (1968); Munich v. United States, 330 F. 2d 774 (CA9 1964).
We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U. S. 55, 67 (1914); Bronson v. Schulten, 104 U. S. 410, 415 (1882); Ex parte Lange, 18 Wall. 163, 167 (1874); Basset v. United States, 9 Wall. 38, 41 (1870); and this rule was applied in habeas corpus cases, see Aderhold v. Murphy, 103 F. 2d 492 (CA10 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52 (b) and 59. See Advisory Committee Report, 5 F. R. D. 483, 486-487 (1946). “The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed.” United States v. Smith, 331 U. S. 469, 473 n. 2 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions).
In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on post-judgment relief, the emphasis in the Federal Rules of Civil Procedure on “just” and “speedy” adjudication, see Fed. Rule Civ. Proc. 1, parallels the ideal of “a swift, flexible, and summary determination” of a habeas corpus petitioner’s claim. Preiser v. Rodriguez, 411 U. S. 475, 495 (1973). See also Fay v. Noia, 372 U. S. 391, 401-402 (1963); United States ex rel. Mattox v. Scott, 507 F. 2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F. 2d 39, 40 (CA9 1965), cert. denied, 384 U. S. 954 (1966). Rule 59 in particular is based on an “interest in speedy disposition and finality,” Silk v. Sandoval, 435 F. 2d 1266, 1268 (CA1), cert. denied, 402 U. S. 1012 (1971). Although some aspects of the Federal Rules of Civil Procedure may
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211. Court of Private Land Claims
Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
SEELEY TUBE & BOX CO. v. MANNING.
No. 9693.
United States Court of Appeals Third Circuit.
Argued Nov. 18, 1948.
Decided Dec. 20, 1948.
Albert Freeman, of Newark, N. J. (Bilder, Bilder & Kaufman, of Newark, N. J., and George G. Tyler and William J. Nolan, Jr., both of New York City, on the brief), for appellant.
S. Dee Hanson, of Washington, D. C. (Tfaeron Lamar Caudle, Asst. Atty. Gen., George A. Stinson and Robert N. Anderson, Sp. Assts. to Atty. Gen., Isaiah Mat-lack, U. S. Atty., and Edward V. Ryan, Asst. U. S. Atty., both of Newark, N. J., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and O’CONNELL, Circuit Judges.
GOODRICH, Circuit Judge.
This is a suit by a taxpayer to get back some money from the Government. The taxpayer was entitled to a refund for taxes paid in 1941. It was repaid $40,384.66 and the Government kept back $4513.34 which it claimed as interest upon an alleged deficiency. The District Court denied relief to the taxpayer who, therefore, seeks help here.
The point of the case can best he understood if non-technically stated, leaving statutory references and the like for footnote elaboration. The taxpayer paid the tax it thought due for income and excess profits for 1941. Later deficiencies on both income and excess profits taxes were asserted by the Commissioner. Because the taxpayer had gone into bankruptcy the assessments were perfected in the accelerated fashion provided for in the statute. Then in 1943 the taxpayer had a severe operating loss. By the terms of the statute there is a carry-back provision for the operating loss and the taxpayer is entitled to credit therefor back through 1941. As a result of the application of the statutory rule the alleged deficiency in the taxpayer’s 1941 'tax disappeared. Not only that, but the taxpayer became entitled to a refund on the amount it had paid for the same year. It is the difference between what it paid and what the Government paid it back that is -the subject-matter of this suit.
It is argued on behalf of the Commissioner that the money was due when the deficiency was asserted. The Government is, on this argument, 'entitled to interest on the difference between what the taxpayer paid and what the Government claimed until the debt due the Government was swept away by the application of the carry-back provisions of the statute already mentioned. The taxpayer, on the other hand, says that it does not owe interest for non-payment of deficiencies in taxes which, in the light of subsequent events, have been found not to exist.
We think the argument here is overwhelmingly on the side of the taxpayer. It should be noted at the outset that the taxpayer is not claiming any interest from the United States. If it were, a different sort of problem would be presented and some of the rather elaborate argument made on behalf of the Commissioner would be in point. All the taxpayer wants is to get back the money it paid the Government which is undisputedly coming to it because of the carry-back provisions. It asks, in other words, for the return of principal only.
Interest not contracted for by the terms of an agreement between parties is generally described as damages for the detention -of money to which another is entitled. The Government adopts that theory in this case. But what money was the Government entitled to here? As it turned out, taxpayer not only did not owe any money, but had money coming back to it. The only thing on which an interest claim could be predicated is the inchoate liability of the taxpayer which disappeared under the application of the carry-back provisions of the statute. We think that inchoate liability is not sufficient to call for the payment of anything but inchoate interest, whatever that may be, and so far as real money is concerned the taxpayer is entitled to get it back.
Both sides admit there is little decided case law that is very helpful. The taxpayer certainly has analogous authority in its favor in one line of cases. These decisions allowed the recovery by the taxpayer against the Government of interest paid on a tax by the taxpayer in a situation where it developed that the assessment was erroneous. The taxpayer was allowed to recover the interest he had paid in spite of a compromise agreement made with the Government at the time he paid the interest. Big Diamond Mills Co. v. United States, 8 Cir., 1931, 51 F.2d 721; Colorado Milling & Elevator Co. v. Howbert, 10 Cir., 1932, 57 F.2d 769; Phelps v. United States, 2 Cir., 1939, 105 F.2d 904. It also cites a previous ruling by the Commissioner which tends to support this point of view. The Commissioner relies heavily on Brandtjen & Kluge, Inc. v. United States, D.C.Minn.1948, 78 F.Supp. 509. This case is not exactly in point because a plaintiff was trying to get back interest and the court did not think that a refund of a tax included interest. But it is pretty close to the case before us, and the court there relied upon the instant case in the District Court for authority. The Minnesota court also pointed out that the plaintiff’s argument was “appealing, forceful and persuasive of the lack of logic in the Bureau’s refusal to return the interest * * 78 F.Supp. 509, 513.
After reviewing the authorities and reading the legislative history cited to us by each side we conclude to reverse. And the basis for that reversal, simply stated, is that the interest on nothing (what taxpayer owed the Government), is necessarily nothing. Therefore, the taxpayer is entitled to his money.
The judgment will be reversed with directions to order judgment for the plaintiff.
The taxpayer’s fiscal period involved here is from January 1, 1941 to September 30, 1941. It filed its tax returns and paid taxes covering this period, and it is these payments to which the carry-back provisions are applicable.
Internal Revenue Code § 274, 26 U.S. C.A. § 274, provides:
“§ 274. Bankruptcy and receiverships— (a) Immediate assessment.
“Upon the adjudication of bankruptcy of any taxpayer in any bankruptcy proceeding or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided for by law) determined by the Commissioner in respect of a tax imposed by this chapter upon such taxpayer shall, despite the restrictions imposed by section 272 (a) upon assessments be immediately assessed if such deficiency has not theretofore been assessed in accordance with law. In such cases the trustee in bankruptcy or receiver shall give notice in writing to the Commissioner of the adjudication of bankruptcy or the appointment of the receiver, and the running of the statute of limitations on the making of assessments shall be suspended for the period from the date of adjudication in bankruptcy or the appointment of the receiver to a date 30 days after the date upon which the notice from the trustee or receiver is received by the Commissioner; but the suspension under this sentence shall in no case be for a period in excess of two years. Claims for the deficiency and such interest, additional amounts and additions to the tax may be presented, for adjudication in accordance with law, to the court before which the bankruptcy or receivership proceeding is pending, despite tbe pendency of proceedings for the redetermination of the deficiency in pursuance of a petition to the Tax Court; but no petition for any such re-determination shall be filed with the Tax Court after the adjudication of bankruptcy or the appointment of the receiver.”
The applicable provision of the Internal Revenue Code reads as follows:
Ҥ 122. Net operating loss deduction
“ (b) Amount of carry-back and, carryover — (1) Net operating loss carry-back. If for any taxable year beginning after December 31, 1941, the taxpayer has a net operating loss, such net operating loss shall be a net operating loss carry-back for each of the two preceding taxable years, except that the carry-back in the case of the first preceding taxable year shall be the excess, if any, of the amount of such net operating loss over the net income for the second preceding taxable year computed .(A) with the exceptions, additions, and limitations provided in subsection (d) (1), (2), (4), and (6) and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.” 26 U.S.C.A. § 122(b).
The applicable sections of the Revenue Act of 1938, §§ 271, 292, 52 Stat. 534, 541, 26 U.S.C.A. §§ 271; 292, provide;
Ҥ 271. Definition of deficiency
“As used in this chapter in respect of a tax imposed by this title ‘deficiency’ means—
“(a) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxpayer upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax; or
“(b) If no amount is shown as the tax by the taxpayer upon his return, or if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency^ but such amounts previously assessed, or collected without assessment, shall first be decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax.”
Ҥ 292. Interest on deficiencies
“Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax (or, if the tax is paid in installments, from the date prescribed for the payment of "the first installment) to the date the deficiency is assessed, or, in the case of a waiver under section 272 (d), to the thirtieth day after the filing of such waiver or to the date the deficiency is assessed whichever is the earlier.”
“It was only by reason of the permitted retrospective deduction for the taxable period * * * of the so-called ‘net operating loss carry-back’ from the later year, as provided by Section 122 (b) (1), that the taxpayer eventually became entitled to an abatement of the deficiency taxes. This, however, was after they had already been in existence for some considerable time, as already shown. Hence, the only amount the Commissioner was legally permitted to refund was the aggregate sum of the taxes paid, less the statutory interest on the deficiencies which had accrued between the due date of the payment of the taxes on December 15, 19-11, and the date of the deficiency assessments on August 2, 1943 (Section 292 (a)), no interest being refundable except that which accrued after the refund claims were filed on March 15, 1944 (Section 3771 (c)). Consequently, the Commissioner had no alternative than to refuse to refund the interest in question. The exaction of interest from the Government requires specific statutory authority * * * and it may be computed only according to (lie statutory provisions in force at the time of the allowance of a refund or credit. * * * ” Brief foi Appellee, pp. 13-14.
15 Am.Jur., Damages § 159 (1938); Restatement, Contracts § 337 (1932).
Referring to penalties and interest collected without aulhority, this ruling states “ * * * that interest and penalties are in the nature of accretions to the tax and should be considered as a part thereof in connection with any refund or credit of the tax.” I.T. 1447, 1-2 C.B. 220 (1922).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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sc_caseorigin
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160
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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.
SANDSTROM v. MONTANA
No. 78-5384.
Argued April 18, 1979 —
Decided June 18, 1979
BrenNAN, J., delivered the opinion for a unanimous Court. Rehn-qttist, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 527.
Byron W. Boggs, by appointment of the Court, 439 U. S. 1126, argued the cause and filed a brief for petitioner.
Michael T. Greely, Attorney General of Montana, argued the cause for respondent. With him on the brief were Mike McCarter and Denny Moreen, Assistant Attorneys General, and John Badonich.
Mr. Justice Brennan
delivered the opinion of the Court.
The question presented is whether, in a case in which intent is an element of the crime charged; the jury instruction, “the law presumes that a person intends the ordinary consequences of his voluntary acts,” violates the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt.
I
On November 22, 1976, 18-year-old David Sandstrom confessed to the slaying of Annie Jessen. Based upon the confession and corroborating evidence, petitioner was charged on December 2 with “deliberate homicide,” Mont. Code Ann. § 45-5-102 (1978), in that he “purposely or knowingly caused the death of Annie Jessen.” App. 3. At trial, Sandstrom’s attorney informed the jury that, although his client admitted killing Jessen, he did not do so “purposely or knowingly,” and was therefore not guilty of “deliberate homicide” but of a lesser crime. Id., at 6-8. The basic support for this contention was the testimony of two court-appointed mental health experts, each of whom described for the jury petitioner’s mental state at the time of the incident. Sandstrom’s attorney argued that this testimony demonstrated that petitioner, due to a personality disorder aggravated by alcohol consumption, did not kill Annie Jessen “purposely or knowingly.”
The prosecution requested the trial judge to instruct the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Petitioner’s counsel objected, arguing that “the instruction has the effect of shifting the burden of proof on the issue of” purpose or knowledge to the defense, and that “that is impermissible under the Federal Constitution, due process of law.” Id., at 34. He offered to provide a number of federal decisions in support of the objection, including this Court’s holding in Mullaney v. Wilbur, 421 U. S. 684 (1975), but was told by the judge: “You can give those to the Supreme Court. The objection is overruled.” App. 34. The instruction was delivered, the jury found petitioner guilty of deliberate homicide, id., at 38, and petitioner was sentenced to 100 years in prison.
Sandstrom appealed to the Supreme Court of Montana, again contending that the instruction shifted to the defendant the burden of disproving an element of the crime charged, in violation of Mullaney v. Wilbur, supra, In re Winship, 397 U. S. 358 (1970), and Patterson v. New York, 432 U. S. 197 (1977). The Montana court conceded that these cases did prohibit shifting the burden of proof to the defendant by means of a presumption, but held that the cases “do not prohibit allocation of some burden of proof to a defendant under certain circumstances.” 176 Mont. 492, 497, 580 P. 2d 106, 109 (1978). Since in the court’s view, “[defendant's sole burden under instruction No. 5 was to produce some evidence that he did not intend the ordinary consequences of his voluntary acts, not to disprove that he acted ‘purposely’ or ‘knowingly,’ . . . the instruction does not violate due process standards as defined by the United States or Montana Constitution ...Ibid, (emphasis added).
Both federal and state courts have held, under a variety of rationales, that the giving of an instruction similar to that challenged here is fatal to the validity of a criminal conviction. We granted certiorari, 439 U. S. 1067 (1979), to decide the important question of the instruction’s constitutionality. We reverse.
II
The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, ante, at 157-163. That determination requires careful attention to the words actually spoken to the jury, see ante, at 157-159, n. 16, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.
Respondent argues, first, that the instruction merely described a permissive inference — that is, it allowed but did not require the jury to draw conclusions about defendant’s intent from his actions — and that such inferences are constitutional. Brief for Respondent 3, 15. These arguments need not detain us long, for even respondent admits that “it’s possible” that the jury believed they were required to apply the presumption. Tr. of Oral Arg. 28. Sandstrom’s jurors were told that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” They were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory. See generally United States v. Wharton, 139 U. S. App. D. C. 293, 298, 433 F. 2d 451, 456 (1970); Green v. United States, 132 U. S. App. D. C. 98, 99, 405 F. 2d 1368, 1369 (1968). See also Montana Rule of Evidence 301 (a).
In the alternative, respondent urges that, even if viewed as a mandatory presumption rather than as a permissive inference, the presumption did not conclusively establish intent but rather could be rebutted. On this view, the instruction required the jury, if satisfied as to the facts which trigger the presumption, to find intent unless the defendant offered evidence to the contrary. Moreover, according to the State, all the defendant had to do to rebut the presumption was produce “some” contrary evidence; he did not have to “prove” that he lacked the required mental state. Thus, “[a]t most, it placed a burden of production on the petitioner,” but “did not shift to petitioner the burden of persuasion with respect to any element of the offense . . . .” Brief for Respondent 3 (emphasis added). Again, respondent contends that presumptions with this limited effect pass constitutional muster.
We need not review respondent’s constitutional argument on this point either, however, for we reject this characterization of the presumption as well. Respondent concedes there is a “risk” that the jury, once having found petitioner’s act voluntary, would interpret the instruction as automatically directing a finding of intent. Tr. of Oral Arg. 29. Moreover, the State also concedes that numerous courts “have differed as to the effect of the presumption when given as a jury instruction without further explanation as to its use by the jury,” and that some have found it to shift more than the burden of production, and even to have conclusive effect. Brief for Respondent 17. Nonetheless, the State contends that the only authoritative reading of the effect of the presumption resides in the Supreme Court of Montana. And the State argues that by holding that “[djefendant’s sole burden under instruction No. 5 was to produce some evidence that he did not intend the ordinary consequences of his voluntary acts, not to disprove that he acted ‘purposely’ or ‘knowingly,’ ” 176 Mont., at 497-498, 580 P. 2d, at 109 (emphasis added), the Montana Supreme Court decisively established that the presumption at most affected only the burden of going forward with evidence of intent — that is, the burden of production.
The Supreme Court of Montana is, of course, the final authority on the legal weight to be given a presumption under Montana law, but it is not the final authority on the interpretation which a jury could have given the instruction. If Montana intended its presumption to have only the effect described by its Supreme Court, then we are convinced that a reasonable juror could well have been misled by the instruction given, and could have believed that the presumption was not limited to requiring the defendant to satisfy only a burden of production. Petitioner’s jury was told that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” They were not told that the presumption could be rebutted, as the Montana Supreme Court held, by the defendant’s simple presentation of “some” evidence; nor even that it could be rebutted at all. Given the common definition of “presume” as “to suppose to be true without proof,” Webster’s New Collegiate Dictionary 911 (1974), and given the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction in either of two more stringent ways.
First, a reasonable jury could well have interpreted the presumption as “conclusive,” that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent. Numerous federal and state courts have warned that instructions of the type given here can be interpreted in just these ways. See generally United States v. Wharton, 139 U. S. App. D. C. 293, 433 F. 2d 451 (1970); Berkovitz v. United States, 213 F. 2d 468 (CA5 1954); State v. Roberts, 88 Wash. 2d 337, 341-342, 562 P. 2d 1259, 1261-1262 (1977) (en banc); State v. War- button, 211 Kan. 506, 509, 506 P. 2d 1152, 1155 (1973); Hall v. State, 49 Ala. App. 381, 385, 272 So. 2d 590, 593 (Crim. App. 1973). See also United States v. Chiantese, 560 F. 2d 1244, 1255 (CA5 1977). And although the Montana Supreme Court held to the contrary in this case, Montana’s own Rules of Evidence expressly state that the presumption at issue here may be overcome only “by a preponderance of evidence contrary to the presumption.” Montana Rule of Evidence 301 (b)(2). Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the issue of intent.
We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with “some” evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sandstrom’s jurors actually did proceed upon one or the other of these latter interpretations. And that means that unless these kinds of presumptions are constitutional, the instruction cannot be adjudged valid. Ulster County Court v. Allen, ante, at 159-160, n. 17, and at 175-176 (Powell, J., dissenting); Bachellar v. Maryland, 397 U. S. 564, 570-571 (1970); Leary v. United States, 395 U. S. 6, 31-32 (1969); Carpenters v. United States, 330 U. S. 395, 408-409 (1947); Bollenbach v. United States, 326 U. S. 607, 611-614 (1946). It is the line of cases urged by petitioner, and exemplified by In re Winship, 397 U. S. 358 (1970), that provides the appropriate mode of constitutional analysis for these kinds of presumptions.
III
In Winship, this Court stated:
“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364 (emphasis added).
Accord, Patterson v. New York, 432 U. S., at 210. The petitioner here was charged with and convicted of deliberate homicide, committed purposely or knowingly, under Mont. Code Ann. § 45-5-102 (a) (1978). See App. 3, 42. It is clear that under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide. Indeed, it was the lone element of the offense at issue in Sandstrom’s trial, as he confessed to causing the death of the victim, told the jury that knowledge and purpose were the only questions he was controverting, and introduced evidence solely on those points. App. 6-8. Moreover, it is conceded that proof of defendant’s “intent” would be sufficient to establish this element. Thus, the question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error.
We consider first the validity of a conclusive presumption. This Court has considered such a presumption on at least two prior occasions. In Morissette v. United States, 342 U. S. 246 (1952), the defendant was charged with willful and knowing theft of Government property. Although his attorney argued that for his client to be found guilty, “the taking must have been with felonious intent,” the trial judge ruled that “[t]hat is presumed by his own act.” Id., at 249. After first concluding that intent was in fact an element of the crime charged, and after declaring that “[w]here intent of the accused is an ingredient of 'the crime charged, its existence is ... a jury issue,” Morissette held:
“It follows that the■ trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a ‘presumption’ a conclusion which a court thinks probable from given facts. . . . [But] [w]e think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A-presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.” Id., at 274-275. (Emphasis added; footnote omitted.)
Just last Term, in United States v. United States Gypsum Co., 438 U. S. 422 (1978), we reaffirmed the holding of Moris-sette. In that case defendants, who were charged with criminal violations of the Sherman Act, challenged the following jury instruction:
“The law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result.” 438 U. S., at 430.
After again determining that the offense included the element of intent, we held:
“[A] defendant’s state of mind or intent is an element of a criminal antitrust offense which . . . cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Cf. Morissette v. United States ....
“Although an effect on prices may well support an inference that the defendant had knowledge of the probability of such a consequence at the time he acted, the jury must remain free to consider additional evidence before accepting or rejecting the inference. . . . [ Ultimately the decision on the issue of intent must be left to the trier of fact alone. The instruction given invaded this fact-finding function.” Id., at 435, 446 (emphasis added).
See also Hickory v. United States, 160 U. S. 408, 422 (1896).
As in Morissette and United States Oypsum Co., a conclusive presumption in this case would “conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,” and would “invade [the] factfinding function” which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom’s jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and “ordinary consequences” of defendant’s action), Sandstrom’s jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove “beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged,” 397 U. S., at 364, and defendant was deprived of his constitutional rights as explicated in Winship.
A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom’s jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U. S. 684 (1975). In Mullaney, the charge was murder, which under Maine law required proof not only of intent but of malice. The trial court charged the jury that “ 'malice aforethought is an essential and indispensable element of the crime of murder.’ ” Id., at 686. However, it also instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. Ibid. As we recounted just two Terms ago in Patterson v. New York, "[t]his Court . . . unanimously agreed with the Court of Appeals that Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation.” 432 U. S., at 214. And Patterson reaffirmed that "a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant” by means of such a presumption. Id., at 215.
Because David Sandstrom’s jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum, Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.
IV
Respondent has proposed two alternative rationales for affirming petitioner’s conviction, even if the presumption at issue in this case is unconstitutional. First, the State notes that the jury was instructed that deliberate homicide may be committed “purposely or knowingly.” App. 35 (emphasis added). Since the jury was also instructed that a person “intends” the ordinary consequences of his voluntary acts, but was not provided with a definition of “intends,” respondent argues that jurors could have interpreted the word as referring only to the defendant’s “purpose.” Thus, a jury which convicted Sandstrom solely for his “knowledge,” and which interpreted “intends” as relevant only to “purpose”, would not have needed to rely upon the tainted presumption at all.
We
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
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122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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sc_issuearea
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H
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
UNION OIL CO. OF CALIFORNIA v. THE SAN JACINTO et al.
No. 71-900.
Argued October 17, 1972
Decided December 5, 1972
Rehnquist, J., delivered the opinion of the Court, in which Burgee, C. J., and White, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 147.
Kenneth E. Roberts argued the cause and filed briefs for petitioner.
Erskine B. Wood argued the cause and filed briefs for respondents.
Mr. Justice Rehnquist
delivered the opinion of the Court.
While proceeding up the Columbia River, the oil tanker S. S. Santa Maria, bareboat chartered by petitioner, was struck by a barge owned by respondent Oliver J. Olson & Co. The barge was being towed by the tugboat San Ja-cinto, owned by respondent Star & Crescent Towboat Co. Both vessels were damaged. Petitioner commenced this admiralty action for damages to the Santa Maria, and respondent cross-libeled for damages to the barge. The District Court found the collision resulted solely from negligence on the part of the crew of the San Jacinto, and dismissed the cross-libel. 304 F. Supp. 519 (Ore. 1969). The Ninth Circuit affirmed the finding that the San Jacinto had been negligent, but determined that the Santa Maria was also negligent in violating the “half-distance” rule, 30 Stat. 99, 33 U. S. C. § 192. That court therefore reversed with directions that the District Court determine the amount of damage sustained by the barge and assess damages under the divided-damages rule. See The Schooner Catherine v. Dickinson, 17 How. 170 (1855). We granted certiorari, 405 U. S. 954 (1972), principally to consider petitioner’s request that we abandon the divided-damages rule. The orderly disposition of the issues presented by the petition for certiorari, however, requires that we address ourselves to the issue of liability before reaching the question of damages. Since in so doing we conclude that the Court of Appeals was wrong in holding the Santa Maria liable at all, we do not reach the issue of damages.
I
On the evening of December 24, 1967, the Santa Maria, loaded with 17,000 tons of petroleum products, was proceeding up the Columbia River toward Portland. The ship was steaming on the Oregon side of the channel, with clear visibility. At the same time, the San Jacinto was proceeding downriver, towing a 275-foot barge, fully loaded with lumber, by a 250-foot towline. Proceeding on the Washington side of the channel, it had encountered foggy weather conditions upriver. As the San Jacinto approached Cooper Point, the Santa Maria, steaming upstream, sighted the tug both visually and by radar. The two vessels were more than a mile apart and on opposite sides of the 500-foot-wide shipping channel. There was heavy fog, described as “tule fog,” around Cooper Point, but the fog was localized on the Washington side of the channel. Although there was haze and drizzle, there was no fog on the Oregon side of the channel; the visibility from the bridge of the Santa Maria upstream was between one and one-half and two miles.
As the San Jacinto entered the fog on the Washington side off Cooper Point, the Santa Maria lost visual contact with the tug and barge. The Santa Maria’s pilot did not track the San Jacinto on radar, believing that the tug would remain on the Washington side of the channel and knowing that there was ample room for a port-to-port passage. At this time, the Santa Maria was proceeding at half-speed making approximately seven knots.
The watch on the San Jacinto had not sighted the Santa Maria when the tug entered the heavy fog off Cooper Point. The tug’s captain testified that, after entering the fog, he cut speed to three or three and one-half knots, and the visibility dead ahead was approximately 50 yards. The San Jacinto’s navigators were “navigating by visual sight of the Washington coast,” and the captain estimated that the tug passed between 50 and 75 yards off Cooper Point. At that point, the crew of the San Jacinto heard one blast of a ship’s horn (later discovered to have been that of the Santa Maria), and responded with the fog signal for a tug with a barge in tow. No visual sighting of a ship was made, however. Shortly thereafter, the captain sighted range lights, which, he testified, he thought were 20 degrees off his starboard bow. To avoid what he anticipated to be a momentary collision, the captain swung the San Jacinto to port — towards the Oregon side of the channel — and executed a U-turn, hoping to run upriver and thus avoid a collision.
The San Jacinto started the U-turn while still in the heavy fog, and the execution of the turn brought the tug on a course directly across that of the Santa Maria. The Santa Maria sighted the San Jacinto emerging from the fog, at right angles to the Santa Maria, at a distance of approximately 900 feet. Full astern was immediately ordered. The San Jacinto, quickly completing the turn, headed safely upriver. Before the Santa Maria could completely stop, however, the barge in tow sideslipped across the channel, crashing into the port bow of the Santa Maria; the force of that blow drove the tanker aground.
The District Court found that the San Jacinto and the barge, and those in charge of navigation, were negligent in eight respects, including navigating at excessive speed, failing to maintain a proper lookout, and “acting hastily and without sufficient cause in pulling the tow across the channel when there was adequate clearance for the tug and barge to pass port to port.” The court found that “the collision was proximately caused by the sole fault and negligence” of the San Jacinto and the barge, and that the acts of negligence allegedly committed by the Santa Maria did not “proximately [contribute] to the collision and resulting damage.” 304 F. Supp., at 521, 522.
The Ninth Circuit partially reversed, holding that the Santa Maria was proceeding at an immoderate speed in traveling at three to seven knots “while approaching the edge of the fog bank.” That court reasoned that the San Jacinto was only 900 feet from the Santa Maria when the tug emerged from the fog bank, and the Santa Maria’s, speed was such that she could not stop within half that distance. The court, relying on The Silver Palm, 94 F. 2d 754 (CA9), cert. denied sub nom. United States v. Silver Line, Ltd., 304 U. S. 576 (1937), deemed it immaterial that the visibility up the Oregon side of the channel — the direction in which the Santa Maria was headed — was almost two miles, because in its view the “relevant distance” for calculating the proper speed under the half-distance rule was the distance between the tanker and the fog bank — to port of the Santa Maria. Finding statutory fault, and ruling that petitioner had failed to prove that that fault could not have possibly contributed to the collision, see The Pennsylvania, 19 Wall. 125 (1874), the Court of Appeals held the Santa Maria liable for half the total damages.
II
The question of the liability of the Santa Maria turns on the application of Art. 16 of the Inland Rules of Navigation, 33 U. S. C. § 192. That Rule provides in pertinent part:
“Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.” (Emphasis added.)
Although the statutory test for determining the proper speed at which a vessel should proceed in a fog is phrased in general terms, our decisions have attached a well-recognized gloss to that phrase. This gloss on the statutory rule, variously referred to as the half-distance rule or the “rule of sight,” is that, in a fog, “a moderate speed” is that
“rate of speed as would enable [the vessel] to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.” The Nacoochee, 137 U. S. 330, 339 (1890).
See also The Colorado, 91 U. S. 692, 702 (1876); The Umbria, 166 U. S. 404, 417 (1897). As stated in The Chattahoochee, 173 U. S. 540, 548 (1899), “[t]he principal reason for such reduction of speed is that it will give [both] vessels time to avoid a collision after coming in sight of each other.” If two vessels, upon sighting each other, are proceeding at rates of speed such that each can stop before it reaches the point at which the courses of the two intersect, collision is impossible.
There can be no quarrel with the salutary purpose of this “rule of thumb.” It is premised on the notion that when a ship is traveling under foggy weather conditions in waters in which other ships might be proceeding on intersecting courses, the speed of each ship must be such as to enable her to stop within half the distance separating the ships when they first sight each other. Implicit in the rule, however, is the assumption that vessels can reasonably be expected to be traveling on intersecting courses. If, on the facts of the case, it is totally unrealistic to anticipate the possibility that a vessel will travel on a particular heading that would intersect the course of another ship, the reason for the rule is rather clearly not present.
Those cases in which this Court has upheld a finding of statutory fault because of a violation of the half-distance rule involved ships proceeding in fog on established coastal shipping lanes, The City of New York, 147 U. S. 72 (1893); The Nacoochee, supra; cf. The Colorado, supra (Lake Huron), or ships traveling near or in a harbor, The Umbria, supra; cf. The Ludvig Holberg, 157 U. S. 60 (1895) (no fault). We do not imply that because a vessel is running near fog, as opposed to running in it, the vessel is not required to proceed at “a moderate speed” in relation to the distance to the fog cover. That was, indeed, the circumstance in The Silver Palm, supra, upon which the Ninth Circuit relied. But there a naval cruiser was traveling, with clear visibility ahead but with fog banks on each side, on the busy coastal shipping lane between San Francisco and Los Angeles. On such a course it is reasonable to expect that another ship might steam out of the fog at right angles to, and on a collision course with, the first vessel. The rule of sight was applicable there precisely because of the reasonable possibility that such an event might occur.
The facts of our case were significantly different. The Santa Maria and the San Jacinto were proceeding on opposite sides of a well-defined and relatively narrow channel. The Santa Mrnia had last sighted the tug only a mile ahead, proceeding along the Washington coast. Those in charge of the navigation of the tanker cannot be faulted for not anticipating the tug’s totally unorthodox maneuver in darting across such a channel. The Victory & The Plymothian, 168 U. S. 410 (1897). The visibility in the direction in which the Santa Maria was headed was almost two miles. There is no evidence in the record suggesting that the speed of the tanker would have prevented her from coming to a complete halt within half the distance of sighting a vessel that was either proceeding on a remotely foreseeable intersecting course or else being overtaken by her. The tug emerged from a fog bank only 900 feet from the tanker on a course and for reasons that no seaman could, under the circumstances, have anticipated.
The District Court’s finding that any negligence on the part of the Santa Maria did not “proximately [contribute] to the collision” was but another way of saying that fault based on the half-distance rule must have some relationship to the dangers against which that rule was designed to protect. Here it did not. We believe that the District Court, and not the Court of Appeals, reached the correct result on the issue of liability.
Since in our view respondents alone were at fault, there is no occasion to consider how damages should be apportioned were both vessels at fault.
Reversed.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_state
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10
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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".
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, Appellant, v. Sarah Estelle JACKSON, formerly Sarah Estelle Farris, Appellee.
No. 16275.
United States Court of Appeals Fifth Circuit.
April 26, 1957.
Rehearing Denied June 14, 1957.
Wm. M. Howell, Charles Cook Howell, Jacksonville, Fla., Howell & Kirby, Jacksonvill Fla., of counsel> for appellant,
Jack F. Wayman, Jacksonville, Fla., for appellee.
Before TUTTLE, JONES and! BROWN, Circuit Judges.
JONES, Circuit Judge.
The appellant, Woodmen of the World Life Insurance Society, is a fraternal benefit society. It issues life insurance contracts which it calls certificates rather than policies, for premiums which it calls payments. Roland M. Farris was issued a certificate of insurance in the amount of $3,000 by the Society in 1945. On August 4, 1954, Virgil P. Miller, District Manager of the Society, called at the Farris home and talked about an educa- ,. , . ,¿Y tional insurance certificate lor the young son of Farris and his wife. This conversation being concluded, Miller discussed with Farris the need of the latter for additional insurance. An application was signed and a Preferred Risk Whole y-< i • r* i / L, • "u Life Certificate (which is substantially the same as an ordinary life policy, issued by a life insurance company) for .$2,000, with a twenty-year term benefit rider in the amount of $3,000 attached, was later issued and delivered to Farris. Farris died on December 23, 1954, of heart failure. Farris had a rheumatic heart disease dating back at least as far as November 1, 1948. The Society de-dined to make payment of the amount of the Certificate and tendered the amount of the payments which Farris had made. The tender was refused. His widow, Sarah Estelle Farris brought suit on the - Certificate and recovered judgment for $5,000 on the Certificate, $1,000 attorneys’ fees, interest and costs. The Society has appealed. The plaintiff married while the suit was pending and she is before us as the appellee, Sarah Estelle Jackson.
, .. . . , The testimony was m sharp conflict , , , , , ,, as to what was said and done when the , , application for insurance was taken. Miller, the District Manager of the Society, testified that at the time of his meeting with Mr. and Mrs. Farris he had with him the form that was used in applying for insurance when no medical examination was had. Miller, so he testi-tied, asked Farris the questions as they appeared on the form, and the answers of Farris were written down by Miller. The form shows the question, “Have you, within the past ten years, had any mental or bodily disease or infirmity, or have you within that period of time, consulted, bcen attended or examined by a physifaf? If state wbicb> wben, giving *uil Particulars and name of physician, ^rris as noted by Miller, was N°- The form contained the question Are y°u now m sood health to the oest of y°ur k™^edf and beliffj If,not’ ^ve cause _ Mifier recorded Farris an- ” as bemS .Jes The form con-tamed a request that the applicant Give „ , , name and address of your personal phy- “ ■ Fa(rJls JSP™Se’ *^5“ by JÜ1Jas None ■ Jbe application containfd tbe ^presentation that I have ffd each of fo/egoing questions and the answers thereto, and represent that _ . . ^ „ fch °Jsald Jfu11’ complete and true whether written by my own hand or The a^wers to the questions quoted wefe untraf; JlUer sald Jat F“™ sJJed “ atlon J blank °n Yhlcb Miller, after returning to his office, typed m tbe answers as given to lum by Far- ™ and sJntQthe application to the home office of the Society in 0maha‘
The testimony of the widow of Farris, ^be beneficiary named in the certificate, was mucb different from that given by Miller- Her stOTy was tbat Miller save Farris the card of the doctor who was the examining physician for the Society. Farris stated that he had a rheumatic heart condition for which he had been treated some years before but he then felt fme. Miller stated he would put it through without a medical examination.
In addition to the recital that the applicant had read the questions and an- ,. ,. , . . ,, „ , swers, the application contained the fol- . . lowing provision:
_ ”1 have read each of the forego3n£ Questions and the answers there-3'°> and represent tbat each of said answers is full, complete and true, whether written by my own hand or no3:’
“All statements purporting to be made by the applicant shall be deemed representations and not warranties.
“I further agree that no statement or information given by or to any person soliciting or taking this application, or by or to any other person, nor any knowledge possessed by any such person, shall be binding on this Society or in any manner affect its liability unless such statement or information be presented in writing to the Medical Director of said Society at the Home Office prior to the issu- . ance of said benefit certificate, and agree that there shall be no liability on the part of the Society for the payment of benefits unless the applicant shall have made at least one monthly payment to the Society for the benefit applied for, and unless this application shall have been approved by the Medical Director of the Society.
^ The certificate contained, on the outer-fold, this notice:
important
“No Camp or officer thereof nor any employee or representative of this Society has authority to waive any of the conditions of this benefit certificate or of the Constitution, Laws and By-Laws of the Society.”
The certificate was issued “in consideration of the application therefor, includ,ing the statement of insurability.” A photostat copy of the application was attached to and made a part of the certificate. In Section 127 of the Society’s Constitution and Laws it is provided:
“Sec. 127. (a) No employee, state manager, field man or agent of the Society or the Sovereign Camp, Head Camp or of any Camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this Constitution or these Laws, nor shall any custom or course of dealing on the.part of any Financial Secretary or of any Camp or any number of Camps— with or without the knowledge of any officer of the Society — have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and sub-jeet to the Constitution and Laws, then in force or thereafter enacted, nor shall the knowledge or act of any employee of this Society constitute a waiver of the provisions of these laws by the Society or an es-toppel of this Society,
«(b) The Articles of Incorpora-tíon> the Constitution, Laws and ByLaws of the Society> the application and medieal examinatioil) or decIaration of insurability, if accepted in lieu of medical examination, signed by tbe applicant> and all amend_ ments to each thereof) the benefit certificate, and any riders attached thereto or endorsements made thereon by the President or Secretary of the Society shall constitute the contract between the Society and the member.”
The widow beneficiary of Farris brought suit in the Florida court and the Society removed to the Federal district court because of diversity. The plaintiff> in ber complaint alleged the issuance of the certificate, the death of the insured and the denial of liability by the Society. The Society answered asserting that the certificate was not in effect because of false statements and representations of the insured in his application. To this the plaintiff filed a reply asserting that the Society had waived and was estopped to assert the defense set forth in its answer because, it was alleged, full disclosures were made by the insured to Miller, the Society’s authorized agent, and no false answers were given nor were any misrepresentations made, that premiums were accepted with knowledge of the insured’s heart condition. At this juncture the Society moved, under Rule 15 Fed.Rules Civ. Proc., 28 U.S.C.A., to file an additional defense, inconsistent with its original defense as is permitted by Rule 8 Fed. Rules Civ.Proe. Leave of court being given, the additional defense was filed and by it the Society asserted that Far-ris told Miller of the rheumatic heart condition and Miller processed the application without medical examination, all of which was fraud, collusion and concealment on the part of the insured barring recovery. When all of the evidence had been presented the court declined to submit the Society's additional defense to the jury.
The verdict of the jury having re~ solved the fact issues against the Society, it urges that reversal is required on three grounds; first, that the knowledge of the Society's agent Miller of the heart condition and medical history of the in~ sured Farris is not attributable to the Society; second, that Miller and Farris perpetrated a fraud on the Society; and third, that attorneys' fees are not recoverable in Florida against a fraternal benefit society.
If the appellant were an insurance company we would have no doubt but that an affirmance would be required by the pronouncements of the Supreme Court of Florida. It has said:
"The law in this state is that when the agent of an insurance company fills in an application for insurance, his act in doing so is the act of the company. If the applicant fully states the facts to the agent at the time and the agent writes the answers incorrectly or contrary to the facts stated by the applicant, the company is estopped from making a defense in an action on the policy by reason of the false answer." Stix v. Continental Assur. Co., 147 Fla. 783, 3 So.2d 703, 704.
In the Stix case the court followed Massachusetts Bonding & Insurance Co. v. Williams, 123 Fla. 560, 167 So. 12, and distinguished Mutual Life Insurance Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202. The rule was again announced in this language:
"In this jurisdiction it is well settled that if the insured gives truthful answers to questions contained in the application for life insurance, and the company's agent, either through fraud or mistake, inserts answers in the application which do not accord with the information given, the insurer cannot insist on breach of warranty, but is estopped from making such defense." Colum-bian National Life Ins. Co. v. Lani-gan, 154 Fla. 760, 19 So.2d 67, 70.
In a later case, Gulf Life insurance Co~ v. Ferguson, Fla., 59 So.2d 371, procedural questions controlled the decision.
The appellant contends that as it is a fraternal benefit society the rule announced by the Stix case and those following it does not apply. By statute it is provided in Florida
"Except as provided in this chapter, [Fia.Stat.Ann. ch. 637], such societies shall be governed by this chapter, and shall be exempt from all provisions of the insurance laws of this state, not only in governmental relations with the state, but for every other purpose, and no law hereafter enacted shall apply to them, unless they be expressly designated therein." Fla.Stat.Ann. § 637.11.
The Society's Constitution and Laws, quoted supra, deny to its employees, state managers, field men and agents any power to waive any of the conditions upon which beneficiary certificates are issued. So also it is provided that the Articles of Incorporation, Constitution, Laws and By-Laws, the application and medical examination, or declaration of insurability, if accepted in lieu of medical examination, and the certificate shall constitute the contract. The statute authorizes such provisions. The statute declares:
"The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all the beneficiaries of members.” Fla.Stat.Ann. § 637.30.
The statute is valid. Grand Lodge Knights of Pythias, etc. v. Moore, 120 Fla. 761, 163 So. 108; Grand Lodge, Knights of Pythias of North America v. McKee, 5 Cir., 1938, 95 F.2d 474.
But when we reach the conclu.sion that Miller, as the Society’s agent, had no right to waive any provision of the Society’s Constitution and Laws, we have not answered the question which is posed by the record. Farris signed a blank form. He gave, or at least the verdict of the jury requires us to assume that he gave Miller the correct answers. It was not shown that he knew or had reason to believe that false answers were to be written in over his signature. The knowledge of Miller, the agent, of the true facts and of the falsity of the answers, is imputed to his principal, the Society. Columbian National Life Ins. Co. v. Lanigan, supra. The Medical Director of the Society testified that all applications were delivered to and exam-med by him, and if he found the applicant to be an acceptable insurance risk he returned the application to the Secretary of the Society for the issuance of a certificate. It is the Society which, having the imputed knowledge of the true facts and of the falsity of the application, waives the requirements and assumes the obligations of the insurance contract. It is the Society which is es-topped to assert a defense by reason of the false answers. Stix v. Continental Assurance Co., supra. The district court properly excluded the fraud issue from consideration of the jury.
The jury’s verdict and the court’s judgment included an attorneys’ fee of $1,000. The appellant takes the position that no attorneys’ fees are allowable against a fraternal benefit society, and so contending it points again to the statute which exempts such societies from all provisions of the insurance laws except as provided in Chapter 637, and that no law thereafter enacted shall apply to them unless they be expressly named therein. The general statutory law of Florida dealing with insurance contains a provision that:
“Upon the rendition of a judgment or decree by any of the courts of this state against any insurer in favor of the beneficiary under any policy or contract of insurance ex-futed h? such “surer, there shall . °r decreed against such insurer, and in favor of the beneficiaiy named in said policy or contract ® insurance, a reasonable ^ sum as ^ees or compensation for his attorne^s. or solicitors prosecuting the SU1^ m which the recovery is had.
“The amount to be recovered for fees and compensation for attorneys and solicitors against such insurer shall be ascertained and fixed by the court in chancery cases or a jury in common law actions, from testimony adduced for that purpose, and shall be included in the judgment or decree rendered in such cases.” Fla. Stat.Ann. § 625.08.
Chapter 637 had itg origin in a compre_ hensive act pagsed in 191B Lawg of Florida, Actg 1915, ch. 6970. At that time attorneys> feeg might be awarded againgt «any Hfe or fire ingurance com_ pany». Lawg of Florida¡ Actg of lg93 Cb. 4173. In 1917 thig wag amended so ag to permit recovery of attorneys’ fees againgt »any pers company; eorpora. tíon> co-partnership, association, fraternal benefit societieg or others » Laws of Fiorida> Acts of 1917 ch. 7295. In tbe statutory revision of 1941 the quoted wordg inaerted in 1917 were deleted and for them wag substituted “any insurer”, Laws of Florida, Acts of 1941, Ch. 20719. “Insurer” is defined as “any person, firm, partnership, association, corporation or other organization or group who issue, or enter into, contracts or policies of insuranee, indemnity or surety with another who is called the insured.” Fla.Stat. Ann. § 625.01(6). This definition, adopted by the 1941 compilation, does not ex-pressly designate fraternal benefit societies and, it being subsequent to the 1915 enactment, they would be excluded from it. The 1915 statutes, as amended in the interim, were incorporated in the 1941 compilation. In such a case we look behind the revision to ascertain which act of the legislature is expressive of its intent. See Lykes Bros. v. Bigby, 155 Fla. 580, 21 So.2d 37. We are of the opinion that the statutory provision authorizing recovery of attorneys’ fees does not apply to actions against fraternal benefit societies. In the absence of statutory authority or a contract provision attorneys fees cannot be recovered, 46 C.J.S. Insurance § 1405b, p. 712.
As to that part of the judgment for the amount of the certificate with interest thereon and costs, it is affirmed; as to that part providing for attorneys’ fees it is reversed. One-sixth of the costs of the appeal shall be taxed to the appellee and the remainder to the appellant.
Affirmed in part and reversed in part,
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
Theodore WAY, Appellant, v. UNITED STATES of America, Appellee.
No. 6305.
United States Court of Appeals Tenth Circuit.
March 30, 1960.
Donald W. Madole, Denver, Colo., for appellant.
Charles M. Stoddard, Denver, Colo., Asst. U. S. Atty., District of Colorado (Donald G. Brotzman, U. S. Atty., Boulder, Colo., District of Colorado, on the brief), for appellee.
Before PICKETT and BREITENSTEIN, Circuit Judges, and SAVAGE, District Judge.
PER CURIAM.
Way was convicted of stealing money in violation of 18 U.S.C. § 2113(b) from a bank insured by the Federal Deposit Insurance Corporation and was sentenced to a term of three years. Upon appeal to this court his conviction was affirmed. Way v. United States, 10 Cir., 268 F.2d 785. Thereafter he applied under 28 U.S.C. § 2255 for a vacation of sentence. This appeal is from the denial of that application.
Way first asserts that evidence secured by an unlawful search was improperly admitted at his trial. The trial court expressly found that the search was lawful and the evidence properly admitted. Be that as it may, the reception of such evidence was not objected to at the trial and no point thereof was made in the subsequent appeal. This objection may not be raised for the first time in a proceeding under Section 2255.
The next contention is that the conviction was secured upon evidence establishing entrapment which entitled Way to an acquittal. This defense was not raised in either the trial court or in the appeal. A motion under Section 2255 to vacate a sentence is a collateral proceeding in which errors in procedure on the initial trial of the case are not open for review. Here the defense of entrapment is raised for the first time in this Section 2255 proceeding and, hence, comes too late.
The last point is that Way did not have effective representation of counsel because such counsel in the trial court did not raise the aforementioned issues. The issue of ineffective counsel was not raised by the motion to vacate and was not considered by the trial court. It cannot now be raised for the first time on appeal. The court notes that the retained trial counsel was a lawyer experienced in criminal trials. He may have had adequate reason for failing to raise these points. In any event if appropriate motions had been made, the propriety of the denial could not be questioned in a Section 2255 proceeding.
Affirmed.
. Barber v. United States, 10 Cir., 197 F.2d 815, certiorari denied 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665, and cases cited in footnote 1.
. Horne v. United States, 5 Cir., 264 F.2d 40, certiorari denied 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549.
. Stanley v. United States, 9 Cir., 239 F.2d 765.
. It appears from the briefs that Way was represented by retained counsel at the trial and appointed counsel in the appeal.
. Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729.
. See Barber v. United States, 10 Cir., 227 F.2d 431.
. White v. United States, 98 U.S.App.D.C. 274, 235 F.2d 221.
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_genstand
|
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 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".
CATERPILLAR TRACTOR CO., a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 11560.
United States Court of Appeals Seventh Circuit.
March 2, 1956.
George B. Christensen, Chicago, 111., Winston, Strawn, Black & Towner, Chicago, 111., of counsel, Fred H. Daugherty, David C. Keegan, Chicago, 111., for petitioner.
David P. Findling, Associate General Counsel, Norton J. Come, Attorney, N.L. R.B., Washington, D. C., Theophil C. Kammholz, General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Louis Schwartz, Attorneys, National Labor Relations Board, Washington, D. C., for respondent.
Before LINDLEY, SWAIM, and SCHNACKENBERG, Circuit Judges.
LINDLEY, Circuit Judge.
Caterpillar Tractor Company seeks to set aside an order entered by the Board based on the latter’s finding that petitioner had violated subsections 8(a) (1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1) and (3). The facts are not in dispute; the sole controversy is as to their legal effect.
District Lodge No. 55, International Association of Machinists, AFL, hereinafter referred to as the union, is the certified bargaining agent for petitioner’s production employees at its plant in Joliet, Illinois. In February 1954, approximately 1,450 of the some 1,900 employees in the bargaining unit were members of the union. For an extended period of time, the relations between the employer and the union had been entirely amicable and cooperative. During February the union began a membership drive. For this purpose, 1,000 advertising slogan buttons were distributed to its members, 250 of which were emblazoned with the slogan “Don’t be a Scab.” The others bore such legends as “Don’t be a Free Rider.” The “Scab” buttons were first worn in the shop on February 24. Petitioner did not demur to the use of other buttons but advised the union’s business agent that it objected to the “Scab” emblems being worn in the shop, because of their tendency to incite unrest and resentment among union and nonunion employees and to disturb the peaceful, friendly atmosphere which had continued between petitioner and the union for a number of years. Despite this protest, wearing of the “Scab” buttons continued throughout the remainder of the week. On Friday, February 26, the employer advised all such wearers that they would be sent home if they returned to work the next working day wearing the buttons. On March 1, the next working day, 247 employees reported for work wearing the offensive badge and were sent home. On the same day, the union agreed to suppress the emblem pending the Board’s decision on unfair labor charges based on petitioner’s suspension of these employees. On March 2, all employees returned to work without the objectionable buttons, and that status has since prevailed.
' The Board concluded that wearing the button during working hours was a protected activity within the purview of Section 7 of the Act, and, that, by suspending the 247 employees for wearing it in the work shop, petitioner violated § 8(a) (1) and (3) of the Act. A cease and desist order was entered, which required, inter alia, reimbursement for the time lost to the suspended employees. 113 N.L.R.B. No. 37. Member Rodgers filed a vigorous dissenting opinion.
We are convinced that the Board erroneously interpreted Section 7 and that its order must be set aside. The fine balance between protected and unprotected activities in membership solicitation is pointed up by the Supreme Court in Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 797-798, 65 S.Ct. 982, 985, 89 L.Ed. 1372: “These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.”
Thus, in its application to organizational activities, the protective mantle of Section 7 is tempered by the employer’s right to exact a day’s work for a day’s pay and to maintain discipline, and does not reach activities which inherently carry with them a tendency toward, or likelihood of, disturbing efficient operation of the employer’s business. Perhaps no greater disruptive force can be found in the field of labor relations than that innate in the application of the term “scab” to one employee by his fellow workman. The term, when applied to one embraced in a labor group, bears an inescapable connotation of opprobiousness and vileness commonly recognized by all members of modern American society. As we said, in N.L.R.B. v. Aintree Corp., 7 Cir., 135 F.2d 395, 397, “Probably no words are more insulting to, or arouse keen resentment more promptly in, an employee than to call him ‘a scab.’ ” See Member Rodgers Dissent, 113 N.L.R.B. No. 37.
We are of the opinion that petitioner’s anticipation that the “Scab” buttons would prove disruptive of employee harmony in its plant and destructive of discipline in production was fully justified. It was under no compulsion to wait until resentment piled up and the storm broke before it could suppress the threat of disruption by exercising its right to enforce employee discipline. Although the union, on March 1, after the event, distributed literature to all employees protesting, in effect, that it used the term “scab” as synonymous with that of “free rider”, its inarticulateness in the use of specific words on the button did not in any way serve to lessen petitioner’s legitimate concern over the universally recognized explosive nature of the ill-chosen word.
In view of the zealous argument advanced by petitioner, we think it wise, perhaps, to negate the erroneous position which we understand it takes that it could properly have prohibited any organizational activity on company time, and might, also, have forbidden the wearing of the other slogan buttons employed in the union’s campaign. We think its right in this respect is limited to the restriction of activities which disrupt, or tend to disrupt, production and to break down employee discipline, and does not include restriction of passive inoffensive advertisement of organizational aims and interests, i. e., the wearing of advertising insignia and buttons, which in no way interferes with discipline or efficient production. Cf. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The “Scab” insignia falls because of its inherent disruptive influence.
The order is set aside.
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:
|
songer_casetyp1_7-3-6
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - property disputes".
CITY OF BOSTON, Appellant, v. MASSACHUSETTS PORT AUTHORITY et al., Appellees.
No. 71-1046.
United States Court of Appeals, First Circuit.
June 21, 1971.
John M. Hyson, Asst. Corporation Counsel, with whom Herbert P. Gleason, Corporation Counsel, and Suzanne Del-vecchio, and Thomas H. Martin, Asst. Corporation Counsel, were on brief, for appellant..
Donald R. Grant, Boston, Mass., with whom John S. Hopkins, III, and Ropes & Gray, Boston, Mass., were on brief, for Massachusetts Port Authority, ap-pellee.
Henry Paul Monaghan, Boston, Mass., with whom Henry E. Foley, Lewis H. Weinstein, Michael B. Keating, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for Air Canada et al., appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
The City of Boston filed a 42 U. S.C. § 1983 complaint alleging jurisdiction under 28 U.S.C. §§ 1331, 1343(3) and 1343(4) against the defendants Massachusetts Port Authority, which operates Logan Airport, and all the airlines using that facility. The complaint alleges that the noise of airplanes taking off from and landing at Logan diminishes the value of public school properties in Boston. The diminution is alleged to amount to a taking without compensation and is said to violate the due process clause of the Fourteenth Amendment. The district court dismissed the complaint, 320 F.Supp. 1317, and the City appeals.
The problems of federal jurisdiction over this cause are serious ones, but we find it unnecessary to consider them. Regardless of which jurisdictional statute the City invokes, it must allege a violation of due process of law as guaranteed by the Fourteenth Amendment. The City, a municipal corporation and an instrumentality of the state, is in the position of suing the Port Authority, another instrumentality of the state, for taking the City’s property. Since, as the City admits, the Supreme Court has long held that a state may take property from a municipal corporation without compensation, the City’s Fourteenth Amendment claim must rest on proof that the Port Authority’s taking of its property was not authorized under state law and that by violating state law the Port Authority has violated due process.
If such a claim gave rise to a federal due process cause, then the federal courts would find themselves interpreting and applying state law whenever state officials were charged with violating it. Such a result would not only explode the limits of federal jurisdiction far beyond the reach of diversity and traditional civil rights jurisdiction, but it would also impair greatly the ability of the state courts to make definitive pronouncements on state law. A mere allegation that a state official had misconstrued or misapplied state law would be enough to expose him to a federal court decision. Indeed, in this case, because it turns entirely on a question of Massachusetts law, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and involves the allocation of power between a city and a state agency, cf. Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 172, 62 S.Ct. 986, 86 L.Ed. 1355 (1942), we would very likely have abstained from decision even if the City could be said to have made out a cause of action under the Fourteenth Amendment. See Upshaw v. McNamara, 435 F.2d 1188, 1192 (1st Cir. 1970); Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968).
We have concluded, however, that the City’s complaint does not make out a federal due process claim. In Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943), the Supreme Court rejected a similar claim. The petitioner in that case brought a § 1983 action asserting that he was entitled by state law to the Republican nomination to the state legislature and that the members of the State Primary Canvassing Board had acted in violation of Illinois law by their refusal to certify him. The Court held that “mere violation of a state statute does not infringe the federal Constitution.” 321 U.S. at 11, 64 S.Ct. at 402. It went on to say that “a showing of purposeful discrimination” was necessary in order to raise a claim under the Fourteenth Amendment. Id. “It was not intended by the Fourteenth Amendment and the Civil Rights Acts that all matters formerly within the exclusive cognizance of the states should become matters of national concern.”
The City makes no allegation that the Port Authority is purposefully misapplying Massachusetts law in order to discriminate against the City. Rather, the City attempts to have this court resolve the differing interpretations by the City and the Port Authority of the Massachusetts law of eminent domain. Such an allegation does not constitute a federal cause of action. The Massachusetts courts frequently make such interpretations, and it is that jurisdiction to which the City must turn in order to litigate this issue.
Affirmed.
. A municipality may assert a due process claim but not one attacking tlie laws of the state which created it. See Township of River Vale v. Town of Orangetown, 403 F.2d 684 (2d Cir. 1968). Whether a municipality can assert such a claim against a state agency which is allegedly acting in a lawless manner is an issue, crucial to the City’s case, which we do not reach.
. Although this court has not yet passed on the issue, there is authority to support the proposition that no federal jurisdiction exists under 28 U.S.C. § 1343 and 42 U.S.C. § 19S3 over claims for deprivation of property rights. Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969). The City disputes this authority and argues alternatively that interference with educational environment is more than a deprivation of property rights. We do not decide whether a § 1983 claim exists, nor do we reach the issue whether general federal question jurisdiction exists under 28 U.S.C. § 1331 in the absence of a statutorily authorized cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718 (2d Cir. 1969).
. The City does not contend that any other federal issues are involved.
. Hunter v. City of Pittsburgh, 207 U.S. 161, 178-179, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Risty v. Chicago, Rock Island & Pacific R. Co., 270 U.S. 378, 390, 46 S.Ct. 236, 70 L.Ed. 641 (1926); Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). See generally Township of River Vale v. Town of Orangetown, 403 F.2d 684, 686 (2d Cir. 1968).
. Any involvement by the airlines in the alleged taking is derivative from their involvement with the Port Authority. Thus, jurisdictional questions aside, we will assume that if, but only if, the Port Authority violated the law, the airlines did likewise.
. 321 U.S. at 11, 64 S.Ct. at 403. Accord, Love v. Navarro, 262 F.Supp. 520 (C.D. Cal.1970); Sauls v. Hutto, 304 F.Supp. 124 (E.D.La.1969). See Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970); Dorsey v. N.A.A.C.P., 408 F.2d 1022 (5th Cir. 1969), cert. denied, 396 U.S 847, 90 S.Ct. 58, 24 L.Ed.2d 97 (1969); Charters v. Shaffer, 181 F.2d 764 (3d Cir. 1950). Cf. Delia v. Court of Common Pleas of Cuyahoga County, 418 F.2d 205 (6th Cir. 1969), cert. denied, 396 U.S. 886, 90 S.Ct. 174, 24 L.Ed.2d 161 (1969); Wessling v. Bennett, 410 F.2d 205 (8th Cir. 1969), cert. denied, 396 U.S. 945, 90 S.Ct. 384, 24 L.Ed.2d 248 (1969); McCord v. Henderson, 383 F.2d 135 (6th Cir. 1967).
. E. g., Robbins v. Department of Public Works, 355 Mass. 328, 244 N.E.2d 577 (1969); Sacco v. Department of Public Works, 352 Mass. 670, 227 N.E.2d 478 (1967); Commonwealth v. Massachusetts Turnpike Authority, 349 Mass. 1, 206 N.E.2d 74 (1965); Commonwealth v. Massachusetts Turnpike Authority, 346 Mass. 250, 191 N.E.2d 481 (1963); City of Worcester v. Commonwealth, 345 Mass. 99, 185 N.E.2d 633 (1962).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - property disputes"?
A. disputes over real property (private)
B. eminent domain and disputes with government over real property
C. landlord - tenant disputes
D. government seizure of property - as part of enforcement of criminal statutes
E. government seizure of property - civil (e.g., for deliquent taxes, liens)
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
E. C. SOLINSKY v. UNITED STATES.
No. 7859.
Circuit Court of Appeals, Ninth Circuit.
June 17, 1935.
George Neuner, of Portland, Or., for appellant.
Carl C. Donaugh, U. S. Atty., of Portland, Or.
Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.
PER CURIAM.
Upon stipulation of counsel for respective parties, ordered appeal dismissed; judgment of dismissal filed and entered accordingly, and mandate forthwith.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Edward A. PUGLIESE, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6344.
United States Court of Appeals First Circuit.
April 13, 1965.
Woodbury, Senior Circuit Judge, dissented.
Ronald R. Popeo, with whom James L. Kenney, Boston, Mass., was on brief, for appellant.
Paul L. Normandin, Asst. U. S. Atty., 'with whom Louis M. Janelle, U. S. Atty., and John D. McCarthy, Asst. U. S. Atty., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Chief Judge.
The defendant was tried and convicted under a multi-count indictment involving the operation of an illegal still. The evidence placed him on the premises shortly after a raid by Treasury agents. Because his presence was unexplained the government’s prima facie case was made out by the presumptions authorized by sections 5601(b) (1) and (2) of Title 26 U.S.C. Unfortunately, for present purposes, instead of imposing sentences to be served concurrently the court imposed a sentence to be served on Count 1, involving the section 5601(b) (1) presumption, and separate sentences on the other counts. We delayed decision of the appeal awaiting final disposition of a similar ease in the Supreme Court. The Court has now upheld the constitutionality of section 5601(b) (2), but, because concurrent sentences had been imposed in that case, found it unnecessary to pass on section 5601(b) (1). United States v. Gainey, March 1, 1965, 380 U.S.-, 85 S.Ct. 754, 13 L.Ed.2d 658. We must therefore decide this question which the Court left open.
Briefly, section 5601(b) (1) permits the jury to find a defendant guilty of ■“possession or custody or * * * control” of an unregistered still, an offense by virtue of 26 U.S.C. § 5601(a) (1), simply by proof of unexplained presence at the site. Section 5601(b) (2) similarly permits, upon unexplained presence, a finding that the defendant “carries on the business of a distiller * * * without having given bond,” an offense under 26 U.S.C. § 5601(a) (4). In the Gainey case below, the Fifth Circuit held both statutory presumptions unconstitutional as placing burdens on the defendant forbidden by the Fifth Amendment because of insufficient rational connection between the mere fact of presence and the inferences or conclusions statutorily presumed. Barrett v.. United States, 5 Cir., 1963, 322 F.2d 292. The Supreme Court found no difficulty with the section 5601 (b) (2) presumption, but for a special reason not applicable to the other. It said, “The rationality of the inference provided by § 5601(b) (2) must be viewed in the context of the broad' substantive offense it supports. Section 5601(a) (4) proscribes ‘carrying on’ the enterprise of illegal distillation — an offense which is one of the most comprehensive of the criminal statutes designed to stop the production and sale of untaxed liquor. [Citation omitted] Those who aid and abet the enterpriser come within the statute’s reach by virtue of 18 U.S.C. § 2.” United States v. Gainey, 1965, 380 U.S. 63, 67, 85 S.Ct. 754, 757, 13 L.Ed.2d 658.
While a party could be guilty as a principal under either section 5601(a) (1) or (a) (4> by virtue of aiding and abetting, not every person likely to be present at a still site could be found to be aiding and abetting “possession,” section 5601(a) (1), Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L. Ed. 818, even though every such person could be found to be aiding and abetting “carrying on,” section 5601(a) (4). We find the discussion in the opinion of Judge Wisdom in-Barrett holding that there is lack of sufficient rational connection between presence and possession entirely satisfying. Accepting that unreversed portion of the decision, it follows that we must set aside the verdict on Count 1 because the charge followed an unconstitutional statute. Accord, United States v. Romano, fn., supra.
The charge, however, was not erroneous as to the other counts. United States v. Gainey, supra. Indeed, the court was more solicitous for the defendant’s rights under the Fifth Amendment than the charge which was accepted by the Court in Gainey.
The defendant’s other points need little comment. In the light of United States v. Ventresca, March 1, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed. 2d 684, there can be no general criticism of the search warrant. It is true that the warrant did not authorize execution thereof during the nighttime, and that it was served fifteen minutes after sunset. This was contrary to the absolute sunrise-to-sunset standard adopted in United States v. Martin, D.C.Mass., 1929, 33 F.2d 639. We think that darkness is a factual matter, and disapprove of that arbitrary limitation. Sasser v. United States, 5 Cir., 1955, 227 F.2d 358; United States v. Woodson, 6 Cir., 1962, 303 F.2d 49, cert. den. Gant v. United States, 373 U.S. 941, 83 S.Ct. 1548, 10 L.Ed.2d 696.
The defendant’s argument that he was deprived of adequate representation by counsel is unsound. He had counsel, and for some reason discharged him. Thereafter, although advised, he did not obtain new counsel until just before trial. If, as does not affirmatively appear, this attorney had insufficient time to prepare, on the record this was due to defendant’s own neglect.
The defendant’s other points have been considered. Judgment must be entered vacating the judgment and setting aside the verdict on Count 1 and directing further proceedings not inconsistent herewith. The judgment of the District Court is otherwise affirmed.
. After this opinion had been drafted the Court granted certiorari in United States v. Romano, 2 Cir., 1964, 330 F.2d 566, cert. granted 3/15/65, 85 S.Ct. 1020, as a result of which it will presumably resolve this question at the next term. Since a number of other questions are involved in the present case we do not wish to withhold our decision for another year. It would be more appropriate for the government to obtain an extension of time to petition for certiorari on Count 1, in which event we will stay our mandate with respect to that count.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_state
|
52
|
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".
GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Claude RICHARDS, Appellant.
No. 13657.
United States Court of Appeals Third Circuit.
Argued Jan. 31, 1962.
Decided Feb. 26, 1962.
R. H. Amphlett Leader, Frederiksted, St. Croix, V. I., for appellant.
Leon P. Miller, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ALDRICH, GANEY and .SMITH, Circuit Judges.
Sitting by assignment.
PER CURIAM.
Under the narrow scope of a writ of review, 5 V.I.C. §§ 1421-1423, the •evidence is not before us. The only possible question open to petitioner (assuming that certain procedural points are decided in his favor) is whether he could be found guilty of disturbing the peace “by fighting with John Richards” although he had been found not guilty of “commit [ting] an assault and battery on the person of John Richards” on the same occasion. It seems manifest that there may be a spontaneous or voluntary fight in which neither party is genuinely an aggressor. In such instance the peace would be disturbed even though no assault and battery occurred.
The order of the District Court denying the petition is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
Mehmet N. OZYAGCILAR, Appellant, v. Milton DAVIS and J.D. Waugh, and University of South Carolina, Appellees, v. Kenneth SWAISLAND, Rafel Industrial Group, Ltd., Bryan E.W. Gransden, Norminco Developments, Ltd., B.J.R. Research Company, and Great Basins Petroleum Company, Third-Party Defendants.
No. 82-1472.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 14, 1983.
Decided March 1, 1983.
Herbert Rosenberg, New York City (Miller, Singer, Michaelson & Raives, Barry Evans, Curtis, Morris & Safford, P.C., New York City, on brief) for appellant.
Robert Neuner, New York City (John D. Murnane, Brumbaugh, Graves, Donohue & Raymond, New York City, Robert W. Dibble, Jr., Randall T. Bell, Robert E. Stepp, McNair, Glenn, Konduros, Corley, Single-tary, Porter & Dibble; C. Tolbert Goolsby, Jr., Deputy Atty. Gen., Columbia, S.C., on brief) for appellees.
Before WINTER, Chief Judge, WIDENER, Circuit Judge, and FIELD, Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:
Mehmet Ozyagcilar, a student at the University of South Carolina, sued the University and two of its professors regarding patent rights to two new chemical processes which plaintiff claimed to have invented. The parties purportedly reached a settlement just before trial. An outline of their agreement was made part of the record and the case was dismissed with prejudice. Later, during the drafting of the formal settlement agreement, a dispute arose over the meaning of a clause in the outline agreement, and the district court, purporting to act as a “final arbiter,” issued an order interpreting the agreement. Concluding that the district court proceeded improperly, we reverse its order and remand for further proceedings consistent with this opinion.
I.
One of the two chemical processes at issue in the original suit involved the synthesis of ammonia and the other the synthesis of hydrocarbons and alcohols. Ozyagci-lar alleged in his complaint that the University and its professors had wrongfully appropriated his inventions and filed patent applications for them. Plaintiff also filed patent applications for both inventions concurrent with his filing suit.
Just before trial, lawyers for the parties reached an agreement in settlement of the litigation. An outline of the agreement was drafted by defendants’ attorneys and signed by plaintiff and all of the attorneys for both sides. It was contemplated that the outline would be followed by the drafting and execution of more formal documents. In relevant part, the outline provided for
Ownership in the University of all United States and foreign patents and patent applications except for Turkey.... Mr. Ozyagcilar to receive a nonexclusive transferrable royalty-free irrevocable license under the patents and patent applications.
When the case was called for trial, the outline agreement was read into the record. The district court asked plaintiff’s counsel whether he accepted the terms of the agreement and had authority to do so, and counsel responded that he did. The following colloquy then took place:
THE COURT: Do you further agree that on behalf of your client, if any dispute arises under this settlement as to its terms and the meaning of the words ... that that matter will be resolved by the court?
PLAINTIFF’S COUNSEL: We understand that to be the case, yes sir.
Plaintiff, himself, and counsel for all of the defendants also responded affirmatively when questioned whether they agreed that the court would resolve any disputes which might arise as to the interpretation of the agreement. However, the outline agreement contained no provision that the district court would be the interpreter of any of its terms; it was completely silent as to who was to resolve any disputes arising as to its meaning.
A dispute as to the meaning of “a nonexclusive transferrable royalty-free irrevocable license” arose in the course of drafting the formal settlement agreement. Plaintiff contended that his understanding was that he would have the right to sublicense the process to numerous companies. Defendants contended that they had understood— and that plaintiff had understood — that plaintiff would only get one indivisible license that he could transfer to one company.
The district court, after receiving affidavits and briefs from the parties, issued its “Order Interpreting Settlement Agreement.” The district court did not conduct an evidentiary hearing; it made no findings of fact; and it did not address the argument, raised by plaintiff, that there had never been a meeting of the minds between the parties as to the meaning of the phrase. Rather, the court, purporting to act as a “final arbitor [sic],” examined patent law principles and the effect on the parties of possible interpretations, and imposed a third interpretation. Under the district court’s interpretation and order, plaintiff would be able to transfer each of two licenses — one for ammonia and the other for hydrocarbons and alcohols — to one company at any given time. As construed by it, the district court ordered the agreement carried out. Ozyagcilar now appeals.
II.
It is well settled that a district court retains inherent jurisdiction and equitable power to enforce agreements entered into in settlement of litigation before that court. Millner v. Norfolk & Western Ry. Co., 643 F.2d 1005, 1009 (4 Cir.1981); Wood v. Virginia Hauling Co., 528 F.2d 423, 425 (4 Cir.1975); Kulka v. National Distillers Prods. Co., 483 F.2d 619, 621 (6 Cir.1973). However, it is clear that the district court only retains the power to enforce complete settlement agreements; it does not have the power to impose, in the role of a final arbiter, a settlement agreement where there was never a meeting of the parties’ minds. Wood, supra, 528 F.2d at 425. Where there has been no meeting of the minds sufficient to form a complete settlement agreement, any partial performance of the settlement agreement must be rescinded and the case restored to the docket for trial. Id.
We think it clear that the district court proceeded erroneously in the present case. Although plaintiff alleged that there had never been a meeting of the minds, the district court did not conduct a plenary hearing and make findings as to this issue. The failure of the district court to address and resolve this issue leaves open the question as to whether there ever was a complete settlement agreement to interpret, let alone its proper interpretation. The court’s ruling therefore cannot stand.
The action taken by the district court in the present case cannot be justified on the ground that the parties agreed to let the court “legislate” an interpretation as a “final arbiter” of the outline agreement. The proper role of the district court in enforcing settlement agreements was made clear in Wood. There, in remanding a similar case to the district judge, we described his role as “to find, if he can the terms of the complete settlement agreement, or to determine that there was none.” Id. (emphasis in original). Thus, it is improper for the district court, by its own motion or by agreement of the parties, to place itself in the role of a “final arbiter” of a settlement agreement. Instead, on remand, the district court should, after a plenary hearing, determine if there was a settlement agreement between the parties and, if so, its terms and conditions.
REVERSED AND REMANDED.
Of course the district court did receive affidavits, but this was an impermissible procedure. Whether there had been a meeting of the parties’ minds is clearly a question of fact, and it was error for the district court to attempt to resolve this question based solely on affidavits and briefs. Wood, supra, 528 F.2d at 425; Millner, supra, 643 F.2d at 1009; Kulka, supra, 483 F.2d at 621-22.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_caseorigin
|
084
|
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.
Ray WHITE, et al.
v.
Daniel T. PAULY, as personal representative of the Estate of Samuel Pauly, Deceased et al.
No. 16-67.
Supreme Court of the United States
Jan. 9, 2017.
PER CURIAM.
This case addresses the situation of an officer who-having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers-shoots and kills an armed occupant of the house without first giving a warning.
According to the District Court and the Court of Appeals, the record, when viewed in the light most favorable to respondents, shows the following. Respondent Daniel Pauly was involved in a road-rage incident on a highway near Santa Fe, New Mexico. 814 F.3d 1060, 1064-1065 (C.A.10 2016). It was in the evening, and it was raining. The two women involved called 911 to report Daniel as a " 'drunk driver' " who was " 'swerving all crazy.' " Id., at 1065. The women then followed Daniel down the highway, close behind him and with their bright lights on. Daniel, feeling threatened, pulled his truck over at an off-ramp to confront them. After a brief, nonviolent encounter, Daniel drove a short distance to a secluded house where he lived with his brother, Samuel Pauly.
Sometime between 9 p.m. and 10 p.m., Officer Kevin Truesdale was dispatched to respond to the women's 911 call. Truesdale, arriving after Daniel had already left the scene, interviewed the two women at the off-ramp. The women told Truesdale that Daniel had been driving recklessly and gave his license plate number to Truesdale. The state police dispatcher identified the plate as being registered to the Pauly brothers' address.
After the women left, Officer Truesdale was joined at the off-ramp by Officers Ray White and Michael Mariscal. The three agreed there was insufficient probable cause to arrest Daniel. Still, the officers decided to speak with Daniel to (1) get his side of the story, (2) " 'make sure nothing else happened,' " and (3) find out if he was intoxicated. Id., at 1065. The officers split up. White stayed at the off-ramp in case Daniel returned. Truesdale and Mariscal drove in separate patrol cars to the Pauly brothers' address, less than a half mile away. Record 215. Neither officer turned on his flashing lights.
When Officers Mariscal and Truesdale arrived at the address they had received from the dispatcher, they found two different houses, the first with no lights on inside and a second one behind it on a hill. Id., at 217, 246. Lights were on in the second one. The officers parked their cars near the first house. They examined a vehicle parked near that house but did not find Daniel's truck. Id., at 310.
Officers Mariscal and Truesdale noticed the lights on in the second house and approached it in a covert manner to maintain officer safety. Both used their flashlights in an intermittent manner. Truesdale alone turned on his flashlight once they got close to the house's front door. Upon reaching the house, the officers found Daniel's pickup truck and spotted two men moving around inside the residence. Truesdale and Mariscal radioed White, who left the off-ramp to join them.
At approximately 11 p.m., the Pauly brothers became aware of the officers' presence and yelled out " 'Who are you?' " and " 'What do you want?' " 814 F.3d, at 1066. In response, Officers Mariscal and Truesdale laughed and responded: " 'Hey, (expletive), we got you surrounded. Come out or we're coming in.' " Ibid. Truesdale shouted once: " 'Open the door, State Police, open the door.' " Ibid. Mariscal also yelled: " 'Open the door, open the door.' " Ibid.
The Pauly brothers heard someone yelling, " 'We're coming in. We're coming in.' " Ibid . Neither Samuel nor Daniel heard the officers identify themselves as state police. Record 81-82. The brothers armed themselves, Samuel with a handgun and Daniel with a shotgun. One of the brothers yelled at the police officers that " 'We have guns.' " 814 F.3d, at 1066. The officers saw someone run to the back of the house, so Officer Truesdale positioned himself behind the house and shouted " 'Open the door, come outside.' " Ibid.
Officer White had parked at the first house and was walking up to its front door when he heard shouting from the second house. He half-jogged, half-walked to the Paulys' house, arriving "just as one of the brothers said: 'We have guns.' " Ibid. ; see also Civ. No. 12-1311 (D NM, Feb. 5, 2014), App. to Pet. for Cert. 75-78. When White heard that statement, he drew his gun and took cover behind a stone wall 50 feet from the front of the house. Officer Mariscal took cover behind a pickup truck.
Just "a few seconds" after the "We have guns" statement, Daniel stepped part way out of the back door and fired two shotgun blasts while screaming loudly. 814 F.3d, at 1066-1067. A few seconds after those shots, Samuel opened the front window and pointed a handgun in Officer White's direction. Officer Mariscal fired immediately at Samuel but missed. " 'Four to five seconds' " later, White shot and killed Samuel. Id., at 1067.
The District Court denied the officers' motions for summary judgment, and the facts are viewed in the light most favorable to the Paulys. Mullenix v. Luna, 577 U.S. ----, ----, n., 136 S.Ct. 305, 307, n., 193 L.Ed.2d 255 (2015) (per curiam ). Because this case concerns the defense of qualified immunity, however, the Court considers only the facts that were knowable to the defendant officers. Kingsley v. Hendrickson, 576 U.S. ----, ----, 135 S.Ct. 2466, 2474, 192 L.Ed.2d 416 (2015).
Samuel's estate and Daniel filed suit against, inter alia, Officers Mariscal, Truesdale, and White. One of the claims was that the officers were liable under Rev. Stat. § 1979, 42 U.S.C. § 1983, for violating Samuel's Fourth Amendment right to be free from excessive force. All three officers moved for summary judgment on qualified immunity grounds. White in particular argued that the Pauly brothers could not show that White's use of force violated the Fourth Amendment and, regardless, that Samuel's Fourth Amendment right to be free from deadly force under the circumstances of this case was not clearly established.
The District Court denied qualified immunity. A divided panel of the Court of Appeals for the Tenth Circuit affirmed. As to Officers Mariscal and Truesdale, the court held that "[a]ccepting as true plaintiffs' version of the facts, a reasonable person in the officers' position should have understood their conduct would cause Samuel and Daniel Pauly to defend their home and could result in the commission of deadly force against Samuel Pauly by Officer White." 814 F.3d, at 1076. The panel majority analyzed Officer White's claim separately from the other officers because "Officer White did not participate in the events leading up to the armed confrontation, nor was he there to hear the other officers ordering the brothers to 'Come out or we're coming in.' " Ibid. Despite the fact that "Officer White ... arrived late on the scene and heard only 'We have guns' ... before taking cover behind a stone wall," the majority held that a jury could have concluded that White's use of deadly force was not reasonable. Id., at 1077, 1082. The majority also decided that this rule-that a reasonable officer in White's position would believe that a warning was required despite the threat of serious harm-was clearly established at the time of Samuel's death. The Court of Appeals' ruling relied on general statements from this Court's case law that (1) "the reasonableness of an officer's use of force depends, in part, on whether the officer was in danger at the precise moment that he used force" and (2) "if the suspect threatens the officer with a weapon[,] deadly force may be used if necessary to prevent escape, and if[,] where feasible, some warning has been given." Id., at 1083 (citing, inter alia, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ; emphasis deleted; internal quotation marks and alterations omitted). The court concluded that a reasonable officer in White's position would have known that, since the Paulys could not have shot him unless he moved from his position behind a stone wall, he could not have used deadly force without first warning Samuel Pauly to drop his weapon.
Judge Moritz dissented, contending that the "majority impermissibly second-guesses" Officer White's quick choice to use deadly force. 814 F.3d, at 1084. Judge Moritz explained that the majority also erred by defining the clearly established law at too high a level of generality, in contravention of this Court's precedent.
The officers petitioned for rehearing en banc, which 6 of the 12 judges on the Court of Appeals voted to grant. In a dissent from denial of rehearing, Judge Hartz noted that he was "unaware of any clearly established law that suggests ... that an officer ... who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall." 817 F.3d 715, 718 (C.A.10 2016). Judge Hartz expressed his hope that "the Supreme Court can clarify the governing law." Id ., at 719.
The officers petitioned for certiorari. The petition is now granted, and the judgment is vacated: Officer White did not violate clearly established law on the record described by the Court of Appeals panel.
Qualified immunity attaches when an official's conduct " 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Mullenix v. Luna, 577 U.S., at ---- - ----, 136 S.Ct., at 308. While this Court's case law " 'do[es] not require a case directly on point' " for a right to be clearly established, " 'existing precedent must have placed the statutory or constitutional question beyond debate.' " Id., at ----, 136 S.Ct., at 308. In other words, immunity protects " 'all but the plainly incompetent or those who knowingly violate the law.' " Ibid.
In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases. See, e.g., City and County of San Francisco v. Sheehan, 575 U.S. ----, ----, n. 3, 135 S.Ct. 1765, 1774, n. 3, 191 L.Ed.2d 856 (2015) (collecting cases). The Court has found this necessary both because qualified immunity is important to " 'society as a whole,' " ibid., and because as " 'an immunity from suit,' " qualified immunity " 'is effectively lost if a case is erroneously permitted to go to trial,' " Pearson v.
Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Today, it is again necessary to reiterate the longstanding principle that "clearly established law" should not be defined "at a high level of generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). As this Court explained decades ago, the clearly established law must be "particularized" to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Otherwise, "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Id., at 639, 107 S.Ct. 3034.
The panel majority misunderstood the "clearly established" analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which-as noted above-lay out excessive-force principles at only a general level. Of course, "general statements of the law are not inherently incapable of giving fair and clear warning" to officers, United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), but "in the light of pre-existing law the unlawfulness must be apparent," Anderson v. Creighton, supra, at 640, 107 S.Ct. 3034. For that reason, we have held that Garner and Graham do not by themselves create clearly established law outside "an obvious case." Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ); see also Plumhoff v. Rickard, 572 U.S. ----, ----, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (emphasizing that Garner and Graham "are 'cast at a high level of generality' ").
This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham . Of note, the majority did not conclude that White's conduct-such as his failure to shout a warning-constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that "this case presents a unique set of facts and circumstances" in light of White's late arrival on the scene. 814 F.3d, at 1077. This alone should have been an important indication to the majority that White's conduct did not violate a "clearly established" right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.
On the record described by the Court of Appeals, Officer White did not violate clearly established law. The Court notes, however, that respondents contend Officer White arrived on the scene only two minutes after Officers Truesdale and Mariscal and more than three minutes before Daniel's shots were fired. On the assumption that the conduct of Officers Truesdale and Mariscal did not adequately alert the Paulys that they were police officers, respondents suggest that a reasonable jury could infer that White witnessed the other officers' deficient performance and should have realized that corrective action was necessary before using deadly force. Brief in Opposition 11, 22, n. 5. This Court expresses no position on this potential alternative ground for affirmance, as it appears that neither the District Court nor the Court of Appeals panel addressed it. The Court also expresses no opinion on the question whether this ground was properly preserved or whether-in light of this Court's holding today-Officers Truesdale and Mariscal are entitled to qualified immunity.
For the foregoing reasons, the petition for certiorari is granted; the judgment of the Court of Appeals is vacated; and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Bernard HIATT, Appellant, v. Emil A. SCHLECHT, E. B. Weber, Norman L. Buckner, Robert J. Caley, Carl M. Halvorson, Eric Hoffman, J. M. Steinmuller, Jr., and Ralph Pierson, as Trustees for the Oregon-Washington Carpenters-Employers Health and Welfare Trust Fund and as Trustees for the Oregon-Washington Carpenters-Employers Pension Trust Fund, Appellees.
No. 21825.
United States Court of Appeals Ninth Circuit.
Aug. 13, 1968.
Henry Camarot (argued), Sanders, Lively, Camarot & Wiswall, Springfield, Or., for appellant.
Paul T. Bailey (argued), Bailey, Swink & Haas, Portland, Or., for ap-pellees.
Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT, District Judge.
Hon. James A. von der Heydt, United States District Judge, Anchorage, Alaska, sitting by designation.
OPINION
VON DER HEYDT, District Judge:
This is an appeal from a judgment entered by the District Court for plaintiffs. Plaintiffs, appellees herein, are trustees of the Oregon-Washington Carpenters-Employers Pension, and Health and Welfare, Funds. They filed a complaint seeking specific performance of certain trust agreements which they alleged were incorporated by reference into a labor agreement signed by defendant. Defendant, appellant herein, is a small building contractor. He contends, inter alia, that the District Court did not have jurisdiction because he is neither “in commerce” nor engaged in an “industry affecting commerce” as required by Section 301 of the Labor Management Relations Act. We consider here only the issue of the District Court’s jurisdiction.
In support of his contention that the District Court lacked jurisdiction, appellant urges that he purchased all of his supplies and performed all of his contracts during the period in question in Oregon, and did no work for any company engaged in interstate commerce.
The record notably lacks adequate evidence on behalf of appellees in support of the District Court’s jurisdictional requirement. We find this evidence to be insufficient. We glean from the record in this regard only that the plumbing fixtures which appellant used in 1963, 1964, and 1965 were manufactured outside Oregon, that cost of these items totalled, for both labor and materials, some $5,600 to $8,000 for the years in question, and that appellant’s annual gross income averaged about $150,000.
The District Court determined that it had jurisdiction.
The terms “in commerce” or “industry affecting commerce” are broadly defined. Many authorities require a direct purchase of materials from another state, usually in comparatively substantial quantities, to find jurisdiction. The size of a particular business or the actual dollar value of commerce conducted alone is not determinative of the question.
The record establishes the following with regard to appellant’s activities: He did not
1) construct outside Oregon;
2) subcontract with contractors engaged in business outside Oregon;
3) purchase materials or supplies from persons outside Oregon;
4) contract with subcontractors outside Oregon;
5) do any business with any firm or company in any other states;
6) work on any federal, state, or political subdivision projects;
7) ever work on any defense projects;
8) perform work on a facility directly utilized for the purpose of interstate commerce.
This manifest lack of interstate contact, considered with the significant insufficiency of appellees’ affirmative evidence upon the jurisdictional question, distinguishes this case from those relied upon by appellees.
Clearly, the evidence is insufficient to establish that appellant engaged in interstate commerce or in industry affecting commerce. We find the District Court lacked jurisdiction. . Because of this conclusion, it is unnecessary to reach the remaining issues raised by this appeal.
Reversed and remanded with instructions to the District Court to vacate judgment and dismiss appellees’ complaint for want of jurisdiction.
. 29 U.S.C. § 185(a) (1964).
. There was actually no evidence as to this, but the District Court took judicial notice of the ‘fact.’ In the light of our conclusion, we need not discuss the propriety of its having done so.
. The record suggests that the electric fixtures which appellant used may also be included in this computation.
. See, e.g., Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); NLRB v. Inglewood Park Cemetery Ass’n, 355 F.2d 448 (9th Cir.), cert, denied, First Congregational Church of Los Angeles v. NLRB, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966).
. Plumbers and Steamfitters Union, Local No. 598 v. Dillion, 255 F.2d 820 (9th Cir. 1958).
. NLRB v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014 (1939).
. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L.Ed. 1284 (1951) (over $55,-000 worth of raw materials purchased outside state; products shipped out of state); Plumbers & Steamfitters Union, Local 598 v. Dillion, note 5 supra (subcontractor on Atomic Energy Commission project site; pipe unloaded from interstate railroad car); NLRB v. Reed, 206 F.2d 184 (9th Cir. 1953) (over $50,000 worth of business for public utilities and related establishments). See also, NLRB v. Inglewood Park Cemetery Ass’n, note 4 supra, where materials were purchased directly from out of state; Safeway Stores, Inc. v. FTC, 366 F.2d 795 (9th Cir. 1966), cert, denied, 386 U.S. 932, 87 S.Ct. 954, 17 L.Ed.2d 805 (1967), where direct interstate sales were involved, and Wirtz v. Intravaia, 375 F.2d 62 (9th Cir. 1967), where there was construction work done on highways and airport runways used by interstate transporters.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_casetyp1_9-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "miscellaneous".
William H. HAGGARD, Petitioner-Appellant, v. STATE OF TENNESSEE and Honorable Joseph D. Duncan, Judge, Knox County Criminal Court, Knoxville, Tennessee, Respondents-Appellees.
No. 19487.
United States Court of Appeals Sixth Circuit.
Feb. 10, 1970.
William H. Haggard, pro se.
Elmer D. Davies, Jr., Asst. Atty. Gen., State of Tenn., Nashville, Tenn., on brief, for appellees, David M. Pack, Atty. Gen., and Reporter, State of Tenn., of counsel.
Before WEICK, Circuit Judge, and McALLISTER and O’SULLIVAN, Senior Circuit Judges.
WEICK, Circuit Judge.
Appellant, an inmate of the Tennessee State Penitentiary in Nashville, Tennessee, appeals from an order entered by the District Court denying his petition for a writ of mandamus. The petition sought an order of the District Court commanding a state criminal court judge to furnish him with copies of “court records, legal documents, etc.” pertaining to one of his convictions which formed the basis for his conviction as an habitual criminal.
In 1951, appellant was convicted in the Criminal Court of Knox County, Tennessee, of the crime of burglary, and of being an habitual criminal. He was sentenced to life imprisonment. The Supreme Court of Tennessee affirmed his conviction and sentence.
Appellant asserts that one of the three prior state court convictions used to enhance his punishment is void because he was an indigent and did not have the assistance of counsel. He relies on Bur-gett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Appellant’s contention is that he needs the state court records to enable him to prepare a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
The writ of mandamus as such has been abolished by Rule 81(b), Fed.R.Civ.P. However, under 28 U.S.C. § 1651 (All Writs Statute) federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions, including writs in the nature of mandamus. Findley v. Chandler, 377 F.2d 548 (9th Cir.1967); Booker v. Arkansas, 380 F.2d 240 (8th Cir.1967); Youngblood v. United States, 141 F.2d 912 (6th Cir.1944); Newark Morning Ledger Co. v. Republican Co., 188 F.Supp. 813 (D.Mass.1960). See 7 Moore’s Federal Practice § 81.07.
Such relief may be granted only in instances where, before adoption of Rule 81(b), the remedy of mandamus would have been available. Petrowski v. Nutt, 161 F.2d 938 (9th Cir.1947), cert. denied, 333 U.S. 842, 68 S.Ct. 659, 92 L.Ed. 1126 (1948); Newark Morning Ledger Co. v. Republican Co., supra; Deglau v. Franke, 184 F.Supp. 225 (D.R.I.1960).
It is settled that a federal court has no general jurisdiction to issue writs of mandamus where that is the only relief sought. In the absence of special statutory authority it can issue writs of mandamus only as ancillary to and in aid of jurisdiction otherwise vested in it. Hertz v. Record Publishing Co., 219 F.2d 397 (3d Cir.1955), cert. denied, 349 U.S. 912, 75 S.Ct. 601, 99 L.Ed. 1247 (1955).
In any event, federal courts have no authority to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties. Clark v. Washington, 366 F.2d 678 (9th Cir.1966); Campbell v. Washington State Bar Ass’n, 263 F.Supp. 991 (W.D. Wash.1967).
If we treat this action for mandamus as one for habeas corpus, Ray-born v. Jones, 282 F.2d 410 (6th Cir. 1960), we are met with the statutory condition that a person in custody pursuant to a judgment of a state court must first exhaust the remedies available to him in the courts of the state before resorting to the federal courts for relief. 28 U.S.C. § 2254.
In appellant’s petition for a writ of mandamus he admits that he has presently pending in an appellate court in Tennessee a petition for post-conviction relief. It involves the same issue presented here, i. e., that one of his prior convictions which formed the basis for his conviction as an habitual criminal, is void. In that action the court records, which he seeks here, were available to him under the provisions of Section 40-3813 of the Tennessee Code.
Until appellant has exhausted his state remedies, the federal courts are without authority to grant relief to him in a habeas corpus proceeding. Rayborn v. Jones, supra.
The judgment of the District Court denying the petition for a writ of mandamus is affirmed.
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DIAMOND T MOTOR CAR CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 7495.
Circuit Court of Appeals, Seventh Circuit.
May 9, 1941.
James B. Wescott, Edward R. Adams, and Robert E. English, all of Chicago, 111., for petitioner.
Robert B. Watts, Gen. Counsel, N. L. R. B., of Washington, D. C., and I. S. Dorf-man, N. L. R. B., and Owsley Vose, both of Chicago, 111., for respondent.
Before EVANS, and MAJOR, Circuit Judges, and BRIGGLE, District Judge.
BRIGGLE, District Judge.
Upon charges preferred by International Union, United Automobile Workers of America (hereinafter called United), the National Labor Relations Board (hereinafter called the Board) issued its complaint on October 11, 1938, against the Diamond T Motor Car Company (hereinafter called the Company), charging that the company had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1, 2, and 3) of the National Labor Relations Act, 49 Statute 449, 29 U.S.C.A. § 158 (1, 2, and 3). The decision below was favorable to respondent. The company filed its petition for review. The Board answered, requesting enforcement of its order. Jurisdiction is conceded.
The complaint charges, inter alia, that the company had engaged in unfair labor practices, had dominated and interfered with the formation and administration of the Automotive Workers Industrial Union (hereinafter called Industrial) and that the company had discriminatorily discharged and refused to reinstate one C. R. Cahill. The trial examiner who heard the evidence found that the company had not dominated or interfered with Industrial or discrimina-torily discharged Cahill, but found that the Company had engaged in unfair labor practices within the meaning of Section 8(1). Upon review, the Board sustained the examiner with reference to employee Cahill and with reference to his finding of unfair labor practices, but overruled the examiner as to domination and found that the Company had dominated or interfered with the formation or administration of Industrial.
Pursuant to these findings the Board ordered the Company to cease and desist from (a) in any manner dominating or interfering with Industrial or any other labor organization of its employees and from contributing financial or other support thereto; (b) giving effect to an agreement between the Company and Industrial; (c) interfering with its employees in the exercise of any rights guaranteed to them by Section 7 of the Act, 29 U.S.C.A. § 157.
The Board further ordered the Company to take the following affirmative action: (a) Withdraw all recognition of Industrial as the representative of any of its employees; (b) post notices of compliance; (c) notify the regional director of compliance. Petitioner asserts that the decision of the Board is not supported by substantial evidence, nor by the facts found by the Board and that the inferences of fact drawn by the Board from evidentiary facts are unreasonable. Respondent asserts that its findings and order are amply supported by the evidence. The decision turns upon the company’s relation with Industrial.
The facts, viewed in the light most favorable to the Board: In March, 1937, the Steel Workers Organizing Committee, affiliate of C. I. O., initiated a campaign among the Company’s employees, looking to the ultimate organization of United. Shortly thereafter, C. A. Peirce who was Vice-president of the Company in charge of production, asked Frank Koci, a production employee if he had seen any C. I. O. cards passed around in the shop. Later, one Courval, a Superintendent, asked one Joseph Tishcovske, an employee, whether he knew anything about C. I. O. organizers having C. I. O. cards passed around the shop. Upon a negative reply by Tish-covske, Courval then said: “Joe, it’s like this. Mr. Tilt the owner of this Company, will not stand for any Company union, outside union. * * * If Mr. Tilt finds out organization is going on here, I am going to lose my job; Mr. Peirce will lose his job, because Mr. Tilt will close this plant down * * *. He will have to move down to Georgia. That means all of the boys and you will be out of work.” It does not appear that Tishcovske gave any heed to this or ever mentioned it until the hearing.
On March 24, 1937, a Chicago newspaper carried a news item to the effect that C. I. O. contemplated invading the company’s plant with a campaign for unionization. Peirce soon thereafter summoned all of the employees to a meeting in thp assembly room of the plant and addressed them at length. After stressing that an absence of strikes and the existence of friendly feelings had characterized the relations between the Company and the men in the past, he told the men that he did not want any strikes if he could help it. Fie told the employees that he had been reviewing the question of their pay and that they would receive a raise in pay the first of the following month and that he had under consideration the question of vacations. He then used the following language which the Board appears to have relied upon: “I hear there is a movement to organize our plant; I read it in the papers. * * * I have read the Wagner Act, and while I don’t pose as any authority on it, I can say that you have a perfect right to organize in any way you see fit a union in our plant. * * * There are three forms of union that I know of. There is the Federation of Labor, there is the C. I. O. and there is an independent union form of organization and any of those are acceptable to me. However, personally, since I am going to conduct the negotiations probably with the representatives of whatever union is formed, naturally I would like to talk and deal with a man or men who know our business in our plant, understand our peculiar working conditions and can talk intelligently about them.” Later, on cross-examination by the Board’s attorney and in reviewing the foregoing incident he used this language: “If you are going to organize, I would prefer to deal with men who are working in a plant and know our business and our style of operation of a plant rather than someone from outside who doesn’t understand it.”
Peirce testified that fear in his mind that a strike was imminent was the reason which prompted him to call the meeting. He said his sole object was to preserve continuity of work in the plant. The President of United testified that Peirce told the men at the meeting that it was up to them to decide what they wanted to do, that it was their choice and that the responsibility was on them.
■ Upon conclusion of Peirce’s talk and at the request of the employees he left their presence and they were free. to discuss matters of organization among themselves. A witness Schultz testified that later Peirce returned and suggested that the employees might take a vote to determine whether their orgar^zation would be an outside organization or one of their own. It is to be noted that this testimony was sharply disputed and the Board in its findings of fact recited: “Later in the afternoon the assembled employees decided to resolve the question by secret ballot. Cahill (an employee who favored C. I. O.) suggested that they vote either for the C. I. O. or for an inside union.” The trial examiner stated in his report that the evidence was clear that after Peirce left, it became an open meeting for all employees with no supervisory agent present. Apparently the Board did not accept Schultz’ statement in this respect. The vote was later taken, and the ballots deposited at the time clock as the employees left the plant for the day. Upon request of the employees and with Peirce’s permission the votes were counted in his office. The vote showed that a substantial majority favored the formation of what has been termed an “inside” organization.
Pursuant to the decision of the employees two men were chosen by the employees in each department for the purpose of forming such an organization. The day following the meeting referred to, some thirty representatives so chosen met during working hours in the shipping office of the plant and selected temporary officers. Thereafter, organizational meetings were held outside the plant almost nightly for several weeks. On April 18, 1937, the permanent organization of Industrial was effected, officers were elected and a constitution and by-laws adopted. Thereafter Industrial, through its representatives, entered upon negotiations with the Company concerning many phases of their relationship, but the principal controversy between the Company and Industrial appears to have been on the question of wages. An agreement was eventually reached and the officers of Industrial submitted it for ratification to the employees, at a meeting held at the plant on June 16, 1937. The Company had nothing to do with the calling of this meeting and Peirce did not know of it before it took place. The proposals were approved by the membership. Later, on December 9, 1937,- a contract was entered into between the Company and Industrial, which remained in effect at the time of the Board’s order.- During some of the negotiations between Industrial and the Company, the Company permitted members of Industrial to meet on Company time and property, and for a brief time dues were collected from members in their departments and Industrial was permitted to erect bulletin boards in the plant.
Apparently the Company and its employees under the guidance of Industrial were proceeding harmoniously with little activity on the part of United until in April, 1938, when C. I. O. activity -again developed. At that time Peirce in conversation with one Walter Stanisz, an employee, after inquiring about the labor situation, stated that he heard that there were C. I. O. cards floating around the shop and that some of the fellows were going to C. I. O. meetings. He said: “Why * * * don’t you fellows seem to get along with Tom Law (Law was then President of Industrial) * * *? If you feel that you don’t like Tom Law why don’t you get him out of there and get another man in his place?” On the same day Superintendent Courval also remarked to Stanisz: “I don’t see why you attend these outside meetings.” Later Courval is said to have inquired of employees if any of the employees had been talking about outside unions and meetings and had asked if Stanisz was a good worker.
In September, 1938, at a meeting with representatives of United, Peirce said: “Why did the boys switch from one outfit to another * * * why don’t you fellows get on the side of the fence and play ball with us,” adding that he did not see anything wrong with Tom Law.
It is not possible to here detail all the facts which are to be gleaned from an 800 page record. We have undertaken only to state in an abbreviated form those things principally relied upon by the Board.
The argument in sxtpport of the Board’s finding of interference and domination, centers upon the speech by Peirce to the employees on March 24, 1937, and much stress is laid by the Board upon the language heretofore quoted from the Peirce speech.
To properly appraise what was said at that time by Mr. Peirce, it is pertinent to understand some of the background, as disclosed by the record. Peirce had been in charge of the Company for nearly twenty years, having previously taught engineering for five years at Cornell University. During his connection with the Company there had been no history of a Company union; there had been no labor disturbance of any kind or character and no strikes; the relation between employer and employees had always been cordial, pleasant and peaceful, and there had been no discrimination by the Company at any time on account of any union activities, by any employees. The Company which was in the business of assembling motor trucks, had previously been seriotxsly handicapped and harassed by strikes and labor disturbances at plants of other concerns which supplied the Company with parts. There had been a period of sitdown strikes in the automotive industry that naturally was alarming to those employers who had previously maintained cordial relations with employees. When the news item came to Peirce’s attention, indicating that persons outside the plant were about to interest themselves in the conduct of the affairs of the company and its employees he naturally became alarmed for fear of a strike. In communication with Mr. Tilt, the president of the Company, the latter advised him to talk to the men about the situation and tell them that the company did not want a strike, that they had business and that a strike would be a serioxxs matter. The circumstances indicate that the thought uppermost in Peirce’s mind at the time of calling the employees together was to convey to them the feeling of the Company that they should by all means avoid a strike at the plant. Indeed, Peirce says that was his sole object. He pointed out to the employees that there had been no strikes during the twenty years of his association and that he would do anything possible to prevent one.
It must be borne in mind that the principal events relied upon all occurred in a single day — the newspaper item, the calling of the men together, the speech, and the subsequent meeting of the men and the preliminary steps of organization. Peirce told them: “I hear there is a movement to organize our plant * * * there are three forms of union that I know of. There is the Federation of Labor, there is the C. I. O. and there is an independent form of organization and any of those are acceptable to me. However, personally, since I am going to conduct the negotiations probably with the representatives of whatever union is formed, naturally I would like to talk and deal with a man or men who know our bxxsiness in our plant and understand our peculiar working conditions and can talk intelligently about them. By all means don’t let us stop work with any strike or any disturbance during these times when we have some business.”
The Board urges that the language above qxxoted was indicative of Peirce’s preference of an “inside” txnion over an “outside” union and amounted to coercion and restraint xxpon the employees in the free exercise of their rights to form a union of their own choosing. We think this language not reasonably susceptible to the narrow interpretation placed upon it by the Board. Measured by all the surrounding circumstances, other expressions in the speech and the background of the Company, we think it entitled to no such interpretation. It was natural for Peirce in working out any labor problems in the plant to prefer to deal with men who worked in the plant and knew and understood the business of the Company. To so express himself is not to be condemned. Indeed, it is difficult to understand how the best interests of the men themselves could be fostered by one not working in the plant or not familiar with the operations of the Company. It seems to us that Peirce was saying to the men: “Form any organization you wish, but whether it be an independent organization, an A. F. of L., or a C. I. O., I would prefer that you give me someone to deal with who is familiar with your problems.” This was just plain, common sense, not only from the standpoint of the Company but from the standpoint of the men and cannot by any stretch of the imagination be deemed to be coercive in character. Even if it be deemed an expression of a preference as between labor organizations, we still think, as we did in Jefferson Electric Company v. N. L. R. B., 7 Cir., 102 F.2d 949, and Foote Brothers Gear & Machine Corporation v. N. L. R. B., 7 Cir., 114 F.2d 611, that a mere showing of preference does not constitute unlawful interference with an employee in the exercise of his rights under the Act. It is only when such asserted preference, with all surrounding facts and circumstances, amounts to improper influence and approaches a coercive character that it is to be condemned. Any inference that undue pressure was placed upon the men by Peirce upon this occasion is not borne out by the conduct of the men themselves and by the testimony of those present. No witness called by the Board, to testify concerning Peirce’s remarks gave any indication of pressure in his speech, but on the contrary their evidence indicates that Peirce told the men the problem was their own and that the responsibility was theirs.
Following the speech by Peirce, the men deliberated for some time, discussion was free, some favoring one form of union, some another. At the conclusion of the deliberations the vast majority favored the organization of the independent union, herein called “Industrial.” Among those who spoke in favor of C. I. O. was Cahill, who later became president of Industrial. He remained president of Industrial until trouble arose within the union which led to his suspension by the union in August, 1937, and his later expulsion from membership. The board found that the company had no knowledge of either the suspension or expulsion of Cahill until sometime after it had taken place. If this be true surely it cannot be thought that the Company was then exercising any authority over Industrial.
Cahill, while he was president, in one of his calls for a meeting of Industrial distributed the following card: “Brother Members: In March of this year when an organization was first thought of it was the will of the majority that this be a real Union and not another racketeers’ paradise. If you will stop to consider the progress we have made in the short time, you will see that it has taken plenty of hard work and loss of sleep. We as a body have gained items that could never be obtained as individuals. Shall we keep the ground we have gained or shall we let some of those among us who for a little personal gain would sell us back into the slaving underpaid conditions, that are sure to follow. Even now as in the past you have my entire time and thoughts to better conditions, all I ask is for your co-operation so we can carry out the original aim of this Union. I ask you as man to man to be present at the next regular meeting, August 10th, Lawndale Masonic Temple, 23rd and Millard Ave. Fraternally yours, C. R. Cahill.” Forceful evidence of independent action by the men coming from one who formerly favored the so-called “outside” union.
The Board also stresses the statement of Superintendent Courval to employee Tishcovske wherein he is alleged to have said that Mr. Tilt would not stand for an outside union and that they would lose their jobs. This statement if made is not to be defended, but it should be cónsidered in the light of its effect upon Tishcovske as. it was made to him alone. Apparently it did not impress Tishcovske, for he did not see fit to mention it in his discussion at the employees’ meeting following Peirce’s, speech. Tishcovske later joined United and there is no evidence that he ever mentioned the supposed remark until the hearing before the examiner. Moreover, Peirce-was the man highest in authority at the plant and his subsequent declaration to the. men, wherein he openly and frankly told them that the problem was their own and that they were free to join any organization of their own choosing in effect overrode and disavowed the previous expression of Courval.
We likewise believe that the occasional inquiries of Peirce and others with relation to the circulation of C. I. O. cards and with reference to labor activities in the plant are overemphasized by the Board. It is to be noted that the trial examiner who heard the witnesses testify did not believe that the Company had interfered with or dominated Industrial. While this was not binding upon the Board in their consideration of the matter, it is strongly indicative of the character of the testimony.
We think the evidence, considered as a whole, falls short of being substantial proof of dominance or coercion or unfair labor practices. In giving recognition to that freedom of action guaranteed the employee by the statute, care must be taken that in preserving it for the one we do not by the same act deny it to another. The petition of the company for vacation of the Board’s order is allowed and the petition of the Board for enforcement is denied.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_usc2
|
11
|
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 42. 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.
In the Matter of Roger Burnett TREADWELL, Debtor. James D. WALKER, Jr., Trustee, Plaintiff-Appellant, v. Roger Burnett TREADWELL, and Regina Taylor, Defendants-Appellees.
No. 81-7762.
United States Court of Appeals, Eleventh Circuit.
March 7, 1983.
James D. Walker, pro se and Surrett, Choate & Walker, Mary G. Colley, Augusta, Ga., for plaintiff-appellant.
T.J. Foss, Augusta, Ga., for defendantsappellees.
Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Judge.
RONEY, Circuit Judge:
The Trustee in Bankruptcy appeals from an order of the bankruptcy court denying the estate recovery of funds transferred by the Debtor to his daughters within one year before he filed a petition in bankruptcy. We agree with the Trustee that, although the funds came from the payment of social security benefits, they were not exempt from the operation of the new Bankruptcy Code and the gifts could be set aside as fraudulent conveyances. We therefore reverse.
The facts are not in dispute. Less than one year before filing for voluntary bankruptcy, the Debtor transferred $1,000 to one daughter, Regina Taylor, and $3,000 to another daughter, Kathy Treadwell. The $4,000 came from a bank account which consisted exclusively of accumulated social security benefits. The Debtor did not receive any consideration for the money other than familial love and affection. At the time of the gift, the Debtor was insolvent within the meaning of the Bankruptcy Code, 11 U.S.C.A. § 101(26).
In his bankruptcy petition, the Debtor disclosed the existence of the gifts. The Trustee in Bankruptcy then filed suit, seeking a declaration that the transfers were null and void as fraudulent conveyances. 11 U.S.C.A. § 548. The bankruptcy court held for the Debtor, reasoning that section 207 of the Social Security Act, 42 U.S.C.A. § 407, exempted the funds from the reach of creditors acting under the Bankruptcy Code. Pursuant to an agreement of the parties, the Trustee has appealed directly to this Court. Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, § 405(c)(1)(B), 92 Stat. 2549, 2685 (1978).
There is little doubt that if the Social Security Act does not protect the money from creditors, the transfers were fraudulent conveyances, within the meaning of the Bankruptcy Code, which the Trustee could avoid. A bankruptcy trustee may bring back into the estate for the benefit of the bankrupt’s creditors any property transferred for less than equivalent value within a year of bankruptcy, if the debtor was insolvent at the time. 11 U.S.C.A. § 548. The parties have stipulated that the Debtor transferred the money to his daughters within one year of filing his bankruptcy petition and that at the time he was insolvent.
The only consideration that Debtor claims to be the reasonable equivalent value of the money transferred is the “love and affection” of his daughters. As the definition of the term “value” under section 548 illustrates, love and affection are clearly insufficient to protect the transfers from the Trustee. “Value” means “property, or satisfaction or securing of a present or antecedent debt of the debtor, but does not include an unperformed promise to furnish support to the debtor or to a relative of the debtor.” Id. § 548(d)(2)(A). The daughters did not give their father property or satisfy or secure any of his debts. Hopefully, he already had their love and affection. Even if the love and affection of the daughters for their father increased $4,000 worth, it is of no benefit to the creditors. That his love and affection for them motivated the gift does not satisfy the intent of the statute. The object of section 548 is to prevent the debtor from depleting the resources available to creditors through gratuitous transfers of the debtor’s property. See S.Rep. No. 989, 95th Cong., 2d Sess. 89, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5875 (Section 548 “permits the trustee to avoid transfers by the debtor in fraud of his creditors”). Love and affection have been held to be inadequate consideration under state fraudulent conveyance laws. United States v. West, 299 F.Supp. 661, 666 (D.Del. 1969); Roddam v. Martin, 285 Ala. 619, 622, 235 So.2d 654, 656 (1970). The transfers in this case were no more than gifts. See Flatau v. Atef (In re Gaites), 466 F.Supp. 248, 254 (M.D.Ga.1979) (when the recited consideration is love and affection, there is generally a gift). And a debtor’s gifts made within one year of filing for bankruptcy are voidable by the trustee. Stone v. Moore, 375 F.2d 110, 113 (5th Cir.1967).
The only issue here, then, is whether the Social Security Act forecloses the operation of section 548 as to the accumulated social security benefits that were transferred. Section 207 of the Social Security Act, 42 U.S.C.A. § 407, provides:
The right of any person to any future payment [of social security benefits] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
The question immediately posed is what the plain words of the statute
... none of the moneys paid or payable ... shall be subject to ... the operation of any bankruptcy or insolvency law
mean, if the following analysis is correct. In our view, the words merely indicate that the exemption there given cannot be taken away by a bankruptcy law. They do not prevent the Bankruptcy Code from requiring a debtor to claim the exemption affirmatively, or to forego another otherwise available exemption if the social security exemption is claimed.
(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
The purpose of section 407 and the legislative history and intent of the Bankruptcy Code convince us that section 407 does not override the fraudulent conveyance provision of federal bankruptcy law in this case. The key to the decision really lies in the exemption framework of the Bankruptcy Code. Under 11 U.S.C.A. § 522(b), a debtor filing for bankruptcy may exempt certain assets from the property of the estate available for creditors. He may either take the exemptions specified in the Code itself, 11 U.S.C.A. § 522(d), unless state law prohibits this option, “or, in the alternative,” he may take the exemptions provided by other federal statutes and state law. That the debt- or must choose between the two exemption systems, rather than enjoy the benefits of both, is perfectly clear. H.Rep. No. 595, 95th Cong., 1st Sess. 126, 360, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6087, 6316. See Cheeseman v. Nachman, 656 F.2d 60, 62 (4th Cir.1981).
Accumulated or past due social security payments which are covered by 42 U.S.C.A. § 407 are among the exemptions provided by non-bankruptcy federal law that the debtor can elect instead of the exemptions listed in the Bankruptcy Code. H.Rep. No. 595, 95th Cong., 1st Sess. 360, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6316. The House Report states:
The debtor may choose the Federal exemptions prescribed in subsection (d), or he may choose the exemptions to which he is entitled under other Federal law and the law of the State of his domicile. If the debtor chooses the latter, some of the items that may be exempted under other Federal laws include:
******
—Social security payments, 42 U.S.C. 407.
If a debtor chooses the alternative of taking exemptions listed in the Bankruptcy Code, he may exempt, among other things, his “right to receive a [future] social security benefit,” but not an accumulated benefit that has already been distributed. 11 U.S. C.A. § 522(d)(10)(A). See H.Rep. No. 595, 95th Cong., 1st Sess. 362, reprinted in U.S. Code Cong. & Ad.News 5963, 6318 (Section 522(dX10)(A) “exempts certain benefits that are akin to future earnings of the debtor. These include social security ....”).
This analysis of section 522 illustrates that the exemption from the operation of the bankruptcy law provided by 42 U.S.C. A. § 407 is not absolute. If a debtor chooses the Bankruptcy Code exemptions, he gives up the protection of section 407, freeing accumulated social security benefits for the satisfaction of creditors.
Thus, the Debtor in this case could have obtained the exemption of section 407, but only by forsaking the exemptions specified in the Bankruptcy Code, 11 U.S.C.A. § 522(d), and electing the state and non-bankruptcy federal exemptions. 11 U.S. C.A. § 522(b). Nothing in the language of section 407 permits a social security recipient to claim all bankruptcy exemptions in addition to the social security exemption. It is undisputed that the Debtor claimed exemptions under section 522(d) and did not claim an exemption for any accumulated social security benefits.
A contrary reading of the statute would not serve the purpose of section 407. The reason for exempting social security benefits from creditors’ claims is to insure the needy have the necessary resources for continuing basic care and maintenance. See Department of Health and Rehabilitative Services, Florida v. Davis, 616 F.2d 828, 831 (5th Cir.1980); Estate of Vary, 65 Mich. App. 447, 450, 237 N.W.2d 498, 500 (1975), aff’d 401 Mich. 340, 258 N.W.2d 11 (1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978). The benefits in this case are not helping the Debtor care for himself because he transferred the money without receiving value in exchange. Despite the “all-inclusive” language of section 407, Philpott v. Essex County Welfare Board, 409 U.S. 413, 415, 93 S.Ct. 590, 591, 34 L.Ed.2d 608 (1973), we previously have rejected a construction that would bar creditors where the statutory objective of preserving essential resources for the debtor could not have been effectuated. See Department of Health and Rehabilitative Services, Florida v. Davis, 616 F.2d at 831 (debtor, an incompetent who could not use the social security benefits to care for himself, lived in a facility operated by the state creditor). See also Estate of Vary, 237 N.W.2d at 500 (debtor had died).
REVERSED.
. Section 548 provides:
(a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor—
(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
. At the time the Debtor filed for bankruptcy, Georgia, the state of his domicile, permitted a debtor to take the federal bankruptcy exemptions. Since then, Georgia has amended its law to restrict a debtor to the state exemptions, which have been enlarged to include, among other things, social security benefits, Ga.Code § 51-1301.1 (Supp.1981), and the non-bankruptcy federal exemptions. Id. § 51-1601 (Supp.1981).
. Although not in the record on appeal, the Trustee’s brief recites the following property claimed on Schedule B-4 of the bankruptcy petition:
Cash on hand $ 30.00 Joint Checking Account at C & S Bank,
Augusta, Georgia (V2 interest) 312.50 Joint Checking Account at American Security Bank, Washington, D.C.
(V2 interest) 110.00
Joint Savings Account at Fort Gordon
Federal Credit Union (V2 interest) 310.50 Motor Vehicles:
1975 Chevrolet Caprice (V2 interest) 750.00
1976 Chevrolet Luv pick-up (V2
interest) (door smashed) 1,000.00
100 Shares Montana Power Co. Stock
(V2 interest) 975.00
Cash Value of Life Insurance Policy with Great Southern Life 8,220.00
Firearms:
12 Gauge Shotgun 75.00
.22 Rifle 10.00
.270 Rifle 75.00
$11,868.00
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Otis BROWN, Jr., and Mary Louise Medley, Appellants, v. UNITED STATES of America, Appellee.
No. 13316.
United States Court of Appeals Sixth Circuit.
May 7, 1958.
Robert W. Zollinger, Louisville, Ky., for appellants.
J. Leonard Walker, Louisville, Ky., for appellee.
Before MARTIN and McALLISTER, Circuit Judges, and JONES, District Judge.
PER CURIAM.
This appeal was presented in an unusual and irregular way. No briefs were filed and only one copy of the typewritten transcript.
It was argued orally and submitted on improvised citations of authorities in lieu of briefs.
The sole question presented is whether, the jury being waived, the District Judge, over objections of the defendants, properly heard and considered the case, and convicted the defendants upon evidence conceded to have been unlawfully seized by local authorities. It also was conceded that there was no evidence of federal officer participation in the search, either physically or through cooperation or tacit agreement or understanding between local and federal authorities.
The question, some time ago, was decided by this Court in Ford v. United States, 234 F.2d 835, and by the Seventh Circuit in United States v. Moses, 234 F.2d 124. See, also, Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.
Judgment of the District Court affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_usc2
|
45
|
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 45. 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.
Florence METCALFE, Administratrix of the Estate of John E. Metcalfe, Deceased, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant.
No. 73-1481.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Oct. 15, 1973.
Decided Feb. 5, 1974.
Rehearing Denied Feb. 28, 1974.
Peter J. Crouse, of Grant, Shafroth, Toll & McHendrie, Denver, Colo., for defendant-appellant.
Daniel D. Sawyer, of Hubbell, Lane & Sawyer, Kansas City, Mo., for plaintiffappellee.
Before HILL and BARRETT, Circuit Judges, and SMITH, Senior District Judge.
Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.
TALBOT SMITH, Senior District Judge.
The present action was instituted in the United States District Court for the District of Colorado by Florence Metcalfe, widow of John E. Metcalfe and administratrix of his estate, against the appellant, Atchison, Topeka and Santa Fe Railway Company, to recover damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., for a violation of the Safety Appliance Act, 45 U.S.C. § 1 et seq., which allegedly contributed to the injury and death of her husband. The jury returned a verdict in favor of appellee in the sum of $107,000 plus costs. From the judgment entered on the verdict and the order of the district court denying its motion for judgment notwithstanding the verdict or for a new trial, the Railroad appeals.
The principal question presented for review is whether there was sufficient evidence to support the jury’s findings that the Railroad violated § 2 of the Safety Appliance Act and that this violation was a cause, in whole or in part, of the injury and death of Metcalfe. Additionally, the Railroad attacks the jury’s award of damages as excessive.
On July 30, 1970, before dawn, Metcalfe was working in the Railroad’s Colorado Springs yards as foreman of a switch crew, a position he had held for eighteen years. The crew had coupled onto the front end of the switch engine, heading north on the team track, which runs generally north and south, a piggyback ear. The ultimate objective was to back the engine and the piggyback car to the south on the team track until reaching the wye track which, roughly speaking, forms a triangle to the west with the hypotenuse of the team track, and to proceed down the north leg of the wye track, eventually pushing the piggyback car onto the south leg of the wye track and thereby turning it around. En route to the wye track, a box car was coupled to the north end of the piggyback car. So constituted, the train continued backing until the engine and most of the piggyback car were situated on the north leg of the wye track. At this point Metcalfe informed his switch-man helper, Dwight Fields, that they would uncouple the box car and leave it stationary on the team track. Fields was positioned ten to twenty feet east of the train so as to pass signals around the curve from Metcalfe to the engineer. By means of a lever on the east side of the piggyback car, and without going between the ends of the cars, Metcalfe uncoupled the piggyback car and the box car. Having done so, he gave a back-up signal to Fields, and, after the engine and piggyback car had moved ten to twenty feet to the southwest, a stop signal. Then Metcalfe stepped between the cars and, facing north, opened the knuckle on the box car. Fields meanwhile had taken four or five steps towards the front of the train before glancing back at Metcalfe. Metcalfe was standing between the piggyback car and the box car and facing south or southeast. As Fields watched, he “dropped straight down out of sight.” Fields, as yet not alarmed, walked back to where Metcalfe had disappeared from view and found him pinned beneath the southeast wheel of the box car, six to fifteen feet north of the piggyback car.
After the arrival of an ambulance, it was decided to reeouple the piggyback ear and box car in order to move the box car northward and free of Metcalfe’s body. At this time it was noticed that the drawbar on the coupler of the piggyback car was slanted toward the east to such an extent that it was necessary to realign it, going between the cars to do so, in order to make the coupling.
Appellee claims that the jury was entitled to infer from these facts that Metcalfe, after he had opened the knuckle on the box car, noticed the misaligned drawbar on the piggyback car and was proceeding to adjust it when the box car moved southward, crushing him under one of its wheels. The necessity of going between the ears to adjust a misaligned coupler, according to appellee, constitutes a violation of § 2 of the Safety Appliance Act. The Railroad, in turn, contends that there is insufficient evidence that Metcalfe was between the cars for any purpose other than opening the knuckle on the box car and that, even if Metcalfe was proceeding to adjust the coupler, such action was premature. It is the Railroad’s position that the sole cause of the accident was Metcalfe’s negligence in stepping in front of the box car to open the knuckle without having chocked the wheels or set the brakes in a manner sufficient to prevent the box car from rolling.
The Federal Safety Appliance Act, adopted in 1893, forced the railroads to install appliances designed to eliminate some of the more hazardous aspects of railroad work. The Act did not, of itself, create a federal cause of action imposing civil liability upon the railroads for violations. Rather, it imposed sanctions in the form of monetary penalties. In 1908, however, Congress, via the Federal Employers’ Liability Act [FELA], provided railroad employees with a cause of action based on violations of the Safety Appliance Act. 45 U.S.C. § 51. The peculiar characteristics of this newly-created cause of action were described by Mr. Justice Brennan in Crane v. Cedar Rapids & I. C. R. R., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969), as follows:
“In such actions, the injured employee [or his or her personal representative in case of death] is required to prove only the statutory violation and thus is relieved of the burden of proving negligence. . . He is not required to prove common-law proximate causation but only that his injury resulted ‘in whole or in part’ from the railroad’s violation of the Act, . . . and the railroad is deprived of the defenses of contributory negligence and assumption of risk . . . . ” (citations omitted) 359 U.S. at 166, 89 S.Ct. at 1708.
The standard applied by federal courts in determining whether there is sufficient evidence to send a FELA case to the jury is significantly broader than the standard applied in common law negligence actions. As stated by the United States Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” See Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S.Ct. 443,1 L.Ed.2d 493 (1957); Missouri-Kansas-Texas Ry. v. Hearson, 422 F.2d 1037 (10th Cir. 1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Chicago R.I. & P.R.R. v. Melcher, 333 F.2d 996 (8th Cir. 1964); Prosser, Torts § 80, p. 536 (4th ed. 1971). To this standard, however, must be added the admonition found in Tennant v. Peoria & P.U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944): “The essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked,” See Missouri-Kansas-Texas Ry. v. Hearson, supra, 422 F.2d at 1041.
As already noted, appellee alleged that the Railroad violated § 2 of the Safety Appliance Act, 45 U.S.C. § 2, in that the coupler of the piggyback car was misaligned to such an extent as to preclude coupling automatically by impact.
Section 2 reads:
It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.
There is no dispute but that all of the Railroad’s cars are equipped with “automatic couplers” in the sense that the cars can ordinarily be coupled together without men going between the ends of the cars. The coupling apparatus, however, permits limited movement of the drawbar from side to side in order to allow the cars, when coupled together, to pass around curves without derailment and to allow coupling on a curve. In some cases, the drawbar may move so far off-center as to preclude automatic coupling. In such cases, it is necessary to go between the cars to adjust the drawbar.
A substantial number of state and federal courts have found that a failure to couple automatically because of a misaligned drawbar is sufficient to sustain a finding that § 2 has been violated. San Antonio & A. P. Ry. v. Wagner, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110 (1916); Atlantic City R. R. v. Parker, 242 U.S. 56, 37 S.Ct. 69, 61 L.Ed. 150 (1916); Kansas City S. Ry. v. Cagle, 229 F.2d 12 (10th Cir. 1955), cert. denied, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. 1443 (1956); Chicago, St. P., M. & O. Ry. v. Muldowney, 130 F.2d 971 (8th Cir.), cert. denied, 317 U.S. 700, 63 S.Ct. 526, 87 L.Ed. 560 (1942); Hampton v. Des Moines & Cent. I. R. R., 65 F.2d 899 (8th Cir. 1933); Hohenleitner v. Southern Pac. Co., 177 F. 796 (C.C.D.Or. 1910); Finley v. Southern Pac. Co., 179 Cal.App.2d 424, 3 Cal.Rptr. 895 (1960); Hallada v. Great Northern Ry., 244 Minn. 81, 69 N.W.2d 673, cert. denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773 (1955); White v. Atchison, T. & S. F. Ry., 244 S.W.2d 26 (Mo.1951), cert. denied, 343 U.S. 915, 72 S.Ct. 648, 96 L.Ed. 1330 (1952); Chicago, R. I. & P. Ry. v. Ray, 67 Okl. 77, 168 P. 999 (1917), cert. denied, 246 U.S. 662, 38 S.Ct. 332, 62 L.Ed. 927 (1918); Kansas City, M. & O. Ry. v. Wood, 262 S.W. 520 (Tex.Civ.App.1924); McGowan v. Denver & R. G. W. R. R., 121 Utah 587, 244 P.2d 628, cert. denied, 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707 (1952).
The Railroad vigorously argues, however, that the fact that the drawbar on the piggyback car had to be realigned before it would couple with the box car does not establish that the piggyback car would not have automatically coupled, misaligned drawbar and all, with whatever car with which it would eventually have been coupled, but for the intervenimg accident. Similarly, the Railroad suggests that even if Metcalfe was attempting to realign the drawbar, such action was premature until it was determined with which car the piggyback ear would be coupled and whether realignment would be necessary under the circumstances.
The Railroad’s argument ignores, however, evidence from which the jury was entitled to infer that the piggyback car would not have successfully automatically coupled with any car without realignment of the drawbar. In reviewing the sufficiency of the evidence to support the jury verdict for appellee, of course, we must resolve all conflicts against appellant, and award appellee the benefit of such favorable inferences as the jury might reasonably have drawn. Chicago, St. P., M. & O. Ry. v. Muldowney, supra, 130 F.2d at 973.
According to Swede Nelson, the brakeman who adjusted the drawbar on the piggyback car before recoupling the piggyback into the box car, the drawbar on the former was out of line “to the extreme east.” In Hampton v. Des Moines & Cent. I. R. R., supra, 65 F.2d at 901, testimony that the drawbar was four or five inches out of line and that the drawbar would not couple on impact in that position “constituted substantial evidence that the coupler was defective.” See Geraghty v. Lehigh Valley, R. R., 70 F.2d at 303; White v. Atchison, T. & S. F. Ry., supra, 244 S.W.2d at 29-30. We find that the jury, or for that matter, Metcalfe, could have reasonably concluded that a drawbar misaligned “to the extreme east” would not couple on impact, particularly in view of the practice of the Railroad, as testified to by several of its employees, of keeping drawbars centrally aligned at all times, and of coupling on a straight track as opposed to a curved track whenever feasible.
Having determined the existence of probative facts to support the finding of the jury that § 2 was violated, we turn to the question of the sufficiency of the evidence to support a causal connection between the statutory violation and Metcalfe’s injury and death.
The quantum of evidence necessary to prove a causal connection in an FELA case was carefully considered in Rogers v. Missouri Pac. R. R., supra, Mr. Justice Brennan stating:
“Under this statute [FELA] the test of a jury ease is simply whether the proofs justify with reason the conclusion that employer negligence [or employer violation cf. the safety-appliance statutes] played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” 352 U.S. at 506, 77 S.Ct. at 448.
See Missouri-Kansas-Texas Ry. v. Hearson, supra; Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965).
Applying this test to the facts of the present case, we must agree with the trial court that appellee provided sufficient proof to sustain the finding of the jury that the statutory violation on the part of the Railroad contributed in some degree to Metcalfe’s injury and death. Metcalfe faced north to open the knuckle on the box car. When Fields glanced back at him, Metcalfe was facing south or southeast, a position consistent with appellee’s theory that Metcalfe intended to realign the drawbar on the piggyback car. It is clear that it was Metcalfe’s duty to realign drawbars when they moved so far out of line as to prevent coupling. The engineer of the train, Thomas Brooke, testified that although he had moved the train approximately twenty feet to the southwest, Metcalfe was found only twelve feet north of the piggyback car, permitting the inference that Metcalfe had walked some distance in the direction of the piggyback. In Geraghty v. Lehigh Valley R. R., supra, the sole fact that a railroad employee had stepped between the cars “as [if] to adjust a coupling” was held sufficient to support a causal connection between a defective coupler and the railroad employee’s injury and death. See Chicago, R. I. & P. Ry. v. Ray, supra; cf. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946); Tennant v. Peoria & P. U. Ry., supra, 321 U.S. at 35, 64 S.Ct. 409, 88 L.Ed. 520.
Language in Tennant v. Peoria & P. U. Ry., supra, appropriately summarizes our reasons for refusing to disturb the present verdict:
“The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weights the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers the most reasonable. * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions . . . . ”
321 U.S. at 35, 64 S.Ct. at 412.
Finally, the Railroad asserts that the verdict was so excessive as to suggest that it was the result of passion or prejudice on the part of the jury. We do not agree.
It is the well-settled rule in this circuit that “absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the fact is considered inviolate.” Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962). See Brown v. Richard H. Waeholz, Inc., 467 F.2d 18 (10th Cir. 1972); Ketchum v. Nall, 425 F.2d 242 (10th Cir. 1970); Lane v. Gorman, supra, 347 F.2d at 335.
Under FELA, appellee was entitled to recover four separate items of damages: 1) the present value of financial contributions which the decedent would reasonably be expected to have given his wife and son had he lived; 2) the pecuniary value of services which his wife might reasonably have expected to receive from him in the future; 3) loss to the son during his minority of the training, nurture, education and guidance of his father; and 4) conscious pain and suffering of the decedent prior to death. See DeParq & Wright, Damages Under the Federal Employers’ Liability Act, 17 Ohio St.L.J. 430 (1956).
The jury’s verdict of $107,000 was a general one, so we have no way of knowing the specific amount allocated to each item. Nevertheless, the award as a whole falls well within the perimeters of reasonableness in this case. Appellee’s actuary computed the present worth of future contributions as $79,179.11. Metcalfe performed extensive services for his wife, including painting, carpentry, plumbing, gardening and caring for the family automobiles. He participated actively with his son in sports, school, church and 4-H activities. ,As to the pain and suffering he endured before his death, there was evidence that he remained conscious for at least fifteen minutes following the accident.
The Railroad raises two specific objections to appellee’s evidence on damages: 1) that Mrs. Metcalfe overestimated her husband’s actual monthly take-home pay i and 2) that future contributions were computed until Metcalfe would have reached retirement age instead of over his work-life expectancy.
According to the records of the Railroad, Metcalfe earned gross wages of $9,329.27 in 1969. Mrs. Metcalfe supplied an actuary with information from which he calculated that 59.95% of Metcalfe’s wages in 1969 had been contributed to his family. Regardless of any discrepancy between the information supplied by Mrs. Metcalf and a bank deposit slip introduced into evidence by the Railroad, we think the jury was entitled to adopt the actuary’s calculations. As testified to by several witnesses, Metcalfe was a singularly generous and unselfish husband and father.
Appellee’s actuary computed the loss of future contributions over a nine year period—until Metcalfe would have attained customary retirement age. The Railroad argues that the loss should have been measured over Metcalfe’s work-life expectancy, 7.92 years. We agree, however, with those authorities which take the position that work expectancy is just one more factor to be taken into consideration in determining what the decedent could have expected to earn in the future. See DePraq & Wright, supra, at 455; S. Speiser, Recovery for Wrongful Death § 3.14 (1966). The trial judge so instructed the jury.
Judgment affirmed.
. For a detailed description of couplers, see McGowan v. Denver & R.G.W.R.R., 121 Utah 587, 244 P.2d 628, 630 n. 2, cert. denied, 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707 (1952).
. The General Foreman of the Car Department of the Railroad, J. D. Martin, testified that automatic realigning, as opposed to automatic coupling, devices are still in the experimental stages, and have been installed on less than one per cent of railroad cars. He also testified that the Railroad has never received a citation for violation of the Safety Appliance Act from the Department of Transportation for failure to equip its cars with automatic religning devices.
The record is unclear as to the current state of automatic realigning devices throughout the entire railroad industry. Nor is it clear what other alternatives there may be to sending railroad employees between the ends of the ears to adjust misaligned couplers. Nevertheless, as has been repeatedly emphasized by the courts, “The ultimate end sought by the [Safety Appliance Act] is the coupling and uncoupling of cars used in interstate traffic without the necessity of going between them.” Hohenleitner v. Southern Pac. Co., 177 F. 796 (C. C.D.Or.1910). The obligations imposed upon the railroads by the Act are “absolute . . ., not based upon negligence.” Carter v. Atlanta & St. A.B. Ry., 338 U.S. 430, 434, 70 S.Ct. 226, 94 L.Ed.2d 236 (1949).
Bracketed material ours. See Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 45. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_petitionerstate
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60
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
VAN DUSEN, U. S. DISTRICT JUDGE, et al. v. BARRACK, ADMINISTRATRIX, et al.
Nos. 56 and 80.
Argued January 8-9, 1964.
Decided March 30, 1964.
Owen B. Rhoads argued the cause for petitioners in No. 56. With him on the briefs were George J. Miller, J. Welles Henderson, Jr., J. Grant McCabe III and Sidney L. Wickenhaver.
Morton Hollander argued the cause for petitioners in No. 80. With him on the brief were Solicitor General Cox and Assistant Attorney General Douglas.
John R. McConnell argued the cause for respondents. With him on the brief were Seymour I. Toll, T. E. Byrne, Jr., Lee S. Kreindler, Abram P. Piwosky, Ralph Earle II, Abraham E. Freedman and Milton M. Borowsky.
Mr. Justice Goldberg
delivered the opinion of the Court.
This case involves the construction and application of § 1404 (a) of the Judicial Code of 1948. Section 1404 (a), which allows a “change of venue” within the federal judicial system, provides that: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U. S. C. § 1404 (a).
The facts, which need but brief statement here, reveal that the disputed change of venue is set against the background of an alleged mass tort. On October 4, 1960, shortly after departing from a Boston airport, a commercial airliner, scheduled to fly from Boston to Philadelphia, plunged into Boston Harbor. As a result of the crash, over 150 actions for personal injury and wrongful death have been instituted against the airline, various manufacturers, the United States, and, in some cases, the Massachusetts Port Authority. In most of these actions the plaintiffs have alleged that the crash resulted from the defendants’ negligence in permitting the aircraft’s engines to ingest some birds. More than 100 actions were brought in the United States District Court for the District of Massachusetts, and more than 45 actions in the United States District Court for the Eastern District of Pennsylvania.
The present case concerns 40 of the wrongful death actions brought in the Eastern District of Pennsylvania by personal representatives of victims of the crash. The defendants, petitioners in this Court, moved under § 1404 (a) to transfer these actions to the District of Massachusetts, where it was alleged that most of the witnesses resided and where over 100 other actions are pending. The District Court granted the motion, holding that the transfer was justified regardless of whether the transferred actions would be governed by the laws and choice-of-law rules of Pennsylvania or of Massachusetts. 204 F. Supp. -426. The District Court also specifically held that transfer was not precluded by the fact that the plaintiffs had not qualified under Massachusetts law to sue as representatives of the decedents. The plaintiffs, respondents in this Court, sought a writ of mandamus from the Court of Appeals and successfully contended that the District Court erred and should vacate its order of transfer. 309 F. 2d 953. The Court of Appeals held that a § 1404 (a) transfer could be granted only if at the time the suits were brought, the plaintiffs had qualified to sue in Massachusetts, the State of the transferee District Court. The Court of Appeals relied in part upon its interpretation of Rule 17 (b) of the Federal Rules of Civil Procedure.
We granted certiorari to review important questions concerning the construction and operation of § 1404 (a). 372 U. S. 964. For reasons to be stated below, we hold that the judgment of the Court of Appeals must be reversed, that both the Court of Appeals and the District Court erred in their fundamental assumptions regarding the state law to be applied to an action transferred under § 1404 (a), and that accordingly the case must be remanded to the District Court.
I. Where the Action “Might Have Been Brought.”
Section 1404 (a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. Thus, as the Court recognized in Continental Grain Co. v. Barge FBL-585, 364 U. S. 19, 26, 27, the purpose of the section is to prevent the waste “of time, energy and money” and “to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . .” To this end it empowers a district court to transfer “any civil action” to another district court if the transfer is warranted by the convenience of parties and witnesses and profnotes the interest of justice. This transfer power is, however, expressly limited by the final clause of § 1404 (a) restricting transfer to those federal districts in which the action “might have been brought.” Although in the present case the plaintiffs were qualified to bring suit as personal representatives under Pennsylvania law (the law of the State of the transferor federal court), the Court of Appeals ruled that the defendants’ transfer motion must be denied because at the time the suits were brought in Pennsylvania (the transferor forum) the complainants had not obtained the appointments requisite to initiate such actions in Massachusetts (the transferee forum). At the outset, therefore, we must consider whether the incapacity of the plaintiffs at the time they commenced their actions in the transferor forum to sue under the state law of the transferee forum renders the latter forum impermissible under the “might-have-been-brought” limitation.
There is no question concerning the propriety either of venue or of jurisdiction in the District of Massachusetts, the proposed transferee forum. The Court of Appeals conceded that it was “quite likely” that the plaintiffs could have obtained ancillary appointment in Massachusetts but held this legally irrelevant. 309 F. 2d, at 957-958. In concluding that the transfer could not be granted, the Court of Appeals relied upon Hoffman v. Blaski, 363 U. S. 335, as establishing that “unless the plaintiff had an unqualified right to bring suit in the transferee forum at the time he filed his original complaint, transfer to that district is not authorized by § 1404 (a).” 309 F. 2d, at 957. (Emphasis in original.) The court found the analogy to Hoffman particularly persuasive because it could “perceive no basis in either logic or policy for making any distinction between the absence of venue in the transferee forum and a prospective plaintiff’s lack of capacity to sue there.” Ibid. In addition, the court held that the transfer must be denied because in actions by personal representatives “Rule 17 (b), FecLR.Civ.P., requires the district court to refer to the law of the state in which it sits to determine capacity to sue.” Id., at 958.
The defendants contend that the concluding phrase of § 1404 (a) — “where it might have been brought”- — refers to those districts in which Congress has provided by its venue statutes that the action “may be brought.”. Applying this criterion, the defendants argue that the posture of the case under state law is irrelevant. They contend that Hoffman v. Blaski, supra, did not rule that the limitations of state law were relevant to determining where the action “might have been brought” but ruled only that the requirement prohibited transfer where the proposed transferee forum lacked both venue of the action and power to command jurisdiction over the defendants when the suits were originally instituted. The defendants contend further that the decision below is contrary to the policy underlying Hoffman, since this decision effectively enables a plaintiff, simply by failing to proceed in other potential forums and qualify as a personal representative, to restrict and frustrate efforts to have the action transferred to a federal forum which would be far more convenient and appropriate. Finally, with regard to the conclusion that Rule 17 (b) precludes transfer, the defendants argue that under § 1404 (a) the effect of the Rule, like the existence of different state laws in the transferee forum, is not relevant to a determination of where, as indicated by federal venue laws, the action “might have been brought.” The defendants conclude that the effect of transfer upon potential state-law defenses and upon the state law applied under Rule 17 (b) should instead be considered and assessed with reference to the criterion that the transfer be “in the interest of justice.” See infra, pp. 624-626, 640-643.
The plaintiffs respond emphasizing that they are “Pennsylvania fiduciaries representing the estates of Pennsylvania decedents.” They were not and are not qualified to bring these or related actions in Massachusetts and their lack of capacity would, under Massachusetts law, constitute “an absolute defense.” The plaintiffs contend that Hoffman v. Blaski established that transfer must be denied unless, at the time the action was brought, the complainant had an independent right to institute that action in the transferee forum regardless of the fact that the defendant in seeking transfer might expressly or implicitly agree to venue and jurisdiction in the transferee forum and waive defenses that would have been available only under the law of the transferee State. In addition, the plaintiffs argue, even if the limiting phrase “where-it-might-have-been-brought” relates only to federal venue laws, Rule 17 (b) expressly provides that the capacity of a fiduciary to sue in a United States district court shall be determined “by the law of the state in which the district court is held.” The plaintiffs understand the language of the Rule to refer to the law of the State in which the transferee court is held rather than to the law of the State of the transferor court. They conclude that since they “were not qualified to sue in Massachusetts [the State in which the transferee court would be held], they were not qualified to sue in the United States district court in Massachusetts and the District of Massachusetts was not a district in which these actions ‘might have been brought.’ ”
A. In Hoffman v. Blaski this Court first considered the nature of the limitation imposed by the words “where it might have been brought.” The plaintiff opposed the defendant’s motion to transfer on the ground that the proposed transferee forum lacked both “venue over the action and ability to command jurisdiction over the . . .” defendant. 363 U. S., at 337. The question, as stated by the Court, was “whether a District Court, in which a civil action has been properly brought, is empowered by § 1404 (a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it.” Id., at 336. (Emphasis in original.) The defendant emphasized that “venue, like jurisdiction over the person, may be waived.” Id., at 343. This Court held that, despite the defendant’s waivers or consent, a forum which had been improper for both venue and service of process was not a forum where the action “might have been brought.”
In the present case the Court of Appeals concluded that transfer could not be granted because here, as in Hoffman v. Blaski, the plaintiffs did not have an “independent” or “unqualified” right to bring the actions in the transferee forum. The propriety of this analogy to Hoff mm turns, however, on the validity of the assumption that the “where-it-might-have-been-brought” clause refers not only to federal venue statutes but also to the laws applied in the State of the transferee forum. It must be noted that the instant case, unlike Hoffman, involves a motion to transfer to a district in which both venue and jurisdiction are proper. This difference plainly demonstrates that the Court of Appeals extended the Hoffman decision and increased the restrictions on transfers to convenient federal forums. The issue here is not that presented in Hoffman but instead is whether the limiting words of § 1404 (a) prevent a change of venue within the federal system because, under the law of the State of the transferee forum, the plaintiff was not qualified to sue or might otherwise be frustrated or prejudiced in pursuing his action.
We cannot agree that the final clause of § 1404 (a) was intended to restrict the availability of convenient federal forums by referring to state-law rules, such as those concerning capacity to sue, which would have applied if the action had originally been instituted in the transferee federal court. Several considerations compel this conclusion. First, if the concluding clause is considered as an independent entity and perused for its plain meaning, it seems clear that the most obvious referents of the words are found in their immediate statutory context. Section 1404 (a) was enacted as part of Chapter 87 of Part IV of the Judicial Code of 1948. That Chapter is designated “District Courts; Venue.” The Chapter itself is in that Part of the Code dealing generally with “Jurisdiction and Venue.” In the immediate Chapter, which includes §§ 1391-1406, the phrase “may be brought” recurs at least 10 times and the phrase “may be prosecuted” at least 8 times. The statutory context is thus persuasive evidence that the “might-have-been-brought” language of § 1404 (a) plainly refers to the similar wording in the related federal statutes and not directly to the laws of the State of the transferee forum.
Secondly, it should be asked whether the purposes of § 1404 (a) warrant a broad or generous construction of the limiting clause. The answer, we think, is quite evident. As Mr. Justice Black said, speaking for the Court in Continental Grain Co. v. Barge FBL-585, 364 U. S., at 26: “The idea behind § 1404 (a) is that where a ‘civil action’ to vindicate a wrong — however brought in a court — presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court.” This remedial purpose— the individualized, case-by-case consideration of convenience and fairness — militates against restricting the number of permissible forums within the federal system. There is no valid reason for reading the words “where it might have been brought” to narrow the range of permissible federal forums beyond those permitted by federal venue statutes which, after all, are generalized attempts to promote the same goals of convenience and fairness.
Finally, in construing § 1404 (a) we should consider whether a suggested interpretation would discrimina-torily enable parties opposed to transfer, by means of their own acts or omissions, to prevent a transfer otherwise proper and warranted by convenience and justice. In Continental Grain Co. v. Barge FBL-585, supra, the plaintiff, having joined in a single complaint both in rem and in personam damage claims, opposed transfer to a convenient forum on the ground that the in rem claim could not have been brought in the transferee forum. In approving the transfer order, this Court observed that failure to adopt a “common-sense approach . . . would practically scuttle the jorum non conveniens statute so far as admiralty actions are concerned. All a plaintiff would need to do to escape from it entirely would be to bring his action against both the owner and the ship, as was done here.” Id., at 24-25. The case at bar presents a similar situation. The Court of Appeals’ decision would grant personal representatives bringing wrongful-death actions the power unilaterally to reduce the number of permissible federal forums simply by refraining from qualifying as representatives in States other than the one in which they wished to litigate. The extent of that power is graphically illustrated by the laws of the American jurisdictions, the vast majority of which require that, as a condition of qualifying to bring suit, a foreign executor or representative must obtain ancillary appointment or perform some preliminary act. The possibilities thus suggested by the facts of the present case amply demonstrate that the limiting phrase of § 1404 (a) should be construed to prevent parties who are opposed to a change of venue from defeating a transfer which, but for their own deliberate acts or omissions, would be proper, convenient and just. The power to defeat a transfer to the convenient federal forum should derive from rights and privileges conferred by federal law and not from the deliberate conduct of a party favoring trial in an inconvenient forum.
In summary, then, we hold that the words “where it might have been brought” must be construed with reference to the federal laws delimiting the districts in which such an action “may be brought” and not with reference to laws of the transferee State concerning the capacity of fiduciaries to bring suit.
B. The Court of Appeals, in reversing the District Court, .relied in part upon Rule 17 (b) of the Federal Rules of Civil Procedure. The relevant portion of the Rule provides that the capacity of personal representatives “to sue or be sued shall be determined by the law of the state in which the district court is held.” - In our view the “where-it-might-have-been-brought” clause does not refer to this Rule and the effect of the Rule, therefore, raises a separate question. This conclusion does not, however, establish that Rule 17 (b), if applied as interpreted by the Court of Appeals, would not preclude the requested transfer. The reliance placed on Rule 17 (b) necessarily assumes that its language — which is not free from ambiguity — requires the application of the law of the State of the transferee district court rather than that of the transferor district court. On this assumption, the defendants in the present case, after a transfer to Massachusetts, would be entitled to raise the defense of incapacity under Massachusetts law and thereby defeat the actions. Thus a § 1404 (a) transfer might result in a prejudicial change in the applicable state law. This possibility makes it apparent, that, although Rule 17 (b) may be irrelevant to a determination of where an action “might have been brought,” the effect of the Rule may necessarily render a change of venue against the “interest of justice.”
Although the Court of Appeals specifically relied on Rule 17 (b), in our opinion the underlying and fundamental question is whether, in a case such as the present, a change of venue within the federal system is to be accompanied by a change in the applicable state law. Whenever the law of the transferee State significantly differs from that of the transferor State- — -whether that difference relates to capacity to sue, statutes of limitations, or “substantive” rules of liability — it becomes necessary to consider what bearing a change of venue, if accompanied by a change in state law, would have on “the interest of justice.” .This fundamental question underlies the problem of the interpretation of the words of Rule 17 (b) and requires a determination of whether the existence of differing state laws would necessarily render a transfer against “the interest of justice.” In view of the facts of this case and their bearing on this basic question, we must consider first, insofar as is relevant, the relationship between a change of venue under § 1404 (a) and the applicable state law.
II. “The Interest of Justice”: Effect of a Change of Venue Upon Applicable State Law.
A. The plaintiffs contend that the change of venue ordered by the District Court was necessarily precluded by the likelihood that it would be accompanied by a highly prejudicial change in the applicable state law. The prejudice alleged is not limited to that which might flow from the Massachusetts laws governing capacity to sue. Indeed, the plaintiffs emphasize the likelihood that the defendants’ “ultimate reason for seeking transfer is to move to a forum where recoveries for wrongful death are restricted to sharply limited punitive damages rather than compensation for the loss suffered.” It is argued that Pennsylvania choice-of-law rules would result in the application of laws substantially different from those that would be applied by courts sitting in Massachusetts. The District Court held, however, that transfer could be ordered regardless of the state laws and choice-of-law rules to be applied in the transferee forum and regardless of the possibility that the laws applicable in the trans-feror State would significantly differ from those applicable in the transferee State. This ruling assumed that transfer to a more convenient forum may be granted on a defendant’s motion even though that transfer would seriously prejudice the plaintiff’s legal claim. If this assumption is valid, the plaintiffs argue, transfer is necessarily precluded — regardless of convenience and other considerations — as against the “interest of justice” in dealing with plaintiffs who have either exercised the venue privilege conferred by federal statutes, or had their cases removed from state into federal court.
If conflict of laws rules are laid aside, it is clear that Massachusetts (the State of the transferee court) and Pennsylvania (the State of the transferor court) have significantly different laws concerning recovery for wrongful death. The Massachusetts Death Act provides that one who negligently causes the death of another “shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability .. . .” Mass. Ann. Laws, c. 229, §2 (Supp. 1961). By contrast, under Pennsylvania law the recovery of damages (1) is based upon the more common principle of compensation for losses rather than upon the degree of the tortfeasor’s culpability and (2) is not limited to $20,000. Some of the defendants urge, however, that these differences are irrelevant to the present case because Pennsylvania state courts, applying their own choice of law rules, would require that the Massachusetts Death Act be applied in its entirety, including its culpability principle and damage limitation. It follows that a federal district court sitting in Pennsylvania, and referring, as is required by Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487, to Pennsylvania choice-of-law rules, would therefore be applying the same substantive rules as would a state or federal court in Massachusetts if the actions had been commenced there. This argument highlights the fact that the most convenient forum is frequently the place where the cause of action arose and that the conflict-of-laws rules of other States may often refer to the substantive rules of the more convenient forum. The plaintiffs, however, point to the decision of the New York Court of Appeals in Kilberg v. Northeast Airlines, Inc., 9 N. Y. 2d 34, 211 N. Y. S. 2d 133, 172 N. E. 2d 526, and the decision of the Court of Appeals for the Second Circuit in Pearson v. Northeast Airlines, Inc., 309 F. 2d 553, cert. denied, 372 U. S. 912, as indicating that Pennsylvania, in light of its laws and policies, might not apply the culpability and damage limitation aspects of the Massachusetts statute. The District Court, in ordering that the actions be transferred, found it both undesirable and unnecessary to rule on the question of whether Pennsylvania courts would accept the right of action provided by the Massachusetts statute while at the same time denying enforcement of the Massachusetts measure of recovery. 204 F. Supp., at 433-436. The District Court found it undesirable to resolve this question because the Pennsylvania courts had not yet considered it and because they would, in view of similar pending cases, soon have an opportunity to do so. The District Court, being of the opinion that the District of Massachusetts was in any event a more convenient place for trial, reasoned that the transfer should be granted forthwith and that the transferee court could proceed to the trial of the actions and postpone consideration of the Pennsylvania choice-of-law rule as to damages until a later time at which the Pennsylvania decisions might-well have supplied useful guidance. Fundamentally, however, the transferring District Court assumed that the Pennsylvania choice of law rule was irrelevant because the transfer would be permissible and justified even if accompanied by a significant change of law.
The possibilities suggested by the plaintiffs’ argument illustrate the difficulties that would arise if a change of venue, granted at the motion of a defendant, were to result in a change of law. Although in the present case the contentions concern rules relating to capacity to sue and damages, in other cases the transferee forum might have a shorter statute of limitations or might refuse to adjudicate a claim which would have been actionable in the transferor State. In such cases a defendant’s motion to transfer could be tantamount to a motion to dismiss. In light, therefore, of this background and the facts of the present case, we need not and do not consider the merits of the contentions concerning the meaning and proper application of Pennsylvania’s laws and choice of law rules. For present purposes it is enough that the potential prejudice to the plaintiffs is so substantial as to require review of the assumption that a change of state law would be a permissible result of transfer under § 1404 (a).
The decisions of the lower federal courts, taken as a whole, reveal that courts construing § 1404 (a) have been strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws. Although the federal courts have utilized a variety of doctrines in order to approve a desirable transfer and at the same time protect the plaintiffs, the prevailing view in the lower federal courts is that adopted by the Court of Appeals for the Tenth Circuit in 1950, only two years after the enactment of § 1404 (a), in Headrick v. Atchison, T. & S. F. R. Co., 182 F. 2d 305, and further developed in the recent decision of the Court of Appeals for the Second Circuit in H. L. Green Co., Inc., v. MacMahon, 312 F. 2d 650. These cases have adopted and applied a general interpretative principle which we believe faithfully reflects the purposes underlying § 1404 (a).
In Headrick v. Atchison, T. & S. F. R. Co., supra, the plaintiff, a Missouri citizen, had been injured in an accident in California. He contended that responsibility lay with the defendant railroad, a Kansas corporation doing business in a number of States. The plaintiff’s Missouri attorney entered into settlement negotiations with the defendant but “these negotiations continued until after an action was barred by the statute of limitations of California; [and] thereafter the attorney was advised that the defendant would rely upon such statute as a bar to the plaintiff’s claim . . . .” Id., at 307. The plaintiff thereupon filed his action in a state court in New Mexico, where the defendant was amenable to process and where, by virtue of a longer statute of limitations, suit was not barred. The defendant then removed the case to the United States District Court for the District of New Mexico on the ground of diversity. In the District Court the defendant moved for dismissal “or in the alternative to transfer the cause to the United States District Court of California, Northern Division, pursuant to ... § 1404 (a).” Ibid. The court denied the transfer, indicating “that it would have transferred the action to California had the statute of limitations of that state not run, but since it had, a transfer would be futile and unavailing.” Id., at 308. The Court of Appeals reversed, observing first that the plaintiff:
“had a legal right to select any forum where the defendant was amenable to process and no contention is made here that the case was not properly brought in the New Mexico state court. It is conceded that the action is not barred by the New Mexico statute. Had the case been tried in the New Mexico state court, the procedural laws of New Mexico including the statutes of limitations would be applicable. ... [I]n removal cases the Federal Court must apply the state law and the state policy.” Id., at 309.
From this it followed, the court concluded, that:
“Upon removal to the Federal Court in New Mexico, the case would remain a New Mexico case controlled by the law and policy of that state, and if § 1404 (a) is applicable and a transfer to the California court is ordered for the convenience of the parties the witnesses and in the interests of justice, there is no logical reason why it should not remain a New Mexico case still controlled by the law and policy of that state.” Id., at 309-310.
Although the cases following the- Headrick principle have usually involved a similar problem concerning statutes of limitations, the Court of Appeals for the Second Circuit plainly indicated in H. L. Green Co., Inc., v. Mac- Mahon, supra, that the Headrick rule was equally applicable to other laws of the transferor State, including choice-of-law rules, which might affect the outcome of the litigation. The plaintiff in that case brought an action under the Securities Exchange Act in the District Court for the Southern District of New York and there moved to amend his complaint to add a common-law claim arising under New York law. Without ruling on the motion to add to the complaint, the District Court granted a motion by the defendant to transfer to the Southern District of Alabama pursuant to § 1404 (a). The plaintiff objected to transfer not only because the Alabama statute of limitations would be unfavorable but also because prejudice would result from applying Alabama law “to the common law claim [which the plaintiff] has moved to join with the statutory claim.” 312 F. 2d, at 652. The Court of Appeals rejected these contentions:
“Although as a matter of federal policy a case may be transferred to a more convenient part of the system, whatever rights the parties have acquired under state law should be unaffected. The case should remain as it was in all respects but location. Headrick v. Atchison, T. & S. F. Ry. Co., 182 F. 2d 305 . . . .” Id., at 652-653.
The Court made the import of this rule plain by expressly declaring first that the transferee court sitting in Alabama should apply New York law in ruling on the motion to add to the complaint and, secondly, that if the complaint were thus amended, the transferee court “will apply New York law (including any relevant New York choice-of-law rules).” Id., at 654.
Of course these cases allow plaintiffs to retain whatever advantages may flow from the state laws of the forum they have initially selected. There is nothing, however, in the language or policy of § 1404 (a) to justify its use by defendants to defeat the advantages accruing to plaintiffs who have chosen a forum which, although it was inconvenient, was a proper venue. In this regard the transfer provisions of § 1404 (a) may be compared with those of § 1406 (a). Although both sections were broadly designed to allow transfer instead of dismissal, § 1406 (a) provides for transfer from forums in which venue is wrongly or improperly laid, whereas, in contrast, § 1404 (a) operates on the premise that the plaintiff has properly exercised his venue privilege. This distinction underlines the fact that Congress, in passing § 1404 (a), was primarily concerned with the problems arising where, despite the propriety of the plaintiff’s venue selection, the chosen forum was an inconvenient one.
In considering the Judicial Code, Congress was particularly aware of the need for provisions to mitigate abuses stemming from broad federal venue provisions. The venue provision of the Federal Employers’ Liability Act was the subject of special concern. However, while the Judicial Code was pending, Congress considered and rejected the Jennings bill which, as the Court stated in Ex parte Collett, 337 U. S. 55, 64, “was far more drastic than § 1404 (a),” and which “would-in large part have repealed [the venue section] of the Liability Act” by severely delimiting the permissible forums. This legislative background supports the view that § 1404 (a) was not designed to narrow the plaintiff’s venue privilege or to defeat the state-law advantages that might accrue from the exercise of this venue privilege but rather the provision was simply to counteract the inconveniences that flowed from the venue statutes by permitting transfer to a convenient federal court. The legislative history of § 1404 (a) certainly does not justify the rather startling conclusion that one might “get a change of law as a bonus for a change of venue.” Indeed, an interpretation accepting such a rule would go far to frustrate the remedial purposes of §. 1404 (a). If a change of law were in the offing, the parties might well regard the section primarily as a forum-shopping instrument. And, more importantly, courts would at least be reluctant to grant transfers, despite considerations of convenience, if to do so might conceivably prejudice the claim of a plaintiff who had initially selected a permissible forum. We believe, therefore, that both the history and purposes of § 1404 (a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms.
Although we deal here with a congressional statute apportioning the business of the federal courts, our interpretation of that statute fully accords with and is supported by the policy underlying Erie R. Co. v. Tompkins, 304 U. S. 64. This Court has often formulated the Erie doctrine by stating that it establishes “the principle of uniformity within a state,” Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487, 496, and declaring that federal courts in diversity of citizenship cases are to apply the laws “of the states in which they sit,” Griffin v. McCoach, 313 U. S. 498, 503. A superficial reading of these formulations might suggest that a transferee federal court should apply the law of the State in which it sits rather than the law of the transferor State. Such a reading, however, directly contradicts the fundamental Erie doctrine which the quoted formulations were designed to express. As this Court said in Guaranty Trust Co. v. York, 326 U. S. 99, 109:
“Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. . . . The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result.”
Applying this analysis to § 1404 (a), we should ensure that the “accident” of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed. This purpose would be defeated in cases such as the present if nonresident defendants, properly subjected to suit in the transferor State (Pennsylvania), could invoke § 1404 (a) to gain the benefits of the laws of another jurisdiction (Massachusetts). What Erie and the cases following it have sought was an identity or uniformity between federal and state courts; and the fact that in most instances this could be achieved by directing federal courts to apply the laws of the States “in which they sit” should not obscure that, in applying the same reasoning to § 1404 (a), the critical identity to be maintained is between the federal district court which decides the case and the courts of the State in which the action was filed.
We conclude, therefore, that in cases such as the present, where the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under ’§ 14
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_authoritydecision
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E
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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.
SILESIAN-AMERICAN CORP. et al. v. CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.
No. 6.
Argued May 1, 1947.
Reargued November 12, 1947.
Decided December 8, 1947.
Leonard P. Moore argued the cause for petitioners. With him on the briefs were George W. Whiteside and William Gilligan.
James C. Wilson argued the cause on the original argument for respondent. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Harry LeRoy Jones, M. S. Isenbergh, James L. Morrisson and John Ward Cutler.
James L. Morrisson reargued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and M. S. Isenbergh.
Me. Justice Reed
delivered the opinion of the Court.
The Alien Property Custodian on November 17, 1942, executed Vesting Order No. 370. This order was issued under the authority of the Trading with the Enemy Act, 40 Stat. 411, as amended, and Executive Order No. 9095, as amended, and in terms vested the property therein described in the Alien Property Custodian in the interest and for the benefit of the United States. The order found the property to belong to a national of Germany. The property covered by the order was two blocks of stock — one common, one preferred — in the Silesian American Corporation, a Delaware corporation, hereinafter called Silesian. The stock, prior to August 31, 1939, stood in the stock book of Silesian in the name of Non Ferrum Gesellschaft zur Finanzierung von Unternehmungen des Bergbaues und der Industrie der Nichteisenmetalle, Zurich, Switzerland, a Swiss corporation, hereinafter referred to as the Non Ferrum Company. Non Ferrum, it was determined by the Custodian’s order, held the stock for the benefit of Bergwerksgesellschaft Georg von Giesche’s Erben, a German corporation. The certificates, it is asserted, had been deposited as security for loans with a group of banks, all of which apparently were chartered by Switzerland and are hereinafter referred to as the Swiss Banks.
To carry out the purpose of his vesting order, the Custodian directed Silesian to cancel on its books the outstanding Non Ferrum certificates, above referred to, and to issue in lieu thereof new certificates to the Custodian. This controversy revolves around the objection of Silesian so to act because the Custodian did not have physical possession of the pledged Non Ferrum certificates so as to be able to surrender them for cancellation, as the corporation’s by-laws required. Silesian feared liability to the holders of the Non Ferrum certificates for issuing other certificates in such circumstances.
Silesian had been a debtor under Chapter X of the Bankruptcy Act since July 30, 1941. It therefore asked the Bankruptcy Court for instructions as to its compliance with the Custodian’s direction. The other petitioner here, Silesian Holding Company, a Delaware corporation also, appeared and throughout has remained as a party to this litigation. It is the majority stockholder of Silesian but claims no different or other interest in the issue than Silesian. For the purpose of this case, it may and will be treated as having no more interest in the issue than Silesian has. The Swiss Banks asked the Reorganization Court to give instructions to the Debtor that no new shares be issued until the controversy between the Swiss Banks and the Custodian could be “fully, firmly and finally adjudicated.” This prayer was based on a verified answer to Silesian’s request for instruction, which answer alleged that the “Swiss Banks were the owners of the 'Non Fer-rum’ stock.” The Swiss Banks notified Silesian that any issue of new certificates representing the Non Ferrum stock, with or without court direction, would be at Silesian’s risk. Affidavits supporting the objection of the Swiss Banks to instructions to Silesian to issue the new certificates to the Custodian were filed with the District Court. These affidavits declared the Non Ferrum stock was pledged, prior to 1938, to groups of Swiss banks. It is not clear whether they are the same institutions that are named in the answer of the Swiss Banks to the Debtor’s request for instructions. For the purpose of this case, we assume that the groups are identical.
The District Court instructed the debtor to issue new certificates to the Alien Property Custodian. The court said:
“The vesting order of the Custodian found that the stock was held for the benefit of an enemy. The statutory discharge from liability, § 5b or § 7e, [Trading with the Enemy Act] protects the debtor corporation and relieves it of doubt in the premises.”
The court added:
“Whatever may be the interests or rights of the Swiss banks, they cannot be considered here. Hearsay statements, unsupported by documents, allege that these banks are pledgees of the stock. These statements create no issue for our consideration. The banks are parties herein only to the extent that they have been recognized in the reorganization proceeding as possible owners of a claimed interest which they have never been called upon to prove. They are not here because of any action taken against them or any recognition given them by the Custodian or even by reason of any established interest in the stock.”
No appeal to the Circuit Court of Appeals was taken by the Swiss Banks. They do not appear here as parties to this writ of certiorari or otherwise. We therefore express no opinion as to the effect of the order and decision of the District Court upon the claims of the Swiss Banks as pledgees of the Non Ferrum stock. See SilesianAmerican Corporation v. Markham, 156 F. 2d 793, 795.
An appeal was taken to the Circuit Court of Appeals by Silesian. That court affirmed the order of the Bankruptcy Court. We first denied a petition for certiorari and then granted it so that this case might be considered in relation to other issues, thereafter presented here, in connection with the administration of the Trading with the Enemy Act. 329 U. S. 730 and 330 U. S. 852; Clark v. Uebersee Finanz-Korporation, 330 U. S. 813.
It was held by the Circuit Court of Appeals that Silesian had no “standing vicariously” to assert the interests of its shareholders. We agree. Silesian has no legal interest in the issue as to the ownership of its stock. It follows that Silesian has no standing to represent the interests of the pledgees of the Non Ferrum shares, if that is the present position of those shares. See Anderson Nat. Bank v. Luckett, 321 U. S. 233, 242. This reduces petitioners’ objection to the order directing the issue of new certificates in favor of the Custodian for the Non Ferrum stock to the claim that the sections of the Trading with the Enemy Act under which the Custodian acted are invalid as applied to Silesian in these circumstances. If the provisions do not authorize the order and direction, Silesian, over its own objections, cannot be compelled to obey.
The Custodian vested the stock in himself by virtue of the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, including, of course, § 5 (b) (l), and Executive Order No. 9095, C. F. R. Cuna. Supp. 1121, as amended 1174. This property was vested during war. There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property. United States v. Chemical Foundation, 272 U. S. 1, 11. Nor can there, we think, be any doubt that any property in this country of any alien may be summarily reduced to possession by the United States in furtherance of the war effort. Every resource within the ambit of sovereign power is subject to use for the national defense. This section was amended during war to cover the taking of alien property. It is limited to a war or a declared emergency period. While a natural hesitancy exists against so interpreting the war power clause as to expand its scope to cover incidents not intimately connected with war, we think reasonable preparation for the storm of war is a proper exercise of the war power. This seizure of alien property, in a time of emergency, is of that character. We need not consider whether the general welfare clause could be a source of congressional power over alien property. This taking may be done as a means of avoiding the use of the property to draw earnings or wealth out of this country to territory where it may more likely be used to assist the enemy than if it remains in the hands of this government. Or the commandeered property of a friendly alien may be used to prosecute the war. The problems of compensation may await the judicial process. Central Union Trust Co. v. Garvan, 254 U. S. 554, 567-68. War brooks no delay. The Constitution imposes none.
The section, 5 (b) (1), and Executive Order under which the Custodian acted authorized the vesting in him by his order of the property of a foreign national. This description covered stock ownership of a foreign national in Silesian. The fact that the certificates did not come into the hands of the Custodian is immaterial. They are evidences of the property right of the foreign national in Silesian that is subject to be vested in the Custodian by the Act. See Great Northern R. Co. v. Sutherland, 273 U. S. 182. Section 5 (b) (1) specifically states, “and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.” See note 2 above. Since the Custodian was authorized to vest and to sell the property by § 5, we think that the power to require the issue of new certificates was incidental to that authority. As one purpose of § 5 (b) (1) was to authorize the seizure of the interests of foreign nationals in domestic corporations so that such interest could be used or sold, such authority to participate in management or to transfer the stock interests would be frustrated if customary evidences of the ownership could not be required from the corporation. The power of the Custodian to demand the certificates is plain. The correlative duty to obey the order equally so, if the effect of obedience does not do violence to other valid requirements of the statute or make Silesian liable to bona fide holders of the old stock.
Silesian in specific terms is protected from any liability to bona fide holders such as Non Ferrum or the Swiss Banks by reason of any infirmity in the Custodian’s vesting order or his direction to Silesian to issue new certificates for the Non Ferrum stock. The applicable language of § 7 (e) of the Trading with the Enemy Act, 40 Stat. 418, and § 5 (b) (2), as amended, 55 Stat. 839-40, are set out in the margin. But Silesian argues that protection cannot follow from an order contrary to the Trading with the Enemy Act. The order to issue the new certificates is said to be unauthorized because it allows the property of friendly alien pledgees, the Swiss Banks, to be taken contrary to § 8 (a). Section 8 (a) is said to be a limitation on the Custodian’s power to seize property pledged to “any person not an enemy or ally of enemy.” It is suggested that if § 7 (e) or § 5 (b) (2) is interpreted to require Silesian to carry out the Custodian’s direction, even though this seizure is contrary to § 8 (a), a way has been found to “coerce an interested party [Silesian] into compliance with his [the Custodian’s] unlawful actions.” The answer to this contention is made by the Circuit Court of Appeals. It makes unnecessary any discussion of the protection afforded Silesian by § 7 (e) and § 5 (b) (2) from the claims of a pledge of stock exempted by statute from seizure. 156 F. 2d at 797. When § 5 (b) (1) was enacted as an amendment in the First War Powers Act of 1941, it authorized the taking of any property or interest therein of any foreign national. This broadening of the scope of the Custodian’s power to vest so as to include interests of friendly aliens in property includes the power to vest the interest which friendly aliens have from pledges. As the Circuit Court of Appeals said, p. 797:
“Any other interpretation of the section would make the pledges of friendly aliens a wholly irrational exception to the general purpose to subject all alien interests to seizure.”
Therefore, as we hold that § 5 (b) (1) rendered § 8 (a) inapplicable to the property of friendly aliens, the order of the Custodian was valid and Silesian’s objection disappears.
Finally there is the argument that Silesian cannot be compelled to issue the new certificates because the friendly aliens who claim interests in the Non Ferrum stock may not succeed in recovering the just compensation for the taking. See Russian Volunteer Fleet v. United States, 282 U. S. 481, 489. The Constitution guarantees to friendly aliens the right to just compensation for the requisitioning of their property by the United States. Russian Fleet v. United States, supra. We must assume that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken and Silesian is protected by the exculpatory clauses of the Act from any claim from its alien stockholders.
Judgment affirmed.
The Chief Justice took no part in the consideration or decision of this case.
They are Union Bank of Switzerland, La Roche & Company, Banque Cantónale de Berne, and Aktiengesellschaft Leu & Company.
Trading with the Enemy Act, 40 Stat. 411, as amended by the First War Powers Act of 1941, 55 Stat. 839, § 5 (b) (1):
“During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise—
“(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest,
by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; . . . .”
Art. I, §8, cl. 11.
Compare with the statement below: “The power of Congress to seize and confiscate enemy property rests upon Art. 1, § 8, Clause 11 of the Constitution. Stoehr v. Wallace, supra, 255 U. S. at page 242 . . . ; United States v. Chemical Foundation, Inc., 272 U. S. 1, 11 ... . Whether it exists at international law may be doubted; but nobody contends that the war power of Congress includes the seizure of the property of friendly aliens. The amendment of § 5 (b) must therefore rest upon some other power of Congress, not only for that reason, but because the amendment itself was expressly not limited to time of war (although it was in fact passed flagrante bello) but was to go into effect upon any ‘national emergency declared.’ It can rest upon Art. 1, § 8, Clause 1: i. e. upon the power ‘to provide for the common Defence and general Welfare’; indeed, so far as we can see, the debtor does not challenge the power itself, but its exercise. It complains that the amendment delegates an unrestricted discretion to the President, and does not provide ‘just compensation’ for seizures.” 156 F. 2d 793, 796.
40 Stat. 418, § 7 (e):
“No person shall be held liable in any court for or in respect to anything done or omitted in pursuance of any order, rule, or regulation made by the President under the authority of this Act.”
55 Stat. 840, § 5 (b) (2):
“Any payment, conveyance, transfer, assignment, or delivery of property or interest therein, made to or for the account of the United States, or as otherwise directed, pursuant to this subdivision or any rule, regulation, instruction, or direction issued hereunder shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same; and no person shall be held liable in any court for or in respect to anything done or omitted in good faith in connection with the administration of, or in pursuance of and in reliance on, this subdivision, or any rule, regulation, instruction, or direction issued hereunder.”
40 Stat. 418-19, § 8 (a):
“That any person not an enemy or ally of enemy holding a lawful mortgage, pledge, or lien, or other right in the nature of security in property of an enemy or ally of enemy which, by law or by the terms of the instrument creating such mortgage, pledge, or lien, or right, may be disposed of on notice or presentation or demand . . . may continue to hold said property, and, after default, may dispose of the property .... Provided further, That if, on any such disposition of property, a surplus shall remain after the satisfaction of the mortgage, pledge, lien, or other right in the nature of security, notice of that fact shall be given to the President pursuant to such rules and regulations as he may prescribe, and such surplus shall be held subject to his further order.”
The Circuit Court of Appeals said: “Thus it can be argued with much force that, unless some provision can be found by which he may secure compensation, § 5 (b) is unconstitutional; and, if so, it would at best be doubtful whether the protection given by subsection (2) would be valid.” 156 F. 2d 793, 797.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_dueproc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process 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".
Robert WILLIAMS, Appellant, v. J. R. MARTIN, Warden, and the Attorney General of the State of South Carolina, Appellees.
Nos. 77-1058, 78-6569.
United States Court of Appeals, Fourth Circuit.
Argued Aug. 22, 1979.
Decided March 6, 1980.
Timothy W. Bouch, Third Year Law Student (Walter Reiser, Randall M. Chastain, University of South Carolina Law Center, Columbia, S. C., on brief), for appellant.
Katherine W. Hill, Asst. Atty. Gen., Columbia, S. C. (Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., on brief), for appellees.
Before BUTZNER, HALL and PHILLIPS, Circuit Judges.
BUTZNER, Circuit Judge:
The critical issue in this appeal is whether a state court’s refusal to furnish an indigent prisoner an expert for the preparation and presentation of his defense was constitutional error. The district court held that it was not and dismissed Robert Williams’ petition for a writ of habeas corpus. We reverse because we believe that the appointment of an expert was constitutionally required for Williams’ adequate defense against a charge of murder.
I
Williams shot Phoebe Maybank during a family quarrel over a missing wallet. The wound paralyzed Maybank, and eight months later she died. Williams was initially charged with assault and battery with intent to kill and later with murder. The indictments were consolidated for trial in the General Sessions Court, Charleston County, South Carolina.
Williams was indigent. Before trial his court-appointed attorney moved for the appointment, at the state’s expense, of an independent forensic pathologist to evaluate medical evidence concerning the cause of Maybank’s death. The motion disclosed that the county medical examiner believed Maybank died from a pulmonary embolism resulting from a thrombosis that formed in her leg due to immobilization caused by her paralysis from the gunshot wound. The motion explained that while Williams’ attorney had learned from medical books that there are numerous causes of a pulmonary embolism, he was not professionally able to evaluate the evidence and question the medical examiner without consulting a pathologist. He therefore sought authorization to engage a pathologist to examine the autopsy report and perhaps to testify about the “probability that events unrelated to assault and battery” caused Maybank’s death. The motion concluded with an estimate that a minimum fee for consultation with a pathologist and for his appearance as a witness would be $400.
At the pretrial hearing on the motion, Williams’ attorney elaborated on the necessity of consultation with a pathologist because of the eight-month interval between the infliction of the wound and death. He said:
There is a rather complex issue of medical causation involved. As best I understand it from my research, there is — the cause of death was a blood clot which formed in the leg of the decedent and then was detached and lodged in the pulmonary artery, I believe. I don’t know exactly the detail, but the difficulty is that the blood clot in the leg can be caused by a variety of means. The medical examiner informed me that he did not observe any of these other things in his examination of the body and the specimens that he preserved, but it is impossible for counsel to examine those specimens and determine whether or not his assessment is correct and it’s important, therefore, that the defendant be appraised and afforded the assistance of the competent expert witnesses to assist counsel in determining whether or not the cause of death as stated by the medical examiner is in fact the true cause of death .
After counsel presented the motion, the following colloquy occurred:
Judge: I have read your motion. As I understand it, your request, what you are in need of are funds to obtain this information, whether it is good or bad, and you ask the Court to direct that funds be paid? Is that correct?
Defense Attorney: Be made available, yes, sir.
Judge: Well, I don’t have that authority-
Defense Attorney: Well, Your Honor, if it pleases the Court, I think the situation is in all respects similar to the situation of a defendant who needs to have a transcript provided for appeal or for other purposes.
Judge: Well, that is provided for by law.
Defense Attorney: The constitutional principle is the same, I believe, Your Honor, and I submit the motion to the Court.
Judge: Well, I can say to you that I can’t issue an order directing the Treasurer of Charleston County to pay out this sum of money because, in my opinion, if I issued the order it would be ignored and I know of no funds available to pay for this type of evidence or testimony. So, I am not going to hold out to you that I can do that because I am satisfied that I can’t. All I can tell you is what my understanding of the law is, and that is I don’t have the authority to direct any money be paid to obtain this type of evidence or testimony from this type of witness. And, lacking that authority, I certainly can’t mislead you or your client by stating that I can provide those funds. Now, if you can talk to someone in authority who has funds available and they are agreeable, based on an order of the Court, to pay the money, I will so order it.
Defense Attorney: I’ll investigate that, Your Honor.
Williams’ attorney did not renew his motion or advise the court about any further investigations concerning a source of funds to pay the pathologist.
At trial the state presented evidence that Williams shot Maybank, that she was unarmed, and that she presented no danger to him. The forensic pathologist testifying on behalf of the state said that Maybank’s body was embalmed and buried. Nine days after death the body was exhumed, and he conducted an autopsy. He testified that in his opinion Maybank’s death was due to a clot or thrombosis in her leg migrating to her lungs and cutting off the supply of blood to the lungs; her paralysis from the gunshot wound caused the clot; and her body exhibited no other cause for the clot in her leg. The autopsy report stated, “this thrombosis was most probably secondary to her paraplegia which resulted from a gunshot wound of the neck.” The doctor explained that the phrase “most probably” indicated the highest degree of medical certainty, although he could not be 100% sure about anything in medicine.
Williams contended that Maybank’s death did not result from the gunshot wound. He also asserted that he shot in self-defense when Maybank attacked him with a knife. The jury convicted him of voluntary manslaughter, and the court sentenced him to 15 years in prison.
Williams’ appeal to the Supreme Court of South Carolina assigned error to the trial court’s denial of his motion for funds to retain a pathologist. The Court held that a statute authorizing payment of expenses of counsel appointed to represent indigents encompassed compensation for expert witnesses when the assistance of an expert is reasonably necessary for a proper defense. It noted that Williams’ motion had been denied because of the trial court’s erroneous conclusion that funds were not available, but it held that the failure to provide funds did not prejudice Williams. It based its ruling on testimony of the state’s pathologist that the autopsy demonstrated to the highest possible degree of medical certainty that the gunshot wound caused death and that Williams had not shown that another pathologist would have aided his defense. See State v. Williams, 263 S.C. 290, 300, 210 S.E.2d 298, 303 (1974).
Williams subsequently unsuccessfully sought a writ of habeas corpus in the state courts on the ground that he was denied effective representation because his counsel did not bring to the attention of the trial court the statute authorizing payment of expert witnesses.
Williams then twice applied for writs of habeas corpus in the federal district court. In the first he alleged that the denial of his motion for funds to retain a pathologist deprived him of due process of law and denied him equal protection of the law in violation of the fourteenth amendment. In his second petition he alleged that his counsel was ineffective because he did not obtain a pathologist to assist with his defense. With respect to the first petition, the district court held that Williams had not been prejudiced because he had shown only that “he might have found a pathologist who did not share the opinion of the pathologist who testified for the State as to the cause of death.” It ruled that the constitution does not mandate “the expenditure of public funds for an indigent defendant to go shopping for a favorable expert witness.” The district court denied the second writ, involving the competency of counsel, for essentially the same reasons: Williams had not shown that medical evidence in his behalf was available and “if so, the substance of such testimony.” The appeals from denials of both writs were consolidated in this proceeding.
II
There can be no doubt that an effective defense sometimes requires the assistance of an expert witness. This observation needs little elaboration. Had Williams been financially able to afford his own defense, competent counsel undoubtedly would have consulted a pathologist. Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system. The American Bar Association standards on providing defense services state:
The plan [for providing competent counsel to indigents] should provide for investigatory, expert and other services necessary to an adequate defense. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process .
The accompanying commentary notes that “[t]he quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires the services of a[n] . . . expert and no such services are available.” ABA Standards, Providing Defense Service,. 22-23 (App. Draft 1968). Similarly, a distinguished committee of lawyers, state and federal judges, and academicians reported to the Attorney General that adequate representation of criminal defendants requires in some cases provision for engaging experts in addition to appointment of counsel. The committee stated:
The need for such services has been recognized in all well-developed systems of representation for financially incapacitated defendants, both in this country and abroad. Until . . . such services are made available, the procedures in the federal courts can not fairly be characterized as a system of adequate representation. One of the assumptions of the adversary system is that counsel for the defense will have at his disposal the tools essential to the conduct of a proper defense . . .
Both Congress and the South Carolina legislature have responded to this need by authorizing the provision of funds to indigent defendants for expert services when necessary for an adequate defense. See 18 U.S.C. § 3006A(e); S.C.Codg § 17-3-80 (Cumm.Supp.1978).
Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965), vacated a judgment denying a motion for collateral relief brought under 28 U.S.C. § 2255. Relying on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), we recognized that the obligation of the government to provide an indigent defendant with the assistance of an expert was firmly based on the equal protection clause. In Jacobs we held that the obligation arises when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance. 350 F.2d at 573. The determination of the defendant’s need for expert assistance is committed to the sound discretion of the trial judge.
Ill
The trial judge acknowledged Williams’ need for assistance, but he denied the motion because he erroneously believed that he lacked authority to furnish an expert at the state’s expense. It is quite evident that denial of Williams’ motion was not the result of the informed discretion of the trial judge. We, therefore must make an independent examination, of the record to determine (a) whether a substantial question requiring expert testimony arose over the cause of death, and (b) whether Williams’ defense could be fully developed without professional assistance. See Jacobs, 350 F.2d at 573.
The cause of Maybank’s death was an essential element of the State’s case. It could be established by the prosecution only through the testimony of an expert witness. Although the state’s pathologist professed confidence in his opinion, despite embalming and the nine-day delay, he acknowledged that generally an autopsy should be performed as soon as possible after death. The pathologist also conceded that it is unusual for a pulmonary embolism to occur as long as eight" months after trauma.
Thus, the record discloses a substantial question over the cause of death which required expert testimony for its explication. This satisfies the first aspect of the Jacobs test.
Jacobs next requires consideration of whether Williams’ defense could be fully developed without professional assistance. We must apply the Jacobs test in the light of the Supreme Court’s observation that the assignment of a lawyer to an indigent must not be made “under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). Without the services of an expert, Williams’ trial counsel could not adequately prepare his case. A complete understanding of the medical factors involved was necessary before a medical layman could effectively question the state’s pathologist and test the firmness of his opinion. The handicap under which Williams’ counsel was forced to operate while preparing for and cross-examining the state’s expert is markedly similar to the situation in Jacobs where we held that the defendant’s “position could not be fully developed for lack of available professional assistance.” 350 F.2d at 573.
The presentation of Williams’ defense at trial was also hampered by the absence of a defense expert witness. An expert may have been able to question the accuracy of an autopsy performed after embalming and delay. Furthermore, the record discloses that Maybank had cirrhosis of the liver. A medical textbook cited by Williams’ counsel in his brief indicates that cirrhosis and numerous other ailments may cause an embolism. Therefore, it is possible that a pathologist could have expressed an opinion on the likelihood that cirrhosis of the liver or some other disease caused the embolism. Such testimony could well have raised a reasonable doubt concerning the cause of death. Just as the state needed an expert to prove the cause of death, Williams needed an expert to present his defense. It is not incumbent upon Williams to prove under the Jacobs test that an independent expert would have provided helpful testimony at trial. An indigent prisoner who needs expert assistance because the subject matter is beyond the comprehension of laymen should not be required to present proof of what an expert would say when he is denied access to an expert.
The state, relying on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), argues that Williams waived any right to relief. Estelle found waiver of a constitutional right because the defendant never objected to the trial court about being tried in prison clothing. Here, in contrast, Williams’ counsel did request funds and was affirmatively informed by the trial judge that no funds were available. Moreover, the state asserted in response to Williams’ claim of ineffective counsel that “[cjounsel cannot be personally faulted for being unaware of the South Carolina law providing for such assistance since the trial judge, who has had many years on the bench, was also unaware of the statute.” Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), on which the state also relies, dealt with an alternative source of assistance that was widely known and easily available. In Williams’ case, however, the record discloses no alternative to the state funds requested and denied by the trial judge. Likewise, we conclude that Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), which the state cites, is not controlling because of factual differences. Satterfield concerned the defendant’s claim of insanity. Satterfield was able to procure a doctor to testify in his defense, and the state did not introduce evidence available to it that he was sane.
Because a substantial question requiring expert testimony arose over the cause of Maybank’s death and because Williams’ defense could not be fully developed without professional assistance that would have been available to a person who could afford his own defense, Williams has satisfied the dual test prescribed in Jacobs to establish that he was denied equal protection of the law. Furthermore, the trial judge’s refusal to provide an expert deprived Williams of the effective assistance of counsel and due process of law in violation of the sixth and fourteenth amendments. Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974); Davis v. Coiner, 356 F.Supp. 695 (N.D.W.Va.1973); United States v. Germany, 32 F.R.D. 421 (M.D.Ala.1963).
The order dismissing Williams’ habeas corpus petition is vacated, and the case is remanded with directions to appoint a pathologist to investigate the cause of May-bank’s death. If, with such assistance, Williams can establish that the expert assistance of a pathologist in preparing and presenting his defense was necessary to the adequate presentation of that defense, and might reasonably have affected adjudication of the cause of death, the writ should be granted, subject to retrial in a reasonable length of time. See ABA Standards, Providing Defense Services § 1.5 (App. Draft 1968). Obviously, if the pathologist testifies that there is no reasonable doubt that the gunshot wound caused Maybank’s death, Williams will have failed to establish that an expert witness would have assisted in the adequate preparation and presentation of his defense. In that situation, the error caused by the state’s failure to appoint an independent expert would be harmless and the conviction will stand. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jacobs, 350 F.2d at 573.
Because Williams failed to object at trial to the jury instruction on self-defense, we affirm the judgment of the district court on that issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977); Frazier v. Weatherholtz, 572 F.2d 994, 996 (4th Cir. 1978).
Vacated and Remanded for Further Proceedings.
. S.C.Code § 17-3-80 (Cumm.Supp.1978) provides:
Appropriation for expenses of appointed private counsel and public defenders; restrictions and limitations.
In addition to the appropriation in § 17-3-70, there is hereby appropriated for the fiscal year commencing July 1, 1969 the sum of fifty thousand dollars for the establishment of the defense fund which shall be administered by the Judicial Department. This fund shall be used to reimburse private appointed counsel, public defenders, and assistant public defenders for necessary expenses actually incurred in the representation of persons pursuant to this chapter, provided that the expenses are approved by the trial judge. No reimbursement shall be made for travel expenses except extraordinary travel expenses approved by the trial judge. The total State funds provided by this section shall not exceed fifty thousand dollars.
. Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice, 45-46 (1963).
. In view of our disposition of the case, we need not address Williams’ claim that his counsel was ineffective because he did not obtain a medical witness.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
HOFFMAN v. UNITED STATES.
No. 513.
Argued April 25, 1951.
Decided May 28, 1951.
. William A. Gray argued the cause for petitioner. With him on the brief was Lester J. Schaffer.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnemey and J. F. Bishop.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner has been convicted of criminal contempt for refusing to obey a federal court order requiring him to answer certain questions asked in a grand jury investigation. He raises here important issues as to the application of the privilege against self-incrimination under the Fifth Amendment, claimed to justify his refusal.
A special federal grand jury was convened at Philadelphia on September 14,1950, to investigate frauds upon the Federal Government, including violations of the customs, narcotics and internal revenue liquor laws of the United States, the White Slave Traffic Act, perjury, bribery, and other federal criminal laws, and conspiracy to commit all such offenses. In response to subpoena petitioner appeared to testify on the day the grand jury was empaneled, and was examined on October 3. The pertinent interrogation, in which he refused to answer, follows:
“Q. What do you do now, Mr. Hoffman?
“A. I refuse to answer.
“Q. Have you been in the same undertaking since the first of the year?
“A. I don’t understand the question.
“Q. Have you been doing the same thing you are doing now since the first of the year?
“A. I refuse to answer.
“Q. Do you know Mr. William Weisberg?
“A. Ido.
“Q. How long have you known him?
“A. Practically twenty years, I guess.
“Q. When did you last see him?
“A. I refuse to answer.
“Q. Have you seen him this week?
“A. I refuse to answer.
“Q. Do you know that a subpoena has been issued for Mr. Weisberg?
“A. I heard about it in Court.
“Q. Have you talked with him on the telephone this week?
“A. I refuse to answer.
“Q. Do you know where Mr. William Weisberg is now?
“A. I refuse to answer.”
It was stipulated that petitioner declined to answer on the ground that his answers might tend to incriminate him of a federal offense.
Petitioner’s claim of privilege was challenged by the Government in the Federal District Court for the Eastern District of Pennsylvania, which found no real and substantial danger of incrimination to petitioner and ordered him to return to the grand jury and answer. Petitioner stated in open court that he would not obey the order, and on October 5 was adjudged in criminal contempt and sentenced to five months imprisonment. 18 U. S. C. §401; Federal Rule of Criminal Procedure 42 (a).
Petitioner appealed to the Court of Appeals for the Third Circuit, where the record was docketed on October 11. After denial by the District Court of his request for bail pending appeal, petitioner on October 20 filed in that court a “Petition for Reconsideration of Allowance of Bail Pending Appeal,” alleging that “on the basis of the facts contained in his affidavit, attached ... , he was justified in his refusal to answer the questions as aforesaid, or, in any event, that there is so substantial a question involved that your petitioner should be released on bail . . . .” In the accompanying affidavit petitioner asserted that
“He assumed when he refused to answer the questions involved before the Grand Jury, that both it and the Court were cognizant of, and took into consideration, the facts on which he based his refusals to answer.
“He has since been advised, after his commitment, that the Court did not consider any of said facts upon which he relied and, on the contrary, the Court considered only the bare record [of the questions and answers as set out above].
“In the interest of justice and particularly in aid of a proper' determination of the above petition, he submits the following in support of his position that he genuinely feared to answer the questions propounded:
“(a) This investigation was stated, in the charge of the Court to the Grand Jury, to cover 'the gamut of all crimes covered by federal statute.’ . . .
“(b) Affiant has been publicly charged with being a known underworld character, and a racketeer with a twenty year police record, including a prison sentence on a narcotics charge. . . .
“(c) Affiant, while waiting to testify before the Grand Jury, was photographed with one Joseph N. Bransky, head of the Philadelphia office of the United States Bureau of Narcotics.
“(d) Affiant was questioned concerning the whereabouts of a witness who had not been served with a subpoena and for whom a bench warrant was sought by the Government prosecutor. . . .
“On the basis of the above public facts as well as the facts within his own personal knowledge, affiant avers that he had a real fear that the answers to the questions asked by the Grand Jury would incriminate him of a federal offense.”
Included as appendices to the affidavit were clippings from local newspapers, of dates current with the grand-jury proceeding, reporting the facts asserted in the affidavit. On October 23 the District Court allowed bail. On the following day the petition for reconsideration of allowance of bail, including affidavit and appendices, was filed in the Court of Appeals as a supplemental record on appeal. The Government moved to strike this matter on the ground that it was not properly part of the appeal record.
The Court of Appeals granted the motion to strike and affirmed the conviction. 185 F. 2d 617 (1950). With respect to the questions regarding Weisberg, the court held unanimously that “the relationship between possible admissions in answer to the questions . . . and the proscription of [pertinent federal criminal statutes (18 IT. S. C. §§ 371, 1501)] would need to be much closer for us to conclude that there was real danger in answering.” As to the questions concerning petitioner’s business, the court observed that “It is now quite apparent that the appellant could have shown beyond question that the danger was not fanciful.” In the court’s view the data submitted in the supplemental record “would rather clearly be adequate to establish circumstantially the likelihood that appellant’s assertion of fear of incrimination was not mere contumacy.” But the Court of Appeals concluded, again unanimously, that the information offered in support of the petition for reconsideration of bail “was not before the court when it found appellant in contempt, and therefore cannot be considered now.” Thus limited to the record originally filed, the majority of the court was of the opinion, with •respect to the business questions, that “the witness here failed to give the judge any information which would allow the latter to rule intelligently on the claim of privilege for the witness simply refused to say anything and gave no facts to show why he refused to say anything.” One judge dissented,- concluding that the District Court knew that “the setting of the controversy” was “a grand jury investigation of racketeering and federal crime in the vicinity” and “should have adverted to the fact of common knowledge that there exists a class of persons who live by activity prohibited by federal criminal laws and that some of these persons would be summoned as witnesses in this grand jury investigation.”
Petitioner unsuccessfully sought rehearing in the Court of Appeals, urging remand to the District Court to permit reconsideration of the conviction on the basis of data in the supplemental record. We granted certiorari, 340 U. S. 946 (1951).
This is another of five proceedings before this Court during the present Term in each of which the privilege against self-incrimination has been asserted in the course of federal grand-jury investigations. A number of similar cases have been considered recently by the lower courts. The signal increase in such litigation emphasizes the continuing necessity that prosecutors and courts alike be “alert to repress” any abuses of the investigatory power invoked, bearing in mind that while grand juries “may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire . . . whether a crime cognizable by the court has been committed,” Hale v. Henkel, 201 U. S. 43, 65 (1906), yet “the most valuable function of the grand jury . . . [has been] not only to examine into the commission of crimes, but to stand between the- prosecutor and the accused,” id. at 59. Enforcement officials taking the initiative in grand-jury proceedings and courts charged with their superintendence should be sensitive to the considerations making for wise exercise of such investigatory power, not only where constitutional issues may be involved but also where the noncoercive assistance of other federal agencies may render it unnecessary to invoke the compulsive process of the grand jury.
The Fifth Amendment declares in part that “No person . . . shall be compelled in any criminal case to be a witness against himself.” This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, “was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.” Feldman v. United States, 322 U. S. 487, 489 (1944). This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 142 U. S. 547, 562 (1892); Arndstein v. McCarthy, 254 U. S. 71, 72-73 (1920).
The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patricia) Blau v. United States, 340 U. S. 159 (1950). But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 244 U. S. 362, 365 (1917), and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U. S. 367 (1951), and to require him to answer if “it clearly appears to the court that he is mistaken.” Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be' evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim “must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” See Taft, J., in Ex parte Irvine, 74 F. 954, 960 (C. C. S. D. Ohio, 1896).
What were the circumstances which the District Court should have considered in ruling upon petitioner’s claim of privilege? This is the background as indicated by the record:
The judge who ruled on the privilege had himself impaneled the special grand jury to investigate “rackets” in the district. He had explained to the jury that “the Attorney General’s office has come into this district to conduct an investigation . . . [that] will run the gamut of all crimes covered by federal statute.” “If rackets infest or encrust our system of government,” he instructed, “just as any blight attacks any other growth, it withers and dies. . . .” Subpoenas had issued for some twenty witnesses, but only eleven had been served; as the prosecutor put it, he was “having trouble finding some big shots.” Several of those who did appear and were called into the grand-jury room before petitioner had refused to answer questions until ordered to do so by the court. The prosecutor had requested bench warrants for eight of the nine who had not appeared the first day of the session, one of whom was William Weisberg. Petitioner had admitted having known Weisberg for about twenty years. In addition, counsel for petitioner had advised the court that “It has been broadly published that [petitioner] has a police record.”
The court should have considered, in connection with the business questions, that the chief occupation of some persons involves evasion of federal criminal laws, and that truthful answers by petitioner to these questions might have disclosed that he was engaged in such proscribed activity.
Also, the court should have recognized, in considering the Weisberg questions, that one person with a police record summoned to testify before a grand jury investigating the rackets might be hiding or helping to hide another person of questionable repute sought as a witness. To be sure, the Government may inquire of witnesses before the grand jury as to the whereabouts of unlocated witnesses ; ordinarily the answers to such questions are harmless if not fruitless. But of the seven questions relating to Weisberg (of.which three were answered), three were designed to draw information as to petitioner’s contacts and connection.with the fugitive witness; and the final question, perhaps an afterthought of the prosecutor, inquired of Weisberg’s whereabouts at- the time. All of them could easily have required answers that would forge links in a chain of facts imperiling petitioner with conviction of a federal crime. The three questions, if answered affirmatively, would establish contacts between petitioner and Weisberg during the crucial period when the latter was eluding the grand jury; and in the context of these inquiries the last question might well have called for disclosure that Weisberg was hiding away on petitioner’s premises or with his assistance. Petitioner could reasonably have sensed the peril of prosecution for federal offenses ranging from obstruction to conspiracy.
In this setting it was not “perfectly clear, from á careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer [s] cannot possibly have such tendency” to incriminate. Temple v. Commonwealth, 75 Va. 892, 898 (1881), cited with approval in Counselman v. Hitchcock, 142 U. S. 547, 579-580 (1892). See also, Arndstein v. McCarthy, 254 U. S. 71 (1920).
This conclusion is buttressed by the supplemental record. It showed that petitioner had a twenty-year police record and had been publicly labeled an “underworld character and racketeer”; that the Senate Crime Investigating Committée had placed his name on a list of “known gangsters” from the Philadelphia area who had made Miami Beach their headquarters; that Philadelphia police officials had described him as “the king of the shore rackets who lives by the gun”; that he had served a sentence on a narcotics charge; and that his previous conviction was dramatized by a picture appearing in the local press while he was waiting to testify, in which petitioner was photographed with the head of the Philadelphia office of the United States Bureau of Narcotics in an accusing pose.
It appears that the petition which comprised the supplemental record, though captioned a “Petition for Reconsideration of Allowance of Bail Pending Appeal,” was by its terms an application to the District Court to vacate the contempt order on constitutional grounds, and alternatively a second motion for bail. Clearly this petition, filed but two weeks after the contempt order, was directed to the power of the committing court to discharge the contemnor for good cause — a power which courts should be solicitous to invoke when important constitutional objections are renewed. Cf. Gouled v. United States, 255 U. S. 298 (1921). The ends of justice require discharge of one having such a right whenever facts appear sufficient to sustain the claim of privilege. Accordingly the supplemental record should have been considered by the Court of Appeals.
For these reasons we cannot agree with'the judgments below. If this result adds to the burden of diligence and efficiency resting on enforcement authorities, any other conclusion would seriously compromise an important constitutional liberty. “The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime.” United States v. White, 322 U. S. 694, 698 (1944). Pertinent here is the observation of Mr. Justice Brandéis for this Court in McCarthy v. Arndstein, 266 U. S. 34, 42 (1924): “If Congress should hereafter conclude that a full disclosure ... by the witnesses is of greater importance than the possibility of punishing them for some crime in the past, it can, as in other cases, confer the power of unrestricted examination by providing complete immunity.”
Reversed.
Mr. Justice Reed dissents. He agrees with the conclusions reached by Judges Goodrich and Kalodner as expressed in the opinion below.
(Patricia) Blau v. United States, 340 U. S. 159 (1950); (Irving) Blau v. United States, 340 U. S. 332 (1951); Rogers v. United States, 340 U. S. 367 (1951); United States v. Greenberg, 187 F. 2d 35 (C. A. 3d Cir. 1951), petition for writ of certiorari pending. [See post, p. 944.]
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_habeas
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Carl GOODWIN, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Appellee.
No. 23245.
United States Court of Appeals Fifth Circuit.
May 27, 1966.
No appearance entered for appellant.
Richmond M. Flowers, Atty. Gen., John C. Tyson, III, Asst. Atty. Gen., Montgomery, Ala., for appellee.
Before TUTTLE, Chief Judge, BELL, Circuit Judge and KILKENNY District Judge.
Of Portland, Oregon, sitting by designation.
'PER CURIAM:
Alabama affords a post-conviction remedy through statutory habeas corpus, Title 15, § 1, Ala.Code, and the common law writ of error coram nobis, Johnson v. Williams, 1943, 244 Ala. 391, 13 So.2d 683. See Wiman v. Argo, 5 Cir., 1962, 308 F.2d 674; Whither: On Habeas, Tyson, 24 Alabama Lawyer 271 (1963). The Alabama law on affording counsel to indigent criminal defendants was bolstered in 1963 to include trial counsel in noncapital cases where the defendant is charged with a “serious” offense, counsel on appeal and, under some conditions, counsel in habeas corpus and coram nobis proceedings. Title 15, §§ 318(1)-318(11), Ala.Code. Transcripts are made available without charge to indigent persons for direct appeal as well as for appeals from collateral proceedings. Title 15, §§ 380(14)-380(25), Ala. Code. Moreover, the Alabama courts have indicated that the filing of a previous application for habeas or coram nobis is not res judicata under the Alabama law although a petitioner may be barred where he files repeated applications on the same ground. Allen v. State, 1963, 42 Ala.App. 9, 150 So.2d 399. This reasoning accords with the teaching of Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148. It does not appear that the appellant’s contentions have ever been asserted on the merits beyond the state trial court. His two original proceedings filed in the Supreme Court of Alabama were dismissed. There was no such remedy. He took no appeal from the denial of two separate petitions for habeas in the state trial court. He has not followed the Alabama procedures available to him, but instead has attempted to set up other procedures. The Alabama Supreme Court explained his right to appeal to him and also the procedure for obtaining a free transcript on the occasion of his last petition to that court. 1965, Ex parte Goodwin, 278 Ala. 9, 174 So.2d 687.
These state procedures or remedies are presently available to him for asserting the contentions made in the District Court. It was thus proper for the District Court to dismiss his habeas petition without a plenary hearing. See Key v. Holman, 5 Cir., 1965, 346 F.2d 153; Pate v. Holman, 5 Cir., 1965, 343 F.2d 546.
Affirmed.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_usc1sect
|
1346
|
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".
Sumner G. WHITTIER, Administrator of Veterans Affairs, et al., Appellants, v. Herman L. R. EMMET, Jr., On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. James A. DEERING, On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. Robert H. MABBUTT et al., Suing for Themselves and all Persons Similarly Situated, Appellees.
Nos. 15066-15068.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 19, 1959.
Decided June 23, 1960.
Petition for Rehearing en Banc Denied Sept. 16, 1960.
See, also, 164 F.Supp. 563.
Mr. Lionel Kestenbaum, Atty., Dept, of Justice, with whom Asst. Atty. Gen., George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on the brief, for appellants.
Mr. John Geyer Tausig, Washington, D. C., with whom Messrs. Henry F. Butler and John T. Koehler, Washington, D. C., were on the brief, for appellees.
Before Mr. Justice Burton, retired, and Washington and Danaher, Circuit Judges.
Siting by designation pursuant to 28 U.S.C. § 294(a).
Mr. Justice BURTON.
Under Article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the United States guaranteed the payment of premiums on limited amounts of commercial life insurance policies carried by servicemen. In 1942 the Act was amended to include, for the first time, an express provision that when such an insurance premium payment was made by the United States, it evidenced a debt due to the United States from the insured serviceman on whose account the payment was made. The amendments also provided that such debts to the United States were collectible either by their deduction from amounts due the insured servicemen from the United States or as otherwise authorized by law.
The Administrator of Veterans’ Affairs interpreted Article IV of the 1940 Act, prior to the 1942 Amendments, as establishing by implication a comparable obligation on the part of the insured servicemen to reimburse the Government for its payment of the guaranteed premiums. Under this interpretation, the Administrator collected over $1,640,000 from approximately 8,400 insured servicemen. He did this in large part by offsetting against the debts of the respective servicemen the dividends due them in connection with their National Service Life Insurance policies.
Although there was some acquiescence in the Administrator’s interpretation of the 1940 Act, there also was vigorous opposition to it. This resulted in conflicting judicial decisions culminating in 1957 in the Supreme Court’s decision, with three Justices dissenting, in United States v. Plesha, 352 U.S. 202, 77 S.Ct. 275, 1 L.Ed.2d 254. In that case the Supreme Court held that, contrary to the Administrator’s interpretation of the 1940 Act, prior to the 1942 Amendments, the insured servicemen were not obligated to reimburse the Government for its payment of premiums on their account.
After the Plesha decision, the next problem was that of returning to the servicemen their funds which had been used erroneously by the Government to reimburse itself for its payment of the guaranteed premiums.
To facilitate such refunding, Congress, in 1958, enacted Public Law 85-586. That Act authorized the Administrator of Veterans’ Affairs, upon timely application, to refund to the servicemen, without interest, all amounts collected from them by the United States under its erroneous interpretation of the 1940 Act. Public Law 85-586 made available the money to make such refunds and also provided that the right to such refunds was not to be denied by reason of statutory time limitations, judgments theretofore rendered, or “any other technical defense.”
In the three cases now before us plaintiffs ask not only for the principal of the sums claimed, but also for interest on delayed dividends due them under their National Service Life Insurance policies. Furthermore, they ask for the allowance of attorneys’ fees to cover services rendered not only to the named parties to the litigation, but to all persons similarly situated.
In No. 15066, the plaintiff, Emmet, sought a writ of mandamus from the District Court for the District of Columbia ordering the defendant officials to make the payments requested.
In Nos. 15067 and 15068 the plaintiffs, Deering and Mabbutt, brought suit, respectively, in the District Court for the Southern District of New York and the District Court for the Northern District of California for the payment of their claims pursuant to the Tucker Act, and the National Service Life Insurance Act. Those courts transferred the cases to the District Court for the District of Columbia in reliance upon 28 U.S.C. § 1404(a).
That court consolidated the cases and granted a preliminary injunction, which is still in effect, forbidding the disburse* ment of more than 90% of the respective payments authorized by Public Lav/ 85-586. It overruled all objections to its jurisdiction and to the propriety of taking action on the merits of the issues presented. After a plenary hearing it ordered payment by the Government not only of the amounts provided for in Public Law 85-586, but also of interest at 3% per annum on an amount equal to the value of the National Service Life Insurance dividends. It also authorized the payment of attorneys’ fees of 5% on the aggregate amount of principal and interest to be refunded under Public Law 85-586.
The Government, on appeal, seeks a reversal of the judgment below on the ground that none of these actions should have been heard by the District Court for the District of Columbia. On the merits, the Government contends that neither the allowance for interest nor that for attorneys’ fees was justified. For the reasons hereafter stated, we agree with the Government.
In No. 15066, originating in 1955 in the District Court for the District of Columbia, Emmet sought to litigate the question later resolved by the Supreme Court in United States v. Plesha, supra. He asked for a writ of mandamus directed against the Administrator of Veterans’ Affairs, the Secretary of the Treasury, the Treasurer of the United States and the Comptroller General. It is elemental, however, that this extraordinary remedy was not available for such purpose, inasmuch as the Tucker Act provided an adequate remedy at law to test the question. The pecuniary liability of the United States may be determined only through such procedures as the United States has authorized. Moreover, a writ of mandamus will be issued only to compel the performance of a ministerial duty as distinguished from one calling for exercise of discretion. In this case the amounts claimed had not yet been determined at the time the action was filed. While this case was pending, the decision in the Plesha case and the enactment of Public Law 85-586 settled the major legal issues. They did not, however, authorize an allowance for interest and another for attorneys’ fees as sought by the plaintiff. The way to reach those issues is not by writ of mandamus. Accordingly, the complaint in the Emmet case must be dismissed on jurisdictional grounds insofar as it applies to mandamus.
Deering and Mabbutt sought relief comparable to that sought in the Emmet case but by a different procedure. They filed their complaints in the District Courts of their respective districts of residence. Each alleged that jurisdiction existed in those courts both under the Tucker Act and the National Service Life Insurance Act. On motions of plaintiffs those courts transferred both cases to the District Court for the District of Columbia under authority of 28 U.S.C. § 1404(a). The Government here contends that the complaints should have been dismissed or the cases re-transferred to permissible districts.
Section 1404(a) limits transfers of such cases to those districts where the action might have been brought in the first instance. Such limitation excludes vende in this district under the Tucker Act, because by § 1402(a) venue under the Tucker Act is limited to the courts of the districts of the plaintiffs’ residence or to the Court of Claims.
But plaintiffs also contend that venue lies in the District Court for the District of Columbia under the National Service Life Insurance Act of 1940. Under the jurisdictional provision of that Act, actions involving disagreements as to claims under National Service Life Insurance contracts may be brought either in the district of the plaintiff’s residence or in the District Court for the District of Columbia.
That provision, however, does not apply to the instant cases because the complaints here seek to recover the collections erroneously made by the Government in reliance upon the Soldiers’ and Sailors’ Civil Relief Act of 1940, not the National Service Life Insurance - Act. The cases before us do not involve any disagreement about dividends under the Insurance Act. The Government admits the plaintiffs’ right to those dividends. It disbursed them from the Insurance Fund and credited plaintiffs’ accounts by •offsetting the erroneous claims of the Government under the Soldiers’ and Sailors’ Civil Relief Act.
Even if these differences be treated as disagreements as to dividends, it still would be necessary to show here that this disagreement was one for an “insurance benefit” within the meaning of 38 U.S.C. § 784(h). Candell v. United States, 10 Cir., 1951, 189 F.2d 442, indicates that disputes over dividends do not so qualify. As was pointed out in Candell, insurance dividends are realized as a result of low mortality experience and economies in the operation of the insurance company. They are unrelated to the obligation to pay the particular policyholder for a loss insured against and are not the same sort of payment as an insurance benefit.
Furthermore, the “disagreement” which is a prerequisite to a suit under the Insurance Act must include the filing of a claim or protest and a denial. That is absent here. United States v. Christensen, 10 Cir., 1953, 207 F.2d 757.
After the court below had declined to dismiss these cases or to transfer them to other District Courts, it considered them on their merits and granted substantially the relief requested. On these appeals, the parties have argued the merits. Although we have concluded that the lower courts were in error in deciding that venue in Deering and Mabbutt lies in the District of Columbia, this does not preclude us from disposing of these cases on the merits. Section 1406(b) of the Judicial Code provides that deficiencies in venue shall not impair a District Court’s jurisdiction if objection to the deficiency is not timely and sufficient. Venue is primarily designed to protect defendants from inconvenient forums and courts from inconvenient lawsuits. Once the case has been heard fully and fairly on the merits, the reasons for reversing the judgment on grounds of improper venue are substantially diminished in the absence of prejudice to a- party who has preserved his standing to complain by timely objection. This factor distinguishes the cases before us from those where the decision of the District Court on the venue question was brought before the Court of Appeals by petition for mandamus or interlocutory appeal before a hearing on the merits.
We proceed to a disposition of the instant cases on their merits because the erroneous determination of the venue questions below does not constitute reversible error as to any of the parties. These cases were transferred to this district on motions of the plaintiffs and their view of 'the venue questions prevailed below. Having invoked the transfer provisions of § 1404(a) themselves, and having failed to take a cross-appeal from the judgment below in their favor on the merits, they have waived their right to complain of the improper venue. Peoria & P. U. R. Co. v. United States, 1924, 263 U.S. 528, 44 S.Ct. 194, 68 L.Ed. 427.
As for the Government, if it prevails on the merits, the erroneous determination of the venue amounts to harmless error. It would not make any significant difference from the Government’s point of view whether the cases were tried in New York and California, or in the District of Columbia. In fact, the Government has had the advantage of having to try only one proceeding and take appeals in one circuit rather than to' have had three trials and take appeals in three circuits. In this situation there is no basis for concluding that prejudice to the Government resulted from trial in an improper district. It would be an obviously questionable result if we should find for the Government on the merits, and yet order it to re-litigate the cases in other forums merely because improper venue had been imposed upon it over its timely objections.
On the merits, the court below ordered the defendants to pay plaintiffs, inter-venors, and each veteran similarly situated, the amount the Administrator of Veterans’ Affairs had wrongfully applied to the reimbursement of the United States for premiums advanced by it on the serviceman’s commercial life insurance under the Civil Relief Act of 1940. The court below also ordered the payment of interest at 3% per annum on the amount so to be paid.
An obvious reason for denying this allowance of interest is that Congress has made no provision for its payment. It is elemental that pre-judgment interest cannot be assessed against the Government in the absence of a specific provision authorizing such assessment. Furthermore, since all but the few named parties to these actions will receive payment of their claims solely under Public Law 85-586, rather than under the judgments rendered in these cases, the terms of such payments are to be determined by such statute. It expressly states that the payments authorized are "without interest.”
There is no authority in the National Service Life Insurance Act for the allowance of interest claimed by the named plaintiffs in these actions. In fact, the Supreme Court has held that no interest was allowable under the World War I Insurance Act, which is substantially identical to the National Service Life Insurance Act, even in the extreme case of a wrongfully withheld death benefit.
The court below also ordered the allowance of attorneys’ fees of 5% of the aggregate principal and interest which the court ordered paid under Public Law 85-586. These fees were to be applied first to reimbursement for legal expenses in certain named cases and the balance was to be divided among counsel named in the order. This allowance was not dependent upon statutory authority but rested upon the equity powers of a court to allow attorneys’ fees in exceptional cases and for dominating reasons of justice. Sprague v. Ticonic Nat. Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. The nature and extent of the legal services performed control the allowance rather than any formal, relationship between client and attorney. The decision in the Plesha case authoritatively established the rights of the claimants and in that sense was a necessary precondition to the payment of any refunds to the veteran claimants. This decision, however, was merely an application of law which was available to other litigants under the doctrine of stare decisis. One who is influential in litigation leading to the announcement of a rule of law does not thereby gain a right to compensation from all those who later benefit from the application of the rule. Nor did the Plesha decision create such a distinct fund for the benefit of the class of claimants either by way of stare decisis or otherwise. It merely decided the claims of a few veterans out of about 8,400 who had claims involving a common question of law. Many of those claims would have been defeated by technical defenses, statutes of limitation, voluntary payments, or res judicata, except for the waiver of such defenses by Congress as set forth in Public Law 85-586. In that Act, Congress made available the Civil Relief Fund and other funds for reimbursement of the veterans entitled to it.
From the small number of claimants who have joined these actions during the four years since the litigation was commenced, it is probable that few will join before judgment. Of the nine present intervenors, only two were not parties to one of the class suits or to Plesha. New more, if any, are likely to join now in view of Public Law 85-586. The saving of so few, out of about 8,400 claimants, from the operation of the statute of limitations is not an adequate reason for imposing attorneys’ fees upon all 8,400 litigants.
Appellees’ ultimate position is that they are entitled to attorneys’ fees because Congress was moved by this litigation to pass an Act assisting these claimants. The class Congress favored is broader than that covered by the Plesha decision. The assertion of a noncontractual claim for compensation for services rendered in sponsoring favorable legislation does not deserve prolonged discussion.
The judgments of the District Court are reversed and the cases are remanded to it with directions that the complaint in No. 15066 be dismissed and that the complaints in Nos. 15067 and 15068 be dismissed unless the appellees move for a transfer to courts having jurisdiction over the actions for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. 54 Stat. 1183-1186, 50 U.S.C.A.Appendix, §§ 540-554.
. 56 Stat. 775, 50 U.S.C.A.Appendix, § 546.
. Collected by offset against
National Service Life Insurance dividends ........... $ 960,000
Insurance dividends ...... 65,000
By offset against disability compensation .......... 22,000
Cash payments in response to demands by letters . .. 600,000
As a result of final judgments ................. 2,000
$1,649,000
. Veteran required to reimburse the United States for its payment of guaranteed premiums. United States v. Hendler, 10 Cir., 1955, 225 F.2d 106; Morton v. United States, D.C.N.D.N.Y. 1953, 113 F.Supp. 496; United States v. Nichols, D.C.N.D.Iowa 1952, 105 F.Supp. 543. Veteran not required to reimburse the United States for such payments. Plesha v. United States, 9 Cir., 1955, 227 F.2d 624 reversing D.C.N.D. Cal.1953, 123 F.Supp. 593; Hormel v. United States, D.C.S.D.N.Y.1954, 123 F.Supp. 806.
. “Be it enacted by the Senate and Biouse of Representatives of the United States of America in Congress assembled, That the Administrator of Veterans’ Affairs is hereby authorized to make refunds, without interest, which are due on account of amounts collected by the United States Government by offset or otherwise from persons who made valid application for and were legally entitled to the protection of article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as it existed prior to the amendments of October 6, 1942. No refund shall be made pursuant to this Act unless application therefor is made to the Veterans’ Administration, within two years after the date of enactment of this Act and refund hereunder shall not be denied by reason of any other statutory time limitations, judgments heretofore rendered, or any other technical defense.
“Sec. 2. The Soldiers’ and Sailors’ Civil Relief Fund may be used by the Veterans’ Administration for making refunds pursuant to this Act and there is hereby authorized to be appropriated such additional sums as may be necessary to carry out the purposes of this Act.” Public Law 85-586, 72 Stat. 487-488, 50 U.S.C.A.Appendix, § 540 note.
. See 28 U.S.C. § 1346(a) (2) and § 1402 (a).
. 38 U.S.C. § 784.
. “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
. The interest was to be computed from the date that the dividends were withdrawn from the National Service Life Insurance Fund to the date on which they were paid to the servicemen entitled to them.
. United States ex rel. Girard Trust Co. v. Helvering, 1937, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272; 28 U.S.C. §§ 1346, 1491 et seq.; see Plesha v. United States, 9 Cir., 1955, 227 F.2d 624.
. See Reeside v. Walker, 1851, 11 How. 272, 13 L.Ed. 693. The Code vests extensive unreviewable discretion in the Administrator to determine matters of law and fact in this area. See 38 U.S.C. §§ 785, 211.
. See note 8, supra.
. § 784. Suits on insurance.
“(a) In the event of disagreement as to claim, including claim for refund of premiums, under contract of National Service Life Insurance, United States Government life insurance, or yearly renewable term insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may he brought against the United States either in the United States District Court for the District of Columbia or in the district court of the United States in and for the district in which such person or any one of them resides, and jurisdiction is conferred upon such courts to hear and determine all such controversies. * * * The courts of appeals for the several circuits, including the District of Columbia, shall respectively exercise appellate jurisdiction and, except as provided in section 1254 of title 28, the decrees of such courts of appeals shall be final.
# * * * *
“(h) The term ‘claim’ as used in this section means any writing which uses words showing an intention to claim insurance benefits; and the term ‘disagreement’ means a denial of the claim, after consideration on its merits, by the Administrator or any employee or organizational unit of the Veterans’ Administration heretofore or hereafter designated therefor by the Administrator.” 38 U.S.C. § 784.
Before Title 38 was enacted into positive law in 1958, the provisions of this section were contained in 38 U.S.C. (1952 ed.) §§ 445, 817.
. See note 13, supra.
. “(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” 28 U.S.C. § 1406(b).
Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 340, 74 S.Ct. 83, 98 L.Ed. 39; Bankers Life & Cas. Co. v. Holland, 1953, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106; Polizzi v. Cowles Magazines, Inc., 1953, 345 U.S. 663, 665, 672, 73 S.Ct. 900, 97 L.Ed. 1331; Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167; Commercial Casualty Insurance Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252.
. See 28 U.S.C. § 2111; Fed.Rules Civ.Proc., 61, 28 U.S.C.
Cf. Bankers Life & Cas. Co. v. Holland, supra, 346 U.S. at page 382, 74 S.Ct. at page 147; Paramount Pictures, Inc. v. Rodney, 3 Cir., 1950, 186 F.2d 111; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766, 768; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 330; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866, 869.
Before the adoption of the Federal Rules of Civil Procedure, a defendant was required to raise his venue point by special appearance and motion to quash before he pleaded to the merits or he would be deemed to have waived his defense. See e. g., Commercial Casualty Insurance Co. v. Consolidated Stone Co., supra. Venue questions, therefore, did not arise in the federal courts on appeal after an adjudication on the merits. Rule 12(b) of the Federal Rules of Civil Procedure abolished the special appearance and permitted an attack on the venue of the court to be pleaded by motion or in the answer along with the other defenses going to the merits. While we have not found any reported federal decisions since the adoption of the federal rules considering a venue contention on appeal after trial on the merits and coming to the conclusion that the error was harmless, a number of state courts have reached this decision in analogous circumstances. See e. g., Straus Bros. Co. v. Fisher, 1928, 200 Ind. 307, 163 N.E. 225; City of Georgetown v. Cantrill, 1914, 158 Ky. 378, 164 S.W. 929; Hayes v. Oertel, La.App. 1940, 195 So. 388; Sanders v. Atlantic Coast Line R. Co., 1920, 114 S.C. 164, 103 S.E. 564; Oldham v. Reiley, 1921, 44 S.Dak. 428, 184 N.W. 250; Woodson Independent School Dist. v. State ex rel. Cox, Tex.Civ.App.1939, 130 S.W.2d 1038; Ramirez v. Sanchez, Tex.Civ.App.1936, 97 S.W.2d 1034; Peters v. Allen, Tex.Civ.App.1927, 296 S.W. 929; Floor v. Mitchell, 1935, 86 Utah 203, 41 P.2d 281; Kalb v. Luce, 1941, 239 Wis. 256,1 N.W.2d 176.
. See e. g., Continental Grain Co. v. Federal Barge Lines, Inc., 5 Cir., 1959, 268 F.2d 240, certiorari granted 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59; Behimer v. Sullivan, 7 Cir., 1958, 261 F.2d 467, certiorari granted 361 U.S. 809, 80 S.Ct. 50, 4 L.Ed.2d 58; Blaski v. Hoffman, 7 Cir., 1958, 260 F.2d 317, certiorari granted 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; In re Josephson, 1 Cir., 1954, 218 F.2d 174; All States Freight, Inc. v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 1952, 194 F.2d 410, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695; Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Paramount Pictures, Inc. v. Rodney, supra; Atlantic Coast Line R. Co. v. Davis, supra; Ford Motor Co. v. Ryan, supra; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra.
. 28 U.S.C. §§ 2411, 2516. See United States v. New York Rayon Importing Co., 1947, 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Thayer West Point Hotel Co., 1947, 329 U.S. 585. 67 S.Ct. 398. 91 L.Ed. 521.
. United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; United States v. Worley, 1930, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887.
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_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Melvin K. HURST, Jr., Plaintiff-Appellant, v. S. H. KRESS & COMPANY et al., Defendants-Appellees, Aetna Insurance Company, Intervenor-Appellant.
No. 73-1075.
United States Court of Appeals, Fifth Circuit.
Feb. 8, 1974.
Gee, Circuit Judge, concurred in part and dissented in part and filed opinion.
W. S. Barron, Jr., Ray Besing, Dallas, Tex., for Hurst.
Robert M. Greenberg, Bill Brice, Dallas, Tex., for Intervenor.
Lucian Touchstone, Dallas, Tex., for def endants-appellees.
Before WISDOM, AINSWORTH and GEE, Circuit Judges.
WISDOM, Circuit Judge:
As this case demonstrates, special interrogatories are a mixed blessing.
In this personal injury suit, brought ' by the plaintiff-appellant, Melvin K. Hurst, Jr., against the def endants-appel-lees, S. H. Kress & Co., G. K. Properties, Inc., and Genesco, Inc., the jury returned a verdict in the form of answers to special interrogatories. One of the answers found that Hurst had “fail[ed] to keep a proper lookout” at the time of the accident in which he had suffered injury, and that “such failure was a proximate cause” of the injuries he suffered. On the basis of this part of the verdict, the trial judge entered judgment for the defendants. On appeal, Hurst and his co-appellant, intervenor Aetna Insurance Co., attack the judgment on three grounds. They contend: (1) that the answer to the lookout question was not supported by sufficient evidence, and that the trial judge therefore erred in denying the plaintiff’s motion for judgment notwithstanding part of the verdict; (2) that the lookout answer is in irreconcilable conflict with one of the other answers returned by the jury, finding that “the manner in which Hurst proceeded at the time and place in question was [hot] negligence” and that “such negligence was [not] a proximate cause of his injuries”; and (3) that an affidavit signed by all twelve jurors after the return of the verdict established that the answer in question did not reflect the true intent of the jury, and that a new trial is therefore required. We agree with the first of these contentions, and therefore we reverse the judgment of the district court without reaching the other two contentions.
I.
Hurst’s injury occurred when Hurst fell from an equipment room on the fourth floor of Kress’s downtown Dallas dimestore to the floor of another equipment room immediately below on the third floor. The plaintiff at the time was a salesman for the National Chem-Seareh Corporation, a company that sells a chemical used to prevent corrosion and that the formation of algae in air-conditioning equipment. On the day of the accident, Hurst had come to Kress store to service the air-conditioning equipment located in the fourth floor equipment room. Hurst went up to the fourth floor unaccompanied by any Kress personnel. This was a standard practice followed by Hurst and another National Chem-Search salesman, as well as by the employees of other companies responsible for servicing Kress’s air-conditioning equipment.
The physical conditions relevant to this ease were reproduced by means of a scale model prepared by a consulting engineer from plans and blueprints of the store as well as from physical inspections of the premises. This model was presented at trial, and displayed to this Court at oral argument. Briefly summarized, the relevant conditions were these. In the northeast corner of the fourth floor equipment room were two adjacent and identical doors. One, on the northern wall of the room, was the door leading from the equipment room to the stockroom occupying the rest of the store’s fourth floor. It was through this door that one usually passed when entering or leaving the equipment room. The other was situated at a ninety-degree angle from this first or “outside” door; this second or “inside” door was on one’s immediate right as one entered the equipment room from the stockroom. This door opened into a void dropping down to the third floor equipment room. There was a steel ladder, positioned at a 65-degree angle, on the third floor below leading from that floor to the fourth floor. The two doors were identical in appearance, and their knobs were only six inches apart.
The “inside” door was unmarked and unlocked. The area in the corner of the equipment room was dark when anybody entered or left the room, because the only light in the equipment room was an overhead light operated by a pull-cord droplight in the center of the room, and the corner was shielded from what little light came into the room through the windows. The areas into which both doors opened were also completely dark; the door to the stockroom opened into an aisle shielded off from light by a partition wall. The policy of the company was to require that the lights be turned off except when the room was being used.
The physical facts suggest and the jury could have reasonably inferred that the accident occurred when Hurst fell to the third floor through the “inside” door of the fourth floor. Hurst testified that his memory was considerably impaired as a result of the accident, and that he did not recall exactly how the accident had occurred. He remembered going to the Kress store, talking to someone in the manager’s office, proceeding up the elevator to the fourth floor, getting off there, and walking toward the equipment room. After that, he testified, he remembered nothing until he regained consciousness, two weeks after the accident, in Baylor Hospital. Hurst was found between four and five on the afternoon of the accident, lying face up, at the bottom of the steel ladder. The pages of a National Chem-Seareh presentation catalogue Hurst carried with him were found scattered on the stairway and the floor below.
The engineer who had designed the model of the premises, had spent thirty years at accident investigation and reconstruction work. He testified at trial as to the position in which a man would be likely to be found if he took one step into the door by the steel ladder and then fell to the floor below. The position in which Hurst was found conformed exactly to the description given by the engineer.
As a result of the accident, Hurst suffered severe injuries, and will be a paraplegic the rest of his life.
The answers to interrogatories returned by the jury after trial were all favorable to the plaintiff, except the one answer concerning Hurst’s failure to maintain a proper lookout. In answering the interrogatories, the jury found specifically: (1) that at the time of his injuries Hurst enjoyed the status of an invitee on the Kress premises; (2) that at the time and place of the accident Kress maintained a dangerous condition on its premises and that it knew or should have known of that condition; (3) that Kress was negligent in failing to correct or failing to provide a reasonable warning of the condition, and that this negligence on Kress’s part was a proximate cause of Hurst’s injuries; (4) that Hurst did not voluntarily assume the risk of the dangerous condition; and (5) that Hurst suffered damages amounting to $450,000 as a result of the accident.
The answers at issue on this appeal were the answers to Questions No. 7 and No. 8. Question No. 7 read: “Do you find from a preponderance of the evidence that Hurst failed to keep a proper lookout at the time and place in question and that such failure was a proximate cause of the injuries and damages suffered by Hurst?” The jury answered, “He did fail and such failure was a proximate cause”. Question No. 8 read: “Do you find from a preponderance of the evidence that the manner in which Hurst proceeded at the time and place in question was negligence and such negligence was a proximate cause of his injuries and damages?” The jury answered, “It was not negligence or was not a proximate cause”. The plaintiff’s position, as noted above, is that the answer to Question No. 7 was not supported by any evidence; that the two answers are in such hopeless conflict that a new trial is required; and that the answer to Question No. 7 did not reflect the true intention of the jurors, as evidenced by the affidavit the plaintiff sought to present to the district court after the return of the verdict.
In arguing that the evidence is insufficient to support the jury’s answer to Question No. 7, the appellants rely upon the principle that contributory negligence may not be inferred from the mere fact that an accident took place. The place of that principle in Texas law is established by two cases the appellants cite. In Salter v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App.1926, 285 S.W. 1112, the Texas Court of Civil Appeals stated:
When the physical facts at the place of the accident . . . are looked to, they fail, we think, as against the presumption that always prevails, in the absence of evidence to the contrary, that one is not negligent [citation omitted] to furnish sufficient premises for such a conclusion. At most they seem to us to reflect a situation from which the inference that due care was exercised is just as reasonable as that it was not, and in such in instance the affirmative defense of contributory negligence is not made out. [Citations omitted.] And this rule of evidence applies alike with equal force to the two separate elements of the defense, that is, the actual existence of the remissness, and, in the second, of its being the proximate cause of the injury ....
285 S.W. at 1113. In Dewhurst v. South Texas Rendering Co., Tex.Civ.App.1950, 232 S.W.2d 135, writ ref’d n.r.e. (Nor-vell, J.), the Civil Appeals Court took the same view in the context of a claim similar to the one asserted here, that the plaintiff had failed to maintain a proper lookout:
After a careful examination of the statement of facts, we have come to the conclusions that there is no evidence supporting the jury’s findings that Dewhurst was travelling at an excessive speed at the time of the collision or that he failed to keep a proper lookout. .
While the testimony of Munoz [to the effect that the decedent kept a proper lookout] was not necessarily binding upon the jury, disbelief in his statement that the station wagon was moving slowly into the intersection is not evidence that the driver of the station wagon was travelling at an excessive rate of speed without maintaining a proper lookout.
“No such presumption prevails in this state that an injured person is guilty of contributory negligence merely because an accident happened, but, on the contrary, the rule is that it will be presumed that the injured person was in the exercise of due care for his own safety when the accident occurred.” [Citation omitted.]
It is also the rule that “contributory negligence is not established by evidence which is equally consistent with the exercise of the care by plaintiff, or where the inference of due care is just as reasonable as the inference of the lack thereof.” [Citation omitted.]
•K # * * * *
The law prefers a judgment based upon recognized rules relating to the burden of proof and legal presumptions rather than one based upon mere surmise and speculation.
* * * * * *
We are not willing to subscribe to the theory that the mere showing that a collision occurred at an open country road intersection, in itself is sufficient to raise the issue of negligent failure to maintain a proper lookout.
232 S.W.2d at 137-139 (emphasis in original).
In this case, as in Salter and Dewhurst, there was no evidence establishing a prima facie case either that the plaintiff failed to exercise ordinary care, or that the accident was the result of any such failure on the plaintiff’s part. The evidence established only that Kress maintained a dangerous condition on its premises, and that Hurst’s position when he was found, considering the nature of his injuries, was the position in which a man who had fallen from the top of the ladder would be likely to be found. This was not sufficient to permit an inference that Hurst had failed to keep a proper lookout. Indeed, it is even arguable that the evidence precluded a finding that Hurst failed to keep a proper lookout, for the evidence established that the area around the door was completely dark, and that the area behind each door was also completely dark. Since Hurst was proceeding in darkness, and expecting to encounter only darkness when he opened the door he expected to open, it is difficult to see how his keeping any kind of lookout could have made any difference.
In their argument on this issue, the appellees lay primary emphasis on the fact that, because of Hurst’s loss of memory, there was no direct evidence establishing or tending to establish specifically how the accident actually happened. Since this was the case, they argue that however the accident actually happened, if it was possible for the jury to find that Kress was negligent and that this negligence was a proximate cause of the injury it was equally possible to find that Hurst was negligent, or that he failed to keep a proper lookout, and that his failure was a proximate cause of his injury. The former had to be proved by circumstantial evidence, the appellees suggest, and therefore the latter could be proved by circumstantial evidence.
This line of argument is unpersuasive. Neither the jury’s finding that Kress was negligent nor its finding that Kress’s negligence was a proximate cause required evidence establishing specifically how the accident had occurred. As far as the issue of Kress’s negligence was concerned, the theory of the plaintiff’s case was that Kress was negligent in maintaining, failing to correct, and failing to warn about, the dangerous condition. And there was direct proof of this, sufficient to establish negligence regardless of how the accident in fact occurred. As for proximate cause, a jury inference that Kress’s negligence proximately caused the accident was entirely permissible. The maintenance of the dangerous condition was a cause in fact of Hurst’s injury. To find proximate cause, the jury had to find only that maintenance of the condition was a “substantial factor” in bringing about the accident. This would have been true unless some unusual supervening cause —such as the plaintiff’s suffering a blackout spell, or his jumpiifg or climbing, to cite some of the more extreme examples suggested by the appellees— had broken the link between Kress’s negligence and Hurst’s injury. Finding proximate cause, then, did not require the jury to form a judgment as to how, particularly, the accident had occurred; it required merely that the jury exclude some of the more remote and speculative possibilities. This the jury was free to do without specific evidence . showing precisely how the accident had happened.
The jury’s finding that the accident was proximately caused by a failure of Hurst’s to keep a proper lookout, on the other hand, did require the exclusion of possibilities that were not at all speculative — including, of course, the possibility that Hurst, entirely innocently, had taken the wrong doorknob, stepped into a darkness he expected to encounter, but to his surprise had fallen to the floor below. The jury’s excluding these possibilities constituted an inference that required an evidentiary bias. No evidence presented at trial provided such a basis, and the appellees have been unable to point to any such evidence in their argument before this Court.
Accordingly, we hold that the part of the verdict finding that Hurst failed to keep a proper lookout, and that his failure was a proximate cause of the injury, was not supported by the evidence. The plaintiff’s motion for judgment notwithstanding that part of the verdict should have been granted. There is no reason therefore for us to reach the questions raised by the appellant about the apparent inconsistencies among the answers to the special interrogatories, and about the jurors’ affidavit presented to the trial court after the verdict was returned.
The judgment of the district court is reversed, and the case is remanded with instructions to enter judgment for the plaintiff in the amount of $450,000.
. Aetna is the workmen’s compensation carrier under the Texas Workmen’s Compensation Law for the National Chem-Search Corporation, for whom the plaintiff was working when he sustained the injuries in question here. Aetna joined in the plaintiff’s complaint in the trial court, and Aetna and Hurst have proceeded as a single appellant in this case.
. The affidavit recited that the jury had argued over whether an affirmative answer to the proper-lookout question would result in defeating the plaintiff’s right to recover. The affidavit stated that the question had been resolved when one of the jurors, Mrs. Jean Pate, told her fellow jurors that she did not think an affirmative answer would defeat recovery ; she based her opinion upon prior experience as a juror-. The affidavit also said that some members of the jury had wanted to request clarification from the Court on the question, but that one of the jurors had said that the Court would refuse clarification on the matter. The affidavit stated that the jury had voted its verdict on Question No. 7 in reliance on the representations made by this (unidentified) juror and by Mrs. Pate. Finally, the affidavit said that it was Mrs. Pate who had “taken the initiative to contact us” (the jurors) for the purpose of presenting it to the Court. The affidavit stated at the outset that it was made “to inform the Court of a mistake recorded in the Jury Verdict and to prevent an injustice that this error has inadvertently created”.
In response to this affidavit, the defendants procured three affidavits, each signed by one juror. These three affidavits were nearly identical in substance. All recited that the “twelve jurors intended to answer [the proper lookout question] as it was answered”, and noted that though “it is possible that some of the other jurors felt that . . . though they answer [as they did, Mr. Hurst] might still recover some compensation but, as stated, there is absolutely no doubt but that all twelve jurors voted [the] answer that Mr. Hurst did fail to keep a proper lookout”. After these three affidavits had been filed, the district judge entered an order prohibiting further contact with jurors for the purpose of securing affidavits concerning the verdict.
These affidavits obviously present a troubling situation but, as we note in the text, our view of the case makes it unnecessary to enter into any questions they may pose.
. The defendant-appellant Genesco, Inc., is the owner of the building housing the ICress store, although the building is occupied, maintained, and under the control of Kress. The connection of the defendant-appellant, G.K. Industries, Inc., to this suit, has not been made clear. It is not explained in the appellant’s brief, and is not specified by the Plaintiff’s Third Amended Complaint. However, G.K. Properties does not appear to have formally challenged its joinder in this suit in the trial court, and does not contest its joinder here. In their brief, the defendants-appellees confine their remarks on the matter to the statement that “[tjhere was no showing as to any connection of G.K. Properties, Inc., to this lawsuit” in the trial court.
The three defendants-appellees have proceeded as a single appellee on this appeal.
. Indeed, the darkness in this area was so complete that a light intensity meter would not even register.
. See note 2.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_genapel2
|
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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
SHANGO (Cleve Heidelberg, Jr.), Plaintiff-Appellee, v. Mary JURICH, et al., Defendants, Gayle Franzen, former Director of the Illinois Department of Corrections, and Richard DeRobertis, Warden of the Stateville Correctional Center, Defendants-Appellants.
Nos. 81-2175, 81-3079.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 10, 1982.
Decided June 23, 1982.
Rehearing Denied Aug. 10, 1982.
Karen Konieczny, Asst. Atty. Gen., Chicago, 111., for defendants-appellants.
George J. Casson, Jr., Bell, Boyd, & Lloyd, Chicago, Ill, for plaintiff-appellee.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and BONSAL, Senior District Judge.
Pursuant to Circuit Rule 16(e), this opinion has been circulated among all judges of this court in regular active service because it repudiates certain statements made in prior opinions of this court. See note 14, infra. No judge favored a rehearing en banc on this issue.
The Honorable Dudley B. Bonsai, Senior District Judge of the United States District Court for the Southern District of New York, sitting by designation.
ESCHBACH, Circuit Judge.
In this case Illinois prison officials appeal from two preliminary injunctions entered by the district court. Plaintiff, an Illinois state prisoner, claimed that prison officials had unlawfully transferred him from State-ville Correctional Center (Stateville) to Me-nard Correctional Center (Menard). Plaintiff also alleged that certain of his personal effects, which had been packed for transport, were never returned to him. Contending that the intrastate prison transfer and the failure to return his property constituted violations of his rights under the Fourteenth Amendment, he sought preliminary injunctive relief. The district court granted such relief, ordering Illinois prison officials to transfer plaintiff back to State-ville and to return his personal effects. Plaintiff was then transferred to Stateville, but his property was not returned to him. His stay in Stateville lasted but a few months; prison officials once again transferred him to Menard. Plaintiff contended that his transfer back to Menard warranted a contempt citation. The district court held that prison officials did not violate the preliminary injunction by transferring plaintiff back to Menard, but issued a second preliminary injunction ordering the officials to return plaintiff to Stateville once again. Our jurisdiction to review the preliminary injunctions is founded upon 28 U.S.C. § 1292(a)(1). For the reasons which follow, we hold that the issuance of these preliminary injunctions constituted an abuse of discretion and therefore reverse.
I
Plaintiff Cleve Heidelberg, Jr., known as “Shango” in the prison community, is serving a long-term sentence in the Illinois correctional system. During his incarceration at Stateville, which began in 1970, he was active as a “jailhouse lawyer” and aided fellow inmates in a variety of legal proceedings.
In the summer of 1980, another inmate charged that Shango had sexually assaulted him. The details of this charge, and the ensuing disciplinary proceedings, are tan-" gentially germane to the issues raised-in-this appeal in only two - respects: first, Shango claimed that the prison officials used the charge as a mere pretext for harassing him for his legal work; and, second, Shango was committed to segregation for a period of one year commencing on July 14, 1980.
While Shango was exhausting his administrative remedies concerning his commitment to segregation on the sexual assault charge, a prison investigator in August 1980 confronted Shango with an allegation that Shango was in some way involved with weapons inside the prison. Although there was a conflict in the testimony concerning the precise nature of Shango’s alleged contact with weapons, Shango professed igno-ranee regarding the charge. The investigator asked Shango to submit to a polygraph examination concerning the subject of weapons in the prison, but Shango refused, stating that if he knew anything about the subject he had acquired the information through his legal assistance to other inmates and would regard such information as confidential and privileged against disclosure. Stateville’s warden, defendant Richard DeRobertis, who testified that he had received information in the spring of 1980 that Shango was a member of an organized group of prisoners which manufactured homemade weapons, discussed his concern about the subject with Shango in September 1980. Shango claimed that DeRobertis was pressing for what Shango considered to be privileged information and that DeRobertis attempted to induce his cooperation through promises of leniency. According to DeRobertis, Shango stated that it would be impossible for DeRobertis to prove that Shango was involved in the manufacturing of weapons, quoting Shango as saying, “To know is one thing; to show is another.”
Warden DeRobertis ostensibly concluded that Shango was a threat to safety at Stateville because of his involvement with a weapons ring and decided that the transfer of Shango to another correctional facility was the appropriate response to the perceived threat. Consequently, DeRobertis recommended Shango’s transfer and, after his transfer request was approved, Shango was transferred to Menard on October 30, 1980. Shango was not given a hearing concerning the transfer before his move. When he was informed of his imminent move to Menard, Shango packed his personal effects into four cartons. Among the items contained in the cartons were law books, legal papers, personal writings, and political material. All of the cartons were transported to Menard, where officials retained custody of them purportedly for the purpose of inspecting their contents. Three of the boxes, containing legal materials and other personal effects such as clothing, were never returned to Shango. The inter-prison transfer of Shango did not affect his one year commitment to segregation; upon arrival at Menard, he was confined in a segregation unit as he had been in State-ville.
II
On November 19,1980 Shango filed a pro se motion for a temporary restraining order in the U.S. District Court for the Northern District of Illinois seeking relief pertaining to his transfer and his confinement in segregation. The court denied the motion but appointed counsel to represent Shango regarding his claims. Shango alleged that prison officials had placed him in segregation and had transferred him to Menard because he had refused to reveal information confided to him in connection with his legal assistance to other inmates, asserting a violation of his Fourteenth Amendment due process rights. He also alleged that the disciplinary proceedings on the homosexual assault charge were constitutionally deficient and that the seizure of his personal effects and the conditions of his confinement at Menard constituted violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. Plaintiff filed a motion for a preliminary injunction on December 31, 1980, seeking, inter alia, an order directing prison officials to transfer him back to Stateville, place him in non-segregation status there, restore good time credit, and return his personal effects to him. After a two day evidentiary hearing and the filing of post-hearing briefs, the court granted such a preliminary injunction in a Memorandum of Opinion and Order entered July 13, 1981. 521 F.Supp. 1196.
The district court held that plaintiff had not sustained his burden of demonstrating a likelihood of success on his principal claim that his confinement in segregation and transfer to Menard were the result of his refusal to reveal putatively confidential information to prison officials. Nevertheless, the court found the disciplinary proceedings resulting in his confinement in segregation violative of due process on procedural grounds and ordered a cessation of such confinement and a restoration of good time. Similarly, the court found a procedural due process violation regarding Shango’s transfer to Menard. Proceeding on “the basis that Warden DeRobertis had a good faith belief that Shango posed a threat to the safety of Stateville,” id. at 1202, the court held that administrative regulations of the Illinois Department of Corrections were not followed by prison officials with respect to Shango’s transfer. The court interpreted these regulations to require a hearing prior to an inmate’s interprison transfer, viewing the requirement as vesting a personal right to such a hearing in a prisoner recommended for transfer. The court reasoned that the existence of the regulations created a justifiable expectation on the part of inmates that no transfer would occur without a hearing. This expectation, the court held, constitutes a liberty interest protected by the Fourteenth Amendment’s due process clause. Because Shango was transferred without a hearing, the court concluded that he had been deprived of liberty without due process of law. Moreover, the court viewed the prison official’s failure to provide him with a hearing as a per se violation of the Fourteenth Amendment’s equal protection clause. These legal conclusions convinced the court that Shango had demonstrated “substantially more” than a likelihood of success on the merits of his claim. Id. at 1204. It also found the conditions of Shango’s confinement at Menard “appalling” and indicated that such conditions constituted irreparable harm, but did not address the merits of plaintiff’s Eighth Amendment argument. Id. at 1200, 1204. Finally, having found unconstitutional actions on the part of state officials and violations of plaintiff’s due process rights, the court believed that “the injury to Shango must by definition outweigh any harm” that might be caused to defendants in granting the relief sought and stated that it is a “contradiction in terms to say that vindicating due process rights” could dis-serve the public interest. Id. at 1204.
Having thus applied the standards for imposing preliminary injunctive relief, the court ordered defendants to transfer Shan-go to Stateville. Given that the district court characterized Shango’s due process right as coterminous with the perceived state created right to remain in a particular prison until a hearing was held concerning a recommended transfer, it is perhaps not surprising that the court viewed the only possible remedy for this situation as a transfer back to Stateville; the court did not consider, in its opinion at least, the possibility of merely ordering the state officials to provide Shango that which they had denied him — an opportunity to state his reasons for opposing the transfer. It did, however, anticipate the possibility of prison officials conducting such a hearing upon Shango’s return to Stateville, and stated the following concerning such a development:
This Court expresses no opinion as to whether a determination could properly now be made, if the requirements of due process were scrupulously adhered to, that the safety of Stateville requires Shango’s transfer. At this point the alleged information on which the original decision was made is even more stale, and any proposed new proceeding would of course have to be scrutinized with care to make sure it was not really retaliatory for either Shango’s having brought this action or Shango’s jailhouse lawyering or both.
Id. at 1204 n.ll.
Regarding plaintiff’s personal effects, in spite of the fact that the district court stated that “[i]t appears highly likely that the material may have been lost or destroyed,” id. at 1201, the court ordered defendants to return the personal property.
Defendants transferred Shango to State-ville in August 1981 where he was placed in non-segregation status; his property was not returned to him. Within weeks, Warden DeRobertis instituted proceedings to send Shango back to Menard. At his request the Stateville Institutional Assignment Committee met with Shango. Shango was told the reason for the transfer — the warden’s opinion that such a transfer was in the best interests of the institution and in Shango’s best interest — and Shango objected to the transfer. The committee approved of the transfer by a 2-1 majority. Shango was sent back to Menard on November 6, 1981.
Plaintiff filed a pro se petition for an order directing defendants to show cause why they should not be held in contempt of the district court’s preliminary injunction. Once again, court appointed counsel interceded on Shango’s behalf. The court did not enter a show cause order nor did it hold an evidentiary hearing. Instead, in a Memorandum Opinion and Order entered December 8, 1981, relying upon documentary material, the court held that defendants were not in contempt of its order. It then proceeded to scrutinize the documentary record of the transfer proceedings. Noting that DeRobertis’ recommendation for the transfer was based upon his review of Shango’s entire institutional record and behavior and noting a report relied upon in seeking the transfer was a summary of Shango’s disciplinary record, the district court stated: “There can be no question that the transfer was indeed ‘disciplinary.’ ” Since in the district court’s view a disciplinary interprison transfer had to be preceded by a hearing, the court proceeded to analyze whether Shango’s appearance before the Institutional Transfer Committee fulfilled that requirement. Describing both the reasons for the transfer and the hearing as “Kafkaesque,” the court found the proceedings “totally lacking in notice and a meaningful opportunity to be heard” and indicated that the asserted grounds for the transfer were too vague to be refuted by Shango and too stale to form the basis of a valid interprison transfer. Without holding an evidentiary hearing and without applying the standards applicable to the granting of preliminary injunctive relief, the district court ordered defendants to transfer Shan-go from Menard to Stateville once again. In addition, in response to an allegation by Shango that his conditions at Stateville (during his brief stay there) were different than they had been before he was placed in segregation, the court also ordered that Shango’s conditions of confinement had to be the same as the status quo ante.
Defendants appeal from both preliminary injunctions entered by the district court. In No. 81-2175, they maintain that the district court’s order directing the transfer of Shango to Stateville and mandating the return of his personal property constituted an abuse of discretion, arguing that prison regulations neither required a hearing nor gave rise to a liberty interest under the Fourteenth Amendment. They do not appeal from the district court’s decision concerning Shango’s placement in segregation. In No. 81-3079, defendants again argue that a hearing was unnecessary to effectuate the transfer and further argue that if a hearing was necessary, Shango’s appearance before the transfer committee was sufficient. They do not appeal from that portion of the district court’s order concerning Shango’s conditions of confinement. Shango has not been transferred back to Stateville; he remains at Menard.
Ill
A
This court will reverse the grant of a preliminary injunction “if the issuance of the injunction, in light of the applicable standard, constituted an abuse of discretion.” Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-2568, 45 L.Ed.2d 648 (1975). In order to be awarded preliminary injunctive relief, a plaintiff “must establish a reasonable probability of success on the merits, irreparable injury, the lack of serious adverse effects on others, and sufficient public interest.” Kolz v. Board of Education, 576 F.2d 747, 748 (7th Cir. 1978). The issuance of a preliminary injunction must be guided by sound legal principles and a preliminary injunction predicated on a clear mistake of law merits reversal. See Charles v. Carey, 627 F.2d 772, 776 (7th Cir. 1980). See also Douglas v. Beneficial Finance Co. of Anchorage, 469 F.2d 453, 454 (9th Cir. 1972) (“[W]hen [the] grant or denial [of a preliminary injunction] is based upon an erroneous legal premise; the order is then reviewable as is any other conclusion of law.”); FTC v. Southwest Sunsites, Inc., 665 F.2d 711, 717 (5th Cir. 1982); City of South Pasadena v. Gold-schmidt, 637 F.2d 677, 678 (9th Cir. 1981). Compare Ekanem v. Health & Hospital Corp. of Marion County, 589 F.2d 316, 319 (7th Cir. 1978) (per curiam) with Menominee Rubber Co. v. Gould, Inc., 657 F.2d 164, 166 (7th Cir. 1981). See generally Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 59 & n. 18 (2d Cir. 1979) (Judge Friendly cogently discusses the inconsistent and confusing formulations of the abuse of discretion standard applicable to appellate review of interlocutory injunctions.) Moreover, the nature of the relief granted affects our review: “mandatory preliminary writs are ordinarily cautiously viewed and sparingly issued.” Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978) (per curiam) (footnote omitted).
B
■Illinois prison officials want Shango imprisoned at Menard. Shango would prefer to be incarcerated at Stateville. Shango has been transferred from Stateville to Me-nard twice in the recent past, but in the district court’s view neither of these transfers comported with the requirements of the Fourteenth Amendment.
The Fourteenth Amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. In order to ascertain whether state action affecting an individual is violative of this prohibition, two inquiries are made: first, a life, liberty, or property interest within the meaning of the clause must be identified; and, second, the degree of process due to the individual before he can be deprived of that interest must be ascertained. Compare Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
The former inquiry may, of necessity in certain cases, require an examination of state law. Property interests, for example, “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . ” Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. Indeed, state law is the primary source of property rights in our federal system. Liberty interests, on the other hand, may either originate in the Constitution or be created by state law. When state law is a possible source of a liberty interest, the analysis concerning its identification as a constitutionally protected interest “parallels the accepted due process analysis as to property.” Wolff v. McDonnell, supra, 418 U.S. at 557, 94 S.Ct. at 2975. This analysis involves a search for mutually explicit understandings that support an individual’s “legitimate claim of entitlement” to a benefit. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. The parallel between the property and liberty interest analyses, however, is not unwavering, and in some settings it is inappropriate strictly to apply a property interest analysis, which is guided by principles of contract law, to the task of determining the existence of constitutionally protected liberty interests. See Jago v. Van Curen, 454 U.S. 14, 17-23, 102 S.Ct. 31, 34-36, 70 L.Ed.2d 13 (1981) (per curiam).
Although the existence of a liberty or property interest may be ascertained by reference to state law, once such an interest is identified, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law and is accomplished through application of the balancing analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See, e.g., United States Labor Party v. Oremus, 619 F.2d 683, 689 (7th Cir. 1980). See generally Arnett v. Kennedy, 416 U.S. 134, 164, 94 S.Ct. 1633, 1649, 40 L.Ed.2d 15 (1974) (Powell, J., concurring), 177, 94 S.Ct. at 1655 (White, J., concurring and dissenting in part), 206, 94 S.Ct. at 1669 (Marshall, J., dissenting). To be sure, state procedural protections are not ignored. Rather, once it is determined what process is due to the individual before he can be deprived of the specific liberty or property interest by the state, state procedures are scrutinized to see if they comport with the federal procedural due process requirements. However, state procedural protections cannot define what process is due. The Fourteenth Amendment’s limitation on state action would be illusory indeed if state practices were synonymous with due process.
A state prison inmate has no liberty interest, originating in the Constitution of the United States, in remaining in a particular penitentiary. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The due process clause, in and of itself, does not “protect a duly convicted prisoner against transfer from one institution to another within the state prison system.” Id. at 225, 96 S.Ct. at 2538. Consequently, the Constitution does not mandate a nationwide rule requiring certain procedural formalities, such as a hearing, prior to such a transfer. Id. at 229, 96 S.Ct. at 2540. This is true even in the case of disciplinary transfers: the due process clause, in and of itself, “does not require hearings in connection with [intrastate interprison] transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). “Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections so long as prison officials have discretion to transfer him for whatever reason or for no reason at all.” Meachum v. Fano, supra, 427 U.S. at 228, 96 S.Ct. at 2540.
Under these principles it is plain that Shango had no liberty interest originating in the Constitution which would trigger the procedural protections of the Fourteenth Amendment. The district court recognized as much, but purported to identify a liberty interest originating in state law. Specifically, it held that Department of Corrections regulations created such a liberty interest. We disagree.
The Supreme Court has “repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). There is at least some conflict in authority, however, concerning the constitutional significance of non-statutory sources of such interests. Compare Gorham v. Hutto, 667 F.2d 1146 (4th Cir. 1981) (state prison policy guidelines insufficient basis for affording liberty interest) with Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir. 1977) (prison policy statements can create liberty interest). We reject the view that state administrative pronouncements are in some juridical sense so inferior to statutory or judicial sources of legal rules that they are not worthy of constitutional recognition. Indeed, the Supreme Court in Meachum v. Fano, supra, 427 U.S. at 229, 96 S.Ct. at 2540, indicated that administrative regulations could spawn a due process liberty interest. After some arguable conflict in our cases, compare Solomon v. Benson, 563 F.2d 339, 342-43 (7th Cir. 1977) with Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979), we concluded that non-statutory sources could create liberty interests. Arsberry v. Sielaff, 586 F.2d 37, 46-47 (7th Cir. 1978). It is therefore sufficient to observe in the context of this case that duly promulgated prison regulations may give rise to such an interest. By doing so, we do not imply that any official pronouncement of prison officials can spawn a protectable right. Cf. Jago v. Van Curen, supra, 454 U.S. at 17, 102 S.Ct. at 33 (official notification of grant of parole did not create liberty interest.)
The dispositive issue in this case is not the source of the purported liberty interest, but rather, “ ‘the nature of the interest at stake.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, supra, 408 U.S. at 571, 92 S.Ct. at 2705 (emphasis in Roth)). In Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir.), cert. denied sub nom., Boles v. Chavis, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981), we analyzed the effect of Illinois Department of Corrections A.R. 819, relied upon by the court below, and explicitly held that the Illinois regulations “establish procedures for the exercise of discretion, but they do not limit the decision to transfer to any particular reason. Without such a limitation, the regulations do not recognize any right on the part of the prisoner to serve in a particular institution.” (emphasis added). That holding disposed of Shango’s claim that the Illinois regulations, standing alone, created a liberty interest triggering procedural due process protections under the analysis of Meachum v. Fano. If prison officials are accorded discretion under state law to transfer a prisoner for whatever reason or for no reason at all, the procedural protections of the due process clause cannot attach, quite simply, because there is no substantive liberty interest at stake. The existence of such discretion “preclude[s] the implication of a liberty interest deserving of due process protection.” Anthony v. Wilkinson, 637 F.2d 1130, 1141 (7th Cir. 1980), vacated on other grounds mem. sub nom., Hawaii v. Mederios, 453 U.S. 902, 101 S.Ct. 3135, 69 L.Ed.2d 989 (1981) (remanded for further consideration in light of Howe v. Smith, 452 U.S. 473, 101 S.Ct. 2468, 69 L.Ed.2d 171 (1981)).
The argument that the procedures established by the regulations can themselves be considered a liberty interest is analytically indefensible. We have repeatedly observed: “Procedural protections or the lack thereof do not determine whether a property right exists.” Suckle v. Madison General Hospital, 499 F.2d 1364, 1366 (7th Cir. 1974). See Endicott v. Huddleston, 644 F.2d 1208, 1214 (7th Cir. 1980); Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 3 (7th Cir. 1974); Adams v. Walker, 492 F.2d 1003, 1006 (7th Cir. 1974). Accord, Amezquita v. Hernandez-Colon, 518 F.2d 8, 13 (1st Cir. 1975), cert. denied, 424 U.S. 916, 96 act 1117, 47 L.Ed.2d 321 (1976). See generally Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). This principle is just as applicable, indeed perhaps more so, to an analysis of liberty interests in light of the Meachum approach of “ ‘equatpng] the threshold test for the finding of a liberty interest with that for determining whether a property interest exists.’ ” Arsberry v. Sielaff, 586 F.2d 37, 46 (7th Cir. 1978) (citation omitted). A liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality. In order to establish such an interest, a “plaintiff must show a substantive restriction on the [official’s] discretion .... ” Suckle v. Madison General Hospital, supra, 499 F.2d at 1366. Even if Illinois regulations provide a right to a hearing prior to interprison transfers, that procedural right is not accorded federal due process protection. Indeed, plaintiff’s argument that the existence of a liberty interest springs from the regulations is not only inconsistent with our holding in Chavis, but is refuted by Meachum itself. In Meachum, the court of appeals interpreted applicable regulations as entitling inmates to a hearing, see Fano v. Meachum, 520 F.2d 374, 379-80 (1st Cir. 1975), rev’d, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), but that “did not deter the Supreme Court from concluding that, on the record before it, state law created no liberty interest.” Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir. 1977). Of course the existence of state procedural protections is not irrelevant to a determination of whether a substantive interest exists. A state often provides for specific procedures to ensure the realization of a parent substantive right. See generally Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 179, 66 L.Ed.2d 163 (White, J., concurring). The existence of such protections may suggest the presence of a substantive limitation on official action, Suckle v. Madison General Hospital, supra, 499 F.2d at 1366, and it is “not inconceivable that substantive protections could be inferred from the existence of procedural safeguards . ..,” Lombardo v. Meachum, supra, 548 F.2d at 16 (emphasis added); compare Yusuf Asad Madyun v. Thompson, 657 F.2d 868, 873 (7th Cir. 1981); but a state created procedural right is not itself a liberty interest within the meaning of the Fourteenth Amendment, Lombardo v. Meachum, supra, 548 F.2d at 15-16; Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979); Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir. 1980). Contra, Wakinekona v. Olim, 664 F.2d 708 (9th Cir. 1981) (2-1 decision).
Constitutionalizing every state procedural right would stand any due process analysis on its head. Instead of identifying the substantive interest at stake and then ascertaining what process is due to the individual before he can be deprived of that interest, the process is viewed as a substantive end in itself. The purpose of a procedural safeguard, however, is the protection of a substantive interest to which the individual has a legitimate claim of entitlement. A basic problem, in terms of cogent federal constitutional analysis, with maintaining that one has an entitlement to a state created procedural device such as a hearing is that the dimensions of the procedural protections which attach to state law entitlements are defined by federal standards. When the federal standard is applied, the “process that is due in a given instance may bear little or no resemblance to the original expectation . ... ” Bills v. Henderson, supra, 631 F.2d at 1298. Indeed, the logical flaw in the proposition is even more fundamental. If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absur-dum.
A twisted interpretation of the Fourteenth Amendment is advanced by plaintiff in this case in an attempt to avoid the clear holding of Meachum. Under the Supreme Court’s analysis, a state prisoner may be transferred from one prison in a state to another arbitrarily — for no reason at all
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_dissent
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
The FIRST STATE BANK OF BOOKER, TEXAS, a corporation, Appellant, v. The FIRST NATIONAL BANK OF BEAVER, OKLAHOMA, a corporation, Appellee.
No. 7235.
United States Court of Appeals Tenth Circuit.
June 27, 1963.
Rehearing Denied July 25, 1963.
Robert Lemon, Perryton, Tex., and Merle Lansden, Beaver, Okl. (Lemon, Close & Atkinson, Perryton, Tex., and Lansden, Drum & Goetzinger, Beaver, Okl., on the brief), for appellant.
Coleman Hayes, Oklahoma City, Okl. (Robert L. Miles, Beaver, Okl., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
SETH, Circuit Judge.
This action was brought by the appellant bank against the appellee bank on a bank money order which appellee had issued. The bank money order was payable to the attorneys and agents for appellant. The appellee bank in its pleadings asserted that there had been a failure of consideration for the issuance of the money order. The case was presented on a stipulation of the facts and the court found in favor of the appellee bank. Throughout the proceedings, the appellant has been referred to as the Texas bank and the appellee as the Oklahoma bank. The case was tried under the Oklahoma Negotiable Instruments Law then in effect.
The questions presented to the trial court were whether or not there had been a failure of consideration for the issuance of the money order, and whether or not the defense of failure of consideration may be asserted against the Texas bank. The trial court held there was a failure of consideration and also that under Oklahoma law the payee of a bank money order is not a holder in due course, and thus the defense of failure of consideration was good.
The facts surrounding the issuance of the bank money order are briefly as follows: John F. McNutt was indebted to the Texas bank and had delivered a note secured by a chattel mortgage to represent the indebtedness. The bank had turned over the note for collection to its attorneys and a suit had been filed. A third party defendant, Harvey L. Moore, presented to the Oklahoma bank a check with the request that the bank in exchange for the check issue its money order payable to the attorneys for the Texas bank. The check presented by Moore in payment for the bank money order was drawn on a bank in Meade, Kansas. The Oklahoma bank called the Meade bank to inquire whether or not the cheek would be paid and received the reply that it would. The Oklahoma bank then proceeded to issue the money order and gave it to Moore. The money order bore the notation that the remitter was Harvey L. Moore. It was delivered by McNutt to the attorneys for the Texas bank who thereupon endorsed and delivered it to an officer of the Texas bank, who in exchange delivered to McNutt his promissory note. On the same day the suit against McNutt was dismissed. Notations were made on the Texas bank records to show the note had been paid. On the day following, the bank at Meade, Kansas, advised the Oklahoma bank that the cheek drawn by Moore would not be paid and on the same day the Oklahoma bank notified the attorneys for the Texas bank that payment had been stopped on the bank money order. This notice was followed by a formal notice of protest. When Moore presented the check in payment of the money order, he gave the agent for the Oklahoma bank one dollar in cash which was intended to cover the cost of a telephone call to the Meade bank. No other consideration was received by the Oklahoma bank for the issuance of the money order. The actual charge on the telephone call was thirty-five cents.
•As indicated, the trial court made findings of fact and concluded that under the law of Oklahoma the payee of a bank money order is not a holder in due course and that the defense of failure of consideration could be asserted against it, and that the defense was complete.
It would serve no useful purpose to discuss the different views held in the various states under the negotiable instruments law as to whether the payee under these circumstances is a holder in due course. The courts of Oklahoma have held in several eases that the payee is not a holder in due course, and this would seem to provide sufficient answer to the argument here urged by the appellant.
The Supreme Court of Oklahoma in Mid-Central Towing Co. v. National Bank of Tulsa, 348 P.2d 327, had before it a case where a bank had stopped payment on a cashier’s check. The suit was brought by the payee of the cashier’s check who was in the position of a promissee. The court stated that the rights of a holder in due course without notice were not involved as the plaintiff was the payee of the cashier’s check and as such could not be considered a holder in due course. The court in support of this statement cited First National Bank of Cushing v. Woods, 172 Okl. 645, 46 P.2d 565; First National Bank of Westville v. Russell, 128 Okl. 222, 262 P. 205; First National Bank of Poteau v. Allen, 88 Okl. 162, 212 P. 597. In the earlier case of Rice v. Jones, 102 Okl. 30, 225 P. 958, the Oklahoma Supreme Court considered the position of a payee of a promissory note who had direct dealings with the maker as a holder in due course and adhered to the earlier Oklahoma authorities to the effect that a payee could not be a holder in due course. In this decision the court considered the argument there advanced that under certain circumstances a payee could be a holder in due course and considered the authorities cited on that proposition. The court commented that these cases were excellently reasoned but held that the payee cannot be a holder in due course and cited First National Bank of Poteau v. Allen, 88 Okl. 162, 212 P. 597, which is probably the first Oklahoma case on this point, and was decided in 1923. The court also cited Strother v. Wilkinson, 90 Okl. 247, 216 P. 436. The court in Rice v. Jones, supra, in commenting on Strother v. Wilkinson, supra, pointed out that the court had previously considered the cases taking the contrary view but had decided to follow the rule announced in First National Bank of Poteau v. Allen, supra. In the Oklahoma cases referred to above, it is apparent that the Oklahoma court has considered but rejected arguments similar although not identical to those here advanced by the appellant to the effect that there are situations in which the payee should be considered a holder in due course. It has also commented on the authorities from jurisdictions where such an exception prevails. We believe that under the state of the authorities in Oklahoma, there has been no exception made and there has been no indication that the court is disposed to make an exception. Appellant urges that an exception should be made in circumstances which prevail in the case at bar where there is a remitter of the funds, and where the remitter’s name is noted on the instrument, the situation should be treated as if the instrument had been made payable to the remitter and by him endorsed to the appellant bank. The text writers and a few cases have treated a payee as a holder in due course under circumstances where the payee has taken the instrument as a purchaser or where there has been a remitter in the transaction. However as indicated above, the Oklahoma courts have made no exception and the opinions have made repeated comments that the payee is not and cannot be a holder in due course, although the precise question here presented has not been present in the cited Oklahoma cases. The law of Oklahoma as announced in these cases governs the transaction here involved, and the trial court followed such law and was correct in its conclusion. The other points advanced by appellant have been considered but we find no error. The case is therefore affirmed.
Question: What is the number of judges who dissented from the majority?
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.
ATLANTIC CO. v. WEAVER et al.
No. 5360.
Circuit Court of Appeals, Fourth Circuit.
July 24, 1945.
William K. Meadow, of Atlanta, Ga. (Spalding, Sibley & Troutman, of Atlanta, Ga., Joseph R. Moss, of York, S. C., and John T. Roddey, of Rock Hill, S. C., on the brief), for appellant.
Paul M. Hemphill and John M. Hemp-hill, both of Chester, S. C. (Julian L. Johnson, of Columbia, S. C., on the brief), for appellees.
Before PARKER, SOPER and NORTHCOTT, Circuit Judges.
NORTHCOTT, Circuit Judge.
The appellees, Johnny Weaver, Charlie Hardin, B. Butler, R. N. Brown and Roosevelt Hall, herein referred to as the plaintiffs, brought suit in the District Court of the United States for the Western District of South Carolina against the appellant, Atlantic Company, a corporation, herein referred to as the defendant, seeking to recover alleged unpaid minimum wages and unpaid overtime compensation, liquidated damages, and attorney’s fees under Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b).
A trial was had before the Judge without jury at Spartanburg, South Carolina, in June, 1944. In November, 1944, the judge below filed his findings of fact and conclusions of law and filed an order for judgment in favor of the plaintiffs herein against the defendant, Atlantic Company, as follows:
“Robert N. Brown.............. $5,066.90
Johnny Weaver .............. 2,082.26
Charlie Hardin............... 3,194.86
Roosevelt Hall............... 1,127.00
Belinda Butler ‘............... 3,509.44
and also the sum of $1,000 attorney’s fee, and the unpaid costs in the case having been taxed in the sum of $33.20.”
From this action of the court below this appeal was brought.
The defendant is a Georgia corporation operating a number of plants in the States of Virginia, North Carolina, Georgia, Alabama, South Carolina, Florida and Tennessee. It owns and operates some eighty to eighty-five plants in said States. Between October, 1938, and April, 1942, it was, among other activities, operating five breweries located at Charlotte, North Carolina, Norfolk, Virginia, Orlando, Florida, Atlanta, Georgia, and Chattanooga, Tennessee. All of its plants were under the supervision of the Atlanta office which compiled and computed all of the records of the company’s business throughout the territory where it operated.
One of defendant’s plants, known as plant number 64, was located at Chester, South Carolina. The Chester branch consisted of two separate and distinct plants under the supervision and control of one local manager.
The plaintiffs allege that for a certain period of time beginning October 24, 1938, they were employed by the defendant and worked in the Chester plant and that they worked hours in excess of the maximum prescribed by the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., and were paid a less wage than the minimum prescribed in said Act.
At the close of plaintiffs’ evidence the defendant moved for judgment in its favor, which motion was denied. At the conclusion of all of the evidence defendant again moved for judgment in its favor, which motion was taken under advisement by the court.
The findings of fact of the judge below are extensive and in minute detail. They may be summarized as follows:
That the extensive operations of the defendant company were all controlled from the Atlanta office; that the Chester, South Carolina, plant, where the plaintiffs worked, was engaged in the distribution of defendant’s beer and ale, the beer deliveries to the Chester plant were made by an independent contractor from the brewery of the defendant at Charlotte, North Carolina, the beer being hauled in large beer trucks; that these trucks arrived at the Chester plant every week and sometimes twice a week; that whenever the trucks arrived at the Chester plant the five plaintiffs were called upon to help unload the truck and reload them with the empty beer cases and bottles.
The judge below further found that at the Chester plant was located a cold storage plant continuously operated for hire and for use by the public, and regularly used, among other customers, by agents of packing plants outside the State and also by other beer and yeast companies; that there was also a storage room for ice manufactured at Chester Plant No. 2; that in addition to the beer and ale business, the ice business and the cold storage business, the company carried on the business of selling refrigerators, and, the construction, placing and maintenance of signs and symbols advertising its products, principally its beer and ale; and that all of the plaintiff-employees were “indiscriminately required to, and did, regularly and constantly, perform services essential to the carrying on of all the various kinds of defendant’s businesses”.
That the entire process, involved in defendant’s beer business, “including manufacture, transportation, temporary unloading, distribution at wholesale and collection of the purchase price, and the return of the empty bottles to the Charlotte brewery was one constant, continuous integrated action, at all times under the supervision and control of the Home Office in Atlanta. The payroll checks for payment of wages to its local employees were drawn by Atlanta and sent to Chester”. That the various kinds of business carried on by the defendant at its Chester plant were both interstate and intrastate in nature, with the plaintiff-employees required continuously to “switch from job to job at the order and direction of defendant”; that the defendant was regularly, continuously and substantially engaged in the icing and re-icing of refrigerator cars, engaged in interstate commerce; that every day in the year, except Sunday, during the period here involved, the defendant sold and delivered from its Chester branch to the C. & N. W. Railway the ice used by it on its passenger trains and that the Chester plant regularly sold and delivered to the Southern Railway ice for use on its passenger trains engaged in interstate commerce, and for the use of its office employees, likewise engaged in interstate commerce; that ice was regularly and continuously sold to the Seaboard Air Line Railway in blocks, wholesale, for the use of its passenger trains engaged in interstate commerce; and that ice was likewise sold and distributed locally in and about Chester.
With regard to the labor performed by the plaintiffs, while employees of the defendant company, the judge below found that each and all of them were at various times called upon to perform and that they did perform work in interstate commerce within the meaning of the Act; that the amount of work performed in interstate commerce by each employee was a substantial part of the work that he did; that the defendant company kept no record of any kind of the hours worked by any one of the plaintiffs nor did the defendant keep any accurate record to show the number of hours of a work-day any one of the plaintiff-employees was working at any particular kind of the various businesses being carried on at the Chester plants; and that “no dependence can be put in the accuracy of the allocations shown by defendant’s records”.
The judge below concluded his findings of fact as follows:
“It appears by the greater weight of the evidence that each of the five plaintiffs regularly worked on interstate, as well as intrastate, business; that there was no separation by defendant of that part of its business subject to the Act, from that part of its business not subject to the Act, but that to a large extent the two classes of business were commingled in defendant’s operations and defendant made no attempt to distinguish between the two when making payment of wages to these plaintiffs.
“The defendant has shown no facts which would justify the conclusion that any one or more of the plaintiff-employees is an employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C.A. § 304.”
In his conclusions of law, the judge below found that each of the five plaintiffs was at all times during his period of employment engaged in commerce and in the production of goods for commerce, within the meaning of the Act; that the defendant had failed to establish that any one of the five plaintiffs came within the exemption covered by Section 304, Title 49 U.S.C.A. and that the claimed exemption made by defendant pursuant to the provisions of 213(b) (1) did not apply to any of the plaintiffs; that under the facts in the case there was no justification for the contention of the defendant that the de minimis maxim was applicable to the work performed by any one of the plaintiffs and that the labors performed by each and all of the plaintiffs during their respective period of employment came within the coverage of both Sections 6 and 7 of the Act. 29 U.S.C.A. §§ 206 and 207.
The judge finally held as a conclusion of law that there was a failure on the part of the defendant to pay to any one of the plaintiffs wages at not less than the minimum fixed by the Act.
The judge below then went on to discuss the amount of time worked by each of the plaintiffs and made a computation of the amount due each as is above set out.
It is a well-settled principle of law that the test of coverage under the Act is the relation of the activities of the individual employee to interstate commerce or the production of goods for commerce rather than the nature of the employer’s business. Here the nature of the employer’s business as a whole presents a picture of interstate commerce. In McLeod v. Threlkeld, 319 U.S. 491, 63 S.Ct. 1248, 1251, 87 L.Ed. 1538, it was held by the Supreme Court:
“ * * * The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employer’s activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it. * * *
“It is not important whether the employer, in this case the contractor, is engaged in interstate commerce. It is the work of the employee which is decisive.”
In the headnote to the above case it is stated: “The work of the employee decides this question; it is not important in this case whether his employer was engaged in interstate commerce.”
See, also, Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Overstreet v. North Shore Corporation, 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656.
The sole question involved in this appeal is whether or not the plaintiffs are so connected with the interstate commerce part of defendant’s business as to be covered by the Act. The judge below has found as a fact that the plaintiffs were so engaged. The findings of the judge below are binding upon us unless we can say that they are clearly wrong. Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The judge in his findings of fact has also found that the plaintiffs did not come under the exception to the coverage of the Act as stated in the provisions of the Act exempting from its operation employees with respect to whom the interstate commerce commission has power to establish hours of service. We cannot say that the findings of fact of the judge below were clearly wrong on these or any other points decided by him.
Great reliance is placed by the defendant upon the doctrine of de minimis and it is strongly urged that this doctrine should be applied because the amount of work performed by the plaintiffs, in relation to interstate commerce, was such a small portion of their work time as to exclude them from the coverage of the Act. The judge below has specifically found against this contention, finding that the amount of labor performed by the plaintiffs with relation to the interstate commerce business of the defendant was a substantial part of their labor. Again, we cannot say that in this finding the judge was clearly wrong.
While there is some conflict in the authorities on the principles here involved, we think that the recent decision of the United States Supreme Court in the case of Phillips v. Walling, Adm’r, 323 U.S.-, 65 S.Ct. 807, 808, is controlling. The facts in that case are similar to the facts shown here, there the court said:
“The Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress.
“ * * * The prime function of petitioner’s chain store system is to sell groceries at retail. Like most large chains, however, petitioner has found it economically feasible to perform and integrate both the retail and wholesale functions of the grocery business.
“ * * * A warehouse and central office such as petitioner maintains are vital factors in this integration of the retail and wholesale functions. They are necessary instruments for the successful performance of the wholesale aspects of a multifunction business of this type.”
Giving to the findings of the judge below the weight to which they are entitled, we are of the opinion that the judgment was correct and it is accordingly affirmed.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
I
|
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.
WORLDWIDE CHURCH OF GOD, a California nonprofit corporation; Raymond McNair, and Roderick G. Meredith, Plaintiffs-Appellants, v. Leona McNAIR, and Superior Court of the State of California, Defendants-Appellees.
No. 85-5979.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 9, 1986.
Decided Dec. 5, 1986.
Ralph K. Helge, Ralph K. Helge & Assoc., Pasadena, Cal., Allan Browne, Browne & Woods, Beverly Hills, Cal., for plaintiffs-appellants.
Antony Stuart, DeWitt Clinton, Cty. Counsel, Los Angeles, Cal., for defendants-appellees.
Before SCHROEDER. and FLETCHER, Circuit Judges, and VOORHEES, District-Judge.
Hon. Donald S. Voorhees, United States District Judge for the Western District of Washington, sitting by designation.
FLETCHER, Circuit Judge:
The Worldwide Church of God, Raymond McNair, and Roderick Meredith (the plaintiffs) bring this action under 42 U.S.C. § 1983 against Leona McNair and the Superior Court of the State of California, contending that a state court jury verdict against them for defamation, infliction of emotional distress, and conspiracy is unconstitutional. The plaintiffs assert that the allegedly defamatory statements constitute expressions of religious belief made in the context of an ecclesiastical debate and therefore that the statements are protected under the first amendment. We conclude that the district court lacked subject matter jurisdiction over the action, and that it should have dismissed on that basis.
I. BACKGROUND
Raymond McNair is an Evangelist in the ministry of the Worldwide Church of God (the Church). According to the plaintiffs, Raymond and his former wife Leona McNair began having marital difficulties in 1973. Raymond sought the Church’s counsel, but the marriage did not improve. Raymond obtained an “ecclesiastical determination” that the marriage was no longer “Scripturally bound,” thus enabling him to proceed with a Church-sanctioned divorce in 1976 and remarriage in 1977. Raymond was the first high-ranking Church minister who had been permitted to do so. The plaintiffs state that the Church condemns divorce, except in limited, scripturally-de-fined circumstances, when one spouse has failed to fulfill basic marital responsibilities and has left the Church, or habitually has violated Church doctrine.
The plaintiffs contend that many Church officials felt that Raymond had received special treatment, because of his status in the Church hierarchy and his close friendship with Church leaders. Thus, the McNair divorce and remarriage sparked controversy among the Church ministers, requiring further clarification and explanation. The plaintiffs assert that full explanation was critical, in view of existing serious internal disputes over fundamental Church doctrines at the time.
At a Ministerial Conference in January 1979, and later in a Church publication titled the Pastor’s Report, Roderick Meredith, the Church’s Director of Pastoral Administration and Raymond McNair’s close friend and relative, made statements concerning the McNair divorce. In an address given at the conference, Meredith justified the divorce on the basis of Leona’s conduct. He said that she “was literally cursing him [Raymond] and cursing Mr. Armstrong [the Church’s leader] ... spitting in people’s faces and as hateful as a human being could be;” that she was “one of the major enemies of God’s Church in Southern California;” that Raymond lived “without a wife in a virtual hell on earth” and Leona “just wanted to keep him on a string and get a free ride.”
In the Pastor’s Report, Meredith stated in part that Leona had “tum[ed] his children against him,” “refused to be a wife to him for over two years-to sleep with him, to cook for him, or even civilly communicate with him in a decent manner ... she had deserted him.” (emphasis in original).
Leona McNair sued the Church, Meredith, Raymond McNair, and other Church officials and entities in the California Superior Court. In August, 1984 the jury returned a verdict in Leona’s favor against Raymond McNair, Meredith, and the Church for libel, slander, intentional infliction of emotional distress, and conspiracy. The jury awarded $260,000 in compensatory damages, and $1,000,000 in punitive damages. The plaintiffs’ appeal from that judgment currently is pending in the California Court of Appeal. Enforcement of the judgment has been stayed by posting a bond.
In March 1985, the plaintiffs sued Leona McNair and the California Superior Court in federal district court under 42 U.S.C. § 1988. The plaintiffs contend that the allegedly defamatory statements were made to summarize the factual basis for the Church’s ecclesiastical determination regarding the McNair divorce, and that the statements were part of a doctrinal pronouncement to ministers made in a private ecclesiastical forum. As such, the statements constitutionally are protected, because they constitute expressions of religious belief, the truth of which cannot be questioned in a defamation suit. Alternatively, the plaintiffs argue that the state trial court should have required the jury to find actual malice, based on the New York Times v. Sullivan standard.
The plaintiffs requested the district court to declare the state trial court verdict unconstitutional and to enjoin state court enforcement of the judgment. The district court granted Leona McNair’s motion to dismiss, on Younger abstention grounds. The district court reasoned that the state appellate court would consider the federal constitutional issues on appeal, and that the state had a vital interest in fashioning a law of defamation. The plaintiffs timely appeal.
II. DISCUSSION
As a preliminary matter, we must address the federal court’s jurisdiction. See Solano v. Beilby, 761 F.2d 1369, 1370 (9th Cir.1985) (the court of appeals must raise jurisdictional issues sua sponte). The United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in judicial proceedings. 28 U.S.C. § 1257 provides that the proper court in which to obtain such review is the United States Supreme Court. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983). See Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970) (lower federal courts may not sit in review of state courts’ decisions); Rooker v. Fidelity Trust Co., 263 U. S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923) (district courts may not exercise appellate jurisdiction over state courts); Robinson v. Ariyoshi, 753 F.2d 1468, 1471-72 (9th Cir. 1985) (federal court has no jurisdiction over federal constitutional issues if consideration would require a review of the allegations underlying the state judicial decision), vacated on other grounds, — U.S. -, 106 S.Ct. 3269, 91 L.Ed.2d 560 (1986); Texaco v. Pennzoil Co., 784 F.2d 1133, 1141-42 (2d Cir.) (inferior federal courts may not act as appellate tribunals over state courts) prob. juris, noted, — U.S. -, 106 S.Ct. 3270, 91 L.Ed.2d 561 (1986).
This doctrine applies even when the challenge to the state court decision involves federal constitutional issues. Feldman, 460 U.S. at 484-86, 103 S.Ct. at 1316 (quoting Doe v. Pringle, 550 F.2d 596, 599 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977), for the proposition that “[t]his rule applies even though, as here, the challenge is anchored to alleged deprivations of federally protected due process and equal protection rights”); Robinson, 753 F.2d at 1472. The rationale for this rule is that state courts are as competent as federal courts to decide federal constitutional issues. Allen v. McCurry, 449 U.S. 90, 105, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) (stating that nothing in the legislative history to § 1983 supports the argument that a person claiming a federal right should have an unrestricted opportunity to relitigate in federal court issues already decided in state court; state courts have an obligation and the ability to uphold federal law); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975) (rejecting the argument that “state judges will not be faithful to their constitutional responsibilities”). In addition, any other rule would result in a waste of judicial resources and unnecessary friction between state and federal courts. See Atlantic Coastline, 398 U.S. at 286, 90 S.Ct. at 1742; Pennzoil, 784 F.2d at 1142.
Although the federal district court may not exercise appellate jurisdiction over the judgment of a state court, a district court does have jurisdiction over a “general” constitutional challenge that does not require review of a final state court decision in a particular case. See Feldman, 460 U.S. at 482-86 & n. 16, 103 S.Ct. at 1314-17 & n. 16; Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314 (9th Cir.1983). This distinction between a permissible general constitutional challenge and an impermissible appeal of a state court determination may be subtle, and difficult to make. See Feldman, 460 U.S. at 485, 103 S.Ct. at 1316 (quoting Doe v. Pringle, 550 F.2d at 597); Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1433 (10th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985).
In Feldman, 460 U.S. at 486,103 S.Ct. at 1316, the District of Columbia Court of Appeals had refused to admit Feldman to the District of Columbia bar, because he had not graduated from law school, a prerequisite to admission under the District’s bar rules. Feldman filed a complaint in federal district court, claiming that the highest court in the district’s refusal to admit him to the bar violated his constitutional rights.
The United States Supreme Court held that the federal district court had jurisdiction to determine the constitutionality of the district’s bar rule, because such a determination did not require a review of “a state-court judgment in a particular case.” Id. However, the district court had no jurisdiction to review Feldman’s constitutional challenge to the application of the bar rule in his particular case. See Feldman, 460 U.S. at 486-87, 103 S.Ct. at 1316-17. The Supreme Court further explained that “[i]f the constitutional claims presented to a United States district court are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiffs application for admission to the state bar, then the district court is in essence being called upon to review the state court decision.” Id. at 483-84 n. 16, 103 S.Ct. at 1315 n. 16.
As the Tenth Circuit noted in Razatos, 746 F.2d at 1433, Feldman’s language does not provide a “bright line” rule to distinguish claims that are inextricably intertwined with a state court’s decision from those that are not. The Razatos court concluded that claims are “inextricably intertwined” if the district court must “scrutinize not only the challenged rule itself, but the [state court’s] application of the rule....” If, in order to resolve the claim, “the disti'ict court would have to go beyond mere review of the state rule as promulgated, to an examination of the rule as applied by the state court to the particular factual circumstances of [the plaintiff’s] case,” then the court lacks jurisdiction. See also Brown v. Board of Bar Examiners, 623 F.2d 605, 610 (9th Cir.1980) (because the plaintiff’s complaint and requested relief involved an application of the challenged rule to his particular case, and would require a review of the state court decision, the court concluded that it lacked jurisdiction); Czura v. Supreme Court of South Carolina, 632 F.Supp. 267, 270 (D.S. C.1986) (same).
Robinson, 753 F.2d at 1472, contains this court’s only detailed discussion of Feld-man’s language. In that case, the issue was whether federal constitutional issues that the state court had refused to consider on a petition for rehearing should be deemed “inextricably intertwined” with the state court’s judgment:
Faced with the task of deciding our power to review constitutional issues which arise from a state court proceeding, we view the res judicata require-
ment of full and fair opportunity to litigate, and the Feldman “inextricably intertwined” barrier as two sides of the same coin. Under the rubric of either “jurisdiction” or “res judicata,” the crux of the question is whether there has already been actual consideration of and a decision on the issue presented. If consideration and decision have been accomplished, action in federal court is an impermissible appeal from the state court decision. If no consideration has been given, or any decision on the matter is ambiguous, it is unlikely that the issues presented to the state high court and to the federal court are so “inextricably intertwined” that the federal court cannot take jurisdiction, (citations omitted).
See also Randolph v. Lipscher, 641 F.Supp. 767, 781 n. 8 (D.N.J.1986) (arguing that application of a complex “inextricably intertwined” test is no longer necessary in light of Migra v. Warren City School District Board of Education, 465 U.S. 75,104 S.Ct. 892, 79 L.Ed.2d 56 (1984); the court simply applies res judicata principles).
In the case before us, the California Superior Court considered and rejected the plaintiff’s argument that the allegedly defamatory statements constitutionally were protected. It would be impossible for the federal court to review in the abstract the plaintiffs’ constitutional challenge to the defamation verdict. The essence of the plaintiffs’ constitutional claim is that the statements made at the Ministerial Conference and in the Pastor’s Report were necessary to clarify Church divorce doctrines and to explain the McNair ecclesiastical determination, and that as a result the statements were privileged.
The plaintiffs argue that the allegedly defamatory remarks about Leona McNair constituted part of their religious beliefs. The district court could not evaluate the plaintiffs’ constitutional claims without conducting a review of the state court’s legal determinations and the jury’s verdict. The district court would be required to review the state court’s decision regarding application of the plaintiffs’ federal constitutional theories to the particular factual circumstances of this case. The district court may not do so. See Feldman, 460 U.S. at 486, 103 S.Ct. at 1316; Razatos, 746 F.2d at 1433.
We hold that the district court lacked subject matter jurisdiction over this case. For this reason, we AFFIRM the district court’s dismissal of the action.
. The courts of the District of Columbia, for this analysis, are the equivalent of state courts.
. The Supreme Court held that subject matter jurisdiction existed to consider claims that the rule created an irrebuttable presumption that only law school graduates are competent to practice law; that the rule discriminated against persons with equivalent legal training; and that it impermissibly delegated judicial power to the American Bar Association. The Court did not reach the issue of whether the doctrine of res judicata foreclosed litigation on these claims, leaving the determination to the district court. Feldman, 460 U.S. at 487, 490, 103 S.Ct. at 1317-18. The Court concluded that subject matter did not exist over claims that the District of Columbia Court of Appeals acted arbitrarily and capriciously in refusing to waive the bar rule in his case, and that the Court had discriminated by refusing to waive the rule in Feldman’s case even though it had waived the rule in other cases. Id. at 486-87, 103 S.Ct. at 1316-17.
. We agree with the Second and Fifth Circuits that the Feldman doctrine should apply to state judgments even though state court appeals are not final. See Hale v. Harney, 786 F.2d 688, 691 (5th Cir.1986) (“We hold no warrant to review even final judgments of state courts, let alone those which may never take final effect because they remain subject to revision in the state appellate system."); Pennzoil, 784 F.2d at 1142-43 (arguing that any other rule would encourage forum shopping and provoke antagonism between state and federal courts).
. Although on appeal, the parties did not raise this jurisdictional issue, we note tangential references to it in conjunction with Younger abstention arguments made in moving papers filed in the district court. This concern over the propriety of federal court review of state judgments is also apparent in Leona McNair’s abstention arguments made on appeal, although not couched in jurisdictional terms.
In their Response to Defendant Superior Court’s Motion to Dismiss, the plaintiffs relied upon Miofsky v. Superior Court, 703 F.2d 332 (9th Cir.1983) for the proposition that federal courts may enjoin state court judgments if constitutional issues are raised in a § 1983 suit. However, this court decided Miofsky prior to the Supreme Court’s opinion in Feldman. We therefore did not consider whether Miofsky's constitutional challenges were inextricably intertwined with the state court’s decision. See Miofsky, 703 F.2d a t 334-35. Cases subsequent to Feldman make it clear that Feldman’s jurisdictional bar applies in the § 1983 context, as elsewhere. See e.g., Curry v. Baker, 802 F.2d 1302, 1310 n. 5 (11th Cir.1986) (federal plaintiff sought prohibited appellate review of state court decision; fact that she sought relief under section 1983 does not confer jurisdiction); Hale v. Harney, 786 F.2d 688, 691 (5th Cir.1986) ("[Ljiti-gants may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits.”); Pennzoil, 784 F.2d at 1144-45 (a § 1983 case); Robinson, 753 F.2d at 1471-72 (same); Doe v. Pringle, 550 F.2d at 599 (plaintiffs cannot invoke § 1983 to circumvent the requirement of seeking direct review in the United States Supreme Court); Lewis v. East Feliciana Parish School Board, 635 F.Supp. 296, 300 (M.D.La.1986) (same).
.We therefore need not decide whether the district court erred in dismissing this action on abstention grounds, whether the issuance of and pending enforcement of the state court’s judgment constitutes state action, or whether the California Superior Court is entitled to eleventh amendment immunity.
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_civproc1
|
56
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
CONTRACTORS ASSOCIATION OF EASTERN PENNSYLVANIA, INC., General Building Contractors Association, Inc., Associated Master Painters & Decorators of Philadelphia, Inc., Employing Brick Layers Association of Delaware Valley, Inc., Interior Finish Contractors Association, Inc., Mechanical Contractors Association of Eastern Pennsylvania, Inc., Roofing and Sheet Metal Contractors Association, Inc., Sub-Contractors Association of Delaware Valley, Inc., National Electrical Contractors Association, Inc. v. CITY OF PHILADELPHIA, Elizabeth Reveal, as Director of Finance for the City of Philadelphia, Curtis Jones, Jr., as Director of the Minority Business Enterprise Council, United Minority Enterprise Associates, Inc., Intervening Defendant, The City of Philadelphia, Appellant at No. 90-1295, United Minority Enterprise Associates, Inc., Appellant at No. 90-1296.
Nos. 90-1295, 90-1296.
United States Court of Appeals, Third Circuit.
Argued Nov. 16, 1990.
Decided Sept. 30, 1991.
Charles W. Bowser (argued), James P. Cousounis, Bowser, Weaver & Cousounis, P.C., and Charisse Lillie, City Sol., Philadelphia, Pa., for City of Philadelphia.
Robert T. Vance, Jr. (argued), Brown, Vance, Jackson & Smith, Philadelphia, Pa., for United Minority Enterprise Associates, Inc.
John J. McAleese, Jr. (argued), Thomas J. McGoldrick, John H. Widman, McAleese, McGoldrick & Susanin, P.C., King of Prussia, Pa., for appellees.
Before GREENBERG, HUTCHINSON and HIGGINBOTHAM, Circuit Judges.
At the time of argument, Judge Higginbotham was Chief Judge but has since assumed Senior status.
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
The City of Philadelphia (City) and United Minority Enterprise Associates, Incorporated (Minority Associates) appeal an order of the United States District Court for the Eastern District of Pennsylvania granting appellee Contractors Association of Eastern Pennsylvania, Incorporated, and other trade associations with members that do business in the construction industry in the Philadelphia metropolitan region (collectively “Contractors”), summary judgment on Contractors’ claim that Chapter 17-500 of the Philadelphia Code (Ordinance), Philadelphia’s public contract set-aside law, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Contractors Ass’n of E. Pa., Inc. v. City of Phila., 735 F.Supp. 1274 (E.D.Pa.1990). Among other contentions, Minority Associates argues that the district court erred by granting the Contractors’ motion without giving Minority Associates a chance to pursue additional discovery on the existence of discrimination in the Philadelphia construction market that could justify the various set-asides in the Ordinance. Minority Associates’ opposition to Contractors’ motion for summary judgment was accompanied by a Federal Rule of Civil Procedure 56(f) affidavit. The affidavit stated that Minority Associates needed time to undertake further discovery. We think Minority Associates should have been given a reasonable opportunity for further discovery and will therefore vacate the district court’s order granting Contractors’ summary judgment and remand for further proceedings consistent with this opinion.
I.
This appeal concerns claims Contractors made in an amended complaint dated May 19, 1989 that was filed in the district court in their suit to strike down Chapter 17-500 of the Philadelphia City Code and the regulations promulgated under that Ordinance as contrary to the United States and Pennsylvania Constitutions and federal and state statutes guaranteeing them, inter alia, equal protection of the laws. The City filed an answer as did Minority Associates, an intervening defendant. On October 11, 1989, the City moved for judgment on the pleadings or, alternately, summary judgment on the grounds that Contractors lacked standing to sue and did not state a cause of action under the Equal Protection Clause, 42 U.S.C.A. § 1983 (West 1981) and 42 U.S.C.A. § 1981 (West 1981). The City also moved for judgment on the pleadings on the state law claims alleging that if the federal claims were dismissed the court would lack pendent jurisdiction. The Contractors replied and filed a cross-motion for summary judgment on its Equal Protection Clause and section 1983 claims.
The City opposed Contractors’ cross-motion for summary judgment arguing mainly that genuine issues of fact remained to be resolved. Minority Associates joined the City’s opposition and asked for a continuance so that discovery could be completed before the Contractors’ motion was ruled on.
On April 5, 1990, the district court granted Contractors’ cross-motion, denied the City’s motion, declared the minority-, female- and handicapped-owned business enterprise set-aside programs set forth in the Ordinance and the implementing regulations unconstitutional and permanently enjoined the City from enforcing or implementing the Ordinance or the regulations. The City filed its notice of appeal on April 10, 1990, and Minority Associates filed its notice of appeal on April 12, 1990.
II.
The district court had subject matter jurisdiction over the section 1983 claim that the Ordinance violated Contractors’ right to equal protection under 28 U.S.C.A. § 1331 (West Supp.1991) and 28 U.S.C.A. § 1343(a)(3) & (4) (West Supp.1991). We have appellate jurisdiction over the City’s and Minority Associates’ appeals from the district court’s final order under 28 U.S.C.A. § 1291 (West Supp.1991).
Our review of the district court’s order denying the City’s motion for summary judgment on standing and its order granting Contractors’ motion for summary judgment on the merits is plenary. See Country Floors, Inc. v. A Partnership Composed of Gepner & Ford, 930 F.2d 1056, 1060 (3d Cir.1991). We review the district court’s refusal to postpone action on the Contractors’ motion pending further discovery by Minority Associates for abuse of discretion. See Lunderstadt v. Colafella, 885 F.2d 66, 71-72 (3d Cir.1989). If information concerning the facts to be discovered is solely in the possession of the movant, however, “a motion for continuance of a motion for summary judgment for purposes of discovery should [then] ordinarily be granted almost as a matter of course.” Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973) (citations omitted). The Ward rationale would not seem to apply, however, when the party seeking discovery has the information it seeks in its own possession or can get it from a source other than the movant.
III.
The Ordinance in question is entitled “Goals For The Participation Of Minority, Female And Handicapped Owned Businesses In City Contracts.” II Appendix (App.) at 310. Through various means, the Ordinance seeks to increase the number of “Disadvantaged Business Enterprises” owned by minorities, women or handicapped persons who are awarded city contracts. A Disadvantaged Business Enterprise is any small business “which is at least 51 percent (51%) owned by one or more socially and economically disadvantaged individuals.” Id. at 311. The Ordinance creates an agency called the Minority Business Enterprise Council (the agency). The agency is charged with the administration of the Ordinance, which authorizes the agency to presume that all minorities, women and handicapped persons are socially and economically disadvantaged persons. Once a Disadvantaged Business Enterprise receives contract work of more than $5,000,000.00 from the City under the Ordinance, that business is rebuttably presumed not to be disadvantaged. The Ordinance sets “goals” of fifteen-percent participation in city contracts for minority-owned businesses, ten percent for female-owned businesses and two percent for handicapped-owned businesses. Finally, the Ordinance contains provisions that allow the agency to waive its set-aside requirements in certain situations.
A.
We first address the City’s standing claim because it goes to the subject matter jurisdiction of the district court. See Metropolitan Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., — U.S. -, 111 S.Ct. 2298, 2306 & n. 13, 115 L.Ed.2d 236 (1991) (Court first addressed standing and ripeness claims that could impair the Court’s power to hear the case). The City contends that the Contractors lack standing for two reasons. First, the City says the Contractors did not establish that they suffered an injury-in-fact. Second, the City maintains that the Contractors cannot claim organizational standing because of conflicts of interest among the members of the organizations. We reject both challenges.
The Supreme Court of the United States has stated:
The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party.... A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action....”
Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (citations omitted) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973)). An association can have standing on the basis of direct injury against itself as an association. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976). Under certain circumstances, an association can also have standing on the basis of injury to its members.
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). The district court determined that Contractors met Hunt’s requirements. Contractors Ass’n, 735 F.Supp. at 1281-87. We agree with its analysis.
The City’s second argument on standing merits more discussion. Because an association represents many individuals, the potential for conflict of interest exists among its members. The City notes that some of the Contractors’ members qualify as disadvantaged businesses and actually oppose the litigation, and thus a conflict of interest exists that denies Contractors standing.
In considering whether a target corporation had standing to assert the interests of its shareholders in the case of a hostile takeover, we stated that “associational standing has never been granted in the presence of serious conflicts of interest either among the members of an association or between an association and its members.” Polaroid Corp. v. Disney,-862 F.2d 987, 999 (3d Cir.1988). We explained the rationale for denying standing to the corporation in that case as follows:
[A] potential conflict [exists] between those shareholders who view litigation to enjoin a tender offer as adversely affecting their opportunity to collect on the tender offer premium and those shareholders who are cut out of the tender offer and thus may want to see it defeated. Even though some shareholders are disadvantaged by their exclusion from the tender offer, a great majority of shareholders will often benefit from the offer. A corporation is thus an uncertain representative for the interests of the disadvantaged shareholders, as it may have an eye to protecting the interests of the majority. This undermines the basis for jus tertii standing — that the jus ter-tii advocate will vigorously assert the interests of the right-holder. See Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (plurality opinion). Indeed, one basis for the constitutional requirement that a litigant have a personal stake in a litigation is “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.” Simon v. Eastern Kentucky Welfare Right [sic] Organization, 426 U.S. 26, 38 n. 16, 96 S.Ct. 1917, 1924 n. 16, 48 L.Ed.2d 450 (1976) (quoting Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
Id. (emphasis in original).
In Polaroid, we noted two possible conflicts that could prevent a target corporation from seeking standing on behalf of its shareholders. The first is between management, who would seek to defeat the takeover to remain in control, and the shareholders, who could profit from the tender offer. The second conflict is between the shareholders who will profit from the tender offer, normally the majority of shareholders, and the target corporation when the target corporation sides with the shareholders who will not profit from the tender offer, normally the minority of shareholders. The conflict in our case is of the second type. In the matter at hand, however, the City and Minority Associates do not argue that Contractors are not representing the interests of a majority of their membership. Only twenty-nine of Contractors’ 535 members are registered Minority, Female or Handicapped Business Enterprises. Contractors Ass’n, 735 F.Supp. at 1286. There is little chance that the conflict between the majority and minority of the Contractors’ members will affect the adequacy of representation or present a likelihood of a collusive suit that would deprive the court of vigorous advocacy on all sides of this dispute. When an association has not violated its members’ rights by ignoring the association’s by-laws before bringing an action on a matter of concern to the membership, it is primarily concern over the absence of strong advocacy on both sides of a controversy that has motivated courts to hold that a conflict of interest among its members deprives an association of associational standing. See National Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1391-92 (10th Cir.1980) (an association cannot have associational standing if more members oppose the association’s position than support it); Associated Gen. Contractors of Conn., Inc. v. City of New Haven, 130 F.R.D. 4,10 (D.Conn.1990) (“[a]s long as the [law] suit is not in contravention of [the association’s] purposes nor its by-laws ... it has [associational] standing”); Mountain States Legal Found, v. Dole, 655 F.Supp. 1424, 1426 (D.Utah 1987) (“Because associations typically consist of many members with potentially conflicting interests and views on any particular dispute, a danger exists that certain members of the association will be sympathetic to the adverse party. In such a case, there could be no legitimate controversy.”). The Contractors’ position in this litigation is not contrary to the interests of a majority of their members, and there is nothing on this record indicating that they failed to follow their own internal rules before joining this litigation. Therefore, the City’s argument fails, and we hold that Contractors have associational standing to maintain the present action.
B.
On the merits, Minority Associates contends that the district court erred in granting summary judgment to the Contractors since Minority Associates did not have enough time to discover evidence it believed was in the possession of the Contractors which would show the existence of past and present discrimination by Contractors against entities that would qualify as Disadvantaged Business Enterprises and so preclude the entry of summary judgment for Contractors under the teaching of City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). Accordingly, it argues that the district court should have delayed ruling on the Contractors’ motion for summary judgment until it and the City completed discovery. Minority Associates formally advised the district court of its need for further discovery in accord with Federal Rule of Civil Procedure 56(f). Rule 56(f) states:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.P. 56(f). Whether such a motion should be granted depends, in part, on “what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.” Lunderstadt, 885 F.2d at 71 (quoting Dowling v. City of Phila., 855 F.2d 136, 140 (3d Cir.1988)).
In order to examine the first consideration specified in Lunderstadt, what information is sought, we must look to the affidavit filed with the Rule 56(f) motion. It seeks information from Contractors concerning “past and current practices and/or instances of discrimination by plaintiffs and their members in both the public and private construction industries.” II App. at 305. The affidavit also states that Minority Associates plans to seek this information from Contractors through testimony on depositions, interrogatories, and requests for production of documents served on Contractors.
Knowing what information Minority Associates seeks, we turn to the next part of Lunderstadt’s inquiry — whether the information sought, if uncovered, could preclude summary judgment. See Lunderstadt, 885 F.2d at 71. This inquiry into the substantive law on the constitutionality of minority set-asides is controlled by the Supreme Court’s decision in Croson. From the opinions in that case, we must determine whether the information Minority Associates seeks could create a genuine dispute of material fact and so defeat Contractors’ motion for summary judgment.
In Croson, a majority of the Supreme Court held that the City of Richmond had not demonstrated a compelling governmental interest that would justify its racially-based set-aside ordinance. Croson, 109 S.Ct. at 723-28. A plurality of the Court also held that the set-aside program violated the Equal Protection Clause of the Fourteenth Amendment because the City of Richmond had not demonstrated that the ordinance was necessary to remedy past discrimination. Id. at 730 (plurality opinion). The lack of record evidence concerning past “discrimination in the local construction industry” was fatal to the ordinance. Id. at 726; see id. at 723 & 727. The plurality says that this evidence is necessary to the constitutionality of a minority set-aside ordinance. See id. at 729-30 (plurality opinion). We conclude that the evidence of past discrimination Minority Associates seeks could preclude summary judgment if the City Council’s purpose in creating the various set-asides was to remedy such discrimination.
Application of the last Lunderstadt factor requires an inquiry into why the party seeking more time has not previously obtained the information. In its Rule 56(f) affidavit, Minority Associates stated that Contractors had not yet answered many of the City’s interrogatories seeking information Minority Associates needs to formulate its own interrogatories and depositions. Minority Associates also noted that the City’s depositions of some of Contractors’ members, in which Minority Associates would participate, had been noticed but not taken when the district court granted Contractors’ motion for summary judgment. Minority Associates attributes this delay to the Contractors’ desire for a protective order and its intent to move for such an order. These reasons are sufficient to explain why the information has not been previously obtained.
Since Minority Associates’ request for more time to engage in discovery was for the purpose of seeking information that could defeat a summary judgment motion, which it could not have previously obtained, under Lunderstadt, its Rule 56(f) affidavit authorized the district court to delay action on the Contractors’ motion for a reasonable time.
This conclusion does not, however, end our inquiry. A district court has discretion in acting on Rule 56(f) motions. See Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir.1986). The Lunderstadt factors simply offer a guide for a district court to follow in exercising its discretion under Rule 56(f).
In this case, however, the breadth of the district court’s discretion is affected by Contractors’ possession of records that contain the information Minority Associates seeks. As we said earlier, this limits the district court’s discretion to deny a request for delay when a proper Rule 56(f) affidavit is filed. In such a case, a district court should grant a Rule 56(f) motion almost as a matter of course unless the information is otherwise available to the non-movant. See Ward, 471 F.2d at 670. Here, Minority Associates’ Rule 56(f) affidavit avers the information it seeks from Contractors is not otherwise available. Thus, the record before us shows the Lunderstadt factors are present. See Lunderstadt, 885 F.2d at 71. It also demonstrates no undue delay. Cf. id.
Unanswered interrogatories and notices to take depositions directed to Contractors were outstanding when the district court ruled on Contractors’ motion for summary judgment, a practice this Court has disapproved. See Sames v. Gable, 732 F.2d 49, 51 (3d Cir.1984). Accordingly, we conclude that the district court abused its discretion when it refused Minority Associates the delay it sought pursuant to Rule 56(f). On remand, Minority Associates should be given a reasonable opportunity to discover evidence that relates to a pattern of discriminatory practices or instances of discrimination in the Philadelphia-area construction industry that occurred over time before passage of the Ordinance. We are confident that the district court will require the Contractors to move promptly for any protective orders they desire and thereafter impose reasonable limits on the scope and time for completion of the discovery Minority Associates seeks.
IV.
The district court abused its discretion in not allowing a continuance before ruling on the pending motions for summary judgment. Consequently, our opinion takes no view on any of the other issues presented in this appeal with the exception that we agree with the district court’s holding that the Contractors’ have standing. Beyond that, we will vacate the order of the district court and remand for further proceedings consistent with this opinion. Each party to bear its own costs.
. The collective term "Contractors” means Contractors Association of Eastern Pennsylvania, Incorporated; General Building Contractors Association, Incorporated; Employing Bricklayers Association of Delaware Valley, Incorporated; and Subcontractors Association of Delaware Valley, Incorporated. These four are those plaintiffs the district court held met the standing requirements of Article III of the United States Constitution. See Contractors Ass’n of E. Pa., Inc. v. City of Phila., 735 F.Supp. at 1283-84 & n. 3.
. After oral argument, this Court received supplemental briefing from the parties in April and May of 1991.
. The class of “socially and economically disadvantaged individuals” is defined as follows:
(11) Socially and Economically Disadvantaged Individuals shall mean those individuals who have either been subjected to racial, sexual or ethnic prejudice because of their identity as a member of a group or differential treatment because of their handicap without regard to their individual qualities, and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.
(a) In determining who are socially and economically disadvantaged individuals, the Minority Business Enterprise Council may make a reputable presumption that all minority persons, all women and all handicapped persons shall be so classified.
(b) The Minority Business Enterprise Council, in making said determination, shall also consider, among other things the extent of the liquid assets and net worth of such socially disadvantaged individuals.
Id.
. In Rocks v. City of Philadelphia, 868 F.2d 644, 648 (3d Cir.1989), this Court held that municipal taxpayers did not have standing to challenge Chapter 17-500 absent a showing that they had "sustained a proximate, individual and addressable injury, based solely on their status as municipal residents and taxpayers,” but in dicta, stated that: "Contemplating the appellants’ allegation, we think that an article III injury to contractors and bidders at large has been made out.” This supports, but does not compel, our result.
. The United States Court of Appeals for the District of Columbia Circuit has rejected the theory that an internal conflict of interest may deprive an organization of standing. See Humane Society of the United States v. Hodel, 840 F.2d 45, 59-60 n. 25 (D.C.Cir.1988); National Maritime Union v. Commander, Military Sealift Command, 824 F.2d 1228, 1234 (D.C.Cir.1987).
. The reader is reminded that the term "Contractors" as used in this opinion encompasses all the trade associations that joined in bringing this action who were found to have met Article Ill’s requirements for standing by the district court. See supra note 1.
. Though Minority Associates may also compile and submit evidence of instances of discrimination that pre-date the passage of the Ordinance, we note that the questions of whether evidence of past discrimination not known to City Council when it passed the Ordinance is proof material to the legislative purpose of correcting such discrimination that Croson requires, or whether anecdotal evidence of discrimination is suffi-dent to show the compelling interest Croson requires are not now before us.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_appnonp
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". 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.
HAWTHORNE et al. v. AUSTIN ORGAN CO.
No. 3599.
Circuit Court of Appeals, Fourth Circuit.
June 25, 1934.
PARKER, Circuit Judge, dissenting.
Murray M. McGuire, of Richmond, Va., and John S. Battle, of Charlottesville, Va. (Robert E. Taylor, of Charlottesville, Va., on the brief), for appellants.
H. W. Walsh, of Charlottesville, Va. (W. Eskridge Duke and Lyttelton Waddell, both of Charlottesville, Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and WEBB, District Judge.
SOPER, Circuit Judge.
This action in assumpsit was instituted on June 22) 1932; in the District Court by Austin Organ Company, a Maine corporation, as plaintiff, against H. K. Hawthorne, M. L. Rea, and R. Merritte Robinson, citizens of Virginia, to recover the sum of $12,870, with interest. The suit was based on five promissory notes payable to the plaintiff; one of April .10) 1930; for $2)700, payable six months after date,, with an attorney’s fee of 10' per cent, for collection if not paid at maturity, and four notes of December 10) 1929) for $2)-475 each, payable at intervals of one, two, three, and four years, respectively. The notes were signed by the three defendants as “Trustees High Street Baptist Church.” The defense pleaded was that the notes ’were not the individual personal obligations of the defendants, but were the obligations of the congregation of the church, executed upon its authority by the defendants, as its agents, in evidencei of the purchase price of an organ, pursuant to a contract under which the plaintiff agreed to sell and deliver the organ to the congregation; and that the notes were accepted by the plaintiff, not as the obligations of the defendants, but as the obligations of the congregation.
At the trial of the case, the plaintiff proved the notes and rested. The defendants thereupon offered in evidence a contract of February 1, 3929) between the Organ Company, as party of the first part, and High Street Baptist Church, as party of the second. part, signed by a'representative of the Organ Company and by the three defendants, as trustees of the church. The contract provided that the Organ Company should construct, erect, and sell to the church, a pipe organ, according to certain specifications, and that upon the acceptance of the organ the church should pay therefor the sum of $12,-900 as follows: $3,000, in cash, and the balance in four notes of $2,475 each, payable at yearly intervals, with interest at 6 per cent. It was further provided that in the event of default in the payment of any note given for the balance of the purchase price, all of the sums represented by the notes should become due and pajmble. The contract was approved by the congregation at a meeting held on February 1,1929', at which the report of a music committee recommending the purchase of the organ on the terms expressed was adopted, and the trustees of the church were authorized and requested to’ sign the contract.
The organ was installed and accepted by the church on August 11,1939. The cash payment of $3>0()0, however, was not made, and after certain negotiations the Organ Company accepted in lieu thereof $100 in cash and a four months’ note of December 10, 1939, for $2,900'. On the same date the remaining four notes in suit were executed and delivered for the balance of the purchase price. The execution of the notes bj^ the trustees was authorized at a meeting of the congregation on December 6,19291, at which a motion requesting the trustees to sign the notes was adopted. The sum of $200- was subsequently paid on the note of $2,900', and on April 10, 1930, a renewal note for six months for $2,700' was given in its place.
The plaintiff objected to the introduction of the contract in evidence on the ground that it had been finally merged in the notes, which became the obligations for payment upon which the defendants were bound. It seems to be true that the notes were accepted as payment for the organ, but the evidence referred to above was relevant to the defense, and the default provision of the contract was necessary to justify an action upon the last two notes prior to their maturity.
At the conclusion of the evidence in the court below, a motion of the plaintiff for a directed verdict in its favor was granted, and this, action is assigned as error in this appeal. The District Judge was of the opinion that the defendants were individually liable on the notes by reason of the established principle that a trustee is subject to personal liability upon a contract made by him in the course of the administration of the trust, unless, by the contract, it is provided that he shall not he personally liable. The rule is so stated in Tentative Draft No. 4, Restatement of Trusts of the American Law Institute, §§ 253) 264, and 255, and the authorities support the statement. Taylor v. Davis, 110 U. S. 330, 4 S. Gt. 147, 28 L. Ed. 163 ; Petition of Eddy (C. C. A.) 6 F. (2d) 196-198; Allegheny Tank Car Co. v. Culbertson (D. C.) 288 F. 406; Hussey v. Arnold, 185 Mass. 203, 70 N. E. 87; Philip Carey Co. v. Pingree (1916) 223 Mass. 352, 111 N. E. 857; Equitable Trust Co. v. Taylor (1928) 330 Ill. 43, 161 N. E. 62, 64; Feldman, v. Preston (1916) 194 Mich. 352, 3.00 N. W. 055; Truesdale v. Phila. Trust Co. (1895) 63 Minn. 49, 65 N. W. 133; Stanton Nat. Bank v. Swallow (1925) 113 Neb. 330, 203 N. W. 561; Riedell v. Stuart (1931) 151 Okl. 266, 2 P.(2d) 929, 76 A. L. R. 1469; Catlett v. Hawthorne, 157 Va. 372., 161 S. E. 47. Compare Boyle v. Rider, 136 Md. 286, 110 A. 524, where it was held that the intent of the parties not to hold a trustee personally liable upon a contract need not necessarily be shown in the contract itself, but may be evidenced by circumstances known to the parties at the time the contract was executed.
The general rule, however, has been modified, so far as negotiable instruments are concerned, by section 20 of the Negotiable Instruments Law, codified in section 5582 of the Virginia Code, which provides as follows: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” It is said in the Tentative Draft of the Restatement of Trusts, § 255., page 153, that this statute is applicable to a trustee who signs a negotiable instrument in such a manner as to manifest an intention to he liable not in his personal capacity, but only as trustee. The authorities likewise support this statement of the rule. Thus in New Georgia Nat. Bank v. Lippmann, 249 N. Y. 307, 310, 164 N. E. .108,109', 60' A. L. R. 1344, the court was construing the liability of a person who signed an instrument containing words indicating that he was signing- in a representative capacity, when in fact he signed without authority. In holding that in such circumstances the signer was liable on the instrument, the court, through Cardozo, C. J., discussed the purpose of section 20, as follows:
“Before the statute was adopted, all manner of subtle distinctions had to be drawn before one could say where liability would rest. Brannon [Negotiable Instruments Law (4th Ed.)], supra; Meehem, Agency, vol. 1, §§ 1122, 3123. Many forms of signature indicating an intention to sign as agent for a designated principal were held to charge the agent personally. The hardship was mitigated by resort to- extrinsic evidence when the controversy was one between the original parties to the paper, but not when the paper was in the hands of a holder in due course. Thus, a note bearing the name of a corporation in the margin, but signed by the president and treasurer in their own names with the addition of their official titles, and thereafter discounted by a bank without notice dehors the instrument, was in law their individual promise. Casco Nat. Bank v. Clark, 139 N. Y. 307, 34 N. E. 908, 30 Am. St. Rep. 705; Merchants’ Nat. Bank v. Clark, 139 N. Y. 314, 34 N. E. 910, 36 Am. St. Rep. 710; First Nat. Bank v. Wallis, 150 N. Y. 455, 44 N. E. 1038, Many decisions to the like effect aro collated in the .text-books, see, e. g., Brannon’s Negot. Instr. I Law (4th Ed.) by Prof. Chufee, note to section 20, Mechem, supra. Slight variations of form led to variant conclusions. See, e. g., Barker v. Mechanic Fire Ins. Co., 3 Wend. [N. Y.] 94, 20 Ain. Dee. 664; Miller v. Roach, 150 Mass. 140; 23 N. E. 634, 6 L. R. A. 71; Meehem, § 1124. The refinement of distinction was mystifying even to the courts. It must have been moro mystifying to business men in the quick transactions of the market.
“The statute, as we read it, sweeps these subleties away. Whenever the form of the paper is sucli as fairly to indicate to the eye of common sense that the maker signs as agent or in a representative capacity, he is relieved of personal liability if duly authorized. Jump v. Sparling, 218 Mass. 324, 328, 105 N. E. 878; Consumers’ Twine Co. v. Mount Pleasant Co., 186 Iowa, 64,194 N. W. 290; Austin, Nichols & Co. v. Gross, 98 Conn. 782; 120 A. 596.”
See, also, American Trust Co. v. Canevin (C. C. A.) 184 F. 657; Gutelius v. Stanbon (D. C.) 39 F.(2d) 621; First Nat. Bank of Pennsboro v. Delancey, 109 W. Va. 136, 153 S. E. 908; Wilson v. Clinton, etc., Church, 138 Tcnn. 398, 198 S. W. 244; Adams v. Swig, 234 Mass. 584,125 S. E. 857; Bank of Spruce Pines v. Vance, 205 N. C. 303, 170 S. E. 119; Megowan v. Peterson, 173 N. Y. 1, 65 N. E. 738; Charles Nelson Co. v. Morton, 106 Cal. App. 144, 288 P. 845; Grafton Nat. Bank v. Wing, 172 Mass. 53.3, 53 N. E. 3067, 43 L. R. A. 833, 70 Am. St. Rep. 303; Bowen v. Farley, 256 Mass. 19; 152 N. E. 69; Korby v. Ruegamer, 3.07 App. Div. 491, 95 N. Y. S. 408; Wolff v. Plateau, 206 App. Div. 133, 200 N. Y. S. 646; Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Conner v. Clark, 12 Cal. 168, 73 Am. Dec. 529; Hall v. Jameson, 151 Cal. 606, 91 P. 518, 12 L. R. A. (N. S.) 1190,12 L Am. St. lisp. 137; True W. Jones Brewing Co. v. Flaherty, 80 N. H. 571, 120 A. 432. We have been referred to no- Virginia cases in which it is held that section 20' is applicable to trustees signing a contract as such, but it seems certain that the Virginia court regards with favor the rule established by the above-cited authorities, for there are numerous dicta to that effect in the opinion of Coal River Collieries v. Eureka C. & W. Co., 144 Va. 263, 132 S. E. 337, 339; 46 A. L. R. 485.
It will be noticed that a trustee is excused from personal liability only if he is duly authorized to sign the instrument, in a representative capacity. Reiving on this proviso, the plaintiff contends that no authority was given to the defendants by the church to sign the notes «in suit on its behalf. Reference is made to the resolution passed by the congregation of February 1, 3.929, wherein the report of the music committee was adopted, and the trustees of the church, were authorized and requested to sign the contract for the purchase of the organ; and also- to the resolution passed at the meeting of December 6, 1920, wherein the trustees were requested to sign the notes. The contention is that these resolutions did not empower the trustees to sign on behalf of the congregation, but merely to sign the contract themselves. The position is not tenable. The contract which the trustees wore authorized and requested to sign was expressly entered into between the Organ Company, as party of the first pari, and the church, as party of the second part, and it would be a perversion of the reasonable meaning of the resolutions to hold that the congregation did not authorize the trustees to sign the notes on its behalf, but merely on their account. •
The plaintiff goes further and contends that the church had no power under the Virginia statutes to authorize the trustees to sign a contract on its behalf which might become a charge upon the property held by the trustees for the uses of a religious congregation. Reference is made to sections 45 and 46 of the Virginia Code, in which if is provided that whenever any religious congregation shall deem that their interests will be promoted by a sale of tbeir land or by a mortgage thereof or deed of' trust thereon, any member of the congregation may prosecute a suit in the circuit court of the county where the land lies against the trustees in whom the legal title is, and the court may, if the congregation has given its assent and the court be of the opinion that the rights of others will not be violated, order that the desired action be taken. . The trustees themselves. may file such petition, and the court, upon evidence that the action is the wish of the congregation, may pass the desired order. The contention is that no action may be taken by the congregation or the trustees which may incumber the lands or property of the church unless proceedings are instituted in conformity with these statutes.
The answer to this argument is found in the decision of Cain v. Rea, 159l Va. 446> 166 S. E. 478, 480; which, was a suit instituted by an architect against the same trustees involved in the pending ease to enforce a mechanic’s lien on the property of the same church, for compensation for labor performed in connection with the erection of the church building under a contract between the architect and the church, which was authorized by the congregation and signed by the trustees. The main question in the ease was whether under the Virginia Mechanic’s lien Law, section 642© of the Virginia Code, a mechanic’s lien attaches to church property held by trustees. The sole defense to the suit was that the Legislature had provided only two methods under sections 45 and 46 by which church property might be incumbered; and since neither had been followed in the transaction between the architect and the church, he could not enforce his mechanic’s lien. The court said: “We are unwilling to concur in the contention that sections 45 and 46 prohibit a church congregation from making any contract which will affect the church property, except in the particulars enumerated in the statutes. The sections in question provide a convenient method for the sale or mortgaging of church property. They are barriers over which neither trustees nor individual members can step in order to destroy the corpus. They do not prohibit a church, in a congregational meeting, duly called in conformity with the rules of the church, from entering into a contract with a laborer or materiahnan to perform labor or furnish material.”
The court, in reaching this conclusion, relied largely on the decision in Linn v. Carson’s Adm’r, 32 Grat. (73 Va.) 170; wherein a church trustee filed a bill in equity to collect an amount which he had advanced for the erection of a church building; and it was held that the transaction between him and the church amounted to a contract which could be enforced against the church property in that ease. There the court said: “The Methodist Episcopal church at Winchester, though not a corporation, and incapable of incorporation under the constitution of the state, was an association of individuals, recognized by the constitution as a body capable of taking and holding land, under such limitations as might be prescribed by law, and entitled to be secured in the enjoyment of its property.”
In Cain v. Rea, the court expressly disapproved a statement in its prior decision in Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, to the effect that in Virginia a church or its congregation cannot contract except by reason of a specially held meeting and through a special committee appointed by the members attending the meeting. In that ease the board of stewards of a church was held personally liable on a contract in the name of the church, on the ground that the church eo nomine was not a legal entity, Was not competent to sue or be sued, and could not be a party to a contract. The final conclusion in Cain v. Rea was, that since the church had authorized the contract of employment, the architect’s lien for services rendered was enforceable against the church property. -
This decision seems to us conclusive upon the point under discussion; for if the congregation of a church has the capacity to contract, it must-possess legal personality, and the inherent power to authorize other persons to enter into a contract on its behalf. The full significance of the decision appears when it is noted that it followed closely upon the decision in Catlett v. Hawthorne, 157 Va. 372, 161 S. E. 47, wherein the defendants in the pending ease were held personally liable upon a note signed by them as trustees which had been given in payment of lighting fixtures for the church. They had secured a ruling in prior litigation that the church had not authorized the execution of the note in accordance with law, and it was held that they were therefore estopped, when sued personally, from contending that the payee was to look for payment to the congregation. It is also significant that the court’s attention was called to the provision of section 59‘ of the Constitution of Virginia, that the General Assembly shall not grant a charter of incorporation to any church or religious denomination, and to expressions in earlier cases such as Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, indicating that a church in Virginia1 is not a legal entity. See, also, Feuchtenberger v. Williamson, 137 Va. 578, 120 S. E. 257, which, holds that under the Mechanics Lien Statute, sections 6426 and 6436, only the interest of the contracting party in the land is subject to the lien.
It is true that the provisions of section 20 of the Negotiable Instruments Law suggest that ordinarily the authority of the maker of the instrument to sign in a representative capacity must proceed from some person against whom liability upon the instrument may be asserted. Compare Charles Nelson Co. v. Morton, 1.06 Cal. App. 144, 288 P. 845. It seems clear, however, from the decision in Cain v. Rea, that the congregation in the pending ease was not so devoid of legal personality that no liability could be fixed, upon it. Such a body is not only capable of taking and holding property, but it can make a. contract which may give rise to a lien upon its property. Moreover, under the statute law of Virginia, a church organization is liable to suit. Section 42 of the Code of Virginia enables trustees of a church, in their own names, to sue for and recover real and personal property held by them in trust, or to sue for damages for injury thereto; and also permits them to be sued in relation to the same. The scope of this section seems to ho limited to suits attacking the property or the legal title vested in the trustees. Globe Furniture Co. v. Jerusalem Church, 103 Va. 559, 49 S. E. 657. There is, however, a broader statute in section 6058 of the Virginia Code which provides for suits by and against unincorporated associations generally, and declares that they may sue or be sued raider their common name, and that judgments and execution against them shall bind their real and personal property in like manner as if they were incorporated. There appear to have been no decisions of the state courts as to the applicability of this statute to a church, but the language is sweeping and broad enough to include such a group. So it now appears that the property which a church owns may he made liable for the debts which it incurs under its power to make a contract. It follows that section 20’ of the Negotiable Instruments Law may be applied to a negotiable instrument executed on behalf of a church in Virginia, so as to give effect to the obvious purpose of the section to save from personal liability a person who signs a negotiable instrument in a representative capacity, when he is authorized to do so by one subject to the liability.
The effect of the decision of the Supreme Court of Appeals of Virginia, as we understand it, is in accord with the tendency of modern decisions to acknowledge the fact that associations of men, united in a common purpose, are endowed with personality which, for some purposes at least, the courts may recognize. It is insisted in some quarters that in the absence of legislative authority it is not proper for the courts in any case to view an association as a legal unit or juristic person, while other writers, without ignoring the traditional view, suggest that the line between bodies corporate and unincorporate is so indefinite in the decisions and statutes of to-day that a sharp distinction cannot always he made. Compare Warren, Corporate Advantages without Incorporation (19'29) and Dodd on Dogma and Practice in the Law of Associations, 42 Harvard Law Review, 977, June, 192.9; Stnrges, Unincorporated Associations as Parties to Actions, 33 Yale Law Journal, 9214. The more liberal view is not without support in the decisions o f the courts. In the well-known case of United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762i, the Supreme Court held that unincorporated labor unions are suable in the federal courts for torts, and that their funds, are subject to execution. Reference was made in the opinion (page 385 of 2159 II. S., 42 S. Ct. 570, 574), to “affirmative legal recognition of their existence and usefulness and provisions for their protection,” embodied in statutory provisions passed; by Congress and by the Legislatures of many states, and also to the influence upon the law side of litigation of the equity procedure by which the representation by one person of many in a suit is permitted with the result that the suable character of such an organization has been recognized without dispute in many jurisdictions. The court said .(pages 390, 391 of 259 U. S., 42 S. Ct. 570, 576) : “Though such a conclusion as to the suability of trades unions is of primary importance in the working out of justice and in protecting individuals and society from possibility of oppression and injury in their lawful rights from the existence of such powerful entities as trade unions, it is after all in essence and principle merely a procedural matter. As a matter of substantive law, all the members of the union engaged in a combination doing unlawful injury are liable to suit and recovery, and the only question is whether when they have voluntarily, and for the purpose of acquiring concentrated strength and the faculty of quick unit action and elasticity, created a self-acting body with great funds to accomplish their purpose, they may not be sued as this body, and the funds they have accumulated may not be made to satisfy claims for injuries unlawfully caused in carrying out their united purpose.”
We do not think that it can be said that the opinion was in strict accord with the traditional rule that a voluntary association may not be treated as a legal unit; for on the contrary there was the recognition of the fact that such an organization may be an entity or self-acting body, capable of possessing funds and subject as such to suit in the courts. It seems to us rather that the opinion represented an advance or natural development in the law by which the ancient rule was brought into conformity with modern needs that in various ways had been formally recognized in the litigation and statutes of the country.
In other connections, the Supreme Court has treated unincorporated aggregations as legal entities subject to liabilities. In BurkWaggoner Association v. Hopkins, 269 U. S. 116, 46- S. Ct. 48, 70 L. Ed. 183, it held that an unincorporated joint stock association, although a partnership under the state law, was a corporation within the definition of the Revenue Act of 1918 (40 Stat. 1057) and subject to the income taxes imposed by that act, and therefore overruled the contention of the association that what was called its property and income was in law the property and income of its members which could be taxed only after apportionment to the owners thereof. In Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577, 579, 72 L. Ed. 978, it was held that a business association known as a “Massachusetts Trust,” which was unincorporated but had some of the attributes of a corporation under the state law, could not claim for itself the privileges and immunities granted to associates as individual citizens by article 4, § 2, of the Federal Constitution. Discussing the matter, the court said: “Whether a given association is called a corporation, partnership, or trust, is not the essential factor in determining the powers of a state concerning it. The real nature of the organization must be considered. If clothed with the ordinary functions and attributes of a corporation, it is sub ject to similar treatment.”
It is obvious that in this decision the actuality of the situation rather than the technical distinction between incorporated bodies and voluntary associations was the controlling consideration.
Conversely, cases dealing with incorporated bodies are not wanting in which the corporate fiction has been ignored so that the situation might bo treated realistically and justice might be done. The Supreme Court itself on occasion has disregarded the fiction in tax cases in order to avoid injustice to the taxpayer or to the United States, as in Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142; Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1061, 33 A. L. R. 5201; U. S. v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180. See, also, Industrial Cotton Mills v. Commissioner (C. C. A.) 61 F.(2d) 291; Western Md. By. Co. v. Commissioner (C. C. A.) 33 F.(2d) 695. Compare New Colonial lee Co. v. Helvering, 54 S. Ct. 788, 78 L. Ed. 1348, decided May 28, 1934.
Modem legislation itself, reflecting the demands of the times, tends to obliterate the distinction. On the one hand, we find statutes like that codified in section 6058 of the Virginia Code, which permits an unincorporated association to sue and be sued under its common name, and provides that judgments and executions against it shall bind its real and personal property in like manner as if it were incorporated. These provisions may be viewed-as merely procedural; see Warren, Corporate Advantages without Incorporation (1929), Ch. 6; but they are none the less a recognition of the fact that an aggregation of men, which performs acts, incurs liabilities, and owns property as a body, has in fact.a personality which cannot be completely ignored by the law without introducing confusion and injustice in practical affairs. On the other hand, there are the liberal permissive laws of the several states which make possible the formation of a corporation by any group of individuals who see fit to take advantage of the opportunity. The liberality of these statutes emphasizes the unreality of the distinction between the two classes of aggregations, and the result is that the courts are led more and more to recognize the factual similarity between them. The Supreme Court of Appeals of Virginia was doubtless influenced by these considerations when it spoke in Linn v. Carson, supra, of a church as “an association of individuals, recognized * * * as a body capable of taking and holding land.”
The plaintiff further contends, irrespective of the liability of the defendants on the notes as trustees, that they are-personally liable as members of an unincorporated body, who participated in the making of the contract, and are in effect the principals on whose behalf the notes were executed. The general rule at common law is invoked that a voluntary association, not for profit, such as an unincorporated church or club, is not liable as such 011 its contracts because it lias no independent legal status, but the members thereof, who authorize or ratify the contract, are liable thereon upon general principles of agency. Thus it is said in Catlett v. Hawthorne, 157 Va. 372
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
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sc_caseorigin
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160
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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.
FIELDS et al. v. SOUTH CAROLINA.
No. 399.
Decided March 18, 1963.
Jack Greenberg, Constance Baker Motley, Matthew J. Perry and Lincoln C. Jenkins, Jr. for petitioners.
Daniel B. McLeod, Attorney General of South Carolina, Everett N. Brandon, Assistant Attorney General, and Julian S. Wolfe for respondent.
Per Curiam.
The petition for writ of certiorari is granted. The judgment of the Supreme Court of South Carolina is vacated and the case is remanded for consideration in light of Edwards v. South Carolina, 372 U. S. 229.
Mr. Justice Clark dissents for the reasons expressed in his dissenting opinion in Edwards v. South Carolina, supra.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
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Answer:
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songer_state
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37
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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, Plaintiff-Appellee, v. Ricky Lee SANDS, Defendant-Appellant. Muscogee (Creek) Nation and Seminole Nation of Oklahoma; Cherokee, Choctaw and Chickasaw Nations, Amici Curiae.
No. 91-7027.
United States Court of Appeals, Tenth Circuit.
July 7, 1992.
Edwin Kneedler, Atty. (Sidney M. Glazer, Acting Chief, Appellate Section, Criminal Div. and Andrew Levchuk, Atty.), Dept, of Justice, Washington, D.C., for plaintiff-ap-pellee.
Susan L. Foreman, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender), Denver, Colo., for defendant-appellant.
Leah Harjo Ware, Atty. Gen., Muscogee (Creek) Nation, Okmulgee, Okl. and L. Susan Work, Atty. Gen., Seminole Nation, Ada, Okl., for amici curiae Muscogee (Creek) Nation and Seminole Nation of Oklahoma.
James G. Wilcoxon and Chad Smith, Muskogee, Okl., and Bob Rabón, Rabón, Wolf & Rabón, Hugo, Okl., for amici curiae Choctaw and Chickasaw Nations.
Before LOGAN, ENGEL and KELLY, Circuit Judges.
The Honorable Albert J. Engel, Senior United States Circuit Judge for the United States Court of Appeals, Sixth Circuit, sitting by designation.
PAUL KELLY, Jr., Circuit Judge.
Defendant-appellant Ricky Lee Sands appeals his murder conviction and sentence. His prosecution for this offense has a long history. Mr. Sands and the victim, John Mauldin, are Creek (Muscogee) Indians and the incident occurred on a restricted fee allotment in the territory of the Five Civilized Tribes (which includes the Creeks) in eastern Oklahoma. He was prosecuted in Oklahoma state court for first degree murder, but successfully moved to have the case dismissed for lack of jurisdiction. Mr. Sands argued that the United States had jurisdiction, not Oklahoma. He then was prosecuted by the United States and pled guilty to possession of a firearm by a previously convicted felon, 18 U.S.C. §§ 922(g)(1) & 924(a)(1)(B), and was convicted by a jury of first degree murder, 18 U.S.C. §§ 1111 & 1153. On appeal, a divided panel reversed the murder conviction due to improper references to Mr. Sands’ stay in the penitentiary. United States v. Sands, 899 F.2d 912 (10th Cir.1990). On retrial, Mr. Sands again was convicted by a jury and was sentenced to life imprisonment, with five years of supervised release on the murder count, and to a concurrent five years, with three years of supervised release, on the firearm count.
On appeal, Mr. Sands contends that (1) the prosecutor made an improper reference to his post-arrest silence, (2) the prosecutor engaged in misconduct by attributing an inculpatory statement to him which was not in the record, (3) the district court’s jury instructions failed to apprise the jury that voluntary intoxication had a bearing on whether the murder was premeditated, (4) the district court erred in not granting him a hearing on his new trial motion based on ineffective assistance of counsel, and (5) the district court misapplied the Sentencing Guidelines because it was unaware of its discretion to depart downward. The government, after prosecuting Mr. Sands, now contends that we are without jurisdiction to hear this appeal because the district court lacked subject matter jurisdiction over the offense. The government urges us to adopt its frequently raised, but never accepted, argument that the State of Oklahoma retained jurisdiction over criminal offenses in Indian country. We first consider the jurisdictional issue, find the government’s position wanting, and then affirm. on the merits.
I.
In a nutshell, the government claims that the Indian Major Crimes Act, 18 U.S.C. § 1153, which provides that federal criminal law applies to various offenses committed by Indians against Indians “within the Indian Country,” does not apply because the restricted allotment in this case is not “Indian country” as defined in 18 U.S.C. § 1151.
According to the government, Congress intended to treat members of the Five Civilized Tribes essentially the same as non-Indians subject to state law. The government reaches this conclusion based on certain statutes predating the enactment § 1151. Specifically, the government urges that the following acts control the application of § 1151: (1) Indian Department Appropriations Act of 1897, ch. 3, § 1, 30 Stat. 83; (2) Curtis Act (Act of June 28, 1898), ch. 517, §§ 26, 28, 30 Stat. 495, 504-505; (3) Act of April 28, 1904, ch. 1828, § 2, 33 Stat. 575; and (4) Oklahoma Enabling Act of June 16, 1906, ch. 3335, §§ 2, 13, 16, 20-21, 34‘Stat. 267-268, 275-78. See also Enabling Act Amendment, ch. 2911, §§ 1, 3, 4, 34 Stat. 1286-88. The government contends that criminal jurisdiction was conferred on Oklahoma in 1906 when cases of a local nature arising in Indian Territory were transferred to the State and the laws of Oklahoma were extended to Indian Territory.
The government relies on perceived Congressional intent and practical considerations to support its position. Several Congressional acts applicable to the allotments of the Five Civilized Tribes provide that state law governs concerning alienation, partition and heirship. These acts ostensibly demonstrate that Congress intended to confer broad jurisdiction on the State of Oklahoma, even going beyond a grant of criminal jurisdiction to the State. Additionally, the government points to practical considerations which suggest that the State should assume criminal jurisdiction over “checkerboard” Indian allotments because the State plainly has jurisdiction over neighboring non-Indian land.
We agree with the amici curiae that the allotments of individual citizens are Indian country within the express terms of § 1151(c). By 1948, when § 1151 was enacted, “Indian country” included both trust allotments and restricted fee allotments, as in this case. See United States v. Ramsey, 271 U.S. 467, 471, 46 S.Ct. 559, 560, 70 L.Ed. 1039 (1926); United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914). See also State v. Burnett, 671 P.2d 1165, 1167 (Okla.Crim.App.1983). Section 1151 contains no hint that allotments of the Five Civilized Tribes are not within its reach. We have ruled to the contrary. Indian Country, U.S.A. v. Oklahoma Tax Comm’n, 829 F.2d 967 (10th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988).
In Indian Country, U.S.A., we held that Oklahoma laws concerning the regulation of bingo and collection of sales tax were preempted on unallotted Creek tribal lands. In reaching this conclusion, we construed § 1151(a) and also recognized that “[tjribal lands, trust lands, and certain allotted lands generally remain Indian country.” Id. at 973, 975 n. 3. The government’s position in this case is virtually identical to that of the State of Oklahoma in Indian Country, U.S.A., although the government relies on the Act of April 28, 1904 as additional support for the theory. We agree with amici Muscogee (Creek) Nation and Seminole Nation that the enactments relied on by the government did not abrogate the federal government’s authority and responsibility, nor allow jurisdiction by the State of Oklahoma. Amici Brief at 9-16; Indian Country, U.S.A., 829 F.2d at 978. Additionally, the government’s construction of the Oklahoma Enabling Act ignores § 1 of that Act, 34 Stat. 267-78, which preserved federal authority. Indian Country, U.S.A., 829 F.2d at 979.
The government’s position is undermined further because Congress has granted some states criminal jurisdiction over Indian country. See, e.g., 18 U.S.C. §§ 1162, 3243. See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987); Ross v. Neff, 905 F.2d 1349, 1352 (10th Cir.1990). Equally relevant, the United States has consented to States assuming criminal jurisdiction in Indian country, provided that the Tribe consents. 25 U.S.C. §§ 1321, 1324. Oklahoma, however, has not taken the affirmative steps necessary for such an assumption of jurisdiction, let alone obtained consent. Ross, 905 F.2d at 1352; Indian Country, U.S.A., 829 F.2d at 980; State ex rel. May v. Seneca-Cayuga Tribe, 711 P.2d 77, 88 (Okla.1985); Burnett, 671 P.2d at 1167-68. See also Kennerly v. District Ct., 400 U.S. 423, 427, 91 S.Ct. 480, 482, 27 L.Ed.2d 507 (1971) (Montana without jurisdiction); United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.1990) (Colorado without jurisdiction). The State of Oklahoma does not have jurisdiction over a criminal offense committed by one Creek Indian against another in Indian country. See Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1446 (D.C.Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989); Cravatt v. State, 825 P.2d 277, 279 (Okla.Crim.App.1992); State v. Klindt, 782 P.2d 401, 402-403 (Okla.Crim.App.1989); State v. Brooks, 763 P.2d 707, 710 (Okla.Crim.App.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989). The federal government does. See Solem v. Bartlett, 465 U.S. 463, 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984); DeCoteau v. District County Ct., 420 U.S. 425, 427-28, 95 S.Ct. 1082, 1084-85, 43 L.Ed.2d 300 (1975). Although the government urges that previous cases supporting this conclusion have failed to examine the turn-of-the-century Congressional enactments it relies on, the government did not cite, let alone analyze, Indian Country U.S.A. which did so in several material respects. We remain unpersuaded by the argument. The government reminds us that law enforcement might be easier if the State had jurisdiction over the checkerboard of Indian and non-Indian land involved. We are not empowered to decide the issue on that basis, but we note that cross-deputization may assist in filling a jurisdictional void.
II.
Mr. Sands first contends that the prosecutor improperly commented on his post-arrest silence in violation of the Fifth Amendment. A defendant’s silence at the time of arrest and after receiving a Miranda warning may not be used for impeachment. Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 2246, 49 L.Ed.2d 91 (1976). The rationale for the rule is that a Miranda warning implies to a defendant that silence carries no penalty; silence as impeachment of a subsequently offered explanation at trial would contravene that implication. Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107, 97 L.Ed.2d 618 (1987); Doyle, 426 U.S. at 618, 96 S.Ct. at 2245.
After being reminded that he was not too drunk to remember several other details, Mr. Sands stated:
A: I know if you had asked me these questions the day after, I wouldn’t have remembered. But, yes, I remember now.
Q: You recall now — there is no record of what you said the day after this incident, is there?
A: No.
Q: You didn’t make any comment to anyone at that point in time about what had happened or make any effort to keep a record of what had happened, did you?
(Objection).
IV R. 343. The prosecutor claimed that the above exchange was offered not to impeach Mr. Sands’ subsequent in-court explanation, but rather to follow up on Mr. Sands’ statement that he could not have remembered the events in question the day after the murder. On appeal, the government contends that the purpose of the questions was to impeach Mr. Sands’ claim that he had no recollection, either post-arrest or at trial, of firing a second round of shots at the victim after the victim had collapsed behind the car. See Id. at 334.
We agree with Defendant’s trial counsel that the two questions were improper because of their potential to mislead the jury by suggesting that Mr. Sands had some kind of duty to come forward post-arrest. Id. at 344. But when the questions are placed in the context of Mr. Sands’ entire trial testimony, we feel that they are not of the type which call attention to his post-arrest silence as a means of impeaching his subsequent explanation. Mr. Sands consistently has maintained that he does not remember firing the second round of shots at the victim. The two questions at issue were brief, an objection to the second question was sustained promptly, and the matter did not surface again. See Greer, 483 U.S. at 764, 107 S.Ct. at 3108. Defendant did not request a curative instruction, perhaps for tactical reasons, and we cannot say that the district court was required to give one under the circumstances. See United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir.1987). The district court did not abuse its discretion in denying defendant’s motion for a mistrial on this point.
III.
Mr. Sands next contends that a comment made by the prosecutor in closing argument warrants reversal. Because no objection was made below, our review is for plain error and reversal is appropriate only if, after reviewing the entire record, we conclude that the error is obvious and one that would undermine the fairness of the trial and result in a miscarriage of justice. Fed.R.Crim.P. 52(b); United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). When evaluating allegedly inappropriate remarks of counsel for plain error, we must view the remarks in the context of the entire trial. Young, 470 U.S. at 11-12, 105 S.Ct. at 1044-45.
In arguing that Mr. Sands acted with premeditation, the prosecutor stated:
Did the defendant premeditate? We submit to you the defendant premeditated when he ordered, pull over or I’ll kill you. We suggest that the defendant premeditated, let’s shoot the driver.
IV R. 357. The prosecutor continued specifying some two-dozen circumstances which he felt would support premeditation.
Mr. Sands contends that attributing the statement “Pull over or I’ll kill you” to him resulted in prejudice because other evidence concerning premeditation “was far from overwhelming.” Aplt. Brief at 20. When evaluating errors claimed by appellate counsel which were not raised by trial counsel, “we must be cautious of a ‘tendency to seize upon errors which, removed from context, take on an aspect of seriousness which they never had below.’ ” United States v. Mitcheltree, 940 F.2d 1329, 1333 n. 5 (10th Cir.1991) (quoting 8B J. Moore, Moore’s Federal Practice ¶ 52.03 (1991)). This is the paradigmatic case for application of that admonition.
The evidence in this trial concerning premeditation was strong. Mr. Sands pointed the gun at the victim, clicked it, and said “Now it’s ready” and “Let’s shoot the driver” before the murder. Additionally, there were two rounds of shots which allowed ample time for premeditation. The district court gave the stock instruction that the jury must rely on its own recollection of the evidence when it differed from that described by counsel. While the prosecutor may have overstated the evidence with the remark in question, we do not think it impaired “the jury’s ability to judge the evidence fairly.” See Young, 470 U.S. at 12, 105 S.Ct. at 1044. The remark was not plain error.
IV.
Mr. Sands next contends that the district court erred in declining to instruct the jury that voluntary intoxication may negate premeditation. In evaluating jury instructions, we review them as a whole to determine whether they adequately set out the law and provide the jury with sufficient guidance to decide the ease. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). Without question, voluntary intoxication can negate the existence of the premeditation required for first degree murder. Hopt v. Utah, 104 U.S. 631, 634, 26 L.Ed. 873 (1881); United States v. Slader, 791 F.2d 655, 658 (8th Cir.), cert. denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986). The issue is whether the jury was apprised sufficiently that voluntary intoxication could negate an element of first degree murder.
Mr. Sands concedes that the district court instructed that first degree murder requires proof of specific intent and that voluntary intoxication may prevent the existence of such intent. His complaint is that the instructions failed to link specific intent with premeditation, for which voluntary intoxication is a defense. See United States v. Shuckahosee, 609 F.2d 1351, 1356 n. 11 (10th Cir.1979) (instruction integrating specific intent and premeditation was “above reproach”), cert. denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 605 (1980). During deliberations, the jury sent out a note beginning with the phrase “voluntary intoxication” and then repeating part of the instruction on specific intent, followed by a question mark. The district court indicated that it did not consider the note a question, and urged the jury to write down a specific question and submit it. The jury did not respond until it returned a verdict.
The jury was instructed repeatedly that first degree murder required a specific intent to kill and adequately that intoxication could be sufficient to negate such an intent. Contrary to Mr. Sands’ argument, the district court did reference specific intent when discussing premeditation. A well-developed issue in closing argument concerned Mr. Sands’ specific intent to kill his victim, considering the quantity of alcohol he drank. See, e.g., IV R. 365 (“Ricky didn’t have all his faculties about him. [I]t certainly doesn’t equate to a premeditated first degree murder after he had so much to drink it clouds your ability to judge.”); 861 (“The defendant, though drinking, was not too drunk to form the specific intent to do what he did.”). The jury instructions accurately stated the law and addressed the intoxication defense presented by the Defendant. Although the jury may have had a question about the instructions, we must presume that the jury followed them and that any question was resolved when the jury declined to seek specific guidance from the court. See Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978).
V.
Notwithstanding that his trial counsel secured a mistrial and a reversal on appeal, Mr. Sands now contends that his trial counsel was ineffective from the outset and that the district court erred in not granting him an evidentiary hearing to prove it. Mr. Sands chose to present this claim by way of a motion for new trial, Fed.R.Crim.P. 33, and trial counsel moved to withdraw because Mr. Sands sought his testimony in proving the ineffectiveness claim. The district court denied both motions and declined to reconsider.
To prevail on an ineffective assistance of counsel theory, Mr. Sands was required to show that his counsel’s performance was deficient when judged against prevailing practice and that he was prejudiced to the extent that the result of the trial is unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A defendant must overcome the strong presumption that counsel’s challenged action was strategic and our review is highly deferential. Id. at 689, 104 S.Ct. at 2065.
Mr. Sands presents a litany of complaints concerning trial counsel’s representation, including alleged failures (1) to contact unnamed potential witnesses, (2) to introduce evidence concerning adverse cultural conditions such as poverty and alcoholism, (3) to introduce testimony concerning Mr. Sands’ alcoholism, (4) to correct deficiencies in the evaluation of Mr. Sands by the Bureau of Prisons, and (5) to take an active interest in the case and vigorously defend him. Mr.. Sands also contends that the following evidence was not developed or presented due to the fault of trial counsel: (1) that the victim had a propensity toward violence, (2) that the victim died before receiving the second round of gunshots, (3) that the United States was without jurisdiction, and (4) that Mr. Sands was of good character. He claims that the federal public defender is “too overburdened” to represent him adequately and seeks new counsel from the private sector. The district court viewed these grounds as frivolous and characterized defense counsel’s representation as “just an excellent job_ You represented your client in every way.” II R. 8.
Mr. Sands recognizes this circuit’s .rule that ineffective assistance of counsel claims generally are not resolved on direct appeal, save in rare circumstances where the record before us allows for a fair evaluation of the merits of the claim. Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir.1991). See also United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988). He correctly points out, however, that it is his right to seek a new trial as part of the original criminal proceedings (rather than by way of collateral attack) on the grounds of ineffective assistance of counsel. See United States v. Taglia, 922 F.2d 413, 417 (7th Cir.) cert. denied, - U.S. -, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); United States v. Aulet, 618 F.2d 182, 186 n. 3 (2d Cir.1980). See also United States v. Soto Hernandez, 849 F.2d 1325, 1327 (10th Cir.1988); United States v. Golub, 694 F.2d 207, 209 (10th Cir.1982); United States v. Allen, 554 F.2d 398, 404 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977). The difficulty with Mr. Sands’ argument is that to obtain an evi-dentiary hearing, a defendant must identify specific facts and circumstances outside the record which, if proven, would entitle him to a new trial. Cf. Moore v. United States, 950 F.2d 656, 661 (10th Cir.1991).
A district court's decision denying an evidentiary hearing in connection with a new trial motion is reviewed for an abuse of discretion. United States v. Thornbrugh, 962 F.2d 1438, 1443 (10th Cir.1992). The district court did not abuse its discretion in denying an evidentiary hearing for several reasons. First, Mr. Sands’ motion for a new trial based on ineffective assistance is not responsive to either the performance or prejudice components of Strickland. Second, even recognizing that at this stage we would assume the factual allegations to be true, Mr. Sands fails to include even one supporting fact in his motion; rather, he asserts general grievances. For example, he complains that defense counsel failed to contact or question potential witnesses, but never provides the names or probable testimony of these witnesses. Nor does he explain how he was prejudiced by the lack of testimony. While we agree that a district court should conduct an inquiry when a colorable claim of ineffective assistance of counsel is raised at trial, see United States v. McCord, 509 F.2d 334, 352 n. 65 (D.C.Cir.1974) (en banc), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975), Mr. Sands’ claim, as presented to the district court, is not color-able.
VI.
Mr. Sands’ final point on appeal is that the district court sentenced him under the mistaken impression that no downward departure under the Sentencing Guidelines was available for first degree murder under 18 U.S.C. § 1111. See 18 U.S.C. § 3553(b) (downward departure); U.S.S.G. § 5K2.0 (same). Under current federal law, § 1111 provides that a defendant convicted of first degree murder “shall ... be sentenced to imprisonment for life.” Parole is unavailable under the Sentencing Guidelines. Thus, § 1111 provides a statutorily required minimum sentence which would control over any other lesser sentence suggested under the guidelines. See U.S.S.G. § 5G1.1; United States v. Rodriguez, 938 F.2d 319, 320 (1st Cir.1991).
Mr. Sands argues that § 1111 is a Class A felony with a sentence for “the duration of the defendant’s life or any period of time.” 18 U.S.C. § 3581(b)(1). See also 18 U.S.C. §§ 3559(a); U.S.S.G. § 2A1.1, comment. (n.1 & backg’d). However, we agree with those courts which have held that the sentencing scheme established by § 3581(b)(1) in conjunction with § 3559(a) does not supplant the statutory minimum sentence in § 1111. See United States v. LaFleur, 952 F.2d 1537, 1545-46 (9th Cir.1991); United States v. Gonzalez, 922 F.2d 1044, 1048-51 (2d Cir.), cert. denied, - U.S. -, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991); United States v. Donley, 878 F.2d 735, 739-41 (3rd Cir.1989)), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990). Thus, the district court was required to impose a life sentence and could not consider a downward departure.
For the foregoing reasons, Mr. Sands’ conviction and sentence are AFFIRMED.
. 18 U.S.C. § 1153 provides in pertinent part:
Offenses committed within Indian country
(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, ... shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
. 18 U.S.C. § 1151 provides:
Indian country defined
Except as otherwise provided in sections 1154 and 1156 of this title, the term "Indian’ country", as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
. The district court instructed in pertinent part:
The crime charged in the indictment requires that the specific intent on the part of the defendant must be proved beyond a reasonable doubt before you may find the defendant guilty of the crime charged.
Specific intent requires more than a general intent to engage in certain conduct. A person who knowingly does an act the law forbids or knowingly fails to do an act which the law requires, purposely intending either to disobey or to disregard the law, may be found to act with specific intent.
Intoxication or drunkenness alone will never provide a legal defense or excuse for the commission of a crime. However, the fact that a person may have been intoxicated at the time of the commission of a crime may prevent the existence of specific intent.
IV R. 379.
. The instruction provided in pertinent part:
Premeditation means meditating, thinking, or considering a matter in advance of acting.
The necessary duration of that period cannot be arbitrarily fixed. The time required to form an intent or design varies as the minds and temperaments of human beings differ, and according to the surrounding circumstances in which they may be placed. Any interval of time between the forming of the specific intent to kill, and the execution of that intent, which is of sufficient duration for the defendant to be aware and mindful of what he intended willfully to set about to do, is sufficient to justify a finding of premeditation.
IV R. 377-78 (emphasis supplied).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WRIGHT et al. v. UNITED STATES.
No. 13888.
United States Court of Appeals Eighth Circuit.
June 21, 1949.
Rehearing Denied July 14, 1949.
WOODROUGH, Circuit Judge, dissenting.
James Royall and M. Gabriel Nahas, Jr., Houston, Tex., for appellant Elmer Lee Wright.
Bert B. Larey, Texarkana, Ark., submitted brief for appellants.
Charles A. Beasley, Jr., Assistant United States Attorney, Fort Smith, Ark. (R. S. Wilson, United States Attorney, and David R. Boatright, Assistant United States Attorney, Fort Smith, Ark., on the brief), for appellee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
SANBORN, Circuit Judge.
The appellants were charged, by an indictment (based on the Mann Act, 18 U.S. C..A. § 398, 36 Stat. 825, now § 2421, new Title 18 U.S.C.A.), with having on July 18, 1948, knowingly transported in interstate commerce from Houston, Texas, to Texarkana, Arkansas, a certain woman, for immoral purposes. The defendants (appek lants) entered pleas of not guilty, and were tried, convicted and sentenced. By this appeal they challenge the legality of their conviction. They contend: (1) that the evidence was insufficient to support the verdict of the jury; (2) that the court admitted incompetent evidence; and (3) that the court erred in its instructions to the jury. The main contentions of the defendants are that the Government failed to prove (1) that they transported the woman in interstate commerce, and (2) that they had any intent that she should engage in prostitution in Arkansas.
The woman in the case, on July 18, 1948, left Houston, Texas, by automobile and traveled to Texarkana, Arkansas, where a room had been reserved for her at the Savoy Hotel. There she engaged in prostitution. The evidence shows, without dispute, that she was a prostitute, to the knowledge of the defendants; that she was transported by the defendants from Houston, Texas, to Texarkana, Texas; that she walked across the street which constitutes the dividing line between Texas and Arkansas at that point; that, after she left the automobile, the defendants drove, with her traveling bag, to the Savoy Hotel on the Arkansas side of the street, and obtained a room for her there, which she later occupied; that the room had been reserved by telegram from Houston, Texas, for “Mr. and Mrs. W. L. Thomas,” the telegram being signed “W. L. Thomas”; that Wright owned the automobile in which the woman was transported; that he was with Moore in the Savoy Hotel when Moore inquired about the room reservation; that when the Assistant Manager of the hotel stated that ■ he had no reservation for Moore, but had a telegram from Mr. and Mrs. W. L. Thomas from Houston, asking for a reservation, Wright said, “That’s it”; that the Assistant Manager offered them a room with twin beds; that Moore advised him that Wright would not be with him (Moore)- — that Moore’s wife would be with him; that “then he took a double-bedded room”; that when Moore and Wright, together, entered the hotel, Moore asked the bell boy if he needed a girl, and received an affirmative answer; that the woman came to the hotel shortly after the reservation was made, occupied the hotel room reserved for her, and practiced prostitution in the hotel.
The assertion that the evidence did not justify an inference that, prior to the end of the journey, the defendants had formed an intent that the woman should engage in prostitution at the Savoy Hotel in Texarkana, Arkansas, is untenable. The jury was justified in finding that -the defendants intended to do exactly what they did do, which was to enable this woman to practice prostitution at the hotel. That men may be believed -to have intended the natural and necessary consequences of their acts, is too elementary to require discussion or citation of authority; but see Myres v. United States, 8 Cir., 174 F.2d 329. Moreover, the defendants’ own admissions to a Special Agent of the Federal Bureau of Investigation showed that the facts were as the Government contends.
The assertion that the defendants never transported the woman in interstate commerce, because she walked across the street from Texas into Arkansas and to -the Savoy Hotel, is. ingenious, but, in our opinion, unsound. What the Mann Act sought to prevent, or at least to minimize, was the movement in interstate commerce of women and girls for immoral purposes. In the case of Hoke v. United States, 227 U.S. 308, at page 320, 33 S.Ct. 281, at page 283, 57 L.Ed. 523, 43 L.R.A.,N.S., 906, Ann.Cas. 1913E, 905, the Court said: “What the act condemns is transportation obtained or aided, or transportation induced, in interstate commerce, for the immoral purposes mentioned.” In Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 197, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168, the Court said: “It [the act] seeks to reach and punish the movement in interstate commerce of women and girls with a view to the accomplishment of the unlawful purposes prohibited. * * * and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.” In Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L.R., 370, appears the following: “Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law.”
It is true that the defendants did not physically transport the woman across the boundary line between Texas and Arkansas. She got out of the automobile on the Texas side of the street and was not in the automobile when the defendants delivered her bag to the Savoy Hotel and arranged for her reservation. Neither of the defendants stayed at the Savoy Hotel. They contend that their journey ended in Texas. It cannot be gainsaid, however, that the journey of the woman did not end in Texas, but ended at the Savoy Hotel, in Arkansas, and that the defendants had transported her for virtually the entire distance from Houston.
We have found no case which on its facts is identical with the instant case. We think, however, that, in principle, the case does not differ from that of Mellor v. United States, 8 Cir., 160 F.2d 757, 764, certiorari denied 331 U.S. 848, 67 S.Ct. 1734, 1735, 91 L.Ed. 1858. In that case, the girls involved were not physically transported across a state boundary by the defendants, because, before reaching the boundary, the girls left the automobile and walked across the line. This Court said, page 764 of 160 F.2d:
“ * * * But we will view the trip in its entirety in determining whether there has been a violation of the Mann Act. We must decline to thwart the legislative purpose of Congress in enacting the statute by holding that defendants could escape the penal consequences of their wrongdoing by the simple process of stopping the vehicle at the state line and having the girls step across that imaginary barrier. The trip was from a point near O’Neill, Nebraska, to another point near Moran, Wyoming. If it was taken with an illicit purpose outlined in the statute defendants are guilty. The jury has resolved the issue against defendants.”
See, also, United States v. Mellor, D.C. Neb., 71 F.Supp. 53, 61; and United States v. Jamerson, D.C.N.D. Iowa, 60 F.Supp. 281, 284-285. In the Mellor and Jamer-son cases the women involved re-entered the automobile after having walked across the state line, but we regard that as of no legal consequence. As we see it, the important question, in the instant case, is: Did the defendants deliberately transport, or aid in or bring about the transportation of, the woman in interstate commerce? It will not do to say that the defendants were not charged with aiding her interstate transportation, but only with having physically transported her from the one state to the other. At the time the woman was transported (July 18, 1948) and long prior thereto, § 550, Title 18 U.S.C., 1940 Ed., § 332, c. 321, 35 Stat. 1152, provided: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” As restated in § 2(a) of new Title 18 U.S.C.A., effective September 1, 1948, the provision reads: “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” See, Ruthenberg v. United States, 245 U.S. 480, 483, 38 S.Ct. 168, 62 L.Ed. 414; United States v. Hodorowicz, 7 Cir., 105 F.2d 218, 220, certiorari denied 308 U.S. 584, 60 S.Ct. 108, 84 L.Ed. 489, 490, and compare, United States v. Giles, 300 U.S. 41, 48-49, 57 S.Ct. 340, 81 L.Ed. 493.
We have no doubt that one who deliberately aids or deliberately brings about the interstate transportation of a woman for immoral purposes is as guilty of the offense of transporting her as though he had physically and personally carried her across the state line. The question of the guilt or innocence of the defendants in this case was one of fact for the jury.
There is no merit in the defendants’ assertions that the court erred in its rulings on evidence. The defendants, after their arrest, were’ separately interviewed by a Special Agent of the Federal Bureau of Investigation, who testified, at the trial, to their admissions. It is contended that the Agent was improperly permitted to testify to what Wright said about Mooré and to what Moore said about Wright, and that the witness also made some remarks prejudicial to the defendants, which shpuld have been ordered stricken. The court was meticulously careful about confining the testimony of the Special Agent within legitimate bounds. There are two reasons why the court was not required to strike the remarks which are complained of. The first is that they were not prejudicial, and the second is that the court was not requested to strike them.
The defendants assert that the court erred in refusing to give certain requested instructions. We have examined the requests and the charge of the court. The charge we consider entirely accurate, adequate,. and eminently fair. Fortunately, a trial judge, in formulating his charge, is entitled to use his' own language and is not required to let counsel for either, party put word.s into his mouth. If the charge is accurate and gives to the jury all of the law which it needs in order to reach a verdict, that is enough. A charge should be a concise statement of the claims of the parties, the issues of fact which'the jury must decide, and the applicable law. It should not be a compilation of miscellaneous requested instructions.
The defendants did not testify. The court, at their request, instructed’ the jury with respect to the nonprejudicial effect of their failure- to testify. While the instruction was not in the exact words-requested by the defendants, it was adequate. Compare, Affronti v. United States, 8 Cir., 145 F.2d 3, 9.
After the submission of the case, the court gave to the jury, which apparently was having some difficulty, the supplemental charge which,- for many years and in many cases, has been approved by this and other federal appellate courts. In substance, it amounts to an earnest request that the jury decide the case if they conscientiously can do so, and thus save the parties the burden and expense of another trial before another jury with no different or better qualifications. Such a supplemental charge was approved in Hewitt v. United States, 8 Cir., 110 F.2d 1, 10, certiorari denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409; Boehm v. United States, 8 Cir., 123 F.2d 791, 812, certiorari denied 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200; and Bowen v. United States, 8 Cir., 153 F.2d 747, 751-752, certiorari denied 328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611.
The judgments appealed from are affirmed.
In the Reviser's Notes to § 2421, new Title 18 U.S.C. page 2613, it is said:
“Beference to persons causing, procuring, aiding or assisting was deleted as unnecessary because such persons are made principals by section 2 of this title.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_usc2
|
17
|
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 17. 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.
BOOTH v. HAGGARD et al.
No. 14105.
United States Court of Appeals Eighth Circuit.
Oct. 17, 1950.
Fred Louis, Jr., Harlan, Iowa (Bennett Cullison, Harlan, Iowa, was with him on the brief), for appellant.
Luke E. Linnan, Algona, Iowa (Joe E. Lynch, Algona, Iowa, was with him on the-■brief), fo-r appellees.
Before GARDNER, Chief Judge, THOMAS, Circuit Judge, and DEWEY, District. Judge.
THOMAS, Circuit Judge, delivered the-opinion of the Court.
This is a suit for an injunction and for damages and profits for the alleged infringement of a copyright under the Act of' July 30, 1947, c. 391, 61 Stat. 652, 17 U.S. C.A. § 101. The defendants moved for judgment on the pleadings on the ground that Exhibit 1 attached to plaintiff’s petition and made a part thereof, being a copy of' plaintiff’s alleged copyrighted book, shows conclusively that the title page is on the front cover of the book and that no notice-of copyright has been applied on the title-page or on the page immediately following-as required by 17 U.S.C.A. § 20.
Upon the filing of the motion the court announced that it would regard and treat the motion as a motion for summary judgment and that the parties should and could introduce evidence bearing upon the issue-of copyright, which issue was presented by the pleadings. The parties thereupon introduced in evidence a copy of the book: claimed by plaintiff to have been infringed: by defendants.
The court made findings of fact and conclusions of law and entered Judgment for defendants, and plaintiff appeals.
The court found that plaintiff received a certificate of registration from the Register of Copyrights of the United States 'for the book involved dated June 22, 1948; that the title of the publication claimed to have been infringed is stated in the complaint to be “1948-49 Kossuth County TAM Service”; and that no other title 'is given in the complaint ; that the only place where the quoted title appears in the book is on the leaf which constitutes the front cover of the book; that the leaf which 'constitutes the front cover of the book is the title page thereof; and that no notice of copyright was given by plaintiff on the title page nor o.n the page immediately following on any copy of the book claimed to 'be infringed.
And the court concluded that the notice of copyright given did not comply with the provisions of 17 U.S.C.A. § 20; and that failure to comply therewith prevents the plaintiff from recovering and is determinative of the case.
The parties agree that the only question for decision is whether the title page of plaintiff’s book is page 3, as claimed by plaintiff, or the front cover, as found by the court and claimed by defendants.
'Title 17 U.S.C.A. § 20 provides: “The notice of copyright shall be applied, in the case of a book or other printed publication, upon its title page or the page immediately following * * *. One notice of copyright in each volume * * * published shall suffice.”’
While a slight variation from the form of notice may not be fatal there must be no substantial deviation. To be legally effective the notice must satisfy the prescriptions of the statute. Advertisers Exchange, Inc., v. Anderson, 8 Cir., 144 F.2d 907; Higgins v. Keuffel, 140 U.S. 428, 434, 11 S.Ct. 731, 35 L.Ed. 470; Mifflin v. R. H. White Company, 190 U.S. 260, 264, 23 S.Ct. 769, 47 L.Ed. 1040.
The plaintiff contends that the court erred: (1) in determining the title of the book; (2) in holding that the only place -where the title appears is on page 1, or the front cover page; (3) that the front cover is the title page; and (4) that no notice of copyright was given by plaintiff on the title page.
The only evidence before the court was a copy of the book itself. The court’s findings are based upon the complaint and the copy of the book in evidence. The book is a comparatively small book bound with a paper cover.
In paragraphs 2 and 5 of the complaint it is averred that the book is entitled: “1948-49 Kossuth County TAM Service.”
On the front cover is printed in bold type:
“1948-1949
“Kossuth County, Iowa
“TAM Service.”
The inside of the front cover contains no printed matter. Page 1 contains a map of Kossuth County, Iowa, only. Page 2 is blank, containing no printed matter.
Page 3 contains a full page of printed text at the top of which appears in lower case type what plaintiff contends is the title, as follows:
“The 1948-1949
“Rural TAM
“For Kossuth County, Iowa.”1
At the bottom of this page is the copyright notice as follows: “Copyright 1948, R. C. Booth Enterprises, Harlan, Iowa.”
In determining whether the front cover page or page 3 of the book is the title page the court of necessity was required to consider the printed texts of those pages and the arrangement of the printed matter thereon and their general appearance. And since there was a substantial difference between them in every respect the court was justified in considering the claim of plaintiff set out in the complaint. Applying these tests, we cannot say that the finding that the front cover page is the title page is erroneous. The finding is supported by substantial evidence and is in accord with the averments of the complaint. In this situation the plaintiff should not be heard to complain. Toksvig v. Bruce Pub. Co., et al., 7 Cir., 181 F.2d 664, 666.
Affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 17. 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_decisiontype
|
A
|
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.
UNITED STATES PAROLE COMMISSION et al. v. GERAGHTY
No. 78-572.
Argued October 2, 1979
Decided March 19, 1980
Blackmon, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined, post, p. 409.
Kent L. Jones argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Easterbrook, Jerome M. Feit, and Elliott Schulder.
Kenneth N. Flaxman argued the cause for respondent. With him on the brief was Thomas R. Meites.
Robert J. Hobbs filed a brief for the National Client Council, Inc., et al. as amici curiae urging affirmance.
Mb. Justice Blackmun
delivered the opinion of the Court.
This case raises the question whether a trial court’s denial of a motion for certification of a class may be reviewed on appeal after the named plaintiff’s personal claim has become “moot.” The United States Court of Appeals for the Third Circuit held that a named plaintiff, respondent here, who brought a class action challenging the validity of the United States Parole Commission’s Parole Release Guidelines, could continue his appeal of a ruling denying class certification even though he had been released from prison while the appeal was pending. We granted certiorari, 440 U. S. 945 (1979), to consider this issue of substantial significance, under Art. Ill of the Constitution, to class-action litigation, and to resolve the conflict in approach among the Courts of Appeals.
I
In 1973, the United States Parole Board adopted explicit Parole Release Guidelines for adult prisoners. These guidelines establish a "customary range” of confinement for various classes of offenders. The guidelines utilize a matrix, which combines a “parole prognosis” score (based on the prisoner’s age at first conviction, employment background, and other personal factors) and an “offense severity” rating, to yield the “customary” time to be served in prison.
Subsequently, in 1976, Congress enacted the Parole Commission and Reorganization Act (PCRA), Pub. L. 94-233, 90 Stat. 219, 18 U. S. C. §§ 4201-4218. This Act provided the first legislative authorization for paroie release guidelines. It required the newly created Parolé Commission to “promulgate rules and regulations establishing guidelines for the powefr] ... to grant or deny an application or recommendation to parole any eligible prisoner.” § 4203. Before releás-ing a prisoner on parole, the Commission must find, “upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner,” that release “would not depreciate the seriousness of his offense or promote disrespect for the law” and that it “would not jeopardize the public welfare.” § 4206 (a).
Respondent John M. Geraghty was convicted in the United States District Court for the Northern District of Illinois of conspiracy to commit extortion, in violation of 18 U. S. C. § 1951, and of making false material declarations to a grand jury, in violation of 18 U. S. C. § 1623 (1976 ed. and Supp. II). On January 25, 1974, two months after initial promulgation of the release guidelines, respondent was sentenced to concurrent prison terms of four, years on the conspiracy count and one year on the false declarations count. The United States Court of Appeals for the Seventh Circuit affirmed respondent’s convictions. United States v. Braasch, 505 F. 2d 139 (1974), cert. denied sub nom. Geraghty v. United States, 421 U. S. 910 (1975).
Geraghty later, pursuant to a motion under Federal Rule of Criminal Procedure 35, obtained from the District Court a reduction of his sentence to 30 months. The court granted the motion because, in the court’s view, application of the guidelines would frustrate the sentencing judge’s intent with respect to the length of time Geraghty would serve in prison. United States v. Braasch, No. 72 CR 979 (ND Ill., Oct. 9, 1975), appeal dism’d and mandamus denied, 542 F. 2d 442 (CA7 1976).
Geraghty then, applied for release on parole. His first application was denied in January 1976 with the following explanation:
“Your offense behavior has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision at this consideration outside the guidelines does not appear warranted.” App. 5.
If the customary release date applicable to respondent under the guidelines were adhered to, he would not be paroled before serving his entire sentence minus good-time credits. Geraghty applied for parole again in June 1976; that application was denied for the same reasons. He then instituted this civil suit as a class action in the United States District Court for the District of Columbia, challenging the guidelines as inconsistent with the PCRA and the Constitution, and questioning the procedures by which the guidelines were applied to his case.
Respondent sought certification of a class of “all federal prisoners who are or who will become eligible for release on parole.’’ Id., at 17. Without ruling on Geraghty’s motion, the court transferred the case to the Middle District of Pennsylvania, where respondent was incarcerated. Geraghty continued to press his motion for class certification, but the court postponed ruling on the motion until it was prepared to render a decision on cross-motions for summary judgment.
The District Court subsequently denied Geraghty’s request for class certification and granted summary judgment for petitioners on all the claims Geraghty asserted. 429 F. Supp. 737 (1977). The court regarded respondent’s action as a petition for a writ of habeas corpus, to which Federal Rule of Civil Procedure 23 applied only by analogy. It denied class certification as “neither necessary nor appropriate.” 429 F. Supp., at 740. A class action was “necessary” only to avoid mootness. The court found such a consideration not comprehended by Rule 23. It found class certification inappropriate because Geraghty raised certain individual issues and, inasmuch as some prisoners might be benefited by the guidelines, because his claims were not typical of the entire proposed class. 429 F. Supp., at 740-741. On the merits, the court ruled that the guidelines are consistent with the PCRA and do not offend the Ex Post Facto Clause, U. S. Const., Art. I, § 9, cl. 3. 429 F. Supp., at 741-744.
Respondent, individually “and on behalf of a class,” appealed to the United States Court of Appeals for the Third Circuit. App. 29. Thereafter, another prisoner, Becher, who had been denied parole through application of the guidelines and who was represented by Geraghty’s counsel, moved to intervene. Becher sought intervention to ensure that the legal issue raised by Geraghty on behalf of the class “will not escape review in the appeal in this case.” Pet. to Intervene After Judgment 2. The District Court, concluding that the filing of Geraghty’s notice of appeal had divested it of jurisdiction, denied the petition to intervene. Becher then filed a timely notice of appeal from the denial of intervention. The two appeals were consolidated.
On June 30, 1977, before any brief had been filed in the Court of Appeals, Geraghty was mandatorily released from prison; he had served 22 months of his sentence, and had earned good-time credits for the rest. Petitioners then moved to dismiss the appeals as moot. The appellate court reserved decision of the motion to dismiss until consideration of the merits.
The Court of Appeals, concluding that the litigation was not moot, reversed the judgment of the District Court and remanded the case for further proceedings. 579 F. 2d 238 (CA3 1978). If a class had been certified by the District Court, mootness of respondent Geraghty’s personal claim would not have rendered the controversy moot. See, e. g., Sosna v. Iowa, 419 U. S. 393 (1975). The Court of Appeals reasoned that an erroneous denial of a class certification should not lead to the opposite result. 579 F. 2d, at 248-252. Rather, certification of a “certifiable” class, that erroneously had been denied, relates back to the original denial and thus preserves jurisdiction. Ibid.
On the question whether certification erroneously had been denied, the Court of Appeals held that necessity is not a prerequisite under Rule 23. 579 F. 2d, at 252. The court expressed doubts about the District Court’s finding that class certification was “inappropriate.” While Geraghty raised some claims not applicable to the entire class of prisoners who are or will become eligible for parole, the District Court could have “certified] certain issues as subject to class adjudication, and . . . limite [d] overbroad classes by the use. of sub-classes.” Id., at 253. Failure “to consider these options constituted a failure properly to exercise discretion.” Ibid. “Indeed, this authority may be exercised sua sponte.” Ibid. The Court of Appeals also held that refusal to certify because of a potential conflict of interest between Geraghty and other members of the putative class was error. The subclass mechanism would have remedied this problem as well. Id., at 252-253. Thus, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation of the proper subclasses. Id., at 254. The court also remanded the motion for intervention. Id., at 245, n. 21.
In order to avoid “improvidently dissipating] judicial effort,” id., at 254, the Court of Appeals went on to consider whether the trial court had decided the merits of respondent’s case properly. The District Court’s entry of summary judgment was found to be error because “if Geraghty’s recapitulation of the function and genesis of the guidelines is supported by the evidence,” the guidelines “may well be” unauthorized or unconstitutional. Id., at 259, 268. Thus, the dispute on the merits also was remanded for further factual development.
II
Article III of the Constitution limits federal “judicial Power,” that is, federal-court jurisdiction, to “Cases” and “Controversies.” This .case-or-controversy limitation serves "two complementary” purposes. Flast v. Cohen, 392 U. S. 83, 95 (1968). It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,” and it defines the “role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.” Ibid. Likewise, mootness has two aspects: “when the issues presented are no longer 'live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U. S. 486, 496 (1969).
It is clear that the controversy over the validity of the Parole Release Guidelines is still a “live” one between petitioners and at least some members of the class respondent seeks to represent. This is demonstrated by the fact that prisoners currently affected by the guidelines have moved to be substituted, or to intervene, as “named” respondents in this Court. See n. 1, supra. We therefore are concerned here with the second aspect of mootness, that is, the parties’ interest in the litigation. The Court has referred to this concept as the “personal stake” requirement. E. g., Franks v. Bowman Transportation Co., 424 U. S. 747, 755 (1976); Baker v. Carr, 369 U. S. 186, 204 (1962).
The personal-stake requirement relates to the first purpose of the case-or-controversy doctrine — limiting judicial power to disputes capable of judicial resolution. The Court in Flast v. Cohen, 392 U. S., at 100-101, stated:
“The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. . . . Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has ‘a personal stake in the outcome of the controversy/ Baker v. Carr, [369 U. S.], at 204, and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests/ Aetna Life Insurance Co. v. Haworth, [300 U. S.], at 240-241.”
See also Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 216-218 (1974).
The “personal stake” aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Monaghan, Constitutional Adjudication: The Who. and When, 82 Yale L. J. 1363, 1384 (1973).
III
On several occasions the Court has considered the application of the “personal stake” requirement in the class-action context. In Sosna v. Iowa, 419 U. S. 393 (1975), it held that mootness of the named plaintiff’s, individual claim after a class has been duly certified does not render the action moot. It reasoned that “even though appellees . . . might not again enforce the Iowa durational residency requirement against [the class representative], it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified.” Id., at 400. The Court stated specifically that an Art. Ill case or controversy “may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Id., at 402.
Although one might argue that Sosna contains at least an implication that the critical factor for Art. Ill purposes is the timing of class certification, other cases, applying a “relation back” approach, clearly demonstrate that timing is not crucial. When the claim on the merits is “capable of repetition, yet evading review,” the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation. E. g., Gerstein v. Pugh, 420 U. S. 103, 110, n. 11 (1975). The “capable of repetition, yet evading review” doctrine, to be sure, was developed outside the class-action context. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 514-515 (1911). But it has been applied where the' named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff; the litigation then may continue notwithstanding the named plaintiff's current lack of a personal stake. See, e. g., Weinstein v. Bradford, 423 U. S. 147, 149 (1975); Roe v. Wade, 410 U. S. 113, 123-125 (1973). Since the litigant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue.
When, however, there is no chance that the named plaintiff’s expired claim will reoccur, mootness still can be avoided through certification of a class prior to expiration of the named plaintiff’s personal claim. E. g., Franks v. Bowman Transportation Co., 424 U. S., at 752-757. See Kremens v. Bart- ley, 431 U. S. 119, 129-130 (1977). Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires. The Court considered this possibility in Gerstein v. Pugh, 420 U. S., at 110, n. 11. Gerstein was an action challenging pretrial detention conditions. The Court assumed that the named plaintiffs were no longer in custody awaiting trial at the time the trial court certified a class of pretrial detainees. There was no indication that the particular named plaintiffs might again be subject to pretrial detention. Nonetheless, the case was held not to be moot because:
“The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.” Ibid.
See also Sosna v. Iowa, 419 U. S., at 402, n. 11.
In two different contexts the Court has stated that the proposed class representative who proceeds to a judgment on the merits may appeal denial of class certification. First, this assumption was “an important ingredient,” Deposit Guaranty Nat. Bank v. Roper, ante, at 338, in the rejection of interlocutory appeals, “as of right,” of class' certification denials. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469, 470, n. 15 (1978). The Court reasoned that denial of class status will not necessarily be the “death knell” of a small-claimant action, since there still remains “the prospect of prevailing on the merits and reversing an order denying class certification.” Ibid.
Second, in United Airlines, Inc. v. McDonald, 432 U. S. 385, 393-395 (1977), the Court held that a putative class member may intervene, for the purpose of appealing the denial of a class certification motion, after the named plaintiffs’ claims have been satisfied and judgment entered in their favor. Underlying that decision was the view that “refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs.” Id., at 393. See also Coopers & Lybrand v. Livesay, 437 U. S., at 469. And today, the Court holds that named plaintiffs whose claims are satisfied through entry of judgment over their objections may appeal the denial of a class certification ruling. Deposit Guaranty Nat. Bank v. Roper, ante, p. 326.
Gerstein, McDonald, and Roper are all examples of cases found not to be moot, despite the loss of a “personal stake” in the merits of the litigation by the proposed class representative. The interest of the named plaintiffs in Gerstein was precisely the same as that of Geraghty here. Similarly, after judgment had been entered in their favor, the named plaintiffs in McDonald had no continuing narrow personal stake in the outcome of the class claims. And in Roper the Court points out that an individual controversy is rendered moot, in the strict Art. Ill sense, by payment and satisfaction of a final judgment. Ante, at 333.
These cases demonstrate the flexible character of the Art. III mootness doctrine. As has been noted in the past, Art. III justiciability is “not a legal concept with a fixed content or susceptible of scientific verification.” Poe v. Ullman, 367 U. S. 497, 508 (1961) (plurality opinion). “[T]he justi-ciability doctrine [is] one of uncertain and shifting contours.” Flast v. Cohen, 392 U. S., at 97.
IV
Perhaps somewhat anticipating today’s decision in Roper, petitioners argue that the situation presented is entirely different when mootness of the individual claim is caused by “expiration” of the claim, rather than by a judgment on the claim. They assert that a proposed class representative who individually prevails on the merits still has a “personal stake” in the outcome of the litigation, while the named plaintiff whose claim is truly moot does not. In the latter situation, where no class has been certified, there is no party before the court with a live claim, and it follows, it is said, that we have no jurisdiction to consider whether a class should have been certified. Brief for Petitioners 37-39.
We do not find this distinction persuasive. As has been noted earlier, Geraghty’s “personal stake” in the outcome of the litigation is, in a practical sense, no different from that of the putative class representatives in Roper. Further, the opinion in Roper indicates that the approach to take in applying Art. III is issue by issue. “Nor does a confession of judgment by defendants on less than all the issues moot an entire case; other issues in the case may be appealable. We can assume that a district court’s final judgment fully satisfying named plaintiffs’ private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs’ right to take an appeal on the issue of class certification.” Ante, at 333. See also United Airlines, Inc. v. McDonald, 432 U. S., at 392; Powell v. McCormack, 395 U. S., at 497.
Similarly, the fact that a named plaintiff’s substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all the other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class. “The denial of class certification stands as an adjudication of one of the issues litigated,” Roper, ante, at 336. We think that in détermining whether the plaintiff may continue to press the class certification claim, after the claim on the merits “expires,” we must look to the nature of the “personal stake” in the class certification claim. Determining Art, Ill’s “uncertain and shifting contours,” see Flast v. Cohen, 392 U. S., at 97, with respect to nontraditional forms of litigation, such as the class action, requires reference to the purposes of the case-or-controversy requirement.
Application of the personal-stake requirement to a procedural claim, such as the right to represent a class, is not automatic or readily resolved. A “legally cognizable interest,” as the Court described it in Powell v. McCormack, 395 U. S., at 496, in the traditional sense rarely ever exists with respect to the class certification claim. The justifications that led to the development of the class action include the protection of the defendant from inconsistent .obligations, the protection of the interests of absentees, the provision of a convenient and economical means for. disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims. See, e. g., Advisory Committee Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., pp. 427-429; Note, Developments in the Law, Class Actions, 89 Harv. L. Rev. 1318, 1321-1323, 1329-1330 (1976). Although the named representative receives certain benefits from the class nature of the action, some of which are regarded as desirable and others as less so, these benefits generally are byproducts of the class-action device. In order to achieve the primary benefits of class suits, the Federal Rules of Civil Procedure give the proposed class representative the right to have a class certified if the requirements of the Rules are met. This “right” is more analogous to the private attorney general concept than to the type of interest traditionally thought to satisfy the “personal stake” requirement. See Roper, ante, at 338.
As noted above, the purpose of the “personal stake” requirement is to assure that the case is in a form capable , of judicial resolution. The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions. Franks v. Bowman Transportation Co., 424 U. S., at 753-756; Baker v. Carr, 369 U. S., at 204; Poe v. Ullman, 367 U. S., at 503 (plurality opinion). We conclude that these elements can exist with respect to the class certification issue notwithstanding the fact that the named plaintiff’s claim on the merits has expired. The question whether class certification is appropriate remains as a concrete, sharply presented issue. In Sosna v. Iowa it was recognized that a named plaintiff whose claim on the merits expires after class certification may still adequately represent the class. Implicit in that decision was the determination that vigorous advocacy can be assured through means other than the traditional requirement of a “personal stake in the outcome.” Respondent here continues vigorously to advocate his right to have a class certified.
We therefore hold that an action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim, even though class certification has been denied. The proposed representative retains a “personal stake” in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal results in reversal of the class certification denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna.
Our holding is- limited to the appeal of the denial of the class certification motion. A named plaintiff whose claim expires may not continue to press the appeal on the merits until a class has been properly certified. See Roper, ante, at 336-337. If, on appeal, it is determined that class certification properly was denied, the claim on the merits must be dismissed as moot.
Our conclusion that the controversy here is not moot does not automatically establish that the named plaintiff is entitled to continue litigating the. interests of the class. “[I]t does shift the focus of examination from the elements of justiciability to the ability of the named representative to ‘fairly and adequately protect the interests of the class.’ Rule 23 (a).” Sosna v. Iowa, 419 U. S., at 403. We hold only that a case or controversy still exists. The question of who is to represent the class is a separate issue.
We need not decide here whether Geraghty is a proper representative for the purpose of representing the class on the merits.: No class as yet has been certified. Upon remand, the District Court can determine whether Geraghty may continue to press the class claims or whether another representative would be appropriate. We decide only that Geraghty was a proper representative for the purpose of appealing the ruling denying certification of the class that he initially defined. Thus, it was not improper for the Court of Appeals to consider whether the District Court should have granted class certification.
y
We turn now to the question whether the Court of Appeals’ decision on the District Court’s class certification ruling was proper. Petitioners assert that the Court of Appeals erred in requiring the District Court to consider the possibility of certifying subclasses sua sponte. Petitioners strenuously contend that placing the burden of identifying and constructing subclasses on the trial court creates unmanageable difficulties. Brief for Petitioners 43-51. We feel that the Court of Appeals’ decision here does not impose undue burdens on the district courts. Respondent had no real opportunity to request certification of subclasses after the class he proposed was rejected. The District Court denied class certification at the same time it rendered its adverse decision on the merits. Requesting subclass certification at that time would have been a futile act. The District Court was not about to invest effort in deciding the subclass question after it had ruled that no relief on the merits was available. The remand merely gives respondent the opportunity to perform his function in the adversary system. On remand, however, it is not the District Court that is to bear the burden of constructing subclasses. That burden is upon the respondent and it is he who is required to submit proposals to the court. The court has no sua sponte obligation so to act. With this modification, the Court of Appeals’ remand of the case for consideration of subclasses was a proper disposition.
It would be inappropriate for this Court to reach the merits of this controversy in the present posture of the case. Our holding that the case is not moot extends only to the appeal of the class certification denial. If the District Court again denies class certification, and that decision is affirmed, the controversy on the merits will be moot. Furthermore, although the Court of Appeals commented upon the merits for the sole purpose of avoiding waste of judicial resources, it did not reach a final conclusion on the validity of the guidelines. Rather, it held only that summary judgment was improper and remanded for further factual development. Given the interlocutory posture of the case before us, we must defer decision on the merits of respondent’s case until after it is determined affirmatively that a class properly can be certified.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The grant of certiorari also included the question of the validity of the Parole Release Guidelines, an issue left open in United States v. Addonizio, 442 U. S. 178, 184 (1979). We have concluded, however, that it would be premature to reach the merits of that question at this time. See infra, at 408.
While the petition for a writ of certiorari was pending, respondent Geraghty. filed a motion to substitute as respondents in this Court five prisoners, then incarcerated, who also were represented by Geraghty’s attorneys. In the alternative, the prisoners sought to intervene. We deferred our ruling on the motion to the hearing of the case on the merits. 440 U. S. 945 (1979). These prisoners, or most of them, now also have been released from incarceration. On September 25, 1979, a supplement to the motion to substitute or intervene was filed, proposing six new substitute respondents or intervenors; each of these is a presently incarcerated federal prisoner who, allegedly, has been adversely affected by the guidelines and who is represented by Geraghty’s counsel.
Since we hold that respondent may continue to litigate the class certification issue, there is no need for us to. consider whether the motion should be granted in order to prevent the case from being moot. We conclude that the District Court initially should rule on the motion.
See, e. g., Armour v. City of Anniston, 597 F. 2d 46, 48-19 (CA5 1979); Susman v. Lincoln American Cory., 587 F. 2d 866 (CA7 1978), cert. pending, No. 78-1169; Goodman v. Schlesinger, 584 F. 2d 1325, 1332-1333 (CA4 1978); Camper v. Calumet Petrochemicals, Inc., 584 F. 2d 70 (CA5 1978); Roper v. Consurve, Inc., 578 F. 2d 1106 (CA5 1978), aff’d sub nom. Deposit Guaranty Nat. Bank v. Roper, ante, p. 326; Satterwhite v. City of Greenville, 578 F. 2d 987 (CA5 1978) (en banc), cert. pending, No. 78-1008; Vun Cannon v. Breed, 565 F. 2d 1096 (CA9 1977); Winokur v. Bell Federal Savings & Loan Assn., 560 F. 2d 271 (CA7 1977), cert. denied, 435 U. S. 932 (1978); Lasky v. Quinlan, 558 F. 2d 1133 (CA2 1977); Kuahulu v. Employers Ins. of Wausau, 557 F. 2d 1334 (CA9 1977); Boyd v. Justices of Special Term, 546 F. 2d 526 (CA2 1976); Napier v. Gertrude, 542 F. 2d 825 (CA10 1976), cert. denied, 429 U. S. 1049 (1977).
38 Fed. Reg. 31942-31945 (1973). The guidelines currently in force appear at 28 CFR § 2.20 (1979).
The extortion count was based on respondent’s use of his position as a vice squad officer of the Chicago police force to “shake down” dispensers of alcoholic beverages; the false declarations concerned his involvement in this scheme.
Apparently Becher, too, has.now been released from prison.
The claim in Sosna also fit the traditional category of actions that are deemed not moot despite the litigant’s loss of personal stake, that is, those “capable of repetition, yet evading review.” See Southern Pacific
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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sc_caseorigin
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160
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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.
TIME, INC. v. HILL.
No. 22.
Argued April 27, 1966.
Reargued October 18-19, 1966.
Decided January 9, 1967.
Harold R. Medina, Jr., reargued the cause for appellant. With him on the briefs was Victor M. Earle III.
_Richard M. Nixon reargued the cause and filed a brief for appellee.
Louis J. Lejkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney and Brenda Soloff, Assistant Attorneys General, filed a brief for the Attorney General of the State of New York, as amicus curiae, urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of §§ 50-51 of the New York Civil Rights Law to award appellee damages on allegations that Life falsely, reported that a new play portrayed an experience suffered by appellee and his family.
The article appeared in Life in February 1955. It was entitled “True Crime Inspires Tense Play,” with the subtitle, “The ordeal of a family trapped by convicts gives Broadway a new thriller, ‘The Desperate Hours.’ ” The text of the article reads as follows:
“Three years ago Americans all over the country read about the desperate ordeal of the James Hill family, who were held prisoners in their home outside Philadelphia by three escaped convicts. Later they read about it in Joseph Hayes’s novel, The Desperate Hours, inspired by the family’s experience. Now they can see the story re-enacted in Hayes’s Broadway play based on the book, and next year will see it in his movie, which has been filmed but is being held up until the play has a chance to pay off.
“The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a family rose to heroism in a crisis. Life photographed the play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the next page scenes from the play are re-enacted on the site of the crime.”
The pictures on the ensuing two pages included an enactment of the son being “roughed up” by one of the convicts, entitled “brutish convict,” a picture of the daughter biting the hand of a convict to make him drop a gun, entitled “daring daughter,” and one of the father throwing his gun through the door after a “brave try” to save his family is foiled.
The James Hill referred to in the article is the appel-lee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family was releaséd unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to. keep them in the public spotlight through magazine articles or appearances on television.
In the spring of 1953, Joseph Hayes’ novel, The Desperate Hours, was published. The story depicted the experience of a family of four held hostage by three escaped convicts in the family’s suburban home. But, unlike Hill’s experience, the family of the story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult.
The book was made into a play, also entitled The Desperate Hours, and it is Life’s article about the play which is the subject of appellee’s action. The complaint sought damages under §§ 50-51 on allegations that the Life article was intended to, and did, give the impression that the play mirrored the Hill family’s experience, which, to the knowledge of defendant “. . . was false and untrue.” Appellant’s defense was that the article was “a subject of legitimate news interest,” “a subject of general interest and of value and concern to the public” at the time of publication, and that it was “published in good faith without any malice whatsoever . . . .” A motion to dismiss the complaint for substantially these reasons was made at the close of the case and was denied by the trial judge on the ground that the proofs presented a jury question as to the truth of the article.
The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability:
“Although the play was fictionalized, Life’s article portrayed it as a re-enactment of the Hills’ experience. It is an inescapable conclusion that this was done to advertise and attract further attention to the play, and to increase present and future magazine circulation as well. It is evident that the article cannot be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information in which the public had, or might have a proper interest.” 18 App. Div. 2d 485, 489, 240 N. Y. S. 2d 286, 290.
At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages.
The New York Court of Appeals affirmed the Appellate Division “on the majority and concurring opinions at the Appellate Division,” two judges dissenting. 15 N. Y. 2d 986, 207 N. E. 2d 604. We noted probable jurisdiction of the appeal to consider the important constitutional questions of freedom of speech and press involved. 382 U. S. 936. After argument last Term, the case was restored to the docket for reargument, 384 U. S. 995. We reverse and remand the case to the Court of Appeals for further proceedings not inconsistent with this opinion.
I.
Since the reargument, we have had the advantage of an opinion of the Court of Appeals of New York which has materially aided us in our understanding of that court’s construction of the statute. It is the opinion of Judge Keating for the court in Spahn v. Julian Messner, Inc., 18 N. Y. 2d 324, 221 N. E. 2d 543 (1966). The statute was enacted in 1903 following the decision of the Court of Appeals in 1902 in Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442. Roberson was an action against defendants for adorning their flour bags with plaintiff’s picture without her consent. It was grounded upon an alleged invasion of a “right of privacy,” defined by the Court of Appeals to be “the claim that a man has the right to pass through this world, if he wills, without having his picture published ... or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers . . . .” 171 N. Y., at 544, 64 N. E., at 443. The Court of Appeals traced the theory to the celebrated article of Warren and Brandéis, entitled The Right to Privacy, published in 1890. 4 Harv. L. Rev. 193. The Court of Appeals, however, denied the existence of such a right at common law but observed that “[t]he legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture dr the name of another for advertising purposes without his consent.” 171 N. Y., at 545, 64 N. E., at 443. The legislature enacted §§ 50-51 in response to that observation.
Although “Right of Privacy” is the caption of §§ 50-51, the term nowhere appears in the text of the statute itself. The text of the statute appears to proscribe only conduct of the kind involved in Roberson, that is, the appropriation and use in advertising or to promote the sale of goods, of another’s name, portrait or picture without his consent. An application of that limited scope would present different questions of violation of the constitutional protections for speech and press. Compare Valentine v. Chrestensen, 316 U. S. 52, with New York Times Co. v. Sullivan, 376 U. S. 254, 265-266.
The New York courts have, however, construed the statute to operate much more broadly. In Spahn the Court of Appeals stated that “Over the years since the statute’s enactment in 1903, its social desirability and remedial nature have led to its being given a liberal construction consonant with its over-all purpose . . . .” 18 N. Y. 2d, at 327, 221 N. E. 2d, at 544. Specifically, it has been held in some circumstances to authorize a remedy against the press and other communications media which publish the names, pictures, or portraits of people without their consent. Reflecting the fact, however, that such applications may raise serious questions of conflict with the constitutional protections for speech and press, decisions under the statute have tended to limit the statute’s application. “[E]ver mindful that the written word or picture is involved, courts have engrafted exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest.” Id., 18 N. Y. 2d, at 328, 221 N. E. 2d, at 544-545.
In the light of questions that counsel were asked to argue on reargument, it is particularly relevant that the Court of Appeals made crystal clear in the Spahn opinion that truth is a complete defense in actions under the statute based upon reports of newsworthy people or events. The opinion states: “The factual reporting of newsworthy persons and events is in the public interest and is protected.” 18 N. Y. 2d, at 328, 221 N. E. 2d, at 545. Constitutional questions which might arise if truth were not a defense are therefore of no concern. Cf. Garrison v. Louisiana, 379 U. S. 64, 72-75.
But although the New York statute affords “little protection” to the “privacy” of a newsworthy person, “whether he be such by choice or involuntarily” the statute gives him a right of action when his name, picture, or portrait is the subject of a “fictitious” report or article. Spahn points up the distinction. Spahn was an action under the statute brought by the well-known professional baseball pitcher, Warren Spahn. He sought an injunction and damages against the unauthorized publication of what purported to be a biography of his life. The trial judge had found that “the record unequivocally establishes that the book publicizes areas of Warren Spahn’s personal and private life, albeit inaccurate and distorted, and consists of a host, a preponderant percentage, of factual errors, distortions and fanciful passages . . . 43 Misc. 2d 219, 232, 250 N. Y. S. 2d 529, 542. The Court of Appeals sustained the holding that in these circumstances the publication was proscribed by § 51 of the Civil Rights Law and was not within the exceptions and restrictions for newsworthy events engrafted onto the statute. The Court of Appeals said:
“But it is erroneous to confuse privacy with ‘personality’ or to assume that privacy, though lost for a certain time or in a certain context, goes forever unprotected .... Thus it may be appropriate to say that the plaintiff here, Warren Spahn, is a public personality and that, insofar as his professional career is involved, he is substantially without a right to privacy. That is not to say, however, that his ‘personality’ may be fictionalized and that, .as fictionalized, it may be exploited for the defendants’ commercial benefit through the medium of an unauthorized biography.” Spahn, supra, at 328, 221 N. E. 2d, at 545.
As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person “substantially without a right to privacy” insofar as his hostage experience was involved, but ¡to be entitled to his action insofar as that experience w^s “fictionalized” and “exploited for the defendants’ commercial benefit.” “Fictionalization,” the Spahn opinion states, “is the heart of the cases in point.” 18 N. Y. 2d, at 328, 221 N. E. 2d, at 545.
The opinion goes on to say that the “establishment of minor errors in an otherwise accurate” report does not prove “fictionalization.” Material and substantial falsification is the test. However, it is not clear whether proof of knowledge of the falsity or that the article was prepared with reckless.,disregard for the truth is also required. In New York Times Co. v. Sullivan, 376 U. S. 254, we held that the Constitution delimits a State’s? j power to award damages for libel in actions brought by I public officials against critics of their official conduct. | Factual error, content defamatory of official reputation, or both, are insufficient for an award of damages for false statements unless actual malice — knowledge that the statements are false or in reckless disregard of the truth— is alleged and proved. The Spahn opinion reveals that the defendant in that case relied on New York Times as the basis of an argument that application of the statute to the publication of a substantially fictitious biography would run afoul of the constitutional guarantees. The Court of Appeals held that New York Times had no application. The court, after distinguishing the cases on the ground that Spahn did not deal with public officials or official conduct, then says, “The free speech which is encouraged and essential to the operation of a healthy government is something quite different from an individual’s attempt to enjoin the publication of a fictitious biography of him. No public interest is served by protecting the dissemination of the latter. We perceive no constitutional infirmities in this respect.” 18 N. Y. 2d, at 329, 221 N. E. 2d, at 546.
If this is meant to imply that proof of knowing or reckless falsity is not essential to a constitutional application of the statute in these cases, we disagree with the Court of Appeals. We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.
The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102. “No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression.” Bridges v. California, 314 U. S. 252, 269. We have no doubt that the subject of the Life article, the opening of a rrew play linked to an actual incident, is a matter of public interest. “The line between the informing and the entertaining is too elusive for the protection of . . . [freedom of the press].” Winters v. New York, 333 U. S. 507, 510. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, “. . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive’. . . .” New York Times Co. v. Sullivan, supra, at 271-272. As James Madison said, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 Elliot’s Debates on the Federal Constitution 571 (1876 ed.). We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture or portrait, particularly as related to non-defamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.
In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and_ an open society. Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to “steer . . . wider of the unlawful zone,” New York Times Co. v. Sullivan, 376 U. S., at 279; see also Speiser v. Randall, 357 U. S. 513, 526; Smith v. California, 361 U. S. 147, 153-154; and thus “create the danger that the legitimate utterance will be penalized.” Speiser v. Randall, supra, at 526.
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct. Similarly, calculated falsehood should enjoy no immunity in the situation here presented us. What we said in Garrison v. Louisiana, supra, at 75, is equally applicable:
“The use of calculated falsehood . . . would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published . . . should enjoy a like immunity. . . . Eor the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .’ Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard' of the truth, do not enjoy constitutional protection.”
We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals. This is neither a libel action by a private individual nor a statutory action by a public official; Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U. S. 75, 91 (Stewart, J., concurring). Moreover, a different test might be required in a statutory action by a public official, as opposed to a libel action by a public official or a statutory action by a private individual. Different considerations might arise concerning the degree of “waiver” of the protection the State might afford. But the question whether the same standard should be applicable both to persons voluntarily and involuntarily thrust into the public limelight is not here before us.
II.
Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that
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Answer:
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sc_adminaction_is
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
NATIONAL LABOR RELATIONS BOARD v. SAVAIR MANUFACTURING CO.
No. 72-1231.
Argued November 12, 1973
Decided December 17, 1973
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Marshall, Powell, and RehNquist, JJ., joined. White, J., filed a dissenting opinion, in which BreNNAN and BlacicmuN, JJ., joined, post, p. 281.
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Boric, Samuel Huntington, Peter G. Nash, John S. Irving, Patrick Hardin, and Linda Sher.
Robert J. Solner argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
The National Labor Relations Board, acting pursuant to § 9 (c) of the National Labor Relations Act, as amended, 61 Stat. 144, 29 U. S. C. § 159 (c), conducted an election by secret ballot among the production and maintenance employees of respondent at the request of the Mechanics Educational Society of America (hereafter Union). Under the Act the Union, if it wins the election, becomes “the exclusive representative of all the employees” in that particular unit for purposes of collective bargaining. The Union won the election by a vote of 22-20.
Respondent filed objections to the election, but after an evidentiary hearing, a hearing officer found against respondent and the Board certified the Union as the representative of the employees in that unit. Respondent, however, refused to bargain. The Union thereupon filed an unfair labor practice charge with the General Counsel, who issued a complaint alleging that respondent had violated §§ 8 (a)(1) and (5) of the Act. The Board sustained the allegations and ordered respondent to bargain with the Union. 194 N. L. R. B. 298. The Court of Appeals denied enforcement of the order. 470 F. 2d 305. We granted the petition for certiorari, 411 U. S. 964, there apparently being a conflict between this decision in the Sixth Circuit and a decision in the Eighth Circuit, NLRB v. DIT-MCO, Inc., 428 F. 2d 775, and also with one in the Ninth Circuit, NLRB v. G. K. Turner Associates, 457 F. 2d 484. We affirm.
It appeared that prior to the election, “recognition slips” were circulated among employees. An employee who signed the slip before the election became a member of the Union and would not have to pay what at times was called an “initiation fee” and at times a “fine.” If the Union was voted in, those who had not signed a recognition slip would have to pay.
The actual solicitation of signatures on the “recognition slips” was not done by Union officials. Union officials, however, explained to employees at meetings that those who signed the slips would not be required to pay an initiation fee, while those who did not would have to pay. Those officials also picked out some five employees to do the soliciting and authorized them to explain the Union’s initiation-fee policy. Those solicited were told that there would be no initiation fee charged those who signed the slip before the election. Under the bylaws of the Union, an initiation fee apparently was not to be higher than $10; but the employees who testified at the hearing (1) did not know how large the fee would be and (2) said that their understanding was that the fee was a “fine” or “assessment.”
One employee, Donald Bridgeman, testified that he signed the slip to avoid paying the “fine” if the Union won. He got the message directly from an employee picked by the Union to solicit signatures on the “slips.” So did Thomas Rice, another employee.
The Board originally took the position that pre-election solicitation of memberships by a union with a promise to waive the initiation fee of the union was not consistent with a fair and free choice of bargaining representatives. Lobue Bros., 109 N. L. R. B. 1182. Later in DIT-MCO, Inc., 163 N. L. R. B. 1019, the Board explained its changed position as follows:
“We shall assume, arguendo, that employees who sign cards when offered a waiver of initiation fees do so solely because no cost is thus involved; that they in fact do not at that point really want the union to be their bargaining representative. The error of the Lobue premise can be readily seen upon a review of the consequences of such employees casting votes for or against union representation. Initially, it is obvious that employees who have received or been promised free memberships will not be required to pay an initiation fee, whatever the outcome of the vote. If the union wins the election, there is by postulate no obligation; and if the union loses, there is still no obligation, because compulsion to pay an initiation fee arises under the Act only when a union becomes the employees’ representative and negotiates a valid union-security agreement. Thus, whatever kindly feeling toward the union may be generated by the cost-reduction offer, when consideration is given only to the question of initiation fees, it is completely illogical to characterize as improper inducement or coercion to vote 'Yes’ a waiver of something that can be avoided simply by voting 'No.’
“The illogic of Lobue does not become any more logical when other consequences of a vote for representation are considered. Thus, employees know that if a majority vote for the union, it will be their exclusive representative, and, provided a valid union-security provision is negotiated, they will be obliged to pay dues as a condition of employment. Thus, viewed solely as a financial matter, a 'no’ vote will help to avoid any subsequent obligations, a 'yes’ may well help to incur such obligations. In these circumstances, an employee who did not want the union to represent him would hardly be likely to vote for the union just because there would be no initial cost involved in obtaining membership. Since an election resulting in the union’s defeat would entail not only no initial cost, but also insure that no dues would have to be paid as a condition of employment, the financial inducement, if a factor at all, would be in the direction of a vote against the union, rather than for it.” Id., at 1021-1022.
We are asked to respect the expertise of the Board on this issue, giving it leeway to alter or modify its policy in light of its ongoing experience with the problem. The difficulty is not in that principle but with the standards to govern the conduct of elections under §9 (c)(1)(A). We said in NLRB v. Tower Co., 329 U. S. 324, 330, that the duty of the Board was to establish “the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”
It is, of course, true as we said in NLRB v. Wyman-Gordon Co., 394 U. S. 759, 767, that “Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives.” See also NLRB v. Waterman S. S. Co., 309 U. S. 206, 226. But in this case two opposed groups are in contention: one composed of those who want a union and the other, of those who prefer not to have one. The Board in its DIT-MCO opinion says “it is completely illogical to characterize as improper inducement or coercion” a waiver of initiation fees for those who vote “yes” when the whole problem can be avoided by voting “no.” 163 N. L. R. B., at 1021-1022. But the Board’s analysis ignores the realities of the situation.
Whatever his true intentions, an employee who signs a recognition slip prior to an election is indicating to other workers that he supports the union. His outward manifestation of support must often serve as a useful campaign tool in the union’s hands to convince other employees to vote for the union, if only because many employees respect their coworkers’ views on the unionization issue. By permitting the union to offer to waive an initiation fee for those employees signing a recognition slip prior to the election, the Board allows the union to buy endorsements and paint a false portrait of employee support during its election campaign.
That influence may well have been felt here for, as noted, there were 28 who signed up with the Union before the election petition was filed with the Board and either seven or eight more who signed up before the election. We do not believe that the statutory policy of fair elections prescribed in the Tower case permits endorsements, whether for or against the union, to be bought and sold in this fashion.
In addition, while it is correct that the employee who signs a recognition slip is not legally bound to vote for the union and has not promised to do so in any formal sense, certainly there may be some employees who would feel obliged to carry through on their stated intention to support the union. And on the facts of this case, the change of just one vote would have resulted in a 21-21 election rather than a 22-20 election.
Any procedure requiring a “fair” election must honor the right of those who oppose a union as well as those who favor it. The Act is wholly neutral when it comes to that basic choice. By § 7 of the Act employees have the right not only to “form, join, or assist” unions but also the right “to refrain from any or all of such activities.” 29 U. S. C. § 157. An employer who promises to increase the fringe benefits by $10 for each employee who votes against the union, if the union loses the election, would cross the forbidden line under our decisions. See NLRB v. Exchange Parts Co., 375 U. S. 405. The right of employees to “form, join, or assist” labor unions guaranteed by § 7 has an express sanction in § 8 (a)(1) which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees ” in the exercise of those rights. 29 U. S. C. §§ 157, 158 (a)(1). Such interference is an unfair labor practice as we held in NLRB v. Exchange Parts Co., supra. But, as already noted, § 7 guarantees the right of employees “to refrain from any or all of such activities.”
Congress has also listed in § 8 (b) of the Act “unfair” labor practices of unions. 29 U. S. C. § 158 (b). There is no explicit provision which makes “interference” by a union with the right of an employee to “refrain” from union activities an unfair labor practice.
Section 8 (c), however, provides:
“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 29 U. S. C. § 158 (c) (emphasis added).
Whether it would be an “unfair” labor practice for a union to promise a special benefit to those who sign up for a union seems not to have been squarely resolved. The right of a free choice is, however, inherent in the principles reflected in § 9 (c)(1)(A).
When the dissent says that “[t]he special inducement is to sign the card, not to vote for the union” and that treating the two choices as one is untenable, it overlooks cases like NLRB v. Gissel Packing Co., 395 U. S. 575. There we held that the gathering of authorization cards from a majority of the employees in the bargaining unit may entitle the union to represent the employees for collective-bargaining purposes, even though there has been and will be no election, id., at 582-583, and that rejection of that authorization by the employer is an unfair labor practice. Where the solicitation of cards is represented as being solely for the purpose of obtaining an election, a contrary result is indicated. Id., at 584, 606. Thus the solicitation of authorization cards may serve one of two ends. Of course, when an election is contemplated, an employee does not become a member of the union merely by signing a card. But prior to the election if the union receives overwhelming support, the pro-union group may decide to treat the union authorization cards as authorizing it to conduct collective bargaining without an election. The latent potential of that alternative use of authorization cards cautions us to treat the solicitation of authorization cards in exchange for consideration of fringe benefits granted by the union as a, separate step protected by the same kind of moral standard that governs elections themselves.
The Board in its supervision of union elections may not sanction procedures that east their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.
In the Exchange Parts case we said that, although the benefits granted by the employer were permanent and unconditional, employees were “not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.” 375 U. S., at 409. If we respect, as we must, the statutory right of employees to resist efforts to unionize a plant, we cannot assume that unions exercising powers are wholly benign towards their antagonists whether they be nonunion protagonists or the employer. The failure to sign a recognition slip may well seem ominous to nonunionists who fear that if they do not sign they will face a wrathful union regime, should the union win. That influence may well have had a decisive impact in this case where a change of one vote would have changed the result.
Affirmed.
Section 9 (c)(1)(A) provides in part:
“(c)(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—
“(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in [§ 9 (a)] ...
“the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. . . . If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” 29 U. S. C. § 159 (c).
Section 9 (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 . . . .” 29 U. S. C. § 159 (a).
Sections 8 (a) (1) and (5) provide:
“(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 [§ 7];
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section [9 (a)).” 29 U. S. C. §§ 158 (a)(1) and (5).
The question for review presented by the Board is whether the “Board properly concluded that a union’s offer to waive initiation fees for all employees who sign union authorization cards before a Board representation election, if the union wins the election, does not tend to interfere with employee free choice in the election.” (Emphasis added.) There was testimony by Alfred Smith, National Secretary-Treasurer of the Union, that he told the employees at a meeting that the waiver of initiation fees was open to all who signed the authorization cards before the collective-bargaining contract was signed.
The Hearing Officer, however, found that
“Bridgeman further testified that subsequent to that meeting, and prior to the election, Bennie McKnight told employees that if they signed the union membership and authorization card before the election, there would be no union 'initiation fee’ if the union were successful at the election.” (Emphasis added.)
While Bridgeman’s testimony about McKnight’s representations after the meeting might have been only implicit, the Hearing Officer also referred to Bridgeman’s testimony that Smith himself had stated at the meeting that waiver of the initiation fee would be limited to those signing up before the election. The Hearing Officer clearly proceeded on the premise that the waiver was open only to those who signed up before the election:
“The Employer further argues that it is an economic inducement contingent upon how employees vote in the election and on the results of the election, and as such, constitutes an objectionable inducement. This argument, however, has been rejected by the Board. In the DIT-MCO, Inc., 163 N. L. R. B. No. 147 case [p. 1019], the Board held that a provisional waiver of initiation fees prior to election is not improper regardless of whether it is contingent upon the results of the election. The Board pointed out that it would be unreasonable to conclude that a statement by the union during an election to the effect that an assessment of money or an obligation to pay money which could be avoided by the execution of a union membership card prior to the election, would influence a vote in favor of the Union when the simplest way to avoid the incurrence of any financial obligation would be to vote 'no.’ Thus, it would appear that any threat to impose a 'fine,’ 'assessment’ or 'initiation fee,’ or ‘payment to join the union,’ although it may induce an employee to execute a union authorization membership card, would more probably induce him to vote ‘no’ at the election." (Emphasis added.)
The Court of Appeals read the Hearing Officer’s Report to state that the waiver was limited to those signing up before the election, as do we. Such a reading is amply supported by the evidence in the record beyond the testimony to which we have already alluded. The record demonstrates the pressure which employees felt to sign up with the Union quickly, before the election and perhaps even before the representation petition itself was filed, a pressure utterly inconsistent with a belief that a waiver would be available to them up to the time a collective-bargaining agreement was signed after the election. It is also supported by the fact that 28 individuals signed up with the Union before the election petition was filed with the Board on August 12, 1970, and apparently an additional seven or eight signed up before the September 22, 1970, election. But there is no indication of any individuals signing up with the Union after the election, which would be the obviously rational decision once the Union had won the election.
The Board argues that unions have a valid interest in waiving the initiation fee when the union has not yet been chosen as a bargaining representative, because “ ‘[e]mployees otherwise sympathetic to the union might well have been reluctant to pay out money before the union had done anything for them. Waiver of the [initiation fees] would remove this artificial obstacle to their endorsement of the union.’ ” See Amalgamated Clothing Workers v. NLRB, 345 F. 2d 264, 268 (CA2 1969). While this union interest is legitimate, the Board’s argument ignores the fact that this interest can be preserved as well by waiver of initiation fees available not only to those who have signed up with the union before an election but also to those who join after the election. The limitation imposed by the Union in this ease — to those joining before the election — is necessary only because it serves the additional purpose of affecting the Union organizational campaign and the election.
See n. 4, supra.
The lower courts have recognized that promising benefits or conferring benefits before representation elections may unduly influence the representational choices of employees where the offer is not across the board to all employees but, as here, only to those who sign up prior to the election. See, e. g., NLRB v. Gorbea, Perez & Morell, 328 F. 2d 679, 681-682 and nn. 6-7 (CA1 1964) (promise to waive initiation fee for those joining union prior to election, but not after, may substantially influence election); Amalgamated Clothing Workers v. NLRB, 345 F. 2d, at 268-269 (Friendly, J., concurring) (improper to waive fees for those joining union immediately while indicating that this is foreclosed to those joining later). See also Collins & Aikman Corp. v. NLRB, 383 F. 2d 722, 728-729 (CA4 1967) (paying employee $7 to be observer at election is an “unreasonable or excessive economic inducement” potentially influencing other employees and is ground to set aside election); NLRB v. Commercial Letter, Inc., 455 F. 2d 109 (CA8 1972) (disproportionate payments to employees attending union “hearings” prior to representation election).
The NLRB itself has recognized in other contexts that promising or conferring benefits may unduly influence representation elections. See e. g., Wagner Electric Corp., 167 N. L. R. B. 532, 533 (grant of life insurance policy to those who signed with union before representation election “subjects the donees to a constraint to vote for the donor union”); General Cable Corp., 170 N. L. R. B. 1682 ($5 gift to employees by union before election, even when not conditioned on outcome of election, was inducement to cast ballots favorable to union); Teletype Corp., 122 N. L. R. B. 1594 (payment of money by rival unions to those attending pre-election meetings).
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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sc_caseorigin
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046
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
CHAN et al. v. KOREAN AIR LINES, LTD.
No. 87-1055.
Argued December 7, 1988
Decided April 18, 1989
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Kennedy, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 136.
Milton G. Sincoff argued the cause for petitioners. With him on the brief were Steven R. Pounian and Donald W. Madole.
Richard J. Lazarus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, and Deputy Solicitor General Ayer.
George N. Tompkins, Jr., argued the cause and filed a brief for respondent.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether international air carriers lose the benefit of the limitation on damages for passenger injury or death provided by the multilateral treaty known as the Warsaw Convention if they fail to provide notice of that limitation in the 10-point type size required by a private accord among carriers, the Montreal Agreement.
I
On September 1, 1983, over the Sea of Japan, a military aircraft of the Soviet Union destroyed a Korean Air Lines, Ltd. (KAL), Boeing 747 en route from Kennedy Airport in New York to Seoul, South Korea. All 269 persons on board the plane perished. Survivors of the victims filed wrongful-death actions against KAL in several Federal District Courts, all of which were transferred for pretrial proceedings to the District Court for the District of Columbia pursuant to 28 U. S. C. § 1407. All parties agree that their rights are governed by the Warsaw Convention, a multilateral treaty governing the international carriage of passengers, baggage, and cargo by air. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. App. § 1502.
The present controversy centers on the per passenger damages limitation for personal injury or death. This was fixed at approximately $8,300 by the Convention, but was raised to $75,000 by the Montreal Agreement, an agreement among carriers executed (and approved by the Civil Aeronautics Board (CAB)) in 1966, and joined by KAL in 1969. Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, CAB Agreement 18900, note following 49 U. S. C. App. § 1502 (approved by CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302). In addition to providing for a higher damages limitation, this agreement required carriers to give passengers written notice of the Convention’s damage limitations in print size no smaller than 10-point type. The notice of the Convention’s liability rules printed on KAL’s passenger tickets for the flight in question here appeared in only 8-point type. By motion for partial summary judgment, plaintiffs sought a declaration that this discrepancy deprived KAL of the benefit of the damages limitation.
On July 25, 1985, the District Court for the District of Columbia denied the motion, finding that neither the Warsaw Convention nor the Montreal Agreement prescribes that the sanction for failure to provide the required form of notice is the elimination of the damages limitation. In re Korean Air Lines Disaster of September 1, 1983, 664 F. Supp. 1463. Its opinion specifically considered and rejected contrary Second Circuit precedent. See In re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 705 F. 2d 85, cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983). On September 24, 1985, the District Court certified for interlocutory appeal under 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) the question whether KAL “is entitled to avail itself of the limitation of damages provided by the Warsaw Convention and Montreal Agreement despite its defective tickets.” The District of Columbia Circuit allowed the appeal and (following a remand of the record for clarification of the scope of the District Court’s order) affirmed, adopting the District Court’s opinion in full. In re Korean Air Lines Disaster of September 1, 1983, 265 U. S. App. D. C. 39, 829 F. 2d 1171 (1987). We granted certiorari, 485 U. S. 986 (1988), to resolve the conflict among the Courts of Appeals. (In addition to the Second Circuit, the Fifth is in disagreement with the District of Columbia Circuit’s resolution here. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F. 2d 1092 (1986), reinstated, 821 F. 2d 1147 (1987) (en banc).)
II
Petitioners concede that by itself the Montreal Agreement imposes no sanction for failure to comply with its 10-point type requirement. They argue, however, that such a requirement is created by reading the Montreal Agreement in conjunction with the Warsaw Convention. This argument proceeds in two steps. First, petitioners assert that Article 3 of the Warsaw Convention removes the protection of limited liability if a carrier fails to provide adequate notice of the Convention’s liability limitation in its passenger tickets. Second, they contend that the Montreal Agreement’s 10-point type requirement supplies the standard of adequate notice under Article 3. Because we reject the first point, we need not reach the second.
Article 3 of the Warsaw Convention provides:
“(1) For the transportation of passengers the carriers must deliver a passenger ticket which shall contain the following particulars:
“(a) The place and date of issue;
“(b) The place of departure and of destination;
“(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character;
“(d) The name and address of the carrier or carriers;
“(e) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.”
Although Article 3(1)(e) specifies that a passenger ticket shall contain “[a] statement that the transportation is subject to the rules relating to liability established by this convention,” nothing in Article 3 or elsewhere in the Convention imposes a sanction for failure to provide an “adequate” statement. The only sanction in Article 3 appears in the second clause of Article 3(2), which subjects a carrier to unlimited liability if it “accepts a passenger without a passenger ticket having been delivered.” Several courts have equated nondelivery of a ticket, for purposes of this provision, with the delivery of a ticket in a form that fails to provide adequate notice of the Warsaw limitation. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, supra; In re Air Crash Disaster at Warsaw, Poland, on March 11, 1980, 705 F. 2d 85 (CA2), cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983); Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U. S. App. D. C. 191, 196-197, 479 F. 2d 912, 917-918 (1973); Lisi v. Alitalia-Linee Aeree Italiane, S. p. A., 370 F. 2d 508 (CA2 1966), aff’d by equally divided Court, 390 U. S. 455 (1968); Egan v. Kollsman Instrument Corp., 21 N. Y. 2d 160, 234 N. E. 2d 199 (1967), cert. denied, 390 U. S. 1039 (1968). See also Warren v. Flying Tiger Line, Inc., 352 F. 2d 494 (CA9 1965) (conditioning liability limitation upon delivery of tickets in such manner as to afford passengers a reasonable opportunity to take measures to protect against liability limitation); Mertens v. Flying Tiger Line, Inc., 341 F. 2d 851 (CA2) (same), cert. denied, 382 U. S. 816 (1965). But see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52, 57 (Can. 1979) (rejecting the view of the American cases).
We cannot accept this interpretation. All that the second sentence of Article 3(2) requires in order to avoid its sanction is the “delivery]” of “a passenger ticket.” Expanding this to mean “a passenger ticket in compliance with the requirements of this Convention” is rendered implausible by the first sentence of Article 3(2), which specifies that “[t]he . . . irregularity ... of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention.” It is clear from this (1) that an “irregularity” does not prevent a document from being a “passenger ticket”; and (2) that an “irregularity” in a passenger ticket does not eliminate the contractual damages limitation provided for by the Convention. “Irregularity” means the “[qjuality or state of not conforming to rule or law,” Webster’s Second International Dictionary (1950), and in the present context the word must surely refer to the rules established by the Convention, including the notice requirement. Thus, a delivered document does not fail to qualify as a “passenger ticket,” and does not cause forfeiture of the damages limitation, merely because it contains a defective notice. When Article 3(2), after making this much clear, continues (in the second sentence) “Nevertheless, if a carrier accepts a passenger without a passenger ticket having been delivered, etc.,” it can only be referring to the carrier’s failure to deliver any document whatever, or its delivery of a document whose shortcomings are so extensive that it cannot reasonably be described as a “ticket” (for example, a mistakenly delivered blank form, with no data filled in). Quite obviously, the use of 8-point type instead of 10-point type for the liability limitation notice is not a shortcoming of such magnitude; indeed, one might well select that as a polar example of what could not possibly prevent a document from being a ticket.
Besides being incompatible with the language of the Convention, the proposition that, for purposes of Article 3(2), delivering a defective ticket is equivalent to failure to deliver a ticket, produces absurd results. It may seem reasonable enough that a carrier “shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability” when the ticket defect consists precisely of a failure to give the passenger proper notice of those provisions. But there is no textual basis for limiting the “defective-ticket-is-no-ticket” principle to that particular defect. Thus, the liability limitation would also be eliminated if the carrier failed to comply, for example, with the requirement of Article 3(1 )(d) that the ticket contain the address of the carrier.
The conclusion that defective compliance with the notice provision does not eliminate the liability limitation is confirmed by comparing Article 3(2) with other provisions of the Convention. Article 3 is a part of Chapter II of the Convention, entitled “Transportation Documents.” Just as Section I of that Chapter (which includes Article 3) specifies what information must be included in passenger tickets, Sections II and III specify what information must be included in, respectively, baggage checks and air waybills for cargo. All three sections require, in identical terms, “[a] statement that the transportation is subject to the rules relating to liability established by this convention.” Articles 3(l)(eJ, 4(2)(h), 8(q). All three sections also provide, again in identical terms, that if the relevant document (ticket, baggage check, or air waybill) has not been delivered (or, in the case of air waybill, “made out”), the carrier “shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability.” Articles 3(2), 4(4), and 9. But, unlike Section I, Sections II and III also specifically impose the latter sanction for failure to include in the documents certain particulars, including (though not limited to) the notice of liability limitation. Sections II and III thus make doubly clear what the text of Article 3(2) already indicates: that delivery of a defective document is something quite different from failure to deliver a document. And given the parallel structures of these provisions it would be a flouting of the text to imply in Section I a sanction not only withheld there but explicitly granted elsewhere. When such an interpretation is allowed, the art of draftsmanship will have become obsolete.
Petitioners and the United States as amicus curiae seek to explain the variance between Section I and Sections II and III (as well as the clear text of Article 3) as a drafting error, and lead us through the labyrinth of the Convention’s drafting history in an effort to establish this point. It would be absurd, they urge, for defective notice to eliminate liability limits on baggage and air freight but not on personal injury and death. Perhaps not. It might have been thought, by the representatives from diverse countries who drafted the Convention in 1925 and 1929 (an era when even many States of this country had relatively low limits on wrongful-death recovery) that the $8,300 maximum liability established for personal injury or death was a “fair” recovery in any event, so that even if the defective notice caused the passenger to forgo the purchase of additional insurance, he or his heirs would be treated with rough equity in any event. Cf. C. McCormick, Law of Damages § 104 (1935) (“In about one-third of the states, a fixed limit upon the recovery under the Death Act is imposed in the statute. The usual limit is $10,000, but in some instances the maximum is $7,500 or $5,000”). Quite obviously, however, the limitation of liability for baggage and freight (about $16.50 per kilogram, see Article 22(2)) was not set with an eye to fair value (the very notion of a “fair” average value of goods per kilogram is absurd), but perhaps with an eye to fair level of liability in relation to profit on the carriage — so that the shipper of lost goods misled by the inadequate notice would not be compensated equitably. Another possible explanation for the difference in treatment is that the limitations on liability prescribed for baggage and freight are much more substantial and thus notice of them is much more important. They include not just a virtually nominal monetary limit, but also total exclusion of liability for “an error in piloting, in the handling of the aircraft, or in navigation.” Article 20. Or perhaps the difference in treatment can be traced to a belief that people were much more likely, if adequate notice was given, to purchase additional insurance on goods than on their own lives — not only because baggage and freight are lost a lot more frequently than passengers, but also because the Convention itself establishes, in effect, an insurance-purchasing counter at the airport for baggage and freight, providing that if the consignor makes “a special declaration of the value at delivery and has paid a supplementary sum if the case so requires,” the carrier will be liable for actual value up to the declared sum. Article 22(2); see also Articles 4(g), 8(to).
These estimations of what the drafters might have had in mind are of course speculation, but they suffice to establish that the result the text produces is not necessarily absurd, and hence cannot be dismissed as an obvious drafting error. We must thus be governed by the text — solemnly adopted by the governments of many separate nations — whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous, see, e. g., Air France v. Saks, 470 U. S. 392 (1985). But where the text is clear, as it is here, we have no power to insert an amendment. As Justice Story wrote for the Court more than a century and a half ago:
“[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.” The Amiable Isabella, 6 Wheat. 1, 71 (1821).
For the reasons given above, we agree with the opinion of the Supreme Court of Canada, see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52 (1979), that the Warsaw Convention does not eliminate the limitation on damages for passenger injury or death as a sanction for failure to provide adequate notice of that limitation. Accordingly, we affirm the judgment of the District of Columbia Circuit.
So ordered.
The relevant portion of the Montreal Agreement provides:
“2. Each carrier shall, at the time of delivery of the ticket, furnish to each passenger whose transportation is governed by the Convention . . . the following notice, which shall be printed in type at least as large as 10 point and in ink contrasting with the stock on (i) each ticket; (ii) a piece of paper either placed in the ticket envelope with the ticket or attached to the ticket; or (iii) on the ticket envelope:
“ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY
“Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination. For such passengers on a journey to, from, or with an agreed stopping place in the United States of America, the Convention and special contracts of carriage embodied in applicable tariffs provide that the liability of certain (name the carrier) and certain other[*] carriers parties to such special contracts for death of or personal injury to passengers is limited in most cases to proven damages not to exceed US $75,000 per passenger, and that this liability up to such limit shall not depend on negligence on the part of the carrier. For such passengers travelling by a carrier not a party to such special contracts or on a journey not to, from, or having an agreed stopping place in the United States of America, liability of the carrier for death or personal injury to passengers is limited in most cases to approximately US $8,290 or US $16,580.
“The names of Carriers parties to such special contracts are available at all ticket offices of such carriers and may be examined on request.
“Additional protection can usually be obtained by purchasing insurance from a private company. Such insurance is not affected by any limitation of the carrier’s liability under the Warsaw Convention or such special contracts of carriage. For further information please consult your airline or insurance company representative.
“[*] Either alternative may be used.” Aeronautical Statutes and Related Materials 515 (compiled by Office of General Counsel, CAB, 1974).
For a similar reason, we need not discuss Department of Transportation (formerly CAB) Economic Regulation Part 221, 14 CFR §221.175(a) (1988), which was originally promulgated in 1963, before the Montreal Agreement, and which contains a similar requirement of 10-point type. This imports no sanctions of its own except a civil penalty, see 49 U. S. C. App. § 1471. Thus, even if (per impossibile) the Executive Branch could unilaterally prescribe what adequate notice under an international treaty consists of, the sanction of invalidating the damages limitations would still be lacking.
Justice Beennan accuses us of being “disingenuous” in saying that this is the only possible reading of Article 3. In the single paragraph supporting this accusation, he offers two arguments to show that Article 3 is “surely susceptible,”
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Answer:
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songer_appstate
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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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Inez REYNOLDS, as the Successor Administratrix of the Estate of Wilmer Lampley, deceased, Plaintiff-Appellant, v. BRIDGESTONE/FIRESTONE, INC., Defendant-Appellee, Container Corporation of America, Defendant, Goodyear Tire and Rubber Company, Defendant-Appellee, Firestone Steel Products of Canada, a Division of Decor Metal Products, Ltd.; Decor Metal Products Ltd., a Division of TRW, Defendants.
No. 92-6332.
United States Court of Appeals, Eleventh Circuit.
April 28, 1993.
Jere L. Beasley, Landis Sexton, Frank M. Wilson, J. Greg Allen, Beasley, Wilson, Allen, Main & Crow, PC, Montgomery, AL, for plaintiff-appellant.
Ronald G. Davenport, Rushton, Stakely, Johnston & Garrett, PA, Montgomery, AL, Scott M. Phelps, Brittin T. Coleman, Bradley, Arant, Rose & White, Birmingham, AL, Frances E. Prell, Burke, Bosselman & Weaver, Chicago, IL, Warren B. Lightfoot, Harlan I. Prater, IV, Lightfoot, Franklin, White & Lucas, Birmingham, AL, for defendant-appellee.
Before FAY and KRAVITCH, Circuit Judges, and RONEY, Senior Circuit Judge.
FAY, Circuit Judge:
This is a product liability action involving a Goodyear tire specifically designed for mounting on a multi-piece rim assembly manufactured by Firestone. Upon the death of Wilmer Lampley, his estate, the appellant/plaintiff, sued Firestone and Goodyear, appellees/defendants, claiming violation of the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), negligent and wanton conduct, and failure to warn. The estate appeals the district court’s order granting summary judgment in favor of both defendants on all claims. Because we find genuine issues of fact and misapplication of state law regarding the claims against Firestone, we VACATE the judgment as to Firestone and REMAND the case to district court. We AFFIRM summary judgment for Goodyear.
FACTS AND PROCEDURAL BACKGROUND
Wilmer Lampley had been employed by Steed Tire Service for six years. By virtue of his training and experience, he was thoroughly qualified to service multi-piece truck rims and his employer thought him to be a very cautious tire changer. On April 6, 1990, an exploding tire and multi-piece rim assembly killed Mr. Lampley. On that day he and a co-worker were assigned to mount and install several recapped tires on a grappling loader at the Container Corporation lumber yard in Banks, Alabama. To repair the right front tire, Lampley disassembled the wheel, separating the rim components and removing the old tire. Using the same rim parts and a retreaded tire, Lampley then reassembled the rim and inflated the tire. An explosion occurred as he was mounting the tire and rim assembly onto the axle of the grappling loader. The rim components separated, causing the tire to rapidly deflate. Under the instant release of thousands of pounds of air pressure, the tire or a rim component struck Lampley. He died immediately.
There are two rim designs available for mounting tires, single piece rims or multi-piece rims. Tires mounted on multi-piece rims require that an inner tube be used to hold the air. Single piece rims do not require inner tubes or locking mechanisms because the tire and rim combine to create an effective seal. The tires manufactured for the different rim designs are not interchangeable. The plaintiff does not dispute that when the explosion occurred Lampley-was mounting a Goodyear 5 degree tube-type tire designed specifically for a multi-piece rim, a tire which was not suitable for mounting on a single piece rim. The plaintiff asserts, however, Goodyear knew when it placed this tire into the stream of commerce that the multi-piece rims for which the tire was designed had an inherent design flaw and could unexpectedly separate and explode. Plaintiff claims the tire poses an unreasonable risk of harm to the intended user, since it could only be mounted on the inherently dangerous multi-piece rim.
The plaintiff’s brief generally describes the functional design of a multi-piece rim assembly. A rim assembly consists of three steel parts: the rim base, the continuous side ring, and the lock ring. The rim base has a fixed flange on one side which is designed to hold the bead of the tire in place. The continuous side ring and the lock ring fit onto the opposite side of the rim base. The continuous side ring is a removable flange. The tire is mounted by sliding it over the side of the rim base opposite the fixed flange. After the tire is pushed over the rim base, the continuous side ring is placed over the rim base and affixed to it by fitting the lock ring into the gutter on the rim base; the lock ring acts as a wedging or interlocking mechanism to hold the continuous side ring in place. If the lock ring is not fully engaged in the gutter, the pressure of the inflated tire can cause the mechanism to separate with a tremendous explosion at any time after inflation. The rim assembly is loose until the tire is inflated and the pressure forces the tire bead against the side flanges. While the tire is being inflated, the interlocking mechanism is intended to hold the tire on the assembly and keep the continuous side ring in place.
There are apparently several configurations for multi-piece rim assemblies on the market and Firestone manufactures at least two different designs. The plaintiff and Firestone agree that the components here were mismatched, both when Lampley disassembled and when he reassembled the wheel. The rim assembly here consisted of a 5 degree rim base, a FL 5 degree continuous side ring, and a FL lock ring. The FL 5 degree continuous side ring can be used with either a 5 degree rim base or a FL rim base. The problem Lampley encountered was that his FL lock ring was not designed to be used with a 5 degree rim base. The FL lock ring has a “toe” that is about W shorter than the 5 degree lock ring and is designed to be used with the FL rim base.
In the opinion of plaintiffs expert witness, Lampley’s death was caused by the design flaw of the multi-piece rim system and the combination of the mismatched components. Because the inflated tire was pressing against the outside of the continuous side ring, he said it would have erroneously appeared to Lampley that the short toe lock ring was fully engaged. The expert indicated that the explosion occurred because the bead of the tire got caught on the toe of the lock ring, thus pushing it out of the rim base gutter hook. The expert further stated that the lack of a positive locking system presents an inherent design flaw, and that multi-piece rims have a propensity to explode even when the recommended lock ring is used. Firestone’s expert testimony, on the other hand, indicated that the mismatched parts were safe and that Lampley’s failure to correctly seat the lock ring in the rim base gutter hook caused the explosion. The expert contended that partial engagement of the lock ring would have been obvious to an experienced tire changer like Lampley.
Firestone did provide Steed Tire Service with an abundance of literature, including wall charts and safety manuals, warning of the dangers of mismatched or improperly assembled multi-piece rims. The plaintiff does not deny that Steed passed these warnings on to Lampley. Firestone also asserts that the subject components were stamped with information identifying their type, size, manufacturer and date of production.
Wilmer Lampley’s estate brought suit against Firestone and Goodyear. After several amendments to the complaint, the plaintiff ultimately claimed that Firestone had violated the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), and that Firestone negligently and wantonly placed the multi-piece rim assembly on the market and failed to warn Lampley of the dangers involved in using the rim. Firestone moved for summary judgment on the grounds that Lampley assumed the risk of his injury and that any duty to warn had been discharged by the warnings given to Steed Tire Service. The district court entered summary judgment for Firestone holding, as a matter of law, that Lampley assumed the risk of his injury and that Firestone had discharged its duty to warn because Firestone had a reasonable belief that Lampley’s employer would advise him of the dangers associated with the rim assembly.
The plaintiff claimed Goodyear negligently and wantonly placed its tire on the market and failed to warn Lampley of the imminent dangers involved in using its tire with a multi-piece rim. The plaintiff also claimed Goodyear was liable under AEMLD. Goodyear moved the district court for summary judgment. Without making a finding of fact or law, the court assumed that multi-piece rims are unreasonably dangerous and defective in design, and held in favor of Goodyear because the plaintiff presented no evidence of a defect in the tire. The court thus declined to accept plaintiffs theory that Goodyear could be held liable for marketing tires particularly designed for mounting on an inherently dangerous rim assembly. The court also held that the tire did not cause the deceased’s injury because the tire exploded due to the defective rim and rings. These findings are supported by Alabama law, which dictates that the manufacturer of a non-defective component part is not liable merely because the part is used in combination with another manufacturer’s defective component that results in an unreasonably dangerous completed product. The court further held the law imposed no duty on Goodyear to warn Lampley because he already knew of the dangers associated with mounting tires on a multi-piece rim.
The plaintiff appeals the district court’s final judgments for Firestone and Goodyear.
DISCUSSION
The Standard for Summary Judgment
In a summary judgment ruling we review de novo the district court’s determination and application of Alabama law. Salve Regina College v. Russell, — U.S. -, -, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). We apply the same legal standards as those that controlled the district court. Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). Summary judgment should be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where a jury trial is requested, the district court is not free to decide factual issues, and if any material issues are present in the record, the court must deny the motion and proceed to trial. Warrior, 695 F.2d at 1296. “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the burden of demonstrating that there is no dispute as to any material fact in the case. Warrior, 695 F.2d at 1296. “ ‘In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the [non-moving] party’ ” and resolve “ ‘all reasonable doubts about the facts ... in favor of the non-movant.’ ” Id. (citation omitted).
Applying these principles to the present case, we find no error in granting summary judgment for Goodyear. However, we find the district court did err in granting summary judgment for Firestone because genuine factual issues exist and the court misapplied state law in ruling that Lampley had assumed the risk of injury. The assumption of risk defense should not have been reached in this case. Further, the court misperceived the issue in holding that Firestone discharged its duty by warning Steed Tire Service. The question raised is whether the warning was adequate.
“Unreasonably Dangerous” is a Jury Question
As the moving party, Firestone bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. We find Firestone failed to meet its burden and was not entitled to judgment as a matter of Alabama law. To establish liability under the AEMLD the plaintiff must show (1) the defendant placed a defective product on the market which was unreasonably dangerous and which caused injury or damage; (2) the defendant was engaged in the business of selling the product; and (3) the product was expected to and did reach the user or consumer without substantial change in condition. Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-33 (Ala.1976). Alabama defines a defect as “that which renders a product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose.” Id. at 133. The question of “[wjhether a product is ‘unreasonably dangerous’ is for the trier of fact.” Id. It matters not whether a jury finds the product dangerous by design.or defect, so long as they determine the product is dangerous when used as it was intended to be used. Id.
Although the district court found Firestone presented no evidence to refute the plaintiff’s AEMLD claim, it nevertheless held Firestone was entitled to summary judgment based on the affirmative defense of assumption of risk. Implicit in this approach is a recognition that the plaintiff has established a prima facie case. This is consistent with the record. Plaintiff’s expert stated that the multi-piece rim assembly has an inherent design flaw and that even correctly matched components have a propensity to explode. Plaintiff’s expert testified in deposition that the explosion was caused by the design flaw of the system as a whole and the mismatched components. In contrast, Firestone’s expert submitted that these parts could be used together safely and that it was Lamp-ley’s failure to properly and completely assemble the parts that caused the explosion. Plaintiff’s evidence is sufficient for a jury to find the multi-piece rim to be unreasonably dangerous and presents a real dispute as to the cause of Lampley’s death. Clearly, this resolution is for the factfinder.
Firestone’s Defense of Assumption of Risk
Firestone raised a defense of contributory negligence, which would bar the plaintiff’s recovery under Alabama law. Assumption of the risk is a form of contributory negligence. It is a valid defense to an AEMLD claim, Dennis v. American Honda Motor Co., 585 So.2d 1336, 1339 (Ala.1991), when the plaintiff “fails to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk.” Slade v. Montgomery, 577 So.2d 887, 892 (Ala.1991) (emphasis added). The defense requires proof of three elements: “(1) knowledge by the plaintiff of the condition; (2) appreciation by the plaintiff of the danger or risk posed by that condition; and (3) a voluntary, affirmative exposure to the danger or risk.” Sprouse v. Belcher Oil Co., 577 So.2d 443, 444 (Ala.1991).
The district court found Lampley was an experienced tire changer who was made aware of the dangers associated with mounting tires on a multi-piece rim through extensive training and abundant warnings. .A general awareness of danger, however, is not sufficient to establish that one assumed the risk of injury. A plaintiff’s state of mind is judged by a subjective standard and it is the factfinder who determines whether the plaintiff had actual awareness of the risky condition. McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324-25 (Ala.1991). The critical issue is Lampley’s knowledge at the time of the explosion, provable in this case only by circumstantial evidence. Although Firestone has clearly shown Lampley appreciated the potential risk or danger in using mismatched or improperly assembled rim parts, we see no evidence showing Lampley actually knew these component parts were mismatched when he reassembled them. On the contrary, there is deposition testimony that Lampley was a careful worker who followed instructions. From this a reasonable jury could infer that Lampley properly assembled the components and that those parts appeared to him to be functioning correctly before he fully inflated the tire. There is no evidence that he knew the parts were actually mismatched. Consequently, we find Firestone has not met its burden for summary judgment as to the defense of assumption of risk.
Adequacy of the Warning is a Jury Question
If a manufacturer places goods on the market that are imminently dangerous when put to their intended purpose and the manufacturer knows or should know that the goods can create danger when used in their customary manner, the manufacturer must exercise reasonable diligence to make such danger known to the persons likely to be injured by the product. Ford Motor Co. v. Rodgers, 337 So.2d 736, 739 (Ala.1976). “Where a warning is necessary, the warning need only be one that is reasonable under the circumstances and it need not be the best possible warning.” Gurley v. American Honda Motor Co., 505 So.2d 358, 361 (Ala.1987). There is “a duty to warn of those dangers which the user would not be aware of under the particular circumstances of his use of the product.” Id. (emphasis added). A duty to warn of a dangerous condition in the workplace can be discharged by informing the employer of the dangerous condition. Cook v. Branick Mfg., Inc., 736 F.2d 1442, 1446 (11th Cir.1984) (interpreting Alabama law); Purvis v. PPG Indus., Inc., 502 So.2d 714, 719 (Ala.1987).
The district court held Firestone discharged its duty by providing Lampley’s employer with multiple warnings. The court found that it was reasonable for Firestone to rely upon Steed Tire Service to advise Lampley of the dangers surrounding multi-piece rim assemblies. This holding misperceives the issue. The question plaintiff raises is whether Firestone adequately warned Steed Tire Service. It is for the factfinder to determine if the content and the methods used to convey the warnings to Steed were adequate under the circumstances and in light of the danger. Rhodes v. Interstate Battery System, Inc., 722 F.2d 1517, 1519 (11th Cir.1984); Deere & Co. v. Grose, 586 So.2d 196, 199 (Ala.1991). Given that Lampley reassembled parts which were mismatched when he began working, and that he was repairing the tire in the field where he had no access to matching charts or safety manuals, a jury could determine the warnings given were inadequate because the parts themselves should have been imprinted with a warning or color-coding to prevent mismatching. Summary judgment on this ground was therefore improper.
The Claims Against Goodyear
We find no error in the district court’s grant of summary judgment for Goodyear. Plaintiff submitted no evidence that the tire itself failed during the accident. Nor did the plaintiff allege that any design flaw or defect in the tire caused the accident. In fact, plaintiff contended in response to Firestone’s interrogatories that the tire exploded because of the defective rims and rings. By failing to show causation, plaintiff has not met its burden to establish an element essential to an AEMLD claim or to claims of negligent and wanton conduct. Summary judgment is proper, therefore, as to these claims.
As to the failure to warn claim, plaintiff argues that Goodyear is liable because it failed to warn users that its tire was imminently dangerous when put to its intended purpose, namely when mounted on a defective multi-piece rim. The purpose in placing a duty to warn on the manufacturer is to familiarize the user with dangers of which he may be unaware. Gurley, 505 So.2d at 361. So if the user is aware of the dangers associated with the product, the manufacturer has no duty to warn. The evidence shows Lampley was an experienced tire changer who was aware of the dangers associated with mounting tires on multi-piece rims. Plaintiff has presented no evidence to make this an issue of fact. Goodyear, therefore, owed no duty to warn Lampley of the dangers in using multi-piece rims and summary judgment was properly granted.
The plaintiff argued that because the Goodyear tire and multi-piece rim have no use other than in combination with each other, and because the tire and rim are unreasonably dangerous when used in combination, the Goodyear tire is unreasonably dangerous. The district court held, as a matter of law, the Goodyear tire was not a defective product within the meaning of the AEMLD. Plaintiff asserts these facts present an issue of first impression and has moved this court to certify the question to the Supreme Court of Alabama. We adopt the district court’s reasoning on this point: “The manufacturer of a non-defective component tire, cannot be held liable for injuries caused by a product it did not manufacture, sell, or otherwise place in the stream of commerce. Sanders v. Ingram Equipment, Inc., 531 So.2d 879, 880 (Ala.1988).” Unlike Firestone, Goodyear would have no duty to give a warning concerning a mismatched or defective rim manufactured by Firestone. Had the plaintiff wanted to argue for a change in well-settled state law, the case should have been filed in an Alabama court. We will not extend state law and the motion to certify is denied.
CONCLUSION
For the foregoing reasons, we VACATE IN PART and AFFIRM IN PART. As to Firestone, we VACATE the judgment and REMAND for further proceedings consistent with this opinion. As to Goodyear, we AFFIRM the judgment of the district court.
. The plaintiff claimed Goodyear was liable under the AEMLD because it placed a tire on the market specifically made for multi-piece rims knowing the extremely dangerous nature of these rims. Therefore, plaintiff reasoned, the tire itself became imminently dangerous because it could only be used in conjunction with an inherently dangerous rim.
. The district court further held that because Lampley assumed the risk of injury, Firestone was not liable for the claims of negligent and wanton conduct. For the reasons already stated, we reverse this decision as well and also note that assumption of risk is no defense to wantonness. Blount Brothers Constr. Co. v. Rose, 274 Ala. 429, 149 So.2d 821, 830 (1962).
. We do not express an opinion as to the adequacy or inadequacy of the warnings given.
. A manufacturer may be liable to an injured party where its product is defective due to negligent or wanton design and the defect caused the injury. See Pouncey v. Ford Motor Co., 464 F.2d 957, 961 (5th Cir.1972).
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
RATHBUN v. UNITED STATES.
No. 30.
Argued October 29, 1957.
Decided December 9, 1957.
Thomas K. Hudson argued the cause and filed a brief for petitioner.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This case concerns the issue of whether the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court. Petitioner was convicted of violations of 18 U. S. C. § 875 (b) and (c) for transmitting an interstate communication which threatened the life of one Sparks in order to obtain from him a stock certificate which Sparks held as collateral for a loan. On March 16, 1955, petitioner, who was in New York, spoke by telephone with Sparks, who was in Pueblo, Colorado. Anticipating another call from petitioner, Sparks requested that members of the Pueblo police force overhear the conversation. When petitioner phoned Sparks in the early morning of March 17, two police officers at Sparks’ direction listened to the conversation on a telephone extension in another room of the Sparks home. This extension had not been installed there just for this purpose but was a regular connection, previously placed and normally used. At the trial the police officers testified over timely objection that during this conversation petitioner had threatened Sparks’ life because he would not surrender the certificate. Petitioner was convicted and the Court of Appeals affirmed. 236 F. 2d 514. We granted certiorari. 352 U. S. 965.
Benanti v. United States, ante, p. 96, determined that information obtained and divulged by state agents in violation of Section 605 of the Federal Communications Act is inadmissible in federal court. The pertinent portion of Section 605 states: Since there was a divulgence of the contents of a communication, the only issue on the facts before us is whether there has been an unauthorized interception within the meaning of Section 605. The federal courts have split in their determination of this question. Some courts have held that the statute proscribes the use of an extension telephone to allow someone to overhear, a conversation without the consent of both parties. Others have concluded that the statute is inapplicable where one party has consented. We hold that Section 605 was not violated in the case before us because there has been no “interception” as Congress intended that the word be used. Every statute must be interpreted in the light of reason and common understanding to reach the results intended by the legislature. Cf. Holy Trinity Church v. United States, 143 U. S. 457; American Security & Trust Co. v. Commissioners, 224 U. S. 491. That principle would be violated if we attributed to Congress acceptance of the results that would occur here from the position argued by petitioner.
“. . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person . . . .”
The telephone extension is a widely used instrument of home and office, yet with nothing to evidence congressional intent, petitioner argues that Congress meant to place a severe restriction on its ordinary use by subscribers, denying them the right to allow a family member, an employee, a trusted friend, or even the police to listen to a conversation to which a subscriber is a party. Section 605 points to the opposite conclusion. Immediately following the portion quoted above, the statute continues:
“. . . no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto . . . .”
The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone. It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it. The conduct of the party would differ in no way if instead of repeating the message he held out his handset so that another could hear out of it. We see no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose.
The error in accepting petitioner’s argument is brought into sharper focus by the fact that Section 605 is penal in nature, the first violation being punishable by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both. For example, it follows from petitioner’s argument that every secretary who listens to a business conversation at her employer’s direction in order to record it would be marked as a potential federal criminal. It is unreasonable to believe that Congress meant to extend criminal liability to conduct which is wholly innocent and ordinary.
Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of Section 605, interception, has not occurred.
Affirmed.
The grant of certiorari was limited to the following question, as phrased by petitioner: “Is the listening in of third parties on an extension telephone in an adjoining room, without consent of the sender, an interception of a telephone message, and the divulgence of the contents of such conversation prohibited by statute, to wit Sec. 605, Title 47, U. S. C. A.” Implicit in this phrasing of the question is the fact that one party to the conversation did consent.
48 Stat. 1103, 47 U. S. C. §605.
We do not decide the question of whether § 605 is violated where a message is intercepted but not divulged since the police officers did divulge the contents of the overheard conversation when they testified in court. Cf. Benanti v. United States, ante, p. 96.
United States v. Polakoff, 112 F. 2d 888; James v. United States, 89 U. S. App. D. C. 201, 191 F. 2d 472; United States v. Hill, 149 F. Supp. 83; see Reitmeister v. Reitmeister, 162 F. 2d 691.
United States v. White, 228 F. 2d 832; Flanders v. United States, 222 F. 2d 163; United States v. Sullivan, 116 F. Supp. 480, affirmed, 95 U. S. App. D. C. 78, 219 F. 2d 760; United States v. Lewis, 87 F. Supp. 970, reversed on other grounds, Billeci v. United States, 87 U. S. App. D. C. 274, 184 F. 2d 394; cf. Rayson v. United States, 238 F. 2d 160; United States v. Bookie, 229 F. 2d 130; United States v. Pierce, 124 F. Supp. 264, affirmed, 224 F. 2d 281.
For example, in 1934 the Bell Telephone System, including affiliates, had 1,315,000 extension telephones out of a total of 13,378,000. In 1956 the System had 8,465,000 extension telephones out of a total of 50,990,000. Exhibit 1364 of the Federal Communications Commission Special Telephone Investigation; Federal Communications Commission, “Statistics of the Communications Industry in the United States for the year ended December 31, 1956.”
See United States v. Polakoff, 112 F. 2d 888, 889:
“We need not sa.y that a man may never make a record of what he hears on the telephone by having someone else listen at an extension, or, as in the case at bar, even by allowing him to interpose a recording machine. The receiver may certainly himself broadcast the message as he pleases, and the sender will often give consent, express or implied, to the interposition of a listener.” (Emphasis added.)
Note also that the regulations of the Federal Communications Commission which control the recording of telephone conversations presuppose that either party may record a conversation and declare that tariff regulations of telephone companies which bar the use of recording devices are unjust and unreasonable and so in violation of § 201 of the Federal Communications Act. In the Matter of Use of Recording Devices in Connection with Telephone Service, 11 F. C. C. 1033, 1053.
48 Stat. 1100, 47 U. S. C. § 501. Additional violations are punishable by the same fine and not more than two years’ imprisonment, or both.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES POSTAL SERVICE, Plaintiff, Appellee, v. AMERICAN POSTAL WORKERS UNION, AFL-CIO, Defendant, Appellant.
No. 84-1094.
United States Court of Appeals, First Circuit.
Argued May 9, 1984.
Decided June 19, 1984.
Joel C. Martin, Portland, Me., with whom Susan E. Peck, Arthur M. Luby, Petruccelli, Cohen, Erler & Cox, Portland, Me., and O’Donnell & Schwartz, Washington, D.C., were on brief, for defendant, appellant.
Susan R. Klavens, Atty., Office of Labor Law, United States Postal Service, with whom Richard S. Cohen, U.S. Atty., F. Mark Terison, Asst. U.S. Atty., Portland, Me., and D. Richard Froelke, Asst. General Counsel, Washington, D.C., were on brief, for plaintiff, appellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and PETTINE, Senior District Judge.
Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge.
This case is an appeal of a district court ruling which overturned a labor arbitration award. We affirm the district court.
Donald Cote was a window clerk at the post office in Sanford, Maine. His duties included selling money orders, cashing money orders, and other matters involving the handling of money. An investigation of financial discrepancies at the Sanford post office revealed that $4,325.00 worth of postal money orders had been issued by Cote between November 1981 and January 1982 without prepayment. Cote signed a confession, was indicted, and subsequently pled guilty to a charge of embezzling postal funds in violation of 18 U.S.C. § 500. Cote received a one year suspended sentence and was put on probation for two years, in addition to being ordered to make full restitution to the Postal Service.
During this same period, the Postal Service discharged Cote. His Notice of Removal laid three charges against him, all of which stemmed from his embezzlement activities. As he was a member of a bargaining unit represented by the appellant Union, the Union took the issue of Cote’s discharge to binding arbitration pursuant to the National Agreement between the Postal Service and the Union. A hearing was held before an arbitrator on July 27, 1982, to determine whether the Postal Service had “just cause” to fire Cote.
One month later, the arbitrator rendered a decision which ordered that Cote be reinstated without back pay. The arbitrator focussed on Cote’s intent in taking the money and found that he did not intend to keep it, but rather to repay it when he could. The arbitrator relied on evidence of past repayments by Cote, Cote’s retention of records of money orders issued, unusual financial pressures on Cote, and Cote’s record of seven years employment without disciplinary problems. Therefore, the arbitrator ruled that
The Postal Service did not have just cause for the removal of Mr. Cote, however, it did have just cause to suspend Mr. Cote without back pay and to transfer Mr. Cote away from a window clerk position to another position where similar action as [that] involved in this case could not take place.
The Postal Service then filed this action to vacate the arbitrator’s award. The Postal Service challenged the award on two grounds: first, that the arbitrator failed to give proper collateral estoppel effect to Cote’s conviction in that the arbitrator found that Cote intended to repay the money, and, second, that ordering the reinstatement of Cote was contrary to public policy. The parties filed cross-motions for summary judgment, and the matter went before a magistrate.
The magistrate rejected the Postal Service’s first argument. He found that the arbitrator had considered the 18 U.S.C. § 500 conviction but that the broad language of the statute did not mandate permanent intent to keep the funds as an element of the crime. On its second argument, the Postal Service fared better and the magistrate agreed that the reinstatement award violated “an important public policy against embezzlement of Government money.” He therefore recommended that summary judgment be entered in favor of the Postal Service. The district judge accepted the recommendation and entered judgment for the Postal Service. The Union appealed.
The heart of the Union’s argument is that although there may be a public policy against embezzling Postal Service funds, there is no public policy against the Postal Service employing convicted embezzlers. You have to have something more — a direct legal prohibition. And, in support the Union compares the instant case with American Postal Workers Union v. United States Postal Service, 682 F.2d 1280 (9th Cir.1982), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983) (arbitrator’s award reinstating Postal Service employee who had participated in strike vacated because of statute prohibiting employment of individuals who had participated in strikes) and with General Teamsters Local Union 249 v. Consolidated Freightways, 464 F.Supp. 346 (W.D.Pa.1979) (arbitrator’s award upholding employer discharges of truck drivers who refused to drive trucks lacking mud flaps, despite state law requiring mud flaps, vacated because award compelled drivers to violate state law). Although these cases exhibit a particularly precise fit between the facts of the case and the public policy vindicated, an examination of the case law reveals that such a close fit is not required.
In Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, reh. and reh. en banc denied, id. (5th Cir.1983), a case cited with apparent approval in the Union’s brief, an arbitrator ordered an employer to reinstate a truck driver who had admitted to drinking prior to overturning an eighteen-wheel rig he was driving. The arbitrator stated that he ordered the driver’s reinstatement because his employer had failed to disprove the driver’s assertion that a steering mechanism failure had caused the accident; however, the arbitrator denied the driver back pay because the driver admitted to drinking and paying too much attention to his citizens band radio while driving. The Fifth Circuit vacated the award on the grounds of the public policy against drinking and driving. Id. at 124-25. Although the court cited cases which were directly on point, the opinion makes it clear that the court relied primarily on the general policy against drinking and driving and its special importance when applied to professional drivers. As that court stated in summation,
the public policy of preventing people from drinking and driving is embodied in the case law, the applicable regulations, statutory law, and pure common sense. The policy is “well defined and definite.” W.R. Grace & Co., [461] U.S. [757] at [-], 103 S.Ct. [2177] at 2182 [76 L.Ed.2d 298]. To enforce the arbitrator’s award in this case, an award which compels the reinstatement to driving duties of a truck driver who admittedly drank while on duty, would violate this public policy.
712 F.2d at 125.
Similarly, in Local No. P-1236, Amalgamated Meat Cutters v. Jones Dairy Farm, 680 F.2d 1142 (7th Cir.1982), the public policy was that of processing meat under sanitary conditions while the subject of the arbitration was an employer’s rule prohibiting employees from directly contacting federal meat inspectors about unsanitary conditions. The Seventh Circuit found that a rule which required employees to report problems first to company officials would not violate the public policy. Id. at 1144. However, since the rule prohibited employees from notifying Department of Agriculture inspectors regardless of the circumstances, the court found the rule “facially defective because it is overly broad ____” Id. at 1145.
The Union also urges that the instant case is comparable to Local 453, International Union of Electrical Workers v. Otis Elevator Co., 314 F.2d 25 (1963). In Local 453, the Second Circuit reversed a district court ruling which had vacated an arbitrator’s award ordering the reinstatement of an employee discharged for gambling on the company’s premises. As in this case, the employee felt the sting of criminal sanctions for his misdeeds. The Second Circuit in Local 453 held that the public policy against gambling at work was sufficiently vindicated through criminal sanctions and a suspension from work, and that public policy did not require discharge. Id. at 29.
Cote’s case, though, is distinguishable. The offense in Local 453 was tangential to the employee’s job as a factory worker — in the instant case, the offense went to the heart of the worker’s responsibilities. As a window clerk, Cote was entrusted with large amounts of money and valuable postal materials. As a postal employee, he represented a branch of the federal government and was imbued with the public trust. His actions directly violated that trust.
As the Postal Service points out, putting a postal employee in a job removed from stamps and money does not remove his chances of violating the public trust. Any postal position which handles mail is one entrusted with items of importance and value by the public. Envelopes containing government checks or items which are insured disclose to all who see them the valuable items inside. If the Postal Service did not have confidence in an employee’s trustworthiness it would be, at a minimum, negligent to not keep close watch on him. Such close supervision as might be prudent could well be too costly to be even remotely efficient.
When a court bars the enforcement of an arbitration award on the basis of public policy, that policy must be clearly defined. Local 453, supra. The policies in this case are not only defined by positive law, but are also the clear dictates of common sense. A postal employee is required to swear that he “will well and faithfully discharge the duties of the office on which [he is] about to enter.” 39 U.S.C. § 1011. Numerous statutes relate to the conduct and honesty of postal employees — among them is 18 U.S.C. § 500, the statute under which Cote was convicted. Moreover, the Postal Service is required by law to be “prompt, reliable, and efficient ____” 39 U.S.C. § 101(a). Finally, as a government monopoly, the public has to use the Postal Service for the carriage of regular letter mail.
Aside from any considerations bearing directly on Cote, we cannot avoid the common sense implications that requiring the rehiring of Cote would have on other postal employees and on the public in general. Other postal employees may feel there is less reason for them to be honest than they believed — the Union could always fix it if they were caught. Moreover, the public trust in the Postal Service, and in the entire federal government, could be diminished by the idea that graft is condoned.
This opinion is not to be taken as authority for the proposition that there is a public policy against the Postal Service employing anyone who has been convicted of a crime. As the Second Circuit noted in Local 453, supra,
in light of the important role which employment plays in implementing the public policy of rehabilitating those convicted of crime, there can hardly be a public policy that a man who has been convicted, fined, and subjected to serious disciplinary measures, can never be ordered reinstated to his former employment
314 F.2d at 29.
However, given its important public trust and its mandate of efficiency, it violates public policy to force the Postal Service to reinstate an employee who was recently convicted of directly violating his fiduciary duties through the embezzlement of a large sum of money from it.
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_appnonp
|
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 "groups and associations". 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.
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL UNION 576, Appellant, v. Robert E. ALLEN, Regional Director, Seventeenth Region of the National Labor Relations Board, Appellee.
No. 19755.
United States Court of Appeals, Eighth Circuit.
March 19, 1970.
Jerome F. Waterman, of Houlehan & Waterman, Kansas City, Mo., for appellant ; Robert L. Kimbrough, Topeka, Kan., on the brief.
Michael F. Rosenblum, Atty., N.L.R.B., Washington, D. C., for appellee; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Glen M. Bendixsen, Attorney, N.L.R.B., on the brief.
Before BLACKMUN, GIBSON and LAY, Circuit Judges.
LAY, Circuit Judge.
A suit for declaratory judgment was commenced in the district court by the Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union 576 (hereinafter called Amalgamated) against Robert E. Allen, a Regional Director of the National Labor Relations Board. The purpose of the complaint was to set aside a representation election conducted by the National Labor Relations Board pursuant to Section 9 of the National Labor Relations Act, 29 U.S.C. § 159. Jurisdiction of the district court was allegedly premised upon the denial of due process in failing to give the union proper notice of a representation hearing. The district court denied relief and dismissed the action for (1) lack of equity, (2) lack of jurisdiction and (3) failure of the union to exhaust its administrative remedies. 298 F.Supp. 985 (W.D.Mo.1969). We affirm.
The facts reveal that plaintiff was notified by registered mail as to the representation hearing to be held by a hearing officer of the Board on November 8, 1968. However, Amalgamated asserts that pursuant to an earlier inquiry by the Board’s field examiner its representatives had informed him that November 14, 1968, was the earliest possible date they could attend. On the morning of November 5, 1968, after the notice as to the November 8 hearing had been mailed, but before the notice was received by plaintiff, the hearing officer contacted plaintiff’s representative to see whether plaintiff was going to be present. Plaintiff’s representative restated to the hearing officer that no one could be present until November 14. According to plaintiff’s evidence the hearing officer responded by telling him that “I will see what can be done.” (The latter statement was denied by the hearing officer.) On the same afternoon the union representative received the notice of the November 8 hearing. No further contact between the parties was made. The certification proceeding was held on November 8, 1968, as scheduled.
Amalgamated was not present at the hearing and its name was not placed on the ballot. The independent union which had originally petitioned for the election won the election by a vote of thirteen to three and was certified. Amalgamated did not move for a rehearing or otherwise pursue administrative review as required under Section 102.67 of the Board's rules and regulations. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Plaintiff filed this action directly in the district court on the ground that it was denied constitutional due process by ineffective notice. Plaintiff asserts that the district court has jurisdiction under Fay v. Douds, 172 F.2d 720 (2 Cir. 1949). We need not decide the viability of Fay v. Douds, supra, since the facts clearly show plaintiff’s claim of constitutional encroachment to be wholly frivolous.
Assuming all of plaintiff’s allegations to be true and, arguendo, that plaintiff would not be required to pursue its administrative remedy, there is no showing of any constitutional deficiency of notice. The notice involved was reasonably calculated to apprise the interested party of the pendency of the action and afforded Amalgamated an opportunity to present its position and objections. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); cf. Heeney v. Miner, 421 F.2d 434 (8 Cir. February 18, 1970). The evidence demonstrates that notice of the proceedings was given to plaintiff. The most that can be gleaned from plaintiff’s argument is that it relied upon the statement of the hearing officer to the effect that he would look into the apparent conflict as to dates and “see what he can do.” No further communication was made and plaintiff’s representatives made no effort to ascertain whether the registered notice received on November 5, 1968, was to be withdrawn or the hearing continued. At best, the union’s argument rises only to the level of some obtuse form of equitable estoppel which equity itself would be bound to deny. There was never a statement made by the Board upon which a reasonable person could in good faith rely. The basis of the district court’s holding upon which we affirm is that the facts proven fail to establish federal jurisdiction to otherwise review a certification proceeding. See Boire v. Greyhound Corporation, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940).
Judgment affirmed.
. Independent Meat Cutters Union.
. The Second Circuit in Fay v. Douds, supra, held that a district court might review a certification proceeding if a constitional question, not transparently frivolous is raised.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
Lester COX, Appellant, v. CITY OF FREEMAN, MISSOURI, and C. Kenneth Maib, Appellees.
No. 17196.
United States Court of Appeals Eighth Circuit.
July 19, 1963.
Rodger J. Walsh Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, Mo., for appellant.
Charles V. Garnett, Kansas City, Mo., for appellees.
Don F. Whitcraft, Harrisonville, Mo., for appellee City of Freeman.
Charles V. Garnett and Dan Boyle, Kansas City, Mo., for appellee Maib.
Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.
YOUNG, District Judge.
This is a diversity action brought by Cox, a citizen of Kansas, against the City of Freeman, Missouri, and Maib, a citizen of Missouri.
This action arises out of an agreement between the appellant, Lester Cox, and the City of Freeman, Missouri, under which Cox contracted to build the City a waterworks. This contract was let in four parts; an agreement to build Parts I, II, and IV of the waterworks was entered into on the 28th day of April, 1959, and the contract to build Part III was dated June 10, 1959. Part I was the distribution system or water lines in the city. Part II was the earth-filled dam for the lake, Part III was for the purification plant, and Part IV was for the water storage standpipe or water tower.
There is some dispute as to whether Cox had 90 days to finish the whole contract or 90 days for each Part, but, at any rate, Cox received written notice to proceed with portions of the contract on August 5, 1959, and he then had 15 days to commence work on the job; the State Department of Health approved the waterworks on May 4, 1960, and an extension of time to paint was granted until August 5, 1960.
Sometime around the middle of June 1960 it became obvious that the parties were in disagreement about the amount of money which the City owed Cox; Cox contending that the City owed him $10,-303.34, and the City demanding that the bill be reduced because of delays in the completing of the job. On June 19, 1960, the City officials, Maib (City Engineer) , and Cox attended a meeting to negotiate a final settlement. At this meeting an “Agreement” was entered into which stipulated, inter alia, the City owed Lester Cox $73,315.20 on the contract less $68,188.05 already paid, leaving a balance due of $5,127.15 subject to certain conditions which were then set out; included in this list was a qualification referring to provision No. 1.18 of the original construction contract. This provision provided for a deduction from the final payment to Cox damages incurred by the City caused by the contractor’s delay in completing the waterworks.
On September 28, 1960, the defendant Maib wrote Cox a letter in which he said: “In keeping with the General Conditions of the Agreement and supplement agreement dated June 15, 1960, relative to the captioned project I have certified to the owner final payment to you as follows: * * Maib then went on to list the debits against the $5,127.15 mentioned in the June 15th instrument; included in this list are charges against Cox for painting, minor repairs, and one unexplained entry to “Troth Plumbing Co.,” which come to a total of $468.00, but by far the largest debit is the “penalty” due for the alleged four and one-fifth months’ overtime, which amounts to $3,-956.40. The debits listed, subtracted from the $5,127.15, leave a “Net amount due Cox Trenching” of $702.75. Maib enclosed three checks made out to Cox and, in two cases, other parties, which totaled the $702.75 which Maib alleged that the City owed Cox.
At the trial Cox testified that he received the checks just mentioned and “cashed them or paid the indicated checks to suppliers.”
On September 29, 1960, Cox filed a complaint against the City and Maib. Cox sued the City, alleging that it still owed him on the contract, and in tort for negligently hiring Maib and for the alleged negligence of Maib under the doctrine of respondeat superior. Cox sues Maib in tort contending that Maib, acting as the agent, servant, and employee of the City, was negligent in that he caused, while acting as engineer, certain “unnecessary delays to the plaintiff in completing the contract * * These alleged delays were that Maib:
“ (a) Caused an unnecessary delay on the completion of the line to the lake by his failure to have the necessary engineering completed before the City gave the written notice to start work and damaged the plaintiff in the amount of Six Thousand Four Hundred ($6,400.00) Dollars;
"(b) Caused an unnecessary delay on the location of the tower site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of Two Thousand ($2,-000.00) Dollars;
“(c) Caused an unnecessary delay on the location of the plant site by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Three Hundred Thirty-two ($1,332.00) Dollars;
“(d) Caused an unnecessary delay on the trenching of rock near Highway 2 by his failure to have the necessary engineering completed before the City gave the written notice to start work, and damaged the plaintiff in the amount of One Thousand Seven Hundred Four ($1,704.-00) Dollars;
“(e) Caused an unnecessary delay on the completion of the contract by his negligence and carelessness in over-pressuring the water lines, in. rupturing the lines by putting pressure in the lines exceeding the amount specified in testing, in failing to engineer a surge chamber for the high service pump and damaged the plaintiff in the amount of Two-Thousand ($2,000.00) Dollars;
“(f) Caused an unnecessary delay on the completion of the contract by failing to appoint qualified resident engineers or inspectors and by failing to be present on the project or to. be located, the numerous discrepancies in the contract, drawings and. specifications could not be resolved: and the plaintiff was damaged thereby.”
It is apparent that almost~the entire dispute between the parties concerns, whether or not Maib or the City, through Maib, acted with such negligence that. Cox was delayed in his work and was-thereby damaged. It is true that if there was negligence on the part of Maib,. both he and the City would be liable except for the possibility of an accord and' satisfaction, Maib as a tort-feasor and: the City under the doctrine of respondeat, superior.
On March 8,1962, the defendants separately moved for summary judgment, alleging that the June 15th agreement and: the September 28, 1960 letter, with, cheeks attached, from Maib to Cox amounted to an accord and satisfaction. Judge Gibson overruled the motions for summary judgment primarily because-the June 15th document was without, “sufficient specificity” to be capable of enforcement. The Court went on to hold that the letter of September 28, 1960, along with the checks enclosed, could amount to an accord and satisfaction if plaintiff had accepted the checks as full payment of the obligation, but, Judge Gibson went on to say, “the mere retention of a check by a creditor will not amount to an accord and satisfaction, without some use or cashing of the check by the debtor.” At this time there was no evidence that Cox had cashed or otherwise used the three checks enclosed in .Maib’s letter.
The case went to trial, and at the end 'of the plaintiff’s case the trial court directed a verdict against the plaintiff. Cox has appealed the District Court’s decision.
Plaintiff contends that the trial court erred in directing a verdict for the defendant because it deprived him •of right of trial by jury which is guaranteed by the Seventh Amendment to the United States Constitution. This argument is not legally nor practically sound. A directed verdict does not deprive the plaintiff of any right guaranteed to him by the Seventh Amendment to the United States Constitution. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943), see Part III of the opinion. Further, Cox is precluded from raising this Constitutional issue here, as he failed to do so below. Sutton v. Settle, 302 F.2d 286 (8th Cir. 1962).
Plaintiff next contends that the defendants did not state specific grounds for their motions for a directed verdict as required under Rule 50(a) of the Federal Rules of Civil Procedure, and the City did not allege the accord and satisfaction nor did the City plead the document entered into on June 15, 1960, or the letter from Maib to Cox on September 28, 1960. For authority to support this contention the plaintiff relies upon a line of cases which hold that when a movant fails to state specific grounds for the motion he cannot contest the denial upon appeal. 2B Barron and Holtzoff § 1073 n. 11. In the next sentence, however, Barron and Holtzoff declare that: “Conversely, if such a motion is granted, the adverse party who did not object to failure of the motion to state specific grounds therefor cannot raise such objection in the appellate court.” 2B Barron and Holtzoff § 1073, n. 12. Quint v. Kallaos, 161 F.2d 605 (8th Cir., 1947) is cited as authority for this proposition. This would appear to be the soundest doctrine; it would certainly be an unfair and dilatory practice to allow a plaintiff to raise this issue at the appellate level after remaining silent when the trial judge makes his decision. In addition, it would abrogate the settled rule that issues which are not raised at trial cannot be presented on appeal. See Kern v. Prudential Insurance Company of America, 293 F.2d 251 (8th Cir. 1961); Sutton v. Settle, supra. We hold that an adverse party who does not object at trial to his opponent’s failure to state a specific grounds for a motion for a directed verdict will not be heard to complain of this lack of specificity on appeal.
Although the record is not completely clear with regard to the reason for trial judge’s decision to grant the defendants’ motions for a directed verdict, we think it is apparent that the District Judge felt that there had been an accord and satisfaction. The plaintiff contends strenuously that no accord and satisfaction was reached in this case. He argues that the June 15th agreement was not sufficiently specific nor did it have sufficient consideration to support it; we find ourselves in agreement with this argument, but it is also our opinion that both the June 15th document, the letter from Maib to Cox on September 28, 1960, and Cox’s subsequent use of the checks enclosed should all be considered in determining whether or not there is an accord and satisfaction.
This court, is, of course, bound by the law of Missouri in this, a diversity action, and Brent v. Westerman, 123 F.Supp. 835 (W.D.Mo.1954), states the Missouri rule with clarity:
« * * * jg settled law in Missouri that if there be a controversy between a claimant or creditor and a tortfeasor or debtor and, after discussion of the substance of the claim, the tortfeasor or debtor tenders to the claimant or creditor some amount, upon the condition that its acceptance will be in full settlement of all claims, and the claimant or creditor accepts the tender, an accord and satisfaction results as a matter of law (even though the creditor may protest the adequacy of the amount, or even state other conditions of his acceptance), for the simple and good reason that one who accepts a conditional tender assents to the conditions of the tender, Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co., Mo.App., 287 S.W. 799, 800, as he must accept the tender as made or not at all.”
The June 15th agreement proves conclusively that there was an argument with regard to Cox’s claim and that the parties met and discussed the substance of the claim. The letter of September 28, 1960, establishes the tender to the claimant, who in this case was, of course, Cox. And Cox’s use of the checks for his own advantage presents indisputable evidence that he accepted the tender. It is therefore the judgment of this Court that an accord and satisfaction resulted between Cox and the City.
Plaintiff urges that the District Judge changed his mind as to the accord and satisfaction and therefore prejudiced him. We cannot accept this argument; another element of fact was added after the trial court’s dismissal of the motion for summary judgment — the evidence established that Cox had received the benefit of the payment of the checks. Counsel for plaintiff was well aware that the District Judge had specifically mentioned that the September 28th letter might be an accord and satisfaction, but that there was no evidence that the plaintiff had ever “cashed or otherwise used the checks,” and that under Missouri law (citing Brent v. Westerman, supra) “the mere retention of a check by a creditor will not amount to an accord and satisfaction, without some use or cashing of the check by the debtor,” and he was, therefore, certainly advised that if the additional element of cashing or using the checks crept into the case the Court might find an accord and satisfaction.
By far the most difficult question presented in this case arises from the plaintiff’s contention that the accord and satisfaction between the City and Cox did not absolve Maib since he was not a party to the accord and satisfaction.
Assuming without deciding that Maib was not a party to the accord and satisfaction, it is our opinion that the release of the principal — the City of Freeman — also released Maib, the agent of the principal.
A judgment in favor of the principal absolves the agent when the only issues to be tried in each case are negligence and contributory negligence. Cf., Brown v. Wabash Ry. Co., 222 Mo.App. 518, 281 S.W. 64 (1926). Although there is an accord and satisfaction instead of a judgment, we think that this is an analogous situation; however, it is not necessary that we stop here. In Annot., 126 A.L.R. 1199 (1940) entitled Release-of (or covenant not to sue) master or principal as affecting pliability of servant or agent for tort, or vice versa, we learn that: “The great weight of authority supports the proposition that where both master and servant are liable to a third party for a tort of the servant, a valid release of either master or servant from, liablity for the tort operates to release the other, although in some of the cases-it is conceded that the master and servant are not, strictly speaking, ‘joint tortfeasors,’ in view of the fact that the-master’s only liability rests upon the doctrine of respondeat superior.”
Although we have not found any Missouri cases on all fours with the circumstances in the case at bar, it does appear that the Missouri Supreme Court has recently aligned itself — by way of dictum — with the “great weight of authority.” In Max v. Spaeth, 349 S.W.2d 1 (Mo.Sup.Ct.1961), the Missouri Supreme Court held that:
“ * * * A valid release of a servant from liability for tort operates to release the master. 35 Am.Jur. 963, Master and Servant, Sec. 535; (this is what the case is authority for) Annotation, 126 A.L.R. 1199; Restatement of Agency, Sec. 217A; Restatement of Torts, Secs. 883, 885; likewise release of the master releases the servant; see also Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65; Minery v. Fenton, 29 N.J. 409, 149 A.2d 245; Mid-Continental Pipeline Co. v. Crauthers, Okl., 267 P.2d 568; Terry v. Memphis Stone & Gravel Co., 6 Cir., 222 F.2d 652.” (Emphasis supplied)
The contract of accord and satisfaction entered into by the City and Cox certainly dealt not only with the City’s alleged contractual liability but its liability under the theory of respondeat superior for the alleged acts of negligence by Maib (as has been mentioned earlier, there is absolutely no evidence that the City was negligent in hiring Maib). Therefore, the accord and satisfaction covered the allegedly negligent acts of Maib, and under the theory espoused by the above authorities, the defendant Maib was absolved by the accord and satisfaction contract between Cox and the City of Freeman.
There is yet another reason why we feel that the District Court should be affirmed. As Judge Blaekmun said in Campbell v. Village of Silver Bay, 315 F.2d 568, 575 (8th Cir. 1963): “ * * * the standard for review here on a doubtful question of state law is only whether the trial court has reached a permissible conclusion; * * The Court in the Campbell case went on to say that the party seeking to overthrow the District Court’s judgment with regard to the applicable state law is faced with a heavy burden. We think the decision of the lower court was correct, but even if the State of Missouri law is in doubt on the issues involved, the appellant has failed to sustain his burden and establish that Judge Gibson did not reach a permissible conclusion.
The judgment of the District Court is affirmed.
. “Whereas, the City of Freeman, Missouri and Lester R. Cox entered into a written contract on 4-28-59 for the construction of a water supply system for the City of Freeman, and whereas a dispute has arisen as to the amount due Lester R. Cox upon completion of said construction work, now therefore, in mutual consideration, one to the other, it is agreed that Lester R. Cox has a sum of $73,315.20 •due on said contract, less $68,188.05 already paid, leaving a balance due of '$5,127.15 subject to the following conditions in keeping with general conditions, with plans and specifications:
1. Lester R. Cox to paint and letter water tower.
2. Lester R. Cox to complete cleaning up.
3. Total net amount due Lester R. Cox subject to General Conditions provision No. 1.18.
4. City of Freeman to check wiring at plant to see if it conforms with specification, if not, then Lester R. Cox to alter the. wiring so it will comply with specifications.
5. Lester R. Cox to furnish pressure gauge on Chlorinator as specified in specifications.
f>. Lester R. Cox to furnish and install one additional fuse in the Syntron Feeder as required by specifications.
7. Lester R. Cox to furnish and install locking devise on clear well lid as provided by specifications.
'8. The clear well was set higher than called for in specifications, necessitating installing electrical controls on felat valves by the City, resolving the question as to who pays for this additional item, the engineer, the City or Mr. Cox.
“Signed this 15th day of June, I960.
“City of Freeman, Mo.
by /s/ Melvin L. Doyle Mayor
,/s/ Lester R. Cox
Lester R. Cox”
. “1.18 EXTRA ENGINEERING. Incase the contractor shall fail to complete the work herein contemplated within the time, herein provided, he shall have deducted from the final payment for the work herein contemplated an amount equal to the cost of the engineer to the City after the period herein provided for doing the work, which shall be at the rate of Six Hundred Dollars ($600.00) per month per resident engineer and/or inspector maintained on the project during the period of overtime construction. It is provided further that in the event that the Contractor shall fail to complete this contract as per schedule, an amount equal to the total interest costs for the period of overrun for all bonds issued for this project, shall also be deducted from the contract price.”
. “1. Painting of the Standpipe ...................$ 225.00
2. Lettering of the Standpipe .................. 21.00
3. Pressure Gauge on Chlorinator ............ 2.00
4. Credit for 2 ea. Stainless Steel Floats to be returned in good condition @ $25 ea........... 50.00
5. Wiring correction in Plant.................. 40.00
6. Penalty — four and one-fifth (4%) months overtime ............... 3956.40
7. Troth Plumbing Co...... 130.00”
. Check No. 120, Lester Cox Trenching Co., $25.34; Check No. 121, Universal Mfg. Co., $582.47; Check No. 122, Lester Cox Trenching Co. & Uhriek Supply, $94.94.
. It should be. noted that the City was not charged with any independent negligence in delaying the construction of the project except that it was negligent in hiring the defendant Maib. There was absolutely no evidence that the City was negligent in hiring Maib, nor that Maib was not a qualified engineer, and this issue passes out of the case.
. As I have mentioned earlier, it is now admitted by Cox that he did cash or use the checks to his own personal advantage.
. The appropriate portions of Rule 50(a) of the F.R.C.P. provide that: “ * * * A motion for a directed verdict shall state the specific grounds therefor.”
. It must be. remembered here that the September 28th letter, which made up an integral part of the accord and satisfaction, stated that the checks enclosed were in “full payment” of all claims. Therefore, the claims of Cox with regard to Maib’s alleged negligence had to be included in this settlement and the City would be liable for them under respondeat superior.
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:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
OWENS et al. v. OKURE
No. 87-56.
Argued November 1, 1988
Decided January 10, 1989
Peter H. Schiff, Deputy Solicitor General of New York, argued the cause for petitioners. With him on the briefs were Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, and Charles R. Fraser, Assistant Attorney General.
Kenneth Kimerling argued the cause for respondent. With him on the brief were Arthur N. Eisenberg, John A. Powell, Steven Shapiro, Helen Hershkoff, and Joseph M. Brennan.
Briefs of amici curiae urging reversal were filed for the State of Nebraska et al. by Robert M. Spire, Attorney General of Nebraska, and Mark D. Starr, Assistant Attorney General, Joseph B. Meyer, Attorney General of Wyoming, John Steven Clark, Attorney General of Arkansas, Robert H. Henry, Attorney General of Oklahoma, and David Lee, Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, Donald J. Hanaway, Attorney General of Wisconsin, T. Travis Medlock, Attorney General of South Carolina, Robert T. Stephan, Attorney General of Kansas, and William L. Webster, Attorney General of Missouri; and for the city of New York by Peter L. Zimroth, Leonard J. Koemer, Edward F. X. Hart, and John P. Woods.
Justice Marshall
delivered the opinion of the Court.
In Wilson v. Garcia, 471 U. S. 261 (1985), we held that courts entertaining claims brought under 42 U. S. C. § 1983 should borrow the state statute of limitations for personal injury actions. This case raises the question of what limitations period should apply to a § 1983 action where a State has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions. We hold that the residual or general personal injury statute of limitations applies.
I
On November 13, 1985, respondent Tom U. U. Okure brought suit in the District Court for the Northern District of New York, seeking damages under §1983 from petitioners Javan Owens and Daniel G. Lessard, two State University of New York (SUNY) police officers. Okure alleged that, on January 27, 1984, the officers unlawfully arrested him on the SUNY campus in Albany and charged him with disorderly conduct. The complaint stated that Okure was “forcibly transported” to a police detention center, “battered and beaten by [the police officers] and forced to endure great emotional distress, physical harm, and embarrassment.” App. 5-6. As a result of the arrest and beating, Okure claimed, he “sustained personal injuries, including broken teeth and a sprained finger, mental anguish, shame, humiliation, legal expenses and the deprivation of his constitutional rights.” Id., at 6.
The officers moved to dismiss the complaint, which had been filed 22 months after the alleged incident, as time barred. They contended that § 1983 actions were governed by New York’s 1-year statute of limitations covering eight intentional torts: “assault, battery, false imprisonment, malicious prosecution, libel, slander, false words causing special damages, [and] a violation of the right of privacy.” N. Y. Civ. Prac. Law § 215(3) (McKinney 1972).
The District Court denied the motion to dismiss. 625 F. Supp. 1568 (1986). Borrowing “a narrowly drawn statute which is applicable only to certain intentional torts,” id., at 1570, the court stated, was inconsistent with this Court’s endorsement of “a simple, broad characterization of all §1983 claims.” Ibid, (citing Wilson, supra, at 272). Moreover, a 1-year statute of limitations on § 1983 claims “would improperly restrict the scope of § 1983 and controvert federal policy.” 625 F. Supp., at 1571. The court concluded that New York’s 3-year residual statute of limitations for claims of personal injury not embraced by specific statutes of limitations, N. Y. Civ. Prac. Law §214(5) (McKinney Supp. 1988), was applicable to § 1983 actions, and that Okure’s complaint was therefore timely. The court then certified an interlocutory appeal on this question pursuant to 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) and Rule 5(a) of the Federal Rules of Appellate Procedure.
The Court of Appeals for the Second Circuit granted permission for the appeal and affirmed. 816 F. 2d 45 (1987). It stated that Wilson’s description of § 1983 claims as general personal injury actions required a statute of limitations “expansive enough to accommodate the diverse personal injury torts that section 1983 has come to embrace.” Id., at 48. As between the two New York statutes of limitations, the court observed: “By nature, section 214(5) is general; section 215(3) is more specific and exceptional. This dichotomy survives no matter how many similar intentional torts are judicially added to those enumerated in section 215(3).” Ibid. The Court of Appeals favored § 214(5) for another reason: its 3-year period of limitations “more faithfully represents the federal interest in providing an effective remedy for violations of civil rights than does the restrictive one year limit.” Id., at 49. Injuries to personal rights are not “necessarily apparent to the victim at the' time they are inflicted,” the court explained, and “[e]ven where the injury itself is obvious, the constitutional dimensions of the tort may not be.” Id., at 48.
The dissent argued that § 1983 actions are best analogized to intentional torts, id., at 51, and that, because §215(3) governs “almost every intentional injury to the person,” id., at 50, it is more appropriate for §1983 claims than §214(5), which it contended had been confined primarily to negligence claims. Ibid. The dissent added that using § 215(3)’s 1-year limitations period is not “inherently inconsistent with the policies underlying the Civil Rights Act.” Id., at 54. We granted certiorari, 485 U. S. 958 (1988), and now affirm.
II
A
In this case, we again confront the consequences of Congress’ failure to provide a specific statute of limitations to govern § 1983 actions. Title 42 U. S. C. § 1988 endorses the borrowing of state-law limitations provisions where doing so is consistent with federal law; § 1988 does not, however, offer any guidance as to which state provision to borrow. To fill this void, for years we urged courts to select the state statute of limitations “most analogous,” Board of Regents, Univ. of New York v. Tomanio, 446 U. S. 478, 488 (1980), and “most appropriate,” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975), to the particular § 1983 action, so long as the chosen limitations period was consistent with federal law and policy. Occidental Life Ins. Co. of California v. EEOC, 432 U. S. 355, 367 (1977); Johnson, supra, at 465.
The practice of seeking state-law analogies for particular § 1983 claims bred confusion and inconsistency in the lower courts and generated time-consuming litigation. Some courts found analogies in common-law tort, others in contract law, and still others in statutory law. Often the result had less to do with the general nature of § 1983 relief than with counsel’s artful pleading and ability to persuade the court that the facts and legal theories of a particular § 1983 claim resembled a particular common-law or statutory cause of action. Consequently, plaintiffs and defendants often had no idea whether a federal civil rights claim was barred until a court ruled on their case. Predictability, a primary goal of statutes of limitations, was thereby frustrated.
In Wilson, we sought to end this “conflict, confusion and uncertainty.” 471 U. S., at 266. Recognizing the problems inherent in the case-by-case approach, we determined that 42 U. S. C. §1988 requires courts to borrow and apply to all § 1983 claims the one most analogous state statute of limitations. Ibid. See id., at 275 (“[F]ederal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach”); see also id., at 272 (“[A] simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose”). We Concluded, based upon the legislative history of § 1983 and the wide array of claims now embraced by that provision, that § 1983 “conferfs] a general remedy for injuries to personal rights.” Id., at 278. Because “§ 1983 claims are best characterized as personal injury actions,” we held that a State’s personal injury statute of limitations should be applied to all § 1983 claims. Id., at 280.
As the instant case indicates, Wilson has not completely eliminated the confusion over the appropriate limitations period for § 1983 claims. In States where one statute of limitations applies to all personal injury claims, Wilson supplies a clear answer. Courts considering § 1983 claims in States with multiple statutes of limitations for personal injury actions, however, have differed over how to determine which statute applies. Several Courts of Appeals have held that the appropriate period is that which the State assigns to certain enumerated intentional torts. These courts have reasoned that intentional torts are most closely analogous to the claims Congress envisioned being brought under the Civil Rights Act, and to the paradigmatic claims brought today under § 1983. Other Courts of Appeals, by contrast, have endorsed the use of the state residuary statute of limitations for § 1983 actions. These courts have observed that § 1983 embraces a broad array of actions for injury to personal rights, and that the intentional tort is therefore too narrow an analogy to a § 1983 claim. The Court of Appeals for the Second Circuit followed this second approach when it concluded that New York’s statute of limitations for certain enumerated intentional torts did not reflect the diversity of § 1983 claims.
B
In choosing between the two alternatives endorsed by the Courts of Appeals — the intentional torts approach and the general or residual personal injury approach — we are mindful that ours is essentially a practical inquiry. Wilson, 471 U. S., at 272. Our decision in Wilson that one “simple broad characterization” of all § 1983 actions was appropriate under § 1988 was, after all, grounded in the realization that the potential applicability of different state statutes of limitations had bred chaos and uncertainty. Id., at 275; see also Burnett v. Grattan, 468 U. S. 42, 50 (1984) (courts selecting a state statute of limitations for § 1983 actions must “tak[e] into account practicalities that are involved in litigating federal civil rights claims”); accord, Felder v. Casey, 487 U. S. 131 (1988). Thus, our task today is to provide courts with a rule for determining the appropriate personal injury limitations statute that can be applied with ease and predictability in all 50 States.
A rule endorsing the choice of the state statute of limitations for intentional torts would be manifestly inappropriate. Every State has multiple intentional tort limitations provisions, carving up the universe of intentional torts into different configurations. In New York, for example, §215(3), the intentional tort statute endorsed by petitioners, covers eight enumerated torts. See supra, at 237. But different provisions cover other specified intentional torts. Malpractice actions are governed by one provision; certain veterans’ claims, by another. In Michigan, separate statutes of limitations govern “assault, battery, or false imprisonment,” Mich. Comp. Laws §600.5805(2) (1979), “malicious prosecution,” §600.5805(3), “libel or slander,” §600.5805(7), and “all other actions to recover damages for the death of a person or for injury to a person §600.5805(8). In Ohio, separate provisions govern “bodily injury,” Ohio Rev. Code Ann. §2305.10 (Supp. 1987), “libel, slander, malicious prosecution, or false imprisonment,” §2305.11, and “assault or battery,” §2305.111. Similarly, in Pennsylvania, separate provisions govern “libel, slander or invasion of privacy,” 42 Pa. Cons. Stat. § 5523(1) (1988), “assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process,” §5524(1), “injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another,” § 5524(2), and “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.” §5524(7). Were we to call upon courts to apply the state statute of limitations governing intentional torts, we would succeed only in transferring the present confusion over the choice among multiple personal injury provisions to a choice among multiple intentional tort provisions.
In marked contrast to the multiplicity of state intentional tort statutes of limitations, every State has one general or residual statute of limitations governing personal injury actions. Some States have a general provision which applies to all personal injury actions with certain specific exceptions. Others have a residual provision which applies to all actions not specifically provided for, including personal injury actions. Whichever form they take, these provisions are easily identifiable by language or application. Indeed, the very idea of a general or residual statute suggests that each State would have no more than one. Potential § 1983 plaintiffs and defendants therefore can readily ascertain, with little risk of confusion or unpredictability, the applicable limitations period in advance of filing a § 1983 action.
Petitioners’ argument that courts should borrow the intentional tort limitations periods because intentional torts are most analogous to § 1983 claims fails to recognize the enormous practical disadvantages of such a selection. Moreover, this analogy is too imprecise to justify such a result. In Wilson, we expressly rejected the practice of drawing narrow analogies between § 1983 claims and state causes of action. 471 U. S., at 272. We explained that the Civil Rights Acts provided
“[a] unique remedy mak[ing] it appropriate to accord the statute ‘a sweep as broad as its language.’ Because the § 1983 remedy is one that can ‘override certain kinds of state laws,’ Monroe v. Pape, 365 U. S. 167, 173 (1961), and is, in all events, ‘supplementary to any remedy any State might have,’ McNeese v. Board of Education, 373 U. S. 668, 672 (1963), it can have no precise counterpart in state law. Monroe v. Pape, 365 U. S., at 196, n. 5 (Harlan, J., concurring). Therefore, it is ‘the purest coincidence,’ ibid., when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.” Ibid, (footnotes omitted).
The intentional tort analogy is particularly inapposite in light of the wide spectrum of claims which § 1983 has come to span. In Wilson, we noted that claims brought under § 1983 include
“discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard.” Id., at 273 (footnotes omitted).
See also id., at 273, n. 31; Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?, 60 N. Y. U. L. Rev. 1, 19-20 (1985). Many of these claims bear little if any resemblance to the common-law intentional tort. See Felder v. Casey, 487 U. S., at 146, n. 3. Even where intent is an element of a constitutional claim or defense, the necessary intent is often different from the intent requirement of a related common-law tort. E. g., Hustler Magazine v. Falwell, 485 U. S. 46, 53 (1988) (distinguishing constitutional “malice” in the First Amendment context from common-law “malice”). Given that so many claims brought under § 1983 have no precise state-law analog, applying the statute of limitations for the limited category of intentional torts would be inconsistent with § 1983’s broad scope. We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.
III
The Court of Appeals therefore correctly applied New York’s 3-year statute of limitations governing general personal injury actions to respondent Okure’s claim. Our decision in Wilson promised an end to the confusion over what statute of limitations to apply to § 1983 actions; with today’s decision, we hope to fulfill Wilson’s promise. Accordingly, the judgment of the Court of Appeals is
Affirmed.
New York Civ. Prac. Law §214 provides in relevant part:
“The following actions must be commenced within three years:
“5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215 . . . .”
In relevant part, § 1988 provides:
“The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title ‘CIVIL RIGHTS,’ and of Title ‘CRIMES,’ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . .” 42 U. S. C. § 1988.
See Shapiro, Choosing the Appropriate State Statute of Limitations for Section 1983 Claims After Wilson v. Garcia: A Theory Applied to Maryland Law, 16 Balt. L. Rev. 242, 251-256 (1987) (describing different approaches to determining the appropriate statute of limitations for § 1983 actions); Note, Retroactive Application of Wilson v. Garcia: Continued Confusion to a Troubled Topic, 44 Wash. & Lee L. Rev. 135, 135, n. 4 (1987) (same); Comment, Statutes of Limitations in Federal Civil Rights Litigation, 1976 Ariz. S. L. J. 97, 116-126 (same).
See Preuit & Mauldin v. Jones, 474 U. S. 1105, 1108 (1986) (White, J., dissenting from denial of certiorari) (“[CJonflicting principles . . . have determined the statutes of limitations chosen for § 1983 actions in the Tenth Circuit on the one hand and the Fifth and Eleventh Circuits on the other”); Wilson, 471 U. S., at 286-287 (O’Connor, J., dissenting) (anticipating dilemma facing courts in States with more than one statute of limitations for personal injury claims).
See, e. g., Mulligan v. Hazard, 777 F. 2d 340 (CA6 1985) (selecting Ohio statute of limitations for libel, slander, assault, battery, malicious prosecution, false imprisonment, and malpractice, and rejecting statute of limitations for bodily injury or for injury to the rights of the plaintiff not enumerated elsewhere), cert. denied, 476 U. S. 1174 (1986); Gates v. Spinks, 771 F. 2d 916 (CA5 1985) (selecting Mississippi statute of limitations for most intentional torts, and rejecting statute for causes of action not otherwise provided for), cert. denied, 475 U. S. 1065 (1986); Jones v. Preuit & Mauldin, 763 F. 2d 1250, 1254 (CA11 1985) (selecting Alabama statute of limitations for actions for “ ‘any trespass to person or liberty, such as false imprisonment or assault and battery,’ ” and rejecting statute for “ ‘any injury to the person or rights of another not arising from contract and not specifically enumerated in this section’ ”), cert. denied, 474 U. S. 1105 (1986). The Fifth and Sixth Circuits, however, on several occasions have departed from this approach. See, e. g., Kline v. North Texas State Univ., 782 F. 2d 1229 (CA5 1986) (selecting Texas statute of limitations for injury done to the person of another); Carroll v. Wilkerson, 782 F. 2d 44, 45 (CA6) (per curiam) (selecting Michigan general personal injury statute of limitations), cert, denied sub nom. County of Wayne v. Wilkerson, 479 U. S. 923 (1986).
See, e.g., Meade v. Grubbs, 841 F. 2d 1512, 1523-1524, and 1524, n. 11 (CA10 1988) (selecting Oklahoma statute of limitations for “‘injury to the rights of another, not arising on contract and not hereinafter enumerated,’ ” and rejecting statute for assault or battery); Banks v. Chesapeake & Potomac Tel. Co., 256 U. S. App. D. C. 22, 33, 802 F. 2d 1416, 1427 (1986) (stating in dicta that it “might well” apply District of Columbia statute of limitations for claims not otherwise provided for and rejecting statute for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest, or false imprisonment); Small v. Inhabitants of Belfast, 796 F. 2d 544, 546-547 (CA1 1986) (selecting Maine’s statute of limitations for “ ‘[a]ll civil actions . . . except as otherwise specifically provided,”’ and rejecting statute for assault and battery, false imprisonment, slander, libel, and medical malpractice); McKay v. Hammock, 730 F. 2d 1367, 1370 (CA10 1984) (en banc) (selecting Colorado statute of limitations for “ ‘[a]ll other actions of every kind for which no other period of limitation is provided by law,’ ” and rejecting statutes for trespass and trespass on the case).
See N. Y. Civ. Prac. Law § 214(6) (McKinney Supp. 1988) (3-year statute of limitations covers all malpractice claims not provided for in § 214-a); § 214-a (272-year statute of limitations for all medical, dental, and podiatric malpractice torts); § 214-b (2-year statute of limitations for Vietnam veterans’ claims of exposure to phenoxy herbicides, commonly known as Agent Orange). Thus, it is irrelevant that courts have construed § 215(3) to provide the appropriate limitations period for a few intentional torts that are not enumerated in that statute, see, e. g., Koster v. Chase Manhattan Bank, 609 F. Supp. 1191, 1198 (SDNY 1985) (construing § 215(3) to cover intentional infliction of emotional distress); Rio v. Presbyterian Hospital in City of New York, 561 F. Supp. 325, 328 (SDNY 1983) (construing §215(3) to cover intentional interference with contractual relations); Hansen v. Petrone, 124 App. Div. 2d 782, 508 N. Y. S. 2d 500 (1986) (mem.) (construing § 215(3) to cover abuse of process and intentional infliction of emotional distress); accord, 2 Carmody-Wait 2d § 13.74 (1965); 35 N. Y. Jur., Limitations and Laches § 35, pp. 527-528 (1964).
The following nonexhaustive list illustrates the frequency with which States have enacted multiple statutes of limitations governing intentional torts. See, e. g., Ala. Code §§ 6-2-34 (1) (1977) (six years “for any trespass to person or liberty, such as false imprisonment or assault and battery”); Ala. Code §§ 6-2-38 (h), (i), (k), (1) (Supp. 1987) (two years for malicious prosecution, libel or slander, seduction, or any injury to the person, or rights of another not arising from contract and not specifically enumerated); Alaska Stat. Ann. § 09.10.070 (1983) (two years for libel, slander, assault, battery, seduction, false imprisonment); § 09.10.055 (six years for injuries resulting from construction-related torts); Ariz. Rev. Stat. Ann. § 12-541 (1982) (one year for malicious prosecution, false imprisonment, or injuries done to character or reputation of another by libel or slander, seduction); Ariz. Rev. Stat. Ann. § 12-542(2) (Supp. 1988) (two years for “injuries done to the person of another”); Ariz. Rev. Stat. Ann. § 12-551 (1982) (two years for injuries resulting from product liability); Ark. Code Ann. § 16-56-104 (1987) (one year for special actions on the case, criminal conversation, alienation of affection, assault and battery, false imprisonment, slander, libel with special damages); § 16-56-105 (three years for libel); § 16-56-106 (18 months for medical malpractice); § 16-56-112(b)(2) (five years for injuries resulting from construction-related torts); Cal. Civ. Proc. Code Ann. § 340 (West Supp. 1988) (one year for libel, slander, assault, battery, false imprisonment, seduction, injury, or death from wrongful act or neglect); § 340.1 (three years for actions based on incestuous relationship with a minor); Cal. Civ. Proc. Code Ann. § 340.2 (West 1982) (one year for asbestos-related torts); §340.5 (three years for medical malpractice); §340.6 (one year for attorney malpractice); Cal. Civ. Code Ann. §29 (West 1982) (six years for injuries to “[a] child conceived, but not yet bom”); Colo. Rev. Stat. § 13-80-102(a) (1987) (two years for “[t]ort actions, including but not limited to actions for negligence, trespass, malicious abuse of process, malicious prosecution, outrageous conduct, interference with relationships”); Colo. Rev. Stat. § 13-80-102.5 (Supp. 1988) (two years for medical malpractice); Colo. Rev. Stat. § 13-80-103(a) (1987) (one year for assault, battery, false imprisonment, false arrest, libel, slander); D. C. Code § 12-301(4) (1981) (one year for libel, slander, assault, battery, false imprisonment, mayhem, wounding, malicious prosecution, false arrest); § 12-301(8) (three years for actions not otherwise prescribed); Fla. Stat. § 95.11(3)(o) (1987) (four years for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided elsewhere); § 95.11(3)(p) (four years for actions not specifically provided for); §95.U(4)(b) (two years for medical and professional malpractice and wrongful death); Ga. Code Ann. § 9-3-33 (1982) (one year for injury to reputation; two years for injury to the person; four years for injury to the person involving a loss of consortium); Haw. Rev. Stat. § 657-4 (1985) (two years for libel or slander); Haw. Rev. Stat. § 657-7.3 (Supp. 1987) (two to six years for medical torts depending on time of discovery of the injury); 111. Rev. Stat., eh. 110,113-201 (1984) (one year for libel, slander, or publication of matter violating right of privacy); *113-202 (two years for false imprisonment, malicious prosecution, abduction, or seduction, criminal conversation); Kan. Stat. Ann. § 60-513(a)(4) (Supp. 1987) (two years for “injury to the rights of another, not arising on contract, and not herein enumerated”); Kan. Stat. Ann. § 60-514 (1983) (one year for libel, slander, assault, battery, malicious prosecution, or false imprisonment); Ky. Rev. Stat. Ann. §413.120(6) (Baldwin 1988) (five years for “injury to the rights of the plaintiff, not arising on contract and not otherwise enumerated”); §413.135 (five years for injury resulting from construction of improvements to real estate); §§ 413.140(l)(d)-(e) (one year for libel, slander, and malpractice); Me. Rev. Stat. Ann., Tit. 14, §752 (1980) (six years for civil actions except as otherwise specifically provided); § 752(A) (four years for malpractice by design professionals); § 752(B) (two years for injuries suffered during “participation in skiing or hang-gliding or the use of a tramway associated with skiing or hang-gliding”); Me. Rev. Stat. Ann., Tit. 14, §752-C (Supp. 1988) (six years for actions based on sexual act with a minor); § 753 (two years for assault and battery, false imprisonment, slander, libel); Md. Cts. & Jud. Proc. Code Ann. § 5-101 (1984) (three years for all civil actions); § 5-105 (one year for assault, battery, libel, slander); § 5-108 (20 years for injury to person occurring after improvement to realty); Md. Cts. & Jud. Proc. Code Ann. § 5-109 (Supp. 1988) (five years for medical torts); Mass. Gen. Laws § 260:2A (1986) (three years for tort actions except as otherwise provided for); §260:4 (three years for assault, battery, false imprisonment, slander, libel, and malpractice); Mo. Rev. Stat. § 516.120(1) (1986) (five years for all liabilities “except where a different time is herein limited”); §516.140 (two years for libel, slander, assault, battery, false imprisonment, criminal conversation, and malicious prosecution); Neb. Rev. Stat. § 25-207(3) (1985) (four years for “injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated”); § 25-208 (one year for libel, slander, assault and battery, false imprisonment, and malicious prosecution); Nev. Rev. Stat. § 11.190(4)(c) (1987) (two years for libel, slander, assault, battery, false imprisonment, and seduction); § ll.,190(4)(e) (two years for injuries to or death of a person caused by the wrongful act or neglect of another); N. J. Stat. Ann. §2A:14-1 (West 1987) (six years for any tortious injury to the rights of another not stated elsewhere); § 2A:14-2 (two years for injury to the person caused by the wrongful act, neglect, or default of any person); § 2A:14-3 (one year for libel or slander); N. C. Gen. Stat. §
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_caseoriginstate
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57
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
SMITH, JUDGE, et al. v. DAILY MAIL PUBLISHING CO. et al.
No. 78-482.
Argued March 20, 1979
Decided June 26, 1979
Burger, C. J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, Blackmun, and Stevens, JJ., joined. Rehnquist, J., filed an opinion concurring in the judgment, post, p. 106. Powell, J., took no part in the consideration or decision of the case.
Cletus B. Hanley, Special Assistant Attorney General of West Viriginia, argued the cause for petitioners. With him on the brief were Chauncey H. Browning, Attorney General, and Betty L. Copian, Special Assistant Attorney General.
Floyd Abrams argued the cause for respondents. With him on the brief were Dean Ringel, F. Paul Chambers, Michael A. Albert, and Rudolph L. Di Trapaño.
Paul Raymond Stone filed a brief for the Juvenile Defender Attorney Program et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Bruce J. Ennis for the American Civil Liberties Union; by Arthur B. Hamon and. Frank M. Northam for the American Newspaper Publishers Association; by Bichard M. Schmidt, Jr., and Ian D. Volner for the American Society of Newspaper Editors et al.; and by Don H. Reuben, Lawrence Gunnels, and James A. Klenk for the Chicago Tribune Co.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to consider whether a West Virginia statute violates the First and Fourteenth Amendments of the United States Constitution by making it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender.
(1)
The challenged West Virginia statute provides:
“[N]or shall the name of any child, in connection with any proceedings under this chapter, be published in any newspaper without a written order of the court. ...” W. Va. Code §49-7-3 (1976);
and:
“A person who violates ... a provision of this chapter for which punishment has not been specifically provided, shall be guilty of a misdemeanor,, and upon conviction shall be fined not less than ten nor more than one hundred dollars, or confined in jail not less than five days nor more than six months, or both such fine and imprisonment.” § 49-7-20.
On February 9, 1978, a 15-year-old student was- shot and killed at Hayes Junior High School in St. Albans, W. Va., a small community located about 13 miles outside of Charleston, W. Va. The alleged assailant, a 14-year-old classmate, was identified by seven different eyewitnesses and was arrested by police soon after the incident.
The Charleston Daily Mail and the Charleston Gazette, respondents here, learned of the shooting by monitoring routinely the police band radio frequency; they immediately dispatched reporters and photographers to the junior high school. The reporters for both papers obtained the name of the alleged assailant simply by asking various witnesses, the police, and an assistant prosecuting attorney who were at the school.
The staffs of both newspapers prepared articles for publication about the incident. The Daily Mail’s first article appeared in its February 9 afternoon edition. The article did not mention the alleged attacker’s name. The editorial decision to omit the name was made because of the statutory prohibition against publication without prior court approval.
The Gazette made a contrary editorial decision and published the juvenile’s name and picture in an article about the shooting that appeared in the February 10 morning edition of the paper. In addition, the name,of the alleged juvenile attacker was broadcast over at least three different radio stations on February 9 and 10. Since the information had become public knowledge, the Daily Mail decided to include the juvenile’s name in an article in its afternoon paper on February 10.
On March 1, an indictment against the respondents was returned by a grand jury. The indictment alleged that each knowingly published the name of a youth involved in a juvenile proceeding in violation of W. Ya. Code § 49-7-3 (1976). Respondents then filed an original-jurisdiction petition with the West Virginia Supreme Court of Appeals, seeking a writ of prohibition against the prosecuting attorney and the Circuit Court Judges of Kanawha County, petitioners here. Respondents alleged that the indictment was based on a statute that violated the First and Fourteenth Amendments of the United States Constitution and several provisions of the State’s Constitution and requested an order prohibiting the county officials from taking any action on the indictment.
The West Virginia Supreme Court of Appeals issued the writ of prohibition. -W. Va.—, 248 S. E. 2d 269 (1978). Relying on holdings of this Court, it held that the statute abridged the freedom of the press. The court reasoned that the statute operated as a prior restraint on speech and that the State’s interest in protecting the identity of the juvenile offender did not overcome the heavy presumption against the constitutionality of such prior restraints.
We granted certiorari. 439 U. S. 963 (1978).
(2)
Respondents urge this Court to hold that because § 49-7-3 requires court approval prior to publication of the juvenile’s name it operates as a “prior restraint” on speech. See Ne braska Press Assn. v. Stuart, 427 U. S. 539 (1976); New York Times Co. v. United States, 403 U. S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Near v. Minnesota, ex rel. Olson, 283 U. S. 697 (1931). Responents concede that this statute is not in the classic mold of prior restraint, there being no prior injunction against publication. Nonetheless, they contend that the prior-approval requirement acts in “operation and effect” like a licensing scheme and thus is another form of prior restraint. See Near v. Minnesota ex rel. Olson, supra, at 708. As such, respondents argue, the statute bears “a 'heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, supra, at 419. They claim that the State’s interest in the anonymity of a juvenile offender is not sufficient to overcome that presumption.
Petitioners do not dispute that the statute amounts to a prior restraint on speech. Rather, they take the view that even if it is a prior restraint the statute is constitutional because of the significance of the State’s interest in protecting the identity of juveniles.
(3)
The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile’s name is, in and of itself, a prior restraint. First Amendment protection reaches beyond prior restraints, Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and respondents acknowledge that the statutory provision for court approval of disclosure actually may have a less oppressive effect on freedom of the press than a total ban on the publication of the child’s name.
Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases. See Nebraska Press Assn. v. Stuart, supra, at 561; Organization for a Better Austin v. Keefe, supra, at 419; Near v. Minnesota ex rel. Olson, supra, at 716. See also Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). However, even when a state attempts to punish publication after the event it must nevertheless demonstrate that its punitive action was necessary to further the state interests asserted. Landmark Communications, Inc. v. Virginia, supra, at 843. Since we conclude that this statute cannot satisfy the constitutional standards defined in Landmark Communications, Inc., we need not decide whether, as argued by respondents, it operated as a prior restraint.
Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards. In Landmark Communications we declared unconstitutional a Virginia statute making it a crime to publish information regarding confidential proceedings before a state judicial review commission that heard complaints about alleged disabilities and misconduct of state-court judges. In declaring that statute unconstitutional, we concluded:
“[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.” 435 U. S., at 838.
In Cox Broadcasting Corp. v. Cohn, supra, we held that damages could not be recovered against a newspaper for publishing the name of a rape victim. The suit had been based on a state statute that made it a crime to publish the name of the victim; the purpose of the statute was to protect the privacy right of the individual and the family. The name of the victim had become known to the public through official court records dealing with the trial of the rapist. In declaring the statute unconstitutional, the Court, speaking through Mr. Justice White, reasoned:
“By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. . . . States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.” 420 U. S., at 495.
One case that involved a classic prior restraint is particularly relevant to our inquiry. In Oklahoma Publishing Co. v. District Court, 430 U. S. 308 (1977), we struck down a state-court injunction prohibiting the news media from publishing the name or photograph of an 11-year-old boy who was being tried before a juvenile court. The juvenile court judge had permitted reporters and other members of the public to attend a hearing in the case, notwithstanding a state statute closing such trials to the public. The court then attempted to halt publication of the information obtained from that hearing. We held that once the truthful information was “publicly revealed” or “in the public domain” the court could not constitutionally restrain its dissemination.
None of these opinions directly controls this case; however, all suggest strongly that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. These cases involved situations where the government itself provided or madé possible press access to the information. That factor is not controlling. Here respondents relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant. A free press cannot be made to rely solely upon the sufferance of government to supply it with information. See Houchins v. KQED, Inc., 438 U. S. 1, 11 (1978) (plurality opinion); Branzburg v. Hayes, 408 U. S. 665, 681 (1972). If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.
(4)
The sole interest advanced by the State to justify its criminal statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense. In Davis v. Alaska, 415 U. S. 308 (1974), similar arguments were advanced by the State to justify not permitting a criminal defendant to impeach a prosecution witness on the basis of his juvenile record. We said there that “[w]e do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender.” Id., at 319. However, we concluded that the State’s policy must be subordinated to the defendant’s Sixth Amendment right of confrontation. Ibid. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. See Nebraska Press Assn. v. Stuart, 427 U. S., at 561.. Therefore, the reasoning of Davis that the constitutional right must prevail over the state’s interest in protecting juveniles applies with equal force here.
The magnitude of the State’s interest in this statute is not sufficient to justify application of a criminal penalty to respondents. Moreover, the statute’s approach does not satisfy constitutional requirements. The statute does not restrict the electronic media or any form of publication, except “newspapers,” from printing the names of youths charged in a juvenile proceeding. In this very case, three radio stations announced the alleged assailant’s name before the Daily Mail decided to publish it. Thus, even assuming the statute served a state interest of the highest order, it does not accomplish its stated purpose.
In addition, there is no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings. As the Brief for Respondents points out at 29 n. **, all 50 states have statutes that provide in some way for confidentiality, but only 5, including West Virginia, impose criminal penalties on nonparties for publication of the identity of the juvenile. Although every state has asserted a similar interest, all but a handful have found other ways of accomplishing the objective. See Landmark Communications, Inc. v. Virginia, 435 U. S., at 843.
(5)
Our holding in this case is narrow. There is no issue before us of unlawful press access to confidential judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U. S., at 496 n. 26; there is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute’s imposition of criminal sanctions on this type of publication. Accordingly, the judgment of the West Virginia Supreme Court of Appeals is
Affirmed.
Mr. Justice Powell took no part in the consideration or decision of this case.
Respondents do not argue that the statute is a prior restraint because it imposes a criminal sanction for certain types of publication. At page 11 of their brief they state: “The statute in question is, to be sure, not a prior restraint because it subjects newspapers to criminal punishments for what they print” after the event.
So far as the Daily Mail was concerned, the statute operated as a deterrent for 24 hours and became the basis for a prosecution after the delayed publication.
Colo. Rev. Stat. § 19-1-107 (6) (1973); Ga. Code § 24A-3503 (g) (1) (1978); N. H. Rev. Stat. Ann. § 169:27-28 (1977); S. C. Code § 1^-21-30 (1976).
The approach advocated by the National Council of Juvenile Court Judges is based on cooperation between juvenile court personnel and newspaper editors. It is suggested that if the courts make clear their purpose and methods then the press will exercise discretion and generally decline to publish the juvenile’s name without some prior consultation with the juvenile court judge. See Conway, Publicizing the Juvenile Court: A Public Responsibility, 16 Juv. Ct. Judges J. 21, 21-22 (1965); Riederer, Secrecy or Privacy? Communication Problems in the Juvenile Court Field, 17 J. Mo. Bar 66, 69-70 (1961).
In light of our disposition of the First and Fourteenth Amendment issue, we need,not reach respondents’ claim that the statute violates equal protection by being applicable only to newspapers but not other forms of journalistic expression.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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